Legalize / United Kingdom / Northern Ireland / Act of the Northern Ireland Assembly

Mental Capacity Act (Northern Ireland) 2016

Type Act of the Northern Ireland Assembly

Publication 2016-05-09

Last updated 2022-04-01

State In force

Jurisdiction Northern Ireland

Department Statute Law Database

Source legislation.gov.uk

articles 3

Reform history JSON API

(2) Article 62 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (determination of age of a person brought before the court) applies for the purposes of this Part as it applies for the purposes of that Order.

(3) Section 174 of the Children and Young Persons Act (Northern Ireland) 1968 (which also makes provision about determination of age for certain purposes) applies for the purposes of this Part as it applies for the purposes of that Act.

(4) Any reference in this Part to an offence punishable with imprisonment, or to an offence punishable on summary conviction with imprisonment, is to be construed without regard to any prohibition or restriction imposed by or under any statutory provision on the imprisonment of children.

Interpretation of Part 10: impairment of or disturbance in the functioning of the mind or brain

251

(1) This section applies for the purposes of interpreting any reference in this Part to an impairment of, or disturbance in the functioning of, a person's mind or brain.

(2) For those purposes, it does not matter—

(a) whether the impairment or disturbance is permanent or temporary;

(b) what the cause of the impairment or disturbance is.

(3) In particular, it does not matter whether the impairment or disturbance is caused by a disorder or otherwise.

Interpretation of Part 10: references to disorder

252

(1) In this Part “disorder” (without more) includes any disorder or disability, whether mental or physical.

(2) For the purposes of this Part a disorder of a person “requires” treatment if it, or any of its symptoms or manifestations, could be alleviated or prevented from worsening by treatment.

(3) Where—

(a) a hospital direction or hospital transfer direction has been given in respect of a person, and

(b) the disorder in respect of which the direction was given was mental disorder (of any form),

any reference in this Part to the disorder in respect of which the direction was given is to be read as a reference to mental disorder (and not as a reference to mental disorder of a particular form).

Interpretation of Part 10: general

253

(1) In this Part—

“appropriate care or treatment”, in relation to a person, means care or treatment which is (or care and treatment which are) appropriate in that person's case;

“appropriate establishment” has the meaning given by section 167;

“approved medical practitioner” means a medical practitioner approved by RQIA for the purposes of this Part;

“custodial sentence” has the same meaning as in Chapter 2 of Part 2 of the Criminal Justice (Northern Ireland) Order 2008 (see Article 4(1) of that Order);

“disorder” has the meaning given by section 252;

“hospital direction” has the meaning given by section 174;

“hospital transfer direction” has the meaning given by section 224;

“interim detention order” has the meaning given by section 177;

“juvenile justice centre” has the meaning given by Article 51(1) of the Criminal Justice (Children) (Northern Ireland) Order 1998;

“the period” of a public protection order without restrictions has the meaning given by section 181;

“prison” has the same meaning as in the Prison Act (Northern Ireland) 1953;

“public protection order” has the meaning given by section 167;

“public protection order with restrictions” has the meaning given by that section;

“public protection order without restrictions” has the meaning given by that section;

“remand centre” has the meaning given by section 2(b) of the Treatment of Offenders Act (Northern Ireland) 1968;

“the responsible medical practitioner”, in relation to a person liable to be detained in a hospital or other establishment by virtue of this Part, means the medical practitioner who is in charge of the person's care (see also subsection (2));

“supervision and assessment order” has the meaning given by paragraph 1(1) of Schedule 7;

“young offenders centre” has the meaning given by section 2(a) of the Treatment of Offenders Act (Northern Ireland) 1968.

(2) Regulations may provide that the medical practitioner in charge of a person's care may carry out prescribed functions of the responsible medical practitioner under this Part only if—

(a) the practitioner is an approved medical practitioner; or

(b) any other prescribed condition is met.

(3) Any reference in this Part to an offence punishable on summary conviction with imprisonment includes a reference to an indictable offence which may be tried summarily.

(4) For the avoidance of doubt, a remand, order or direction of a court under this Part is not to be regarded for the purposes of section 2 or any other purpose of this Act as an act done or decision made for or on behalf of a person.

(5) See also sections 304 to 306 (definitions for purposes of Act).

PART 11 — TRANSFER BETWEEN JURISDICTIONS

CHAPTER 1 — REMOVAL OF PERSONS FROM NORTHERN IRELAND

Removal to other parts of UK of persons detained under Part 2

Removal of persons detained under Part 2 to England or Wales

254

(1) This section applies if it appears to the Department that the conditions for removal to England or Wales are met in the case of a person (“P”) who is detained in a hospital in circumstances amounting to a deprivation of liberty in pursuance of an authorisation under paragraph 15 of Schedule 1.

(2) The Department may authorise P's removal to England or Wales and may give any necessary directions for P's conveyance there.

(3) The conditions for removal to England or Wales are that—

(a) P lacks capacity in relation to the question whether he or she should be removed to England or (as the case may be) Wales;

(b) it would be in P's best interests to remove P there; and

(c) arrangements have been made for admitting P to a hospital in England or Wales in which care or treatment which is appropriate in P's case is available for P.

(4) Where P is removed from Northern Ireland under this section, the authorisation ceases to have effect when P is admitted to a hospital in England or Wales.

(5) In subsection (3)(c) and (4) “hospital” has the same meaning as in the 1983 Act.

Removal of persons detained under Part 2 to Scotland

255

(1) This section applies if it appears to the Department that the conditions for removal to Scotland are met in the case of a person (“P”) who is detained in a hospital in circumstances amounting to a deprivation of liberty in pursuance of an authorisation under paragraph 15 of Schedule 1.

(2) The Department may authorise P's removal to Scotland and may give any necessary directions for P's conveyance there.

(3) The conditions for removal to Scotland are that—

(a) P lacks capacity in relation to the question whether he or she should be removed to Scotland;

(b) it would be in P's best interests to remove P to Scotland; and

(i) for admitting P to a hospital in Scotland in which care or treatment which is appropriate in P's case is available for P; or

(ii) where P is not to be admitted to a hospital, for P's detention in hospital in Scotland to be authorised by virtue of the 2003 Act.

(4) Where P is removed from Northern Ireland under this section, the authorisation ceases to have effect—

(a) when P is duly received into a hospital in Scotland; or

(b) where P is not received into a hospital but P's detention in hospital is authorised by virtue of the 2003 Act, when P's detention is so authorised.

(5) In subsections (3)(c) and (4) “hospital” has the same meaning as in the 2003 Act.

Removal to other parts of UK of persons detained under Part 10

Removal of certain persons detained under Part 10 to England or Wales

256

(1) This section applies in relation to a person (“P”) who is—

(a) detained under a public protection order; or

(b) detained in a hospital under a hospital direction or a hospital transfer direction made under section 211, 214 or 220.

(2) If it appears to the Department of Justice that the conditions for removal to England or Wales are met in P's case, that Department may authorise P's removal to England or Wales and may give any necessary directions for P's conveyance there.

(3) The conditions for removal to England or Wales are that—

(a) failure to remove P to England or (as the case may be) Wales would be more likely than not to result in serious physical or psychological harm to P or serious physical harm to other persons; and

(b) arrangements have been made for admitting P to a hospital in England or Wales in which care or treatment which is appropriate in P's case is available for him or her.

(4) Where P is removed from Northern Ireland under this section, the order or direction mentioned in subsection (1) ceases to have effect when P leaves Northern Ireland (within the meaning given by section 98 of the Northern Ireland Act 1998); but this is subject to subsection (6).

(5) Subsection (6) applies where—

(a) P is not admitted to a hospital in England or Wales, and

(b) P returns to Northern Ireland at any time before the end of period for which the order or direction mentioned in subsection (1) would have continued in force (but for P's removal).

(6) Subsection (4) ceases to apply to the order or direction, so that (accordingly) the order or direction applies to P on P's return to Northern Ireland.

(7) In subsections (3)(b) and (5)(a) “hospital” has the same meaning as in the 1983 Act.

Removal of certain persons detained under Part 10 to Scotland

257

(1) This section applies in relation to a person (“P”) who is—

(a) detained under a public protection order; or

(b) detained in a hospital under a hospital direction or a hospital transfer direction made under section 211, 214 or 220.

(2) If it appears to the Department of Justice that the conditions for removal to Scotland are met in P's case, that Department may authorise P's removal to Scotland and may give any necessary directions for P's conveyance there.

(3) The conditions for removal to Scotland are that—

(a) failure to remove P to Scotland would be more likely than not to result in serious physical or psychological harm to P or serious physical harm to other persons; and

(b) arrangements have been made for admitting P to a hospital in Scotland in which care or treatment which is appropriate in P's case is available for him or her.

(4) Where P is removed from Northern Ireland under this section, the order or direction mentioned in subsection (1) ceases to have effect when P leaves Northern Ireland (within the meaning given by section 98 of the Northern Ireland Act 1998); but this is subject to subsection (6).

(5) Subsection (6) applies where—

(a) P is not admitted to a hospital in Scotland, and

(b) P returns to Northern Ireland at any time before the end of period for which the order or direction mentioned in subsection (1) would have continued in force (but for P's removal).

(6) Subsection (4) ceases to apply to the order or direction, so that (accordingly) the order or direction applies to P on P's return to Northern Ireland.

(7) In subsections (3)(b) and (5)(a) “hospital” has the same meaning as in the 2003 Act.

CHAPTER 2 — PERSONS REMOVED FROM ENGLAND, WALES OR SCOTLAND TO NORTHERN IRELAND

Persons to be detained under Part 2

Persons to be detained under Part 2 after removal from England or Wales

258

(1) This section applies where under Part 6 of the 1983 Act a person (“P”) who is 16 or over and liable to be detained in pursuance of an application made under Part 2 of that Act is removed from England or Wales to Northern Ireland.

(2) Immediately after P's admission to a hospital in Northern Ireland in pursuance of arrangements made for the purposes of his or her removal from England or Wales, the relevant trust must notify RQIA of P's admission.

(3) The relevant trust must also arrange for a report in the prescribed form, containing prescribed information, to be made by an appropriate medical practitioner and given to the relevant trust within the period of 28 days beginning with the date when P is admitted to the hospital.

(4) Where a report under subsection (3) is given to the relevant trust, that trust must as soon as practicable give RQIA a copy of the report.

(5) If (immediately before being removed from England or Wales) P is liable to be detained in hospital in pursuance of an application for admission for treatment made under Part 2 of the 1983 Act, a corresponding authorisation is to be treated as having been granted on P's arrival in Northern Ireland.

(6) In subsection (5) “a corresponding authorisation” means an authorisation under paragraph 15 of Schedule 1 authorising P's detention in circumstances amounting to a deprivation of liberty, in the hospital to which P is admitted on arrival in Northern Ireland, for the purposes of the provision to P of care or treatment.

(7) In this section—

“appropriate medical practitioner” means a medical practitioner who is a person unconnected with P and meets any prescribed conditions;

“relevant trust” means the HSC trust in whose area the hospital to which P is admitted is situated.

(8) Expressions used in subsection (5) and in the 1983 Act have the same meaning in that subsection as in that Act.

Persons to be detained under Part 2 after removal from Scotland

259

(1) This section applies where under regulations made under section 290 of the 2003 Act a relevant person (“P”) is removed from Scotland to Northern Ireland.

(2) In subsection (1) “a relevant person” means a person who is 16 or over and (immediately before being removed from Scotland) is liable to be detained by virtue of a compulsory treatment order under section 64 of the 2003 Act.

(3) Immediately after P's admission to a hospital in Northern Ireland in pursuance of arrangements made for the purposes of his or her removal from Scotland, the relevant trust must notify RQIA of P's admission.

(4) The relevant trust must also arrange for a report in the prescribed form, containing prescribed information, to be made by an appropriate medical practitioner and given to the relevant trust within the period of 28 days beginning with the date when P is admitted to the hospital.

(5) Where a report under subsection (4) is given to the relevant trust, that trust must as soon as practicable give RQIA a copy of the report.

(6) A corresponding authorisation is to be treated as having been granted on P's arrival in Northern Ireland.

(7) In subsection (6) “a corresponding authorisation” means an authorisation under paragraph 15 of Schedule 1 authorising P's detention in circumstances amounting to a deprivation of liberty, in the hospital to which P is admitted on arrival in Northern Ireland, for the purposes of the provision to P of care or treatment.

(8) In this section—

“appropriate medical practitioner” means a medical practitioner who is a person unconnected with P and meets any prescribed conditions;

“relevant trust” means the HSC trust in whose area the hospital to which P is admitted is situated.

Persons to be detained under Part 10

Persons to be detained under Part 10 after removal from England or Wales

260

(1) This section applies where—

(a) a person (“P”) is removed from England and Wales to Northern Ireland by virtue of Part 6 of the 1983 Act; and

(b) immediately before being removed, P is subject to—

(i) a hospital order;

(ii) a hospital direction (within the meaning of the 1983 Act); or

(iii) a transfer direction.

(2) Immediately after P's admission to an appropriate establishment in Northern Ireland in pursuance of arrangements made for the purposes of his or her removal from England or Wales, the relevant trust must notify RQIA of P's admission.

(3) The relevant trust must also arrange for a report in the prescribed form, containing prescribed information, to be made by the responsible medical practitioner and given to the relevant trust within the period of 28 days beginning with the day P is admitted to the appropriate establishment.

(4) Where a report under subsection (3) is given to the relevant trust, that trust must as soon as practicable give RQIA a copy of the report.

(5) Where (immediately before being removed from England or Wales) P is of a description mentioned in the first column of the following table, an order or direction of a kind mentioned in the corresponding entry of the second column of the table, specifying the appropriate establishment, is treated as having been made or given in respect of P.

Description of person	Order or direction treated as made
Person subject to a hospital order and a restriction order	Public protection order with restrictions that provides as mentioned in section 167(4)(b)(i) (no time limit for treating the order as a PPO with restrictions)
Person subject to a hospital order but not a restriction order	Public protection order without restrictions
Person subject to a hospital direction (within the meaning of the 1983 Act)	Hospital direction under section 174
Person subject to a transfer direction given by virtue of section 47(1) of the 1983 Act	Hospital transfer direction under section 211
Person subject to a transfer direction given by virtue of section 48(2)(a) of the 1983 Act	Hospital transfer direction under section 220
Person subject to a transfer direction given by virtue of section 48(2)(c) or (d) of the 1983 Act	Hospital transfer direction under section 214

(6) An order or direction is to be treated as having been made or given under subsection (5), for the purposes mentioned in the first column of the following table, on the date mentioned in the corresponding entry in the second column of the table.

Purpose	Date on which order or direction treated as made
Duration for which P may be detained under section 179 and calculation of the “initial period” for the purposes of section 181 (where P is treated as being subject to a public protection order without restrictions)	Date of P's arrival in Northern Ireland
Calculation of the “release date” within the meaning given by section 199 (where P is treated as being subject to a hospital direction made under section 174)	Date on which the hospital direction (within the meaning of the 1983 Act) was made
Right to apply to the Tribunal under the first entry in the table in section 225(1)	Date on which the hospital order, hospital direction (within the meaning of the 1983 Act) or transfer direction was made
Calculation of the “relevant date” for the purposes of section 229(3) (referral of case to the Tribunal)	Date on which the hospital order, hospital direction (within the meaning of the 1983 Act) or transfer direction was made

(7) The first report under section 193 (where P is treated as being subject to a public protection order with restrictions) must be made—

(a) if the most recent report on P under section 41(6) of the 1983 Act was made more than 6 months before P's arrival in Northern Ireland, not later than 6 months after P's arrival there, or

(b) otherwise, not later than 12 months after the most recent report under that section.

(8) Section 224(2) (direction ceasing to have effect if person not admitted within 14 days) does not apply to a hospital transfer direction which is treated as having been given under subsection (5).

(9) The date of P's arrival in Northern Ireland is to be treated as being the end of a relevant period for the purposes of section 230 (duty to notify Attorney General).

(10) Where (immediately before being removed) P is subject to—

(a) a hospital direction (within the meaning of the 1983 Act), or

(b) a transfer direction made because P was serving a sentence of imprisonment (within the meaning of section 47 of that Act),

P is to be treated as if the sentence, order or committal in relation to which the direction has effect were a similar or corresponding sentence, order or committal imposed or made by a court in Northern Ireland.

(11) In this section—

“hospital order” has the same meaning as in the 1983 Act;

“relevant trust” means the HSC trust in whose area the appropriate establishment is situated;

“restriction order” has the same meaning as in the 1983 Act;

“transfer direction” has the same meaning as in the 1983 Act.

Persons to be detained under Part 10 after removal from Scotland

261

(1) This section applies where—

(a) a person (“P”) is removed from Scotland to Northern Ireland under regulations made under section 290 of the 2003 Act; and

(b) immediately before being removed, P is subject to—

(i) a relevant compulsion order;

(ii) a hospital direction (within the meaning of the 1995 Act); or

(iii) a transfer for treatment direction.

(2) Immediately after P's admission to an appropriate establishment in Northern Ireland in pursuance of arrangements made for the purposes of his or her removal from Scotland, the relevant trust must notify RQIA of P's admission.

(3) The relevant trust must also arrange for a report in the prescribed form, containing prescribed information, to be made by the responsible medical practitioner and given to the relevant trust within the period of 28 days beginning with the day P is admitted to the appropriate establishment.

(4) Where a report under subsection (3) is given to the relevant trust, that trust must as soon as practicable give RQIA a copy of the report.

(5) Where (immediately before being removed from Scotland) P is of a description mentioned in the first column of the following table, an order or direction of a kind mentioned in the corresponding entry of the second column of the table, specifying the appropriate establishment, is treated as having been made or given in respect of P.

Description of person	Order or direction treated as made
Person subject to a relevant compulsion order and a restriction order	Public protection order with restrictions that provides as mentioned in section 167(4)(b)(i) (no time limit for treating the order as a PPO with restrictions)
Person subject to a relevant compulsion order but not a restriction order	Public protection order without restrictions
Person subject to a hospital direction (within the meaning of the 1995 Act)	Hospital direction under section 174
Person subject to a transfer for treatment direction	Hospital transfer direction of a description specified in P's case in a direction given by the Department of Justice under this subsection

(6) An order or direction is to be treated as having been made or given under subsection (5), for the purposes mentioned in the first column of the following table, on the date mentioned in the corresponding entry in the second column of the table.

Purpose	Date on which order or direction treated as made
Duration for which P may be detained under section 179 and calculation of the “initial period” for the purposes of section 181 (where P is treated as being subject to a public protection order without restrictions)	Date of P's arrival in Northern Ireland
Calculation of the “release date” within the meaning given by section 199 (where P is treated as being subject to a hospital direction made under section 174)	Date on which the hospital direction (within the meaning of the 1995 Act) was made
Right to apply to the Tribunal under the first entry in the table in section 225(1)	Date on which the relevant compulsion order, hospital direction (within the meaning of the 1995 Act) or transfer for treatment direction was made
Calculation of the “relevant date” for the purposes of section 229(3) (referral of case to the Tribunal)	Date on which the relevant compulsion order, hospital direction (within the meaning of the 1995 Act) or transfer for treatment direction was made

(7) The first report under section 193 (where P is treated as being subject to a public protection order with restrictions) must be made—

(a) if the most recent report on P under section 183 of the 2003 Act was made more than 6 months before P's arrival in Northern Ireland, not later than 6 months after P's arrival there, or

(b) otherwise, not later than 12 months after the most recent report under that section.

(8) Section 224(2) (direction ceasing to have effect if person not admitted within 14 days) does not apply to a hospital transfer direction which is treated as having been given under subsection (5).

(9) The date of P's arrival in Northern Ireland is to be treated as being the end of a relevant period for the purposes of section 230 (duty to notify Attorney General).

(10) Where (immediately before being removed) P is subject to—

(a) a hospital direction (within the meaning of the 1995 Act), or

(b) a transfer for treatment direction made because P was serving a sentence of imprisonment (within the meaning of section 136(1) of the 2003 Act),

(11) In this section—

“relevant compulsion order” means a compulsion order (within the meaning of the 1995 Act) that authorises the detention of the person in a hospital (within the meaning of that Act);

“relevant trust” means the HSC trust in whose area the appropriate establishment is situated;

“restriction order” has the same meaning as in the 1995 Act;

“transfer for treatment direction” has the same meaning as in the 2003 Act.

CHAPTER 3 — SUPPLEMENTARY

Removal or transfer from Northern Ireland: power to make further provision

262

(1) Regulations may make provision in connection with the removal of a person by virtue of this Part or Part 2 to a place outside Northern Ireland (whether or not a place in the United Kingdom).

(2) Regulations may make provision for and in connection with enabling the Department to authorise, and to give directions in connection with, the removal or transfer to a place outside Northern Ireland (whether or not a place in the United Kingdom) of prescribed descriptions of persons where—

(a) the person is subject in Northern Ireland to measures under this Act, and

(b) the person lacks capacity in relation to the removal or transfer and the removal or transfer would be in that person's best interests.

(3) Regulations may make provision for and in connection with enabling the Department of Justice to authorise, and to give directions in connection with, the removal or transfer to a place outside Northern Ireland (whether or not a place in the United Kingdom) of prescribed descriptions of persons where—

(a) the person is subject in Northern Ireland to measures under this Act, and

(b) either—

(i) the person consents to the removal or transfer, or

(ii) failure to remove or transfer the person there would be more likely than not to result in serious physical or psychological harm to the person or serious physical harm to other persons.

(4) In this section, references to the “transfer” of a person are to the transfer of responsibility for a person who is not detained by virtue of Part 2 or Part 10; and regulations may prescribe the powers and duties that constitute responsibility for a person for this purpose.

(5) References to persons subject to measures under this Act include, in particular,—

(a) in subsection (2)(a), persons in respect of whom an authorisation under Part 2 has been granted authorising a particular measure (within the meaning given by section 41);

(b) in subsection (3)(a), persons in respect of whom an order or direction has been made or given under Part 10 (including persons in respect of whom a warrant under section 191(1)(b) or an order under section 232(2)(b) is in effect).

(6) Regulations under this section—

(a) may prescribe steps to be taken before a person may be removed or transferred, or prescribe other conditions which must be met before a person may be removed or transferred,

(b) may provide that, where a person is removed or transferred, any prescribed measure to which the person is subject ceases to have effect, and

(7) The powers to make regulations under this section must be exercised so as to ensure that, where under this Part the removal or transfer of a person from Northern Ireland is authorised—

(a) notice of the authorisation and proposed removal or transfer must be given to—

(i) the person to be removed or transferred, and

(ii) any prescribed person,

at least a prescribed period before the date of the proposed removal or transfer; and

(b) there is a right to apply to the Tribunal in respect of the authorisation (except where the Tribunal approved the removal or transfer before the authorisation was given).

(8) Regulations under this section may amend this Part, and may make supplementary or consequential amendments to other provisions of this Act.

(9) In this section “regulations” means—

(a) in relation to provision concerning the removal or transfer of a Part 10 transferee, regulations made by the Department of Justice;

(b) in any other case, regulations made by the Department.

(10) In subsection (9) a “Part 10 transferee” is a person—

(a) who is detained by virtue of Part 10 or (if not detained under this Act) in respect of whom an order or direction has been made or given under Part 10, or

(b) (in the case of a person who does not fall within paragraph (a)) whose removal is authorised on the ground that either of the conditions set out in subsection (3)(b) is met.

Persons removed or transferred to Northern Ireland: power to make further provision

263

(1) Regulations may make provision, in respect of persons of a prescribed description removed to Northern Ireland under a relevant provision—

(a) requiring prescribed steps to be taken when the person arrives in Northern Ireland;

(b) providing for the person to be treated as if he or she were a person of a prescribed description subject to measures under this Act.

(2) The reference in subsection (1)(b) to persons subject to measures under this Act includes, in particular—

(a) persons in respect of whom an authorisation under Part 2 has been granted authorising a particular measure (within the meaning given by section 41), and

(b) persons in respect of whom an order or direction has been made or given under Part 10 (including persons in respect of whom a warrant under section 191(1)(b) or an order under section 232(2)(b) is in effect).

(3) Subsection (1)(b) permits the regulations to provide for a person to be treated as if an authorisation under Part 2 authorising a particular measure had been granted only where the person (before being removed to Northern Ireland) was subject under the law of England and Wales or Scotland to a corresponding or similar measure.

(4) Subsection (1)(b) permits the regulations to provide for a person to be treated as if an order or direction had been made or given under Part 10 only where the person (before being removed to Northern Ireland) was subject under the law of England and Wales or Scotland to an order, direction or other measure having corresponding or similar effect.

(5) Regulations may make provision about the application of this Act to persons who are removed to Northern Ireland under a relevant provision and who are treated, by virtue of this Part, as if they were subject to particular measures under this Act.

(6) In this section “a relevant provision” means—

(a) Part 6 of the 1983 Act;

(b) regulations made under section 289 or 290 of the 2003 Act; or

(c) any provision of the law of a country or territory other than the United Kingdom which is similar or corresponds to this Part or Part 2 or 10 of this Act.

(7) Regulations under this section may amend this Part, and may make supplementary or consequential amendments to other provisions of this Act.

(8) In this section “regulations” means—

(a) in relation to provision concerning a Part 10 arrival, regulations made by the Department of Justice;

(b) in any other case, regulations made by the Department.

(9) In subsection (8) a “Part 10 arrival” is a person who (by virtue of this Part or the regulations) is to be treated as if an order or direction under Part 10 had been made or given in respect of him or her.

Interpretation of Part 11

264

In this Part—

“the 1983 Act” means the Mental Health Act 1983;

“the 1995 Act” means the Criminal Procedure (Scotland) Act 1995;

“the 2003 Act” means the Mental Health (Care and Treatment) (Scotland) Act 2003;

“appropriate establishment” has the same meaning as in Part 10 (see section 167);

“hospital direction”, except where otherwise provided, has the same meaning as in Part 10 (see section 253(1));

“hospital transfer direction” has the same meaning as in Part 10 (see section 253(1));

“public protection order”, “public protection order with restrictions” and “public protection order without restrictions” have the same meaning as in Part 10 (see section 167);

“the responsible medical practitioner” has the same meaning as in Part 10 (see section 253(1)).

PART 12 — CHILDREN

In-patients under 18: duties of hospital managers

265

(1) This section applies in relation to a person who—

(a) is 16 or over, but under 18; and

(b) is an in-patient in a hospital for the purposes of the assessment or treatment of mental disorder under this Act.

(2) The managing authority of the hospital must ensure that (subject to the person's needs) the person's environment in the hospital is suitable having regard to his or her age.

(3) For the purpose of deciding how to fulfil the duty under subsection (2), the managing authority must consult a person who appears to that authority to have knowledge or experience which makes that person suitable to be consulted.

Amendments of Mental Health Order: children etc

266

(1) Schedule 8—

(a) restricts the application of Part 2 of the Mental Health Order to children;

(b) amends that Order so as to—

(i) make provision for independent advocates for children; and

(ii) require persons making certain decisions to have a child's best interests as their primary consideration;

(2) In this section “children” means children under 16.

PART 13 — OFFENCES

Ill-treatment or neglect

267

(1) A person (“X”) who—

(a) ill-treats, or

(b) wilfully neglects,

another person (“P”) where this section applies commits an offence.

(2) This section applies where—

(a) X has the care of P, and P lacks capacity in relation to all or any matters concerning his or her care or is believed by X to lack capacity in relation to all or any such matters;

(b) P is detained under Part 9 or 10, and is in the custody or care of X;

(d) X is a deputy appointed for P by the court.

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both.

(4) Proceedings in respect of an offence under this section may be brought only by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.

Forgery, false statements etc

268

(1) A person commits an offence if the person—

(a) makes, in a relevant document, an entry or statement which is false; and

(b) does so knowing that the entry or statement is false or being reckless as to whether it is false.

(2) A person commits an offence if—

(a) with intent to deceive, the person makes use of an entry or statement in a relevant document;

(b) the entry or statement is false; and

(3) In this section “relevant document” means any of the following—

(a) a statement of incapacity for the purposes of section 13;

(b) a relevant certificate (as defined by section 18) for the purposes of section 16 or 17 (second opinions);

(d) an application under Schedule 1, an authorisation granted by a panel under that Schedule, or an extension by a panel of such an authorisation;

(e) an application under paragraph 4 of Schedule 4 (application for registration of lasting power of attorney);

(f) a report under any provision of Part 10 (criminal justice).

(4) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

(5) The Department may by regulations amend subsection (3).

Unlawful detention of persons lacking capacity etc

269

(1) A person (“R”) commits an offence if—

(a) R knowingly detains, in circumstances amounting to a deprivation of liberty, a person (“P”) who is 16 or over and lacks capacity in relation to whether he or she should be so detained; and

(b) P is not liable to be so detained by virtue of this Act or any other statutory provision.

(2) A person (“R”) commits an offence if—

(a) R intentionally detains another person (“P”) in circumstances amounting to a deprivation of liberty;

(b) R does so in purported reliance on Part 9 or 10; and

(3) Where—

(a) a person has been detained in any place, in circumstances amounting to a deprivation of liberty, by virtue of this Act, and

(b) the person continues to be detained in the place, in circumstances amounting to a deprivation of liberty, at a time when the person is no longer liable to be so detained by virtue of this Act or any other statutory provision,

any person who is responsible for that continued detention commits an offence.

(4) But no offence under this section is committed where—

(a) the person who is detained is under 18; and

(b) the detention gives effect to a decision made by a parent or guardian of the person which is effective under any rule of law.

(5) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

(6) Proceedings in respect of an offence under this section may be brought only by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.

(7) Section 20(1) of the Interpretation Act (Northern Ireland) 1954 applies in relation to the offence under this section as it applies in relation to other offences under this Act (so, for example, nothing in this section prevents a person from being prosecuted and punished for an offence of false imprisonment).

Assisting persons to absent themselves without permission

270

(1) A person commits an offence if—

(a) the person knows that another person (“P”) is, by virtue of this Act, liable to be detained in a place in circumstances amounting to a deprivation of liberty; and

(b) the person induces, or intentionally assists, P to absent himself or herself without permission from that place.

(2) A person commits an offence if—

(a) the person knows that another person (“P”) is, by virtue of this Act, liable to be detained in a place (“the relevant place”) in circumstances amounting to a deprivation of liberty;

(b) P has absented himself or herself without permission from the relevant place; and

(i) allows P to live or stay with the person, knowing that P absented himself or herself without permission from the relevant place; or

(ii) gives P any assistance with the intention of preventing, delaying or interfering with P's being returned to detention.

(3) A person commits an offence if—

(a) the person knows that another person (“P”) is, by virtue of this Act, liable to be detained in a place in circumstances amounting to a deprivation of liberty;

(b) P is being taken to that place; and

(4) In subsections (1) and (2) references to P absenting himself or herself without permission from a place where P is liable to be detained (“the relevant place”) include—

(a) P failing to return to the relevant place at the end of an occasion or period for which P was given permission to be absent, or on being recalled from a permitted absence; and

(b) P absenting himself or herself, without permission, from a place where P is required to be by conditions imposed on the grant of a permission for absence from the relevant place.

(5) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

Assisting breach of community residence requirement

271

(1) A person commits an offence if—

(a) the person knows that another person (“P”) is required by a community residence requirement to live at a particular place; and

(b) the person induces, or intentionally assists, P to stop living at that place.

(2) A person commits an offence if—

(a) the person knows that another person (“P”) is required by a community residence requirement to live at a particular place;

(b) P has stopped living at that place; and

(c) the person gives P any assistance with the intention of preventing, delaying or interfering with P's being returned to live at that place.

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

(4) In this section “community residence requirement” means a community residence requirement (as defined by section 31) that is imposed under Part 2.

Obstruction

272

(1) It is an offence for a person—

(a) to refuse to allow the visiting or examination of any person by a person who is authorised by virtue of a relevant provision to carry out the visit or examination;

(b) to refuse to produce any record the production of which is required by virtue of a provision mentioned in subsection (4)(a) or (b); or

(i) carrying out a visit or examination by virtue of a relevant provision; or

(ii) exercising any other function by virtue of a provision mentioned in subsection (4)(a) or (b).

(2) Without prejudice to the generality of subsection (1), it is an offence for a person to insist on being present when requested to withdraw by a person authorised by virtue of a relevant provision to visit or examine a person.

(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both.

(4) In this section “relevant provision” means—

(a) section 18(2), 92, 121, 127 or 131;

(b) section 46, 47, 48, 227, 228 or 229 (read with section 275); or

Offences by bodies corporate

273

(1) Where an offence under this Act or under any regulations made under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

(a) any director, manager, secretary or other similar officer of the body corporate, or

(b) any person who was purporting to act in any such capacity,

that person (as well as the body corporate) commits the offence and is liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with that member's functions of management as if the member were a director of the body corporate.

(3) Proceedings in respect of an offence committed by virtue of this section may be brought only by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.

(4) Section 20(2) of the Interpretation Act (Northern Ireland) 1954 (offences committed by a body corporate) does not apply to offences under this Act or under regulations made under this Act.

PART 14 — MISCELLANEOUS

The Review Tribunal

Renaming of Mental Health Review Tribunal

274

The Mental Health Review Tribunal for Northern Ireland constituted under Article 70 of the Mental Health Order is renamed the Review Tribunal.

Visiting etc powers of medical practitioners in connection with the Tribunal

275

(1) This section applies where a statutory provision provides that a medical practitioner may do anything within this section in relation to a person.

(2) The medical practitioner may, at any reasonable time, visit the person and examine him or her in private.

(3) The medical practitioner may, at any reasonable time, require the production of, examine and take copies of—

(a) any health record (as defined by section 306) so far as it relates to the person;

(b) any other records relating to the person's detention or care or treatment in any relevant place.

(4) But if the person has capacity in relation to whether the power under subsection (3) should be exercised, the power may be exercised only with the person's consent.

(5) In this section “relevant place” means—

(a) a hospital;

(b) a care home;

Expenditure etc

Power to make regulations about dealing with money and valuables

276

(1) In this section “P” means a person who—

(a) is 16 or over;

(b) lacks capacity in relation to the management of his or her property or affairs; and

(i) a hospital;

(ii) a care home; or

(iii) an establishment of a prescribed description.

(2) Regulations may—

(a) permit the relevant authority to receive and hold money and valuables on behalf of P;

(b) permit the relevant authority to spend that money or dispose of those valuables for the benefit of P;

(d) require the relevant authority to keep prescribed accounts and records in relation to the management of P's money and valuables;

(e) require the relevant authority to make an annual return containing prescribed information to RQIA.

(3) Regulations under subsection (2) may not—

(a) permit the relevant authority to receive or hold on behalf of any one person money or valuables exceeding £20,000 in total without the consent of RQIA;

(b) permit the relevant authority to receive from a person (“B”), and hold on P's behalf, money or valuables which B does not have power to give to the relevant authority to hold on P's behalf;

(4) The Department may by regulations amend subsection (3)(a) so as to alter the sum mentioned there.

(5) In consequence of this section, the following are not acts to which section 9 (protection from certain liability) applies—

(a) the receiving and holding by a relevant authority of money and valuables on behalf of P;

(b) the spending of that money, or the disposing of those valuables, by a relevant authority for the benefit of P.

(6) In this section—

“relevant authority” means—in relation to a person in a hospital or care home, the managing authority of the hospital or care home;in relation to a person in an establishment of a description prescribed under subsection (1)(c)(iii), the prescribed person.

“relevant decision” means a decision concerning P's property or affairs which—is made by the court on P's behalf under section 113(2)(a);is made in accordance with this Act by an attorney under a lasting power of attorney granted by P and is within the scope of the attorney's authority;is made in accordance with the Enduring Powers of Attorney (Northern Ireland) Order 1987 by an attorney under an enduring power of attorney granted by P, and is within the scope of the attorney's authority; oris made in accordance with this Act by a deputy appointed for P by the court and is within the scope of the deputy's authority.

Contravention of regulations under section 276(2)

277

(1) Regulations under section 276(2) may provide that a contravention of any prescribed provision of the regulations is an offence.

(2) A person guilty of an offence under the regulations is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(3) Proceedings in respect of an offence under the regulations may be brought only—

(a) by RQIA; or

(b) by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.

(4) Proceedings for an offence under the regulations may be brought within a period of 6 months from the date on which evidence sufficient in the opinion of the prosecution to warrant the proceedings came to its knowledge; but no proceedings may be brought by virtue of this subsection more than 3 years after the commission of the offence.

Expenditure

278

(1) This section applies where—

(a) an act mentioned in section 9(1) is (because of compliance with section 9(1)(c) and (d) and any of the additional safeguard provisions that are relevant) an act to which section 9(2) applies; and

(b) the act involves expenditure.

(2) It is lawful for D—

(a) to pledge P's credit for the purpose of the expenditure; and

(b) to apply money in P's possession for meeting the expenditure.

(3) If the expenditure is borne for P by D, it is lawful for D—

(a) to reimburse himself or herself out of money in P's possession; or

(b) to be otherwise indemnified by P.

(4) Subsections (1) to (3) do not affect any power under which (apart from those subsections) a person—

(a) has lawful control of P's money or other property; and

(b) has power to spend money for P's benefit.

(5) In this section “additional safeguard provisions” has the same meaning as in section 9.

Payment for necessary goods and services

279

(1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, that person must pay a reasonable price for them.

(2) In subsection (1) “necessary” means suitable to a person's condition in life and to that person's actual requirements at the time when the goods or services are supplied.

Miscellaneous functions of HSC trusts

280

(1) In this Act “approved social worker” means a social worker appointed by an HSC trust under this section.

(2) An HSC trust must appoint a sufficient number of social workers under this section for the purpose of performing the functions conferred on approved social workers by or under this Act.

(3) An HSC trust may appoint a person under this section only if the person is approved by the trust as having appropriate competence in dealing with people who lack capacity.

(4) In determining whether to approve a person as having such competence, an HSC trust must have regard to such matters as the Department may direct.

(5) Any power under this Act to prescribe a description of person includes power to prescribe approved social workers or approved social workers of a particular description.

Miscellaneous functions of HSC trusts

281

(1) An HSC trust may, to such extent as may be prescribed or approved by the Department—

(a) pay to persons who lack capacity, and who are receiving care or treatment in any place, such amounts as the trust considers appropriate in respect of those persons' occasional personal expenses where it appears to the trust that those persons would otherwise be without resources to meet those expenses;

(b) provide financial assistance for any person who is absent with permission from a place of detention, where the needs of the person are such that such assistance is necessary to give full effect to treatment provided to the person or to provide for the person's settlement or resettlement in the community;

(c) contribute to the maintenance of persons who are subject to community residence requirements (as defined by section 31);

(d) pay to persons who by virtue of this Act are subject to requirements to attend for the purpose of any treatment, education, occupation or training amounts in respect of those persons' expenses in complying with such requirements;

(e) provide, or co-operate in the provision of, suitable training or occupation (whether in premises provided by the Department or elsewhere) for persons who lack capacity.

(2) In subsection (1)(b) “place of detention” means a place where the person is detained, by virtue of this Act, in circumstances amounting to a deprivation of liberty.

Direct payments in place of provision of care services

282

(1) Section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (direct payments in place of provision of care services) is amended as follows.

(2) After subsection (2) insert—

(2A) Regulations may make provision for and in connection with requiring or authorising an authority in the case of a person who falls within subsection (2B) (“P”) to make to a suitable person, with the appropriate consent, such payments as the authority may determine in accordance with the regulations in respect of that person's securing the provision for P of the service mentioned in subsection (2B)(a). (2B) A person falls within this subsection if— (a) the authority has decided under the 1972 Order that his or her needs call for the provision by it of a particular social care service; (b) he or she lacks capacity to consent to the making of payments, under regulations under this section, in respect of securing the provision for him or her of that service or is reasonably believed by the authority to lack that capacity; and (c) he or she is of a prescribed description. (2C) In subsection (2A) “a suitable person” means— (a) where there is an attorney or deputy for P— (i) the attorney or deputy; or (ii) any individual or other person (other than P) who is considered by the attorney or deputy and by the authority to be suitable to receive the payments in respect of securing the provision for P of the service concerned; (b) where there is no attorney or deputy for P, any individual or other person (other than P) who is considered by the authority to be suitable to receive those payments. (2D) In subsection (2A) “the appropriate consent” means— (a) the consent of the person to whom the payments are made by the authority; and (b) where there is an attorney or deputy for P and the person mentioned in paragraph (a) is not the attorney or deputy, the consent of the attorney or deputy. (2E) In subsection (2B) “lacks capacity” has the same meaning as in the Mental Capacity Act (Northern Ireland) 2016 (“the Mental Capacity Act”); and sections 1 and 5 of that Act (principles relating to capacity) apply in relation to regulations under subsection (2A) as they apply in relation to that Act. (2F) For the purposes of subsections (2C) and (2D)— (a) there is an attorney for P if there is at least one person who is an attorney under a lasting power of attorney or enduring power of attorney (within the meaning of the Mental Capacity Act) granted by P whose powers as attorney consist of or include such powers as may be prescribed; (b) there is a deputy for P if there is at least one person who is a deputy appointed for P under section 113(2)(b) of that Act and whose powers as deputy consist of or include such powers as may be prescribed. (2G) Where there are two or more persons each of whom is an attorney for P for the purposes of subsections (2C) and (2D), references in those subsections to “the attorney” are to be read— (a) if the powers prescribed under subsection (2F)(a) are exercisable by the attorneys jointly and severally, as meaning any of the attorneys; (b) otherwise, as meaning the attorneys. (2H) Where there are two or more persons each of whom is a deputy for P for the purposes of subsections (2C) and (2D), references in those subsections to “the deputy” are to be read— (a) if the powers prescribed under subsection (2F)(b) are exercisable by the deputies jointly and severally, as meaning any of the deputies; (b) otherwise, as meaning the deputies.

(3) In subsection (3)—

(a) in paragraph (a)—

(i) for “to a person” substitute “ to or in respect of a person ”; and

(ii) after “(2)(a) or (b)” insert “ or (2B)(a) ”;

(b) in paragraph (c)(i) after “the payee's means” insert “ (in the case of payments under subsection (1)) or the means of P (in the case of payments under subsection (2A)) ”;

(c) in paragraph (d), after “payee” insert “ (in the case of payments under subsection (1)) or P or the payee (in the case of payments under subsection (2A)) ”;

(d) in paragraph (e), for “repayment (whether by the payee or otherwise) of the whole or part of the direct payments)” substitute “ the whole or part of the direct payments to be repaid, whether by the payee (in the case of payments under subsection (1)) or by P or the payee (in the case of payments under subsection (2A)) or otherwise ”;

(e) in paragraph (g) after “(2)(a) or (b)” insert “ or (2B)(a) ”;

(f) after paragraph (h) insert—

(j) requiring or authorising the authority to have regard to prescribed matters when making a decision for the purposes of a provision of the regulations; (k) requiring or authorising the authority to take prescribed steps before or after the authority makes a decision for the purposes of a provision of the regulations; (l) specifying circumstances in which a person who fell within paragraph (b) of subsection (2B) but no longer does so must or may be treated as falling within that paragraph for the purposes of this section or of the regulations.

(4) In subsection (4)(b) after “the payee” insert “ (in the case of payments under subsection (1)) or P (in the case of payments under subsection (2A)) ”.

(5) In subsection (5)—

(a) in paragraph (a), for “the payee will himself” substitute “ the payee (in the case of payments under subsection (1)) or P (in the case of payments under subsection (2A)) will ”;

(b) in paragraph (b), after “the payee” insert “ or P ”.

(6) After subsection (6) insert—

(6A) Conditions that for the purposes of subsection(3)(d) are to be taken to be conditions in relation to direct payments include, in particular, conditions relating to— (a) the securing of the provision of the service concerned; (b) the provider of the service; (c) the person to whom payments are made in respect of the provision of the service; or (d) the provision of the service.

International protection of adults

283

Schedule 9—

(a) gives effect in Northern Ireland to the Convention on the International Protection of Adults signed at the Hague on 13 January 2000 (in so far as this Act does not otherwise do so); and

(b) makes related provision as to the private international law of Northern Ireland.

Advance decisions to refuse treatment

Review of law relating to advance decisions

284

(1) Before the third anniversary of the day this section comes into operation, the Department must—

(a) review the law relating to advance decisions to refuse treatment; and

(b) produce a report setting out the conclusions reached on the review (including any proposals for changes to that law).

(2) The Department must lay a copy of the report before the Assembly.

Matters excluded from Act

Family relationships etc

285

(1) Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—

(a) consenting to marriage or a civil partnership;

(b) consenting to have sexual relations;

(d) consenting to a dissolution order or separation order being made in relation to a civil partnership on the basis of two years' separation;

(e) agreeing for any purposes of the Adoption (Northern Ireland) Order 1987 to the making of an adoption order;

(f) discharging parental responsibilities in matters not relating to a child's property;

(g) giving a consent under the Human Fertilisation and Embryology Act 1990;

(h) giving a consent under the Human Fertilisation and Embryology Act 2008.

(2) In subsection (1)(e) “adoption order” means—

(a) an order under Article 12(1) of the Adoption (Northern Ireland) Order 1987; or

(b) any other order referred to by the definition of “adoption order” in Article 2(2) of that Order.

Voting rights

286

(1) Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a person.

(2) In this section “referendum” means a referendum or other poll held, in pursuance of any statutory provision, on one or more questions or propositions specified in or in accordance with any such provision.

Declaratory provision

Relationship of Act with law relating to murder etc

287

For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 13 of the Criminal Justice Act (Northern Ireland) 1966 (encouraging or assisting suicide).

PART 15 — SUPPLEMENTARY

Codes of practice

288

(1) The Department must prepare and issue one or more codes of practice—

(a) for the guidance of persons assessing whether a person who is 16 or over has capacity in relation to any matter;

(b) for the guidance of persons acting in connection with the care, treatment or personal welfare of another person who is 16 or over (or is under 16 and is detained under Part 9 or being dealt with under Part 10);

(d) for the guidance of independent mental capacity advocates;

(e) for the guidance of panels constituted under Part 2;

(f) for the guidance of persons appointed as attorneys, or as replacements for attorneys, by a lasting power of attorney or an instrument executed with a view to creating such a power;

(g) for the guidance of deputies appointed by the court;

(h) for the guidance of persons carrying out research in reliance on any provision made by or under this Act (and otherwise with respect to Part 8);

(i) with respect to such other matters concerned with this Act as the Department considers appropriate.

(2) A code under subsection (1)(a) must include guidance in relation to sections 1(4) and 5 (help and support to enable a person to make a decision).

(3) A code under subsection (1)(b) may in particular include guidance—

(a) for HSC trusts, medical practitioners, staff of hospitals and care homes, approved social workers and members of other professions, in relation to—

(i) serious interventions, or serious interventions of particular descriptions, in respect of persons lacking capacity;

(ii) anything falling to be done where such an intervention is proposed;

(b) with respect to sections 65 to 67 (emergency situations).

(4) The Department may from time to time revise a code issued under this section.

(5) The Department may delegate the preparation or revision of the whole or any part of a code under this section so far as the Department considers appropriate.

(6) Before preparing or making any alteration in a code under this section, the Department must consult such bodies as appear to it to be concerned (and must in particular consult the Department of Justice if the code contains specific provision about persons detained under Part 9 or persons being dealt with under Part 10).

(7) The Department must lay before the Assembly copies of any code under this section and of any alteration in such a code; and if within the statutory period the Assembly passes a resolution requiring the code or alteration to be withdrawn the Department must withdraw the code or alteration and, where it withdraws the code, must prepare a code in substitution for the one withdrawn.

(8) The Department must publish any code prepared or revised under this section.

(9) For the purposes of this section a person is “being dealt with under Part 10” if—

(a) the person is remanded to hospital under Chapter 1 of Part 10; or

(b) a public protection order, hospital direction, interim detention order or hospital transfer direction has been made in respect of the person and remains in force.

(10) In this section—

“hospital direction”, “hospital transfer direction”, “interim detention order” and “public protection order” have the same meaning as in Part 10 (see section 253);

“serious intervention” is to be read in accordance with section 63.

Effect of code

289

(1) A person acting in any of the ways mentioned in subsection (2) in relation to a person who is 16 or over and lacks capacity must have regard to any relevant code of practice.

(2) The ways of acting are—

(a) in a professional capacity;

(b) for remuneration;

(d) as an attorney under a lasting power of attorney or an enduring power of attorney;

(e) as a deputy appointed by the court;

(f) as a person carrying out research in reliance on any provision made by or under this Act (see Part 8).

(3) If it appears to a court or tribunal conducting any criminal or civil proceedings that—

(a) a provision of a code of practice, or

(b) a failure to comply with a code of practice,

is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.

(4) In this section “code of practice” means a code of practice under section 288.

Provision of information and facilities

Provision of information by HSC trusts and the Department

290

(1) An HSC trust, and the Department, must provide to a relevant authority such returns, reports and other information as the relevant authority may require for the performance of its functions under this Act.

(2) In subsection (1) “relevant authority” means—

(a) the High Court;

(b) the Public Guardian;

(d) the Attorney General.

Provision of facilities by HSC trusts and the Department

291

(1) An HSC trust must provide to a relevant authority such facilities as are necessary to enable the relevant authority to perform its functions under this Act.

(2) In subsection (1) “relevant authority” means—

(a) the High Court;

(b) the Public Guardian; or

(3) The Department must provide, to the Tribunal, such facilities as are necessary to enable the Tribunal to perform its functions under this Act.

Warrants

292

(1) This section applies if it appears to a lay magistrate, on complaint on oath made by an officer of an HSC trust or a constable—

(a) that there is reasonable cause to believe that a relevant person is to be found on any premises;

(b) that admission to the premises has been refused or that a refusal of such admission is apprehended; and

(2) The lay magistrate may issue a warrant authorising any constable accompanied by a medical practitioner to enter the premises, if need be by force, and remove the relevant person.

(3) A constable executing a warrant under subsection (2) may be accompanied by an approved social worker (as well as a medical practitioner).

(4) It is not necessary to name the relevant person in any complaint or warrant under this section.

(5) In this section “relevant person” means a person who—

(a) by virtue of this Act, is liable to be detained in a place in circumstances amounting to a deprivation of liberty; and

(b) is, by virtue of this Act, to be taken to that place.

Warrants: persons liable to be detained under 1983 Act or 2005 Order

293

(1) This section applies if it appears to a lay magistrate, on complaint on oath made by an authorised person—

(a) that there is reasonable cause to believe that a person who may be taken into custody by virtue of a provision mentioned in subsection (3)(a) or (b) (a “relevant person”) is to be found on any premises, and

(b) that admission to the premises has been refused or that a refusal of such admission is apprehended.

(2) The lay magistrate may issue a warrant authorising any constable accompanied by a medical practitioner to enter the premises, if need be by force, and remove the relevant person.

(3) In this section “authorised person” means a person authorised by or under—

(a) section 88 of the Mental Health Act 1983, or

(b) article 8 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005,

to take any relevant person into custody in Northern Ireland.

Custody, detention etc

Provisions as to custody, detention etc

294

(1) A person who is—

(a) being removed from any place, or taken to or detained in any place, by virtue of Part 9 (power of police to remove person to place of safety), or

(b) being taken to or detained in any place by virtue of Part 10 (criminal justice),

is to be treated as being in legal custody.

(2) Subsection (3) applies to a constable or other person (“the relevant person”) who is required or authorised by virtue of Part 9 or 10 to—

(a) take a person into custody;

(b) take a person to any place; or

(3) For the purposes of—

(a) taking the person into custody,

(b) taking the person to the place, or

the relevant person has all the powers, authorities, protections and privileges which a constable has within the area for which he or she acts as constable.

(4) Nothing in subsection (3) affects any other power, or authority to do an act, that the relevant person (or any other person) may have.

Retaking of persons escaping from legal custody

295

(1) Where a person (“P”) who is in legal custody by virtue of section 294 escapes, P may be retaken into legal custody by any person mentioned in subsection (2).

(2) The persons are—

(a) the person who had custody of P immediately before the escape;

(b) any constable or approved social worker;

(c) if P was liable to be detained in an appropriate establishment by virtue of Part 9 or 10 at the time of the escape (or was, under Part 9 or 10, being taken to or from an appropriate establishment)—

(i) any person on the staff of the appropriate establishment;

(ii) any person authorised in writing by the managing authority of the appropriate establishment.

(3) But P may not be retaken under this section after P has ceased to be liable to be detained by virtue of Part 9 or 10.

(4) Nothing in subsection (3) prevents section 139 (power to remove person from public place to place of safety) from applying in relation to P at any time after the escape.

(5) In this section “appropriate establishment” has the meaning given by section 167.

(6) Nothing in subsection (1) affects any other power, or authority to do an act, that a person mentioned in subsection (2) (or any other person) may have.

Special accommodation

296

(1) A relevant department may provide such accommodation as appears to it to be necessary for persons who—

(a) are detained by virtue of this Act; and

(b) in the opinion of the relevant department, require care or treatment under conditions of special security for the protection of other persons.

(2) In this section “relevant department” means—

(a) the Department;

(b) the Department of Justice.

Panels

Panels constituted to decide applications: general provision

297

(1) In this section “panel” means a panel constituted under—

(a) Schedule 1 (applications for authorisation);

(b) Schedule 3 (applications for extension of period of authorisation);

(2) A panel must have 3 members (all of whom must be present during any proceedings of the panel). , all of whom must be present during any proceedings of the panel, except where—

(a) the panel does not hear oral evidence,

(b) each of the members provides a written opinion, and

(3) Regulations may make further provision about the membership or procedure of panels, including—

(a) provision requiring panels to give prescribed persons the opportunity to make representations;

(b) provision enabling a panel to request prescribed persons to provide information to the panel or attend before the panel to give oral evidence;

(c) provision about steps that a panel is, or is not, to be regarded as required by section 7 to take where it has to make a determination of what would be in a person's best interests;

(d) provision for cases where a panel cannot reach a unanimous decision.

(4) The Department may by regulations amend any of the following—

(a) the definition of “the permitted period” in paragraph 19(2) of Schedule 1;

(b) any period mentioned in paragraph 20(2)(b) or (3)(b) of that Schedule;

(d) the definition of “the permitted period” in paragraph 9(2) of Schedule 6.

Protection from proceedings

Protection for acts done in pursuance of Part 9 or 10

298

(1) No civil proceedings may be brought against a person in any court in respect of a relevant act without the leave of the High Court.

(2) No criminal proceedings may be brought against a person in any court in respect of a relevant act except by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.

(3) This section does not apply to proceedings against the Department... or an HSC trust. (4) In this section “relevant act” means any act purporting to be done in pursuance of any provision of Part 9 or 10.

Other supplementary provision

Risk of serious physical harm to others

299

(1) Subsection (2) applies where for any purpose of this Act a determination falls to be made of whether doing a particular thing, or failure to do a particular thing, in relation to a person would create a risk, or any particular level of risk, of serious physical harm to other persons.

(2) In determining that question, regard may be had only to evidence—

(a) that the person has behaved violently towards other persons; or

(b) that the person has behaved himself or herself in such a way that other persons were placed in reasonable fear of serious physical harm to themselves.

Medical practitioners who may make certain medical reports

300

(1) In this section a “medical report” means—

(a) a report under section 39;

(b) a report under section 183;

(d) a medical report under paragraph 4 of Schedule 2;

(e) a medical report under paragraph 5 of Schedule 3;

(f) a medical report under paragraph 5 of Schedule 6.

(2) Regulations may make provision prescribing the descriptions of medical practitioners who may make medical reports.

(3) The regulations may in particular do any of the following—

(a) prescribe conditions that must be met by a medical practitioner making a medical report;

(b) provide that, except in any prescribed circumstances, the medical practitioner who makes a medical report—

(i) must be of a prescribed description; or

(ii) must not be of a prescribed description.

(4) Where any provision of this Act confers power to prescribe conditions that must be met by a medical practitioner making a report or certifying any matter, a condition that may be prescribed is that the practitioner is a person approved by RQIA for prescribed purposes.

Documents appearing to be duly made

301

Regulations may make provision enabling documents of a prescribed description which appear to be duly made in pursuance of a prescribed provision of this Act to be acted on without further proof of prescribed matters.

Regulations

302

(1) Regulations to which subsection (3) applies may be made only if a draft of the regulations has been laid before, and approved by a resolution of, the Assembly.

(2) Any other regulations under this Act are subject to negative resolution.

(3) This subsection applies to—

(a) regulations under section 10(5), 17(6), 21(2), 20(1), 36(4)(b), 48(5), 61(2), 63(3), 96, 98(9), 117(11), 138, 146(2), 160(2), 229(6), 268(5), 276(4), 297(4) or 306(3), paragraph 14(1) of Schedule 7 or paragraph 31 of Schedule 9;

(b) regulations under section 262 or 263 that amend this Act;

(d) regulations under section 303(3) that amend the text of Northern Ireland legislation or an Act of Parliament;

(e) any other regulations under this Act that are contained in a statutory rule that contains regulations within any of paragraphs (a) to (d).

(4) Regulations under this Act may contain incidental, supplementary, transitional, transitory or saving provision.

Consequential amendments and repeals

303

(1) Schedule 10 contains consequential amendments.

(2) The provisions listed in Schedule 11 are repealed to the extent specified there.

(3) The Department or the Department of Justice may by regulations make such other amendments of statutory provisions (passed or made before, or in the same session as, this Act) as it considers appropriate in consequence of this Act.

Definitions

Persons “unconnected with” a person

304

(1) For the purposes of this Act a person (“B”) is “unconnected with” another person (“A”) unless—

(a) B receives any payments made on account of A's maintenance, or has an interest in the receipt of any such payments;

(b) B is A's spouse, civil partner, parent, child, brother, sister, mother-in law, father-in law, son-in-law, daughter-in-law, sister-in-law or brother-in-law;

(c) B is living with A as if he or she were A's spouse or civil partner and has been so living for a period of at least 6 months;

(d) B is someone with whom A lives and has been living for a period of at least 5 years; or

(e) A is living in a relevant place and, at the time when A started living in the relevant place—

(i) B had been living with A as if he or she were A's spouse or civil partner for a period of at least 6 months; or

(ii) B was a person with whom A had been living for a period of at least 5 years.

(2) In subsection (1)(e) “relevant place” means—

(a) a hospital;

(b) a care home; or

Meaning of “mental disorder”

305

(1) In this Act “mental disorder” means any disorder or disability of the mind.

(2) Dependence on alcohol or drugs is not to be considered a disorder or disability of the mind for the purposes of subsection (1) (but this does not prevent a disorder or disability of the mind that is related to alcohol or drugs, but is not dependence, from being so considered).

Definitions for purposes of Act

306

(1) In this Act—

“the 2003 Order” means the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003;

“approved social worker” has the meaning given by section 280;

“the area” of an HSC trust means the area prescribed by regulations as the area of that trust for the purposes of this Act;

“bankrupt”: references to an individual's being bankrupt include the individual's being subject to a bankruptcy restrictions order, or interim bankruptcy restrictions order, under the Insolvency (Northern Ireland) Order 1989;

“best interests”—in relation to a person who is 16 or over, is to be read in accordance with section 7 (subject to paragraph (b));in Part 9, is to be read in accordance with section 157;

“capacity”: see “lacks capacity”;

“care home” means—a residential care home, as defined by Article 10 of the 2003 Order, in respect of which a person is registered under Part 3 of that Order; ora nursing home, as defined by Article 11 of that Order, in respect of which a person is registered under Part 3 of that Order;

“care or treatment” includes care and treatment;

“condition”, in the context of any reference to treatment for a condition or medication for a condition, includes pain;

“the court” (except in Part 10) means the High Court;

“Court Visitor” has the meaning given by section 130;

“the Department” means the Department of Health;

“deprivation of liberty” means a deprivation of liberty within the meaning of Article 5(1) of the Human Rights Convention (and for the purposes of any reference to a deprivation of liberty, it does not matter whether the deprivation of liberty is done by a public authority or not);

“deputy” is to be read in accordance with section 113(2)(b);

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Mental Capacity Act (Northern Ireland) 2016

Interpretation of Part 10: impairment of or disturbance in the functioning of the mind or brain

251

Interpretation of Part 10: references to disorder

252

Interpretation of Part 10: general

253

PART 11 — TRANSFER BETWEEN JURISDICTIONS

CHAPTER 1 — REMOVAL OF PERSONS FROM NORTHERN IRELAND

Removal to other parts of UK of persons detained under Part 2

Removal of persons detained under Part 2 to England or Wales

254

Removal of persons detained under Part 2 to Scotland

255

Removal to other parts of UK of persons detained under Part 10

Removal of certain persons detained under Part 10 to England or Wales

256

Removal of certain persons detained under Part 10 to Scotland

257

CHAPTER 2 — PERSONS REMOVED FROM ENGLAND, WALES OR SCOTLAND TO NORTHERN IRELAND

Persons to be detained under Part 2

Persons to be detained under Part 2 after removal from England or Wales

258

Persons to be detained under Part 2 after removal from Scotland

259

Persons to be detained under Part 10

Persons to be detained under Part 10 after removal from England or Wales

260

Persons to be detained under Part 10 after removal from Scotland

261

CHAPTER 3 — SUPPLEMENTARY

Removal or transfer from Northern Ireland: power to make further provision

262

Persons removed or transferred to Northern Ireland: power to make further provision

263

Interpretation of Part 11

264

PART 12 — CHILDREN

In-patients under 18: duties of hospital managers

265

Amendments of Mental Health Order: children etc

266

PART 13 — OFFENCES

Ill-treatment or neglect

267

Forgery, false statements etc

268

Unlawful detention of persons lacking capacity etc

269

Assisting persons to absent themselves without permission

270

Assisting breach of community residence requirement

271

Obstruction

272

Offences by bodies corporate

273

PART 14 — MISCELLANEOUS

The Review Tribunal

Renaming of Mental Health Review Tribunal

274

Visiting etc powers of medical practitioners in connection with the Tribunal

275

Expenditure etc

Power to make regulations about dealing with money and valuables

276

Contravention of regulations under section 276(2)

277

Expenditure

278

Payment for necessary goods and services

279

Miscellaneous functions of HSC trusts

Appointment of approved social workers

280

Miscellaneous functions of HSC trusts

281

Direct payments in place of provision of care services

Direct payments in place of provision of care services

282