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

(a) that under the law prevailing in a place outside Northern Ireland a person (“M”) has been appointed to exercise powers in respect of the property or affairs of P on the ground (however formulated) that P lacks capacity to make decisions with respect to the management and administration of P's property and affairs; and

(b) that, having regard to the nature of the appointment and to the circumstances of the case, it is appropriate for the court to exercise its powers under this paragraph.

(2) The court may direct—

(a) any stocks standing in the name of P, or

(b) the right to receive dividends from the stocks,

to be transferred into M's name or otherwise dealt with as required by M, and may give such directions as the court considers appropriate for dealing with accrued dividends from the stocks.

(3) In this paragraph “stocks” includes—

(a) shares, and

(b) any funds, annuity or security transferable in the books kept by any body corporate or unincorporated company or society or by an instrument of transfer either alone or accompanied by other formalities,

and “dividends” is to be construed accordingly.

Preservation of interests in property disposed of on behalf of person lacking capacity

8

(1) Sub-paragraphs (2) and (3) apply if—

(a) P's property has been disposed of by virtue of section 115;

(b) under P's will or intestacy, or by a gift perfected or nomination taking effect on P's death, any other person would have taken an interest in the property but for the disposal; and

(2) The person takes the same interest, if and so far as circumstances allow, in the property representing the property disposed of.

(3) If the property disposed of was real property, any property representing it is to be treated, so long as it remains part of P's estate, as if it were real property.

(4) The court may direct that, on a disposal of P's property—

(a) which is made by virtue of section 115, and

(b) which would apart from this paragraph result in the conversion of personal property into real property,

property representing the property disposed of is to be treated, so long as it remains P's property or forms part of P's estate, as if it were personal property.

(5) References in sub-paragraphs (1) to (4) to the disposal of property are to—

(a) the sale, exchange, charging of or other dealing (otherwise than by will) with property other than money,

(b) the removal of property from one place to another,

(d) the transfer of money from one account to another,

and references to property representing property disposed of are to be construed accordingly and as including the result of successive disposals.

(6) The court may give such directions as appear to it appropriate for the purpose of facilitating the operation of sub-paragraphs (1) to (3), including the carrying of money to a separate account and the transfer of property other than money.

9

(1) Sub-paragraph (2) applies if the court has ordered or directed the expenditure of money—

(a) for carrying out permanent improvements on any of P's property; or

(b) otherwise for the permanent benefit of any of P's property.

(2) The court may order that—

(a) the whole of the money expended or to be expended, or

(b) any part of it,

is to be a charge on the property either without interest or with interest at a specified rate.

(3) An order under sub-paragraph (2) may provide for excluding or restricting the operation of paragraph 8(1) to (3).

(4) A charge under sub-paragraph (2) may be made in favour of such person as may be just and, in particular, where the money charged is paid out of P's general estate, may be made in favour of a person as trustee for P.

(5) No charge under sub-paragraph (2) may confer any right of sale or foreclosure during P's lifetime.

SCHEDULE 6

Preliminary

1

In this Schedule, in relation to a public protection order without restrictions—

“the criteria for continuation” has the meaning given by section 185;

“the establishment concerned” has the meaning given by paragraph 2(3);

“the person concerned” means the person to whom the order relates;

“the relevant trust” has the meaning given by paragraph 2(3);

“the responsible social worker” means the approved social worker who is in charge of the person concerned's case.

Applications for extension of public protection order without restrictions

2

(1) An application under this Schedule may be made where—

(a) a public protection order without restrictions has been made;

(b) the person concerned is still liable to be detained under the order;

(d) an extension under that section is not possible, because the responsible social worker does not consider that the criteria for continuation are met.

(2) An application under this Schedule is an application to the relevant trust for an extension of the period of the order.

(3) In this Schedule—

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

“the establishment concerned” means the establishment in which the person concerned would be liable to be detained if the period of the order were extended.

Who may make application

3

(1) Any application under this Schedule must be made by a person who—

(a) is of a prescribed description; and

(b) is unconnected with the person concerned.

(2) Regulations under sub-paragraph (1)(a) may in particular prescribe, as a description of persons who may make an application under this Schedule—

(a) an approved social worker;

(b) a person of a prescribed description who is designated by the managing authority of the establishment concerned as a person who may make applications under this Schedule.

Contents of application

4

An application under this Schedule must—

(a) be in the prescribed form;

(b) include a medical report (see paragraph 5);

(d) include prescribed information about the views of any prescribed person; and

(e) include any prescribed information.

Medical report

5

(1) The medical report must be in the prescribed form and must—

(a) be made by a medical practitioner who is unconnected with the person concerned and is permitted by regulations under section 300 to make the report;

(b) include a statement by the person making the medical report that, in that person's opinion, the criteria for continuation are met; and

(2) The maker of the medical report must have examined the person concerned not more than two days before the date when the report is made.

Care plan

6

The care plan must be in the prescribed form and must include such information relating to what is proposed as may be prescribed.

Panel to consider application

7

(1) Where the relevant trust receives an application duly made under this Schedule, it must as soon as practicable—

(a) give prescribed information to the person concerned and any prescribed person; and

(b) constitute a panel to consider the application.

(2) Section 297 (general provision about panels) applies to a panel constituted under this paragraph.

Decision on application

8

(1) Having considered the application, the panel must do one of the following—

(a) extend the period of the order in accordance with sub-paragraph (2);

(b) refuse the application.

(2) The panel may only extend the period of the order as follows—

(a) where the period of the order has not previously been extended, the extension must be 6 months beginning immediately after the date when the period of the order would otherwise end;

(b) where the period of the order has previously been extended under section 181 or 182 or this Schedule, the extension must be one year beginning immediately after the date when the period of the order would otherwise end.

(3) The panel may extend the period of the order only if it considers that the criteria for continuation are met.

(4) No extension of the period of the order may be made at a time after the person concerned has ceased to be liable to be detained under the order.

Time limit for panel's decision, and duty to notify decision

9

(1) The panel must comply with paragraph 8(1) as soon as practicable and in any case no later than the end of the permitted period.

(2) The “permitted period” is 7 working days beginning with the day on which the application is received by the trust (or, if that day is not a working day, beginning with the first working day after that).

(3) As soon as practicable after granting or refusing an extension under paragraph 8, the panel must give written notice of the grant or refusal, and any prescribed information, to the person concerned and any prescribed person.

SCHEDULE 7

Part 1 — Introductory

Introductory

1

(1) In this Part a “supervision and assessment order” is an order made in respect of a person (“the supervised person”) containing—

(a) a supervision element (see paragraph 3), and

(b) an assessment element (see paragraph 4).

(2) A supervision and assessment order may also include a residence element (see paragraph 5).

(3) In this Schedule, references to the commission of offences by a person include the commission of offences in the circumstances described in section 206 (finding that person not guilty on the ground of insanity).

Part 2 — Making and contents of order

Conditions which must be satisfied before order can be made

2

(1) A court may make a supervision and assessment order only if the following four conditions are met.

(2) The first condition is that the court is satisfied, on the required medical evidence, that the supervised person has a disorder, or that there is reason to suspect that the supervised person has a disorder.

(3) The second condition is that the court is satisfied, on the required medical evidence, that examination of the supervised person (“S”) is necessary or desirable for the assessment of one or both of the following—

(a) whether the disorder requires treatment;

(b) whether consent to the giving of such treatment will be given by S, or by a person with authority to give consent on behalf of S, or whether such treatment will be capable of being given to S by virtue of Part 2 of this Act (or, if S is under 16, under the Mental Health Order).

(4) The third condition is that the court is satisfied that supervision under the order is desirable in the interests of—

(a) securing the rehabilitation of the supervised person, or

(b) protecting the public from harm from that person or preventing the commission by that person of offences.

(5) The fourth condition is that the court is satisfied that the making of such an order is the most suitable means of dealing with the supervised person.

(6) In this paragraph “the required medical evidence” means the written or oral evidence of at least two medical practitioners, including—

(a) if the disorder is mental disorder, the oral evidence of an approved medical practitioner;

(b) otherwise, the oral evidence of a medical practitioner who appears to the court to have special experience in the diagnosis or treatment of the disorder.

Supervision element

3

(1) A supervision element is a requirement that the supervised person be under the supervision of—

(a) a social worker, or

(b) a probation officer,

for a period specified in the order (“the supervision period”), which must be not less than 6 months and not more than 3 years.

(2) The social worker or probation officer is referred to in this Schedule as “the supervising officer”.

(3) The court must not make a supervision and assessment order unless it is satisfied that the supervising officer is willing to undertake the supervision.

(4) If the supervising officer is a social worker—

(a) the supervision and assessment order must specify the HSC trust for the area in which the supervised person resides or will reside, and

(b) the social worker must be an approved social worker appointed as such by that trust.

Assessment element

4

(1) An assessment element is a requirement that, during a specified period (“the assessment period”), the supervised person must—

(a) attend at a specified place at a specified time or times, or

(b) make himself or herself available at a specified place at a specified time or times,

for assessment by or under the direction of a medical practitioner.

(2) The assessment period may be the whole or any part of the supervision period.

(3) Assessment under sub-paragraph (1) is to be assessment of such of the following as the medical practitioner considers appropriate at the time of the assessment—

(a) the supervised person's condition;

(b) either or both of the matters mentioned in paragraph 2(3)(a) and (b).

(4) In sub-paragraph (1) “specified” means specified in the order.

Residence element

5

(1) A residence element is any requirement as to the residence of the supervised person during a period specified in the order (“the residence period”).

(2) The residence period may be the whole or any part of the supervision period.

(3) Before including a residence element, the court must consider the home surroundings of the supervised person.

(4) A residence element may not require the supervised person to reside as an in-patient or resident in a hospital or care home.

Procedural requirements relating to the making of the order

6

(1) Before making a supervision and assessment order, the court must explain to the supervised person in ordinary language—

(a) the effect of each of the elements included in the order, and

(b) that a court of summary jurisdiction, and the court making the order, have power under paragraphs 8 to 10, 11 and 13 to review the order on the application either of the supervised person or the supervising officer.

(2) After making an order, the court must as soon as practicable—

(a) give at least 2 copies of the order to the supervising officer, and

(b) if the supervising officer is a social worker, send at least 1 copy of the order to the Probation Board.

(3) The supervising officer must give a copy of the order to the supervised person.

Part 3 — Effect of order

7

Where an order is made, the supervised person must (as well as complying with the assessment element and any residence element) keep in touch with the supervising officer in accordance with such instructions as that officer may from time to time give, and must notify the supervising officer of any change of address.

Part 4 — Amendment or revocation of order

Amendment of order: general

8

(1) A court of summary jurisdiction may, on the application of the supervised person or the supervising officer, amend a supervision and assessment order—

(a) by cancelling any of the requirements of the order; or

(b) by inserting in the order (either in addition to or in substitution for any such requirement) any requirement which the court could include if it were the court by which the order was made and were then making it.

(2) The power of a court under sub-paragraph (1) does not include power to amend an order by extending any period specified in it beyond the end of 3 years from the date of the original order.

Amendment of order: change of area of residence

9

(1) This paragraph applies where—

(a) a supervision and assessment order requires the supervised person to be under the supervision of a social worker, and

(b) (in accordance with paragraph 3(4)) the order specifies the HSC trust for the area in which the person resides (“the current trust”).

(2) If a court of summary jurisdiction is satisfied that the supervised person proposes to change, or has changed, his residence to the area of another HSC trust, the court may amend the order by substituting, for the current trust, the other HSC trust.

(3) The court must amend the order as mentioned in sub-paragraph (2) if the supervising officer applies for it to do so.

(4) Where—

(a) the court amends a supervision and assessment order under this paragraph, and

(b) the order contains requirements which in the opinion of the court cannot be complied with if the supervised person ceases to reside in the area of the current trust,

the court must either cancel those requirements or substitute for them other requirements which can be complied with if the supervised person ceases to reside in that area.

Medical reports

10

(1) In this paragraph “relevant medical practitioner” means a medical practitioner by whom or under whose direction the supervised person—

(a) has been assessed in pursuance of a supervision and assessment order, or

(b) is being treated for a disorder in pursuance of such an order.

(2) Sub-paragraph (3) applies where any of the following conditions is met—

(a) the order requires the supervised person to attend or make himself or herself available for assessment at specified intervals, but a relevant medical practitioner considers that assessment at longer intervals is sufficient for the purposes mentioned in paragraph 2(3)(a) and (b);

(b) a relevant medical practitioner considers that it is necessary or desirable, for the purposes mentioned in paragraph 2(3)(a) and (b), to assess the supervised person more frequently than specified in the order;

(c) a relevant medical practitioner considers that the supervised person no longer requires treatment for his or her disorder;

(d) a relevant medical practitioner considers that the supervised person's disorder is not (or is no longer) susceptible to treatment;

(e) a relevant medical practitioner considers that the assessment period should be extended (subject to sub-paragraph (5));

(f) a relevant medical practitioner is for any reason unwilling to continue to assess or treat, or direct the assessment or treatment of, the supervised person;

(g) a relevant medical practitioner becomes aware that the supervised person has been admitted to hospital as an in-patient.

(3) The relevant medical practitioner must make a report in writing to that effect to the supervising officer.

(4) The supervising officer must—

(a) in the case of a report made as mentioned in sub-paragraph (2)(a), inform the court which made the order;

(b) in the case of a report made as mentioned in sub-paragraph (2)(b) to (f), apply to a court of summary jurisdiction for the order to be amended as the court considers appropriate (including by cancelling the assessment element);

(c) in the case of a report made as mentioned in sub-paragraph (2)(g), apply to a court of summary jurisdiction for the assessment element to be suspended whilst the supervised person remains an in-patient.

(5) On an application made in the case of a report made as mentioned in sub-paragraph (2)(e)—

(a) if the court considers it appropriate for the assessment period to end later than the end of the existing supervision period, the court may extend the supervision period;

(b) the assessment period (as extended) must not end later than the end of the supervision period (as extended); and

Revocation of order

11

(1) A court that has made a supervision and assessment order may, on the application of the supervised person or the supervising officer, revoke the order under this paragraph.

(2) The court may do so only if the court is satisfied that, having regard to circumstances which have arisen since the order was made, it would be in the interests of the health or welfare of the supervised person to revoke the order.

Procedural requirements on amendment or revocation of order

12

(1) On the making under any of paragraphs 8 to 11 of an order amending or revoking a supervision and assessment order, the court must as soon as practicable give to the supervising officer at least 2 copies of the amending or revoking order.

(2) The supervising officer, when given copies under sub-paragraph (1), must give a copy of the amending or revoking order to—

(a) the supervised person, and

(b) if the supervised person is receiving in-patient treatment or is residing in a hospital, the person in charge of that hospital.

Part 5 — Breach of order

13

(1) This paragraph applies where—

(a) a supervision and assessment order is in force, and

(b) the supervising officer applies to the court that made the order for the order to be revoked under this paragraph.

(2) If—

(a) it is proved to the satisfaction of the court that the supervised person (“S”) has, without reasonable excuse, failed to comply with any of the requirements of the order, and

(b) it appears to the court to be in the interests of justice to do so,

the court may revoke the order and deal with S, for the matter in respect of which the order was made, in any manner in which the court could deal with S if a finding mentioned in section 207(1) had just been recorded by it in respect of that matter.

(3) In doing so, the court must take into account the extent to which S has complied with the requirements of the order.

(4) In proceedings under this paragraph any question as to whether S has failed to comply with the requirements of the order is to be determined by the court and not by the verdict of a jury.

(5) Where the court proposes to exercise its powers under this paragraph, it must summon S to appear before the court and, if S does not appear in answer to the summons, may issue a warrant for the arrest of S.

Part 6 — Supplementary

Power to vary period for which supervision element may be made

14

(1) The Department of Justice may make regulations substituting, for the period of 3 years mentioned in paragraph 3(1), such other period (exceeding 6 months) as may be specified in the regulations.

(2) Regulations under sub-paragraph (1) may make in paragraph 8(2) any amendment which the Department thinks necessary in consequence of the substitution made by the regulations.

Transitional provision relating to the abolition of petty sessions districts

15

(1) Until the day on which section 1 of the Justice (Northern Ireland) Act 2015 comes into operation, this Schedule is to be read with the following modifications.

(2) If the supervising officer is a probation officer—

(a) the supervision and assessment order must specify the petty sessions district in which the supervised person resides or will reside, and

(b) the supervising officer must be a probation officer appointed for or assigned to that district.

(3) If the supervising officer is a social worker—

(a) paragraph 6(2)(b) does not apply, but

(b) the court must, as soon as practicable after making the order, give to the probation officer assigned to the court at least 1 copy of the order.

(4) After making an order, the court must send to the clerk of petty sessions for the petty sessions district in which the supervised person resides or will reside—

(a) a copy of the order; and

(b) such documents and information relating to the case as it considers likely to be of assistance to a court acting for that district in the exercise of its functions in relation to the order.

(5) The functions conferred by paragraphs 8 to 10 are to be exercised by a court for the petty sessions district in which the supervised person resides or will reside.

(6) In paragraph 9—

(a) in sub-paragraph (1)(a), the reference to supervision by a social worker includes supervision by a probation officer appointed for or assigned to a petty sessions district;

(b) the references to an HSC trust or to the area of such a trust include a petty sessions district.

(7) If the court amends a supervision and assessment order so as to substitute one petty session district for another, the court which amends the order must send to the clerk of petty sessions for the new petty sessions district—

(a) at least 2 copies of the amending order; and

(b) such documents and information relating to the case as it considers likely to be of assistance to a court acting for that district in the exercise of its functions in relation to the order.

(8) The clerk of petty sessions for the new petty sessions district, when given copies under sub-paragraph (7), must give a copy of the amending order to the supervising officer.

SCHEDULE 8

1

The Mental Health Order is amended as follows.

2

Before Article 2 insert— “ Interpretation of Order ”.

3

(1) Article 2 (interpretation) is amended as follows.

(2) Amend paragraph (2) of that Article in accordance with sub-paragraphs (3) to (9).

(3) Insert the following at the appropriate places—

“the 2016 Act” means the Mental Capacity Act (Northern Ireland) 2016;

;

“best interests”: any determination of what would be in the best interests of a patient who is under 16 is to be made in accordance with Article 3B;

;

“independent advocate” has the same meaning as in Article 3C;

(4) Omit the definitions of “guardianship application”, “hospital order” and “guardianship order”, “interim hospital order”, “restriction direction”, “restriction order” and “transfer direction”.

(5) In the definition of “the applicant” omit the words from “and, in relation” to the end.

(6) In the definition of “patient” omit “(except in Part VIII)”.

(7) In the definition of “responsible authority” omit paragraph (b).

(8) In the definition of “responsible medical officer” for paragraph (b) substitute—

(b) in relation to a patient liable to be detained under Part 10 of the 2016 Act, means the responsible medical practitioner within the meaning of that Part;

(9) In the definition of “the Review Tribunal” for “the Mental Health Review Tribunal for Northern Ireland” substitute “ the Review Tribunal constituted under Article 70 ”.

(10) In paragraph (2A) of that Article—

(a) after “Articles” insert “ 3D, ”;

(b) omit “107(1B),” and “, 123(1)”.

(11) Omit paragraph (3) of that Article.

4

After Article 3 insert—

(3A) (1) This Article applies to a person responsible for the treatment or care (or both) of a patient under 16. (2) The person's primary consideration, when making decisions about the patient's treatment or care, must be the patient's best interests. (3) In this Article— (a) “treatment” means any treatment relating to mental disorder; (b) “care” means any care given where the patient is being assessed or treated for mental disorder. (4) In this paragraph references to assessment or treatment are to any assessment or treatment, whether or not under Part 2. (3B) (1) This Article applies where for any purpose of this Order it falls to a person to determine what treatment or care would be in the best interests of a patient (“C”) who is under 16. (2) In determining what would be in C's best interests, the person must take into account C's age but must not make the determination merely on the basis of— (a) C's age or appearance; or (b) any other characteristic of C's, including any condition that C has, which might lead others to make unjustified assumptions about what might be in C's best interests. (3) The person— (a) must consider all the relevant circumstances (that is, all the circumstances of which the person is aware which it is reasonable to regard as relevant); and (b) must in particular take the following steps. (4) The person— (a) must consider whether it is likely that C will, when he or she reaches the age of 16, have capacity in relation to the matter in question; and (b) if it appears likely that C will, must consider when C will reach that age. (5) The person must, so far as reasonably practicable— (a) encourage and help C to participate, or to improve C's ability to participate, as fully as possible in any decision about C's treatment or care; and (b) in particular, ensure that C is provided in an appropriate way with information and advice about the treatment or care. (6) The person must have special regard to (so far as they are reasonably ascertainable)— (a) C's past and present wishes and feelings (and, in particular, any relevant written statement made by C); and (b) C's beliefs and values. (7) The person must— (a) so far as it is practicable and appropriate to do so, consult the relevant people about what would be in C's best interests and in particular about the matters mentioned in paragraph (6); and (b) take into account the views of those people (so far as ascertained from that consultation or otherwise) about what would be in C's best interests and in particular about those matters. For the definition of “the relevant people” see paragraph (9). (8) The person must, in relation to anything proposed to be done, have regard to whether the same purpose can be as effectively achieved in a way that is less restrictive of C's rights and freedoms of action. (9) In paragraph (7) “the relevant people” means— (a) every person who has parental responsibility for C; (b) C's nearest relative; (c) if at the time of the determination there is an independent advocate instructed to represent and provide support to C, the independent advocate; (d) any other person named by C as someone to be consulted on the matter in question or on matters of that kind; (e) anyone engaged in caring for C or interested in C's welfare. (3C) (1) The Department must make regulations about independent advocates. (2) An “independent advocate” means a person who has been appointed by an HSC trust, in accordance with the regulations, to be a person to whom the trust may from time to time offer instructions to represent and provide support to a patient who is under 16 in relation to matters specified in the instructions. (3) The regulations may in particular— (a) require HSC trusts to make arrangements for the purpose of ensuring that independent advocates are available to be instructed; (b) make provision about such arrangements (including provision providing that a person may be appointed as mentioned in paragraph (2) only if the person meets prescribed conditions); (c) make provision for the purpose of securing the independence of independent advocates; (d) make provision in relation to the instruction of independent advocates (including provision permitting or requiring a prescribed person, in prescribed circumstances, to request an HSC trust to instruct an independent advocate); (e) make provision about the functions of independent advocates. (4) The conditions that may be prescribed by virtue of paragraph (3)(b) include— (a) a condition that the person is approved, or belongs to a description of persons approved, in accordance with the regulations; (b) a condition that the person has prescribed qualifications or skills or has undertaken prescribed training. (5) The regulations must make provision for the purpose of securing that, except in prescribed circumstances, an independent advocate is instructed— (a) where a patient under 16 is admitted to a hospital (whether under Part 2 or otherwise) for the assessment or treatment of mental disorder; or (b) where it is proposed to give a patient under 16 a form of medical treatment to which Article 63 or 63B applies. (6) The regulations may apply, or make provision corresponding to, any provision within paragraph (7) (with or without modifications). (7) The provisions are— (a) any provision of Part 4 of the 2016 Act; (b) any provision of regulations made under that Part; (c) any provision that could be made by regulations under that Part. (3D) (1) This Article applies in relation to a patient who— (a) is under 16; and (b) is an in-patient in a hospital for the purposes of the assessment or treatment of mental disorder (whether by virtue of Part 2 or otherwise). (2) The responsible authority of the hospital must ensure that (subject to the patient's needs) the patient's environment in the hospital is suitable having regard to his or her age. (3) For the purposes of deciding how to fulfil the duty under paragraph (2), the responsible authority must consult a person who appears to thatauthority to have knowledge or experience which makes that person suitable to be consulted.

5

In the heading of Part 2 for “AND GUARDIANSHIP” substitute “ : CHILDREN UNDER 16 ”.

6

(1) Article 4 (admission for assessment) is amended as follows.

(2) In paragraph (1) after “patient” insert “ who is under 16 ”.

(3) In paragraph (2) after “patient” insert “ who is under 16 ”.

7

In Article 8 (effect of application for assessment) omit paragraph (3).

8

In Article 12 (detention for treatment) omit paragraph (3).

9

In Article 13(1) (renewal of authority for detention) after “discharged” insert “ or reached the age of 16 ”.

10

After Article 14 insert—

(14A) (1) A patient who, immediately before his or her 16th birthday, is liable to be detained under this Part ceases to be so liable when he or she reaches the age of 16. (2) Nothing in paragraph (1)prevents the patient from being detained by virtue of the 2016 Act

11

Omit Articles 18 to 26 (guardianship).

12

In the italic heading before Article 27 omit “or guardianship”.

13

(1) Article 27 (duty of authority to give information to patients and nearest relatives) is amended as follows.

(2) In paragraph (1) omit—

(a) each “or subject to guardianship”;

(b) in sub-paragraph (b) “or guardianship”;

(3) In paragraph (2) omit—

(a) each “or subject to guardianship”;

(b) in sub-paragraph (a)(i) “, 24”;

(4) In paragraph (4)—

(a) omit “or subject to guardianship”;

(b) for “the patient,” substitute “ the patient and ”;

14

In Article 28 (transfer of patients) omit—

(a) paragraphs (5) to (7);

(b) in paragraph (9) the words from “and, in” to “guardian of the patient”.

15

In Article 29 (return and readmission of patients absent without leave) omit—

(a) paragraph (2);

(b) in paragraph (3) “or subject to guardianship, as the case may be,”.

16

(1) Article 30 (special provisions as to patients absent without leave) is amended as follows.

(2) In paragraph (1) omit—

(a) “or subject to guardianship”;

(b) the second “or subject”.

(3) In paragraph (2)—

(a) omit “or subject to guardianship”;

(b) for “, 13 or 23” substitute “ or 13 ”.

(4) In paragraph (3) omit “or guardianship”.

17

(1) Article 31 is amended as follows.

(2) In paragraph (1) omit—

(a) “or subject to guardianship”;

(b) the second “or subject”.

(3) In paragraph (2) omit—

(a) each “or subject to guardianship”;

(b) the last “or subject”.

18

In Article 32(3) (definition of “nearest relative”) omit “or his reception into guardianship”.

19

In Article 33 (children and young persons in care) omit “who is a child or young person”.

20

(1) Article 34 (minors under guardianship, etc) is amended as follows.

(2) In paragraph (1)—

(a) for “a person who has not attained the age of 18 years” substitute “ a patient ”;

(b) for “such a person” substitute “ a patient ”.

(3) Omit paragraph (3).

21

In Article 35(1) (assignment of functions by nearest relative) omit “or subject to guardianship”.

22

(1) Article 36 (appointment by county court of acting nearest relative) is amended as follows.

(2) In paragraph (1) for the words from “the applicant” to the end substitute “a person specified in the order who—

(a) is either the applicant or another person specified in the application (and is not the patient);

(b) in the opinion of the court is a proper person to act as the patient's nearest relative; and

(3) In paragraph (2) after “on the application of—” insert—

(za) the patient;

(4) In paragraph (3)—

(a) in sub-paragraph (c) omit “or a guardianship application”;

(b) omit the word “or” after sub-paragraph (c);

(d) after sub-paragraph (d) insert

or (e) that the nearest relative of the patient is otherwise not a suitable person to act as such.

(5) In paragraph (4) for “(3)(a) or (b)” substitute “ (3)(a), (b) or (e) ”.

23

(1) Article 37 (discharge and variation of orders under Article 36) is amended as follows.

(2) In paragraph (1)—

(a) after “application made—” insert—

(za) by the patient;

;

(b) in sub-paragraph (b) for “or (b)” substitute “ , (b) or (e) ”.

(3) After paragraph (1) insert—

(1A) But in the case of an order made on the ground specified in Article 36(3)(e), an application may not be made under paragraph (1)(b) by the person who was the nearest relative of the patient when the order was made except with the leave of the county court.

(4) In paragraph (2)—

(a) after “or on the application of” insert “ the patient or of ”;

(b) for the words from “for the first-mentioned person” to the end substitute

for the person having those functions another person (other than the patient) who— (a) in the opinion of the court is a proper person to exercise those functions; and (b) is willing to do so.

(5) In paragraph (4) omit—

(a) “or subject to guardianship”;

(b) the second, third and fourth “or subject”.

24

In Article 39 (special provision as to wards of court) omit paragraph (3).

25

In Article 40 (duty of approved social worker to make application for assessment or guardianship) omit—

(a) in the heading “or guardianship”;

(b) in paragraph (1) “or a guardianship application”;

(d) in paragraph (5) “or Article 19(3) to (6)”.

26

In Article 41 (applications, recommendations and reports under Part 2) omit “guardianship application,”.

27

Omit Part 3 (patients concerned in criminal proceedings or under sentence).

28

In the heading of Part 4, at the end insert “ : CHILDREN UNDER 16 ”.

29

For Article 62 substitute—

(62) (1) Articles 63 to 63B and, so far as relevant to those Articles, Articles 65, 66 and 68 apply to all patients who are under 16. (2) The other provisions of this Part apply to any patient who is under 16 and is liable to be detained under this Order or Part 10 of the 2016 Act except the following— (a) a patient who is liable to be detained by virtue of Article 7(2) or (3), 7A(2) or 129 of this Order; (b) a patient who has been conditionally discharged under section 191 or 232 of the 2016 Act (and has not been recalled).

30

(1) Article 63 (treatment requiring consent and a second opinion) is amended as follows.

(2) In paragraph (2) for the first “Article” substitute “ Articles 63A and ”.

(3) For paragraph (3) substitute—

(3) Before giving a certificate under paragraph (2), the medical practitioner must consult— (a) such person or persons as appear to the medical practitioner to be principally concerned with the patient's medical treatment; and (b) the independent advocate instructed to represent and provide support to the patient.

31

After Article 63 insert—

(63A) (1) Medical treatment to which Article 63 applies may be given to a patient under 16 if paragraphs (2) to (4) apply. (2) This paragraph applies if a medical practitioner appointed for the purposes of this Part by RQIA (not being the responsible medical officer) has certified in the prescribed form— (a) that the patient is not capable of understanding the nature, purpose and likely effects of the treatment in question; and (b) that having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition, the treatment should be given. (3) This paragraph applies if two persons appointed for the purposes of this paragraph by RQIA (not being medical practitioners) have certified in the prescribed form that the patient is not capable of understanding the nature, purpose and likely effects of the treatment in question. (4) This paragraph applies if— (a) an application is made to the court for an order authorising the giving of the treatment in question to the patient; (b) the application is made by the medical practitioner principally concerned with the patient's medical treatment (or, if there is more than one, any of them); and (c) the court makes an order authorising the giving of the treatment. (5) Before giving a certificate under paragraph (2), the medical practitioner must consult— (a) such person or persons as appear to the medical practitioner to be principally concerned with the patient's medical treatment; and (b) the independent advocate instructed to represent and provide support to the patient. (6) A person appointed under paragraph (3) may at any reasonable time, for the purpose of exercising his or her functions under that paragraph, in private visit and interview any patient. (7) A person who gives a certificate under this Article must immediately forward a copy of it to RQIA. (63B) (1) This Article applies to the following forms of medical treatment for mental disorder— (a) electro-convulsive therapy; and (b) such other forms of treatment as may be prescribed for the purposes of this Article. (2) Subject to Article 68 (urgent treatment), a patient must not be given any form of treatment to which this Article applies unless paragraph (3) or (4) applies. (3) This paragraph applies if— (a) the patient has consented to the treatment in question; and (b) a medical practitioner appointed for the purposes of this Part by RQIA (not being the responsible medical officer) has certified in the prescribed form— (i) that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it; and (ii) that having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition, the treatment should be given. (4) This paragraph applies if a medical practitioner appointed for the purposes of this Part by RQIA (not being the responsible medical officer) has certified in the prescribed form— (a) that the patient is not capable of understanding the nature, purpose and likely effects of the treatment in question; and (b) that having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition, the treatment should be given. (5) Before giving a certificate under this Article, the medical practitioner must consult— (a) such person or persons as appear to the medical practitioner to be principally concerned with the patient's medical treatment; and (b) the independent advocate instructed to represent and provide support to the patient. (6) A person who gives a certificate under this Article must immediately forward a copy of it to RQIA. (7) Before making regulations for the purposes of this Article, the Department must consult such bodies as appear to it to be concerned.

32

In Article 64(1)(b) (treatment requiring consent or second opinion) after “63” insert “ or 63B ”.

33

In Article 65 (plans of treatment)—

(a) for “Article 63 or 64” substitute “ any of Articles 63 to 64 ”;

(b) for “that Article” substitute “ Article 63, 63B or 64 ”.

34

In Article 66(1) (withdrawal of consent) after “63” insert “ , 63B ”.

35

(1) Article 67 (review of treatment) is amended as follows.

(2) In paragraph (1) after “63(2)” insert “ , 63A, 63B ”.

(3) In paragraph (2)—

(a) for “subject to a restriction order or restriction direction” substitute “ liable to be detained by virtue of an order or direction under Part 10 of the 2016 Act ”;

(b) in sub-paragraph (b) for the words from “the responsible medical officer” to the end substitute “ a relevant report is made in respect of the patient. ”.

(4) After that paragraph insert—

(2A) In paragraph (2)(b) “relevant report” means a report under any of the following provisions of the 2016 Act— (a) section 183 or paragraph 5 of Schedule 6 (reports extending public protection orders without restrictions); (b) section 193 (reports on persons subject to public protection orders with restrictions); (c) section 201 (reports on persons subject to hospital directions and hospital transfer directions).

(5) In paragraph (3)—

(a) after “63(2)” insert “ , 63A, 63B ”;

(b) for “63 and 64” substitute “ 63 to 64 ”.

36

(1) Article 68 (urgent treatment) is amended as follows.

(2) In paragraph (1) for the first “and” substitute “ to ”.

(3) In paragraph (2) for “Article 63 or 64” substitute “ any of Articles 63 to 64 ”;

37

In Article 69 (treatment not requiring consent) after “63” insert “ , 63B ”.

38

For the heading of Part 5 substitute— “ THE REVIEW TRIBUNAL ”.

39

In Article 70(1) (constitution of the Review Tribunal) for “Mental Health Review Tribunal for Northern Ireland” substitute “ Review Tribunal ”.

40

(1) Article 71 (applications to the tribunal under Part 2) is amended as follows.

(2) Omit paragraph (2).

(3) In paragraph (3) omit the words from “or the authority” to “Article 23”.

(4) In paragraph (4) omit—

(a) sub-paragraph (b);

(b) the words “or, as the case may be, Article 24(7)”.

(5) In paragraph (5) omit “or subject to guardianship”.

41

In Article 72(1) (reference of cases of Part 2 patients to tribunal) omit “or subject to guardianship”.

42

(1) Article 73 (duty on Boards to refer cases to the tribunal) is amended as follows.

(2) In paragraph (1)—

(a) omit “or his guardianship”;

(b) omit “or 23”;

(3) In paragraph (3) for “periods” substitute “ period ”.

43

Omit Articles 74 to 76 (applications and references concerning Part 3 patients).

44

(1) Article 77 (power to discharge patients other than restricted patients) is amended as follows.

(2) In the heading omit “other than restricted patients”.

(3) Omit paragraph (3).

(4) In paragraph (4) for “to (3)” substitute “ and (2) ”.

(5) Omit paragraph (5).

45

Omit Articles 78 to 80 (discharge of restricted patients etc).

46

In Article 81 (visiting and examination of patients) omit “or subject to guardianship”.

47

For Article 82 substitute—

(82) (1) Applications to the Review Tribunal may be made only in such cases and at such times as are expressly provided by virtue of this Order, the 2016 Act or any other statutory provision. (2) Where any statutory provision authorises an application to be made to the Review Tribunal within a specified period, not more than one such application relating to the same matter may be made within that period; but for this purpose any application withdrawn in accordance with rules made under Article 83 is to be disregarded. (3) Any application to the Review Tribunal is to be made by notice in writing addressed to the tribunal (but this is subject to any statutory provision which provides otherwise). (4) The Department of Justice may make regulations about what is, or is not, to be regarded as the same matter for the purposes of paragraph (2). (5) Regulations under paragraph (4) may be made only if a draft of the regulations has been laid before, and approved by a resolution of, the Assembly.

48

(1) Article 83 (procedure of Tribunal) is amended as follows.

(2) In paragraph (2)(a) and (i) omit “under this Order”.

(3) In paragraph (4)—

(a) for “restricted patients” substitute “ persons within paragraph (4A) ”;

(b) for “restricted patient” substitute “ person within paragraph (4A) ”.

(4) After that paragraph insert—

(4A) A person is within this paragraph if any of the following is in force in respect of the person— (a) a public protection order with restrictions (within the meaning of Part 10 of the 2016 Act); (b) a hospital direction (within the meaning of that Part of that Act); (c) a direction under section 211 of that Act.

(5) In paragraph (5)—

(a) omit “by this Order or by rules under this Article”;

(b) at the end insert “ (but this is subject to any rules under this Article) ”.

(6) After paragraph (8) insert—

(9) Any reference in this Article to a patient includes a person by or in respect of whom an application or reference to the Review Tribunal is made under the 2016 Act or any other statutory provision.

49

Omit Article 84 (interpretation of Part 5).

50

Omit Part 6 (functions of RQIA).

51

In Article 90 (registration of private hospitals) omit paragraph (1).

52

Omit Articles 91 to 94 (provisions about registration and inspections).

53

Omit Article 96 (offences under Part 7).

54

Omit Part 8 (management of property and affairs of patients).

55

In Article 111(1) (code of practice)—

(a) in sub-paragraph (a) omit “and the reception of patients into guardianship”;

(b) in sub-paragraph (b) after “patients” insert “ under 16 ”.

56

In Article 113(1) (miscellaneous powers of the Board etc) omit sub-paragraph (c).

57

(1) Article 116 (powers of the Board etc in relation to property of patients) is amended as follows.

(2) In paragraph (1) after the first “patient” insert “ under 16 ”.

(3) In paragraph (5) for the words from “controller” to the end substitute “ deputy (within the meaning of the 2016 Act) has the power to control and manage the patient's property. ”.

58

(1) Article 118 (provision information by Department etc) is amended as follows.

(2) In paragraph (1)—

(a) after each “persons” insert “ under 16 ”;

(b) omit sub-paragraph (a).

(3) In paragraph (2) for the words from “facilities” to the end substitute “ facilities to the Review Tribunal as are necessary for it to exercise its functions under this Order. ”.

(4) In paragraph (3) for “and RQIA as are necessary for them to exercise their” substitute “ as are necessary for it to exercise its ”.

59

(1) Article 120 (unlawful detention of patients) is amended as follows.

(2) In paragraph (1) after the second “person” insert “ under 16 ”;

(3) In paragraph (2) after “patient” insert “ under the age of 16 ”.

(4) After paragraph (3) insert—

(4) Nothing in this Article applies in relation to a person detained by virtue of the 2016 Act

”

60

(1) Article 121 (ill-treatment of patients) is amended as follows.

(2) In paragraph (1)—

(a) in sub-paragraph (a) after “patient” insert “ who is under 16 and is ”;

(b) in sub-paragraph (b) after “patient” insert “ who is under 16 and is ”.

(3) In paragraph (2) for the words from “for” to “otherwise” substitute “ under 16 and is ”.

61

In Article 124(1)(a) (assist patients to absent themselves without leave) omit “or being subject to guardianship under this Order,”.

62

In Article 127 (voluntary use of services) omit paragraph (2).

63

Omit Article 128 (pay, pensions etc of patients).

64

(1) Article 129 (warrants) is amended as follows.

(2) In paragraph (1)—

(a) after the first “person” insert “ under 16 ”;

(b) for “a place of safety” substitute “ an appropriate place ”.

(3) Omit paragraph (3).

(4) In paragraph (5) for “a place of safety” substitute “ an appropriate place ”.

(5) In paragraph (7)—

(a) for “ “place of safety”” substitute “ “appropriate place” ”;

(b) omit “any police station,”.

65

Omit Article 130 (mentally disordered persons found in public places).

66

In Article 131(1) (custody, conveyance and detention) for “a place of safety or at any place to which he is taken under Article 48(5)” substitute “ an appropriate place (as defined by Article 129(7)) ”.

67

(1) Article 132 (retaking of patients escaping from custody) is amended as follows.

(2) In paragraph (1)(b) omit “or subject to guardianship”.

(3) In paragraph (2) omit—

(a) “or subject to guardianship”;

(b) the words from “(not being” to “such an order)”.

(4) In paragraph (3)—

(a) for “a place of safety” substitute “ an appropriate place ”;

(b) omit “or Article 130”.

(5) In paragraph (4) for the words from “who escapes” to the end of paragraph (b) substitute “ who escapes while being taken to or from a hospital in pursuance of Article 28 ”.

(6) Omit paragraph (6).

68

(1) Article 133 (protection for acts done in pursuance of Order) is amended as follows.

(2) Omit paragraph (1).

(3) In paragraph (2) for each “such act” substitute “ relevant act ”.

(4) After that paragraph insert—

(2A) In paragraph (2) “relevant act” means any act purporting to be done in pursuance of this Order (or any regulations or rules made under it).

69

Omit Schedule 2 (application of Part 2 to patients detained etc under Part 3).

70

Omit Schedule 2A (supervision and treatment orders).

71

(1) Schedule 3 (the Tribunal) is amended as follows.

(2) For the title substitute— “ THE REVIEW TRIBUNAL ”.

(3) In paragraph 4(1)—

(a) after “sub-paragraph (2)” insert “ and paragraph 7 ”;

(b) omit “under this Order”.

(4) In paragraph 5 omit “under this Order”.

(5) After paragraph 6 insert—

(7) In any proceedings which are to be heard and determined by the Review Tribunal constituted as mentioned in paragraph 4(1) or (2)(a), the proceedings may with the consent of the parties be heard and determined in the absence of any one member other than the president, and in that event the tribunal is to be treated as properly constituted.

SCHEDULE 9

Part 1 — Preliminary

Introduction

1

Paragraphs 2 to 5 apply for the purposes of this Schedule.

The Convention

2

(1) “Convention” means the Convention on the International Protection of Adults signed at the Hague on 13th January 2000.

(2) “Convention country” means a country in which the Convention is in force.

(3) A reference to an Article or Chapter is to an Article or Chapter of the Convention.

(4) Subject to paragraph 4, an expression which appears in this Schedule and in the Convention is to be construed in accordance with the Convention.

Countries, territories and nationals

3

(1) “Country” includes a territory which has its own system of law.

(2) Where a country has more than one territory with its own system of law, a reference to the country, in relation to one of its nationals, is to the territory with which the national has the closer, or the closest, connection.

Adults with incapacity

4

“Adult” means a person who—

(a) as a result of an impairment or insufficiency of the person's personal faculties, cannot protect his or her interests; and

(b) is 16 or over.

Protective measures

5

(1) “Protective measure” means a measure directed to the protection of the person or property of an adult; and it may deal in particular with any of the following—

(a) the determination of incapacity and the institution of a protective regime;

(b) placing the adult under the protection of an appropriate authority;

(d) the designation and functions of a person having charge of the adult's person or property, or representing or otherwise helping the adult;

(e) placing the adult in a place where protection can be provided;

(f) administering, conserving or disposing of the adult's property;

(g) authorising a specific intervention for the protection of the person or property of the adult.

(2) Where a measure of like effect to a protective measure has been taken in relation to a person while the person is under 16, this Schedule applies to the measure in so far as it has effect in relation to the person once the person is 16 or over.

Application of this Schedule

6

(1) This Schedule does not apply to a relevant person where ... the following applies—

(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children that was signed at the Hague on 19 October 1996;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In this paragraph “relevant person” means a person who is 16 or over but under 18.

Central Authority

7

(1) Any function under the Convention of a Central Authority is exercisable in Northern Ireland by the Department of Justice.

(2) A communication may be sent to the Central Authority in relation to Northern Ireland by sending it to the Department of Justice.

Part 2 — Jurisdiction

Scope of jurisdiction

8

(1) The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to—

(a) an adult habitually resident in Northern Ireland;

(b) an adult's property in Northern Ireland;

(d) an adult present in Northern Ireland, if a protective measure which is temporary and limited in its effect to Northern Ireland is proposed in relation to the adult.

(2) An adult present in Northern Ireland is to be treated for the purposes of this paragraph as habitually resident there if—

(a) the habitual residence of the adult cannot be ascertained;

(b) the adult is a refugee; or

(c) the adult has been internationally displaced as a result of disturbance in the country of the adult's habitual residence.

9

(1) The court may also exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to an adult if sub-paragraph (2) or (3) applies in relation to that adult.

(2) This sub-paragraph applies in relation to an adult if—

(a) the adult is a British citizen;

(b) the adult has a closer connection with Northern Ireland than with any other part of the United Kingdom; and

(3) This sub-paragraph applies in relation to an adult if the Department of Justice, having consulted such persons as it considers appropriate, agrees to a request under Article 8 in relation to the adult.

Exercise of jurisdiction

10

(1) This paragraph applies where jurisdiction is exercisable under this Schedule in connection with a matter which involves a Convention country other than Northern Ireland.

(2) Any Article on which the jurisdiction is based applies in relation to the matter in so far as it involves the other country (and the court must, accordingly, comply with any duty conferred on it as a result).

(3) Article 12 also applies, so far as its provisions allow, in relation to the matter in so far as it involves the other country.

11

A reference in this Schedule to the exercise of jurisdiction under this Schedule is to the exercise of functions under this Act as a result of this Part.

Part 3 — Applicable law

Applicable law

12

In exercising jurisdiction under this Schedule, the court may, if it considers that the matter has a substantial connection with a country other than Northern Ireland and having regard to the interests of the adult, apply the law of that other country.

13

Where a protective measure is taken in one country but implemented in another, the conditions of implementation are governed by the law of the other country.

Lasting powers of attorney, etc

14

(1) If the donor of a lasting power is habitually resident in Northern Ireland at the time of granting the power, the law applicable to the existence, extent, modification or extinction of the power is—

(a) the law of Northern Ireland; or

(b) if the donor specifies in writing the law of a connected country for the purpose, that law.

(2) If the donor is habitually resident in another country at that time, but Northern Ireland is a connected country, the law applicable in that respect is—

(a) the law of the other country; or

(b) if the donor specifies in writing the law of Northern Ireland for the purpose, that law.

(3) A country is connected, in relation to the donor, if it is a country—

(a) of which the donor is a national;

(b) in which the donor was habitually resident before the grant of the power; or

(4) Where this paragraph applies as a result of sub-paragraph (3)(c), it applies only in relation to the property which the donor has in the connected country.

(5) The law applicable to the manner of the exercise of a lasting power is the law of the country where it is exercised.

(6) In this Part, “lasting power” means—

(a) a lasting power of attorney (see section 97);

(b) an enduring power of attorney (as defined by section 306(1)); or

15

(1) Where a lasting power is not exercised in a manner sufficient to guarantee the protection of the person or property of the donor, the court, in exercising jurisdiction under this Schedule, may disapply or modify the power.

(2) Where, in accordance with this Part, the law applicable to the power is, in one or more respects, that of a country other than Northern Ireland, the court must, so far as possible, have regard to the law of the other country in that respect (or those respects).

16

Regulations may provide for Schedule 4 (lasting powers of attorney: formalities) to apply with modifications in relation to a lasting power which comes within paragraph 14(6)(c).

Protection of third parties

17

(1) This paragraph applies where a person (a “representative”) in purported exercise of an authority to act on behalf of an adult enters into a transaction with a third party.

(2) The validity of the transaction may not be questioned in proceedings, nor may the third party be held liable, merely because—

(a) where the representative and third party are in Northern Ireland when entering into the transaction, sub-paragraph (3) applies;

(b) where they are in another country at that time, sub-paragraph (4) applies.

(3) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Schedule, the law of a country other than Northern Ireland; and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under the law of that other country.

(4) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Part, the law of Northern Ireland; and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under that law.

(5) This paragraph does not apply if the third party knew or ought to have known that the applicable law was—

(a) in a case within sub-paragraph (3), the law of the other country;

(b) in a case within sub-paragraph (4), the law of Northern Ireland.

Mandatory rules

18

Where the court is entitled to exercise jurisdiction under this Schedule, the mandatory provisions of the law of Northern Ireland apply, regardless of any system of law which would otherwise apply in relation to the matter.

Public policy

19

Nothing in this Part requires or enables the application in Northern Ireland of a provision of the law of another country if its application would be manifestly contrary to public policy.

Part 4 — Recognition and enforcement

Recognition

20

(1) A protective measure taken in relation to an adult under the law of a country other than Northern Ireland is to be recognised in Northern Ireland if it was taken on the ground that the adult is habitually resident in the other country.

(2) A protective measure taken in relation to an adult under the law of a Convention country other than Northern Ireland is to be recognised in Northern Ireland if it was taken on a ground mentioned in Chapter 2 (jurisdiction).

(3) But the court may disapply this paragraph in relation to a measure if it considers that—

(a) the case in which the measure was taken was not urgent;

(b) the adult was not given an opportunity to be heard; and

(4) The court may also disapply this paragraph in relation to a measure if it considers that—

(a) recognition of the measure would be manifestly contrary to public policy;

(b) the measure would be inconsistent with a mandatory provision of the law of Northern Ireland; or

(c) the measure is inconsistent with one subsequently taken, or recognised, in Northern Ireland in relation to the adult.

(5) The court may also disapply this paragraph in relation to a measure taken under the law of a Convention country in a matter to which Article 33 applies, if the court considers that that Article has not been complied with in connection with that matter.

21

(1) An interested person may apply to the court for a declaration as to whether a protective measure taken under the law of a country other than Northern Ireland is to be recognised in Northern Ireland.

(2) No leave is required for an application to the court under this paragraph.

22

For the purposes of paragraphs 20 and 21, any finding of fact in relation to jurisdiction relied on when the measure was taken is conclusive.

Enforcement

23

(1) An interested person may apply to the court for a declaration as to whether a protective measure taken under the law of, and enforceable in, a country other than Northern Ireland is enforceable, or to be registered, in Northern Ireland.

(2) The court must make the declaration if—

(a) the measure comes within sub-paragraph (1) or (2) of paragraph 20; and

(b) the paragraph is not disapplied in relation to it as a result of sub-paragraph (3), (4) or (5) of that paragraph.

(3) A measure to which a declaration under this paragraph relates is enforceable in Northern Ireland as if it were a measure of like effect taken by the court.

Measures taken in relation to under 16s

24

(1) This paragraph applies where—

(a) provision giving effect to, or otherwise deriving from, the Convention in a country other than Northern Ireland applies in relation to a person who is under 16; and

(b) a measure is taken in relation to that person in reliance on that provision.

(2) This Part applies in relation to that measure as it applies in relation to a protective measure taken in relation to an adult under the law of a Convention country other than Northern Ireland.

Supplementary

25

The court may not review the merits of a measure taken outside Northern Ireland except to establish whether the measure complies with this Schedule in so far as it is, as a result of this Schedule, required to do so.

Part 5 — Co-operation

Proposal for cross-border placement

26

(1) This paragraph applies where a public authority proposes to place an adult in an establishment in a Convention country other than Northern Ireland.

(2) The public authority must consult an appropriate authority in that other country about the proposed placement and, for that purpose, must send it—

(a) a report on the adult; and

(b) a statement of its reasons for the proposed placement.

(3) If the appropriate authority in the other country opposes the proposed placement within a reasonable time, the public authority may not proceed with it.

27

A proposal received by a public authority under Article 33 in relation to an adult is to proceed unless the authority opposes it within a reasonable time.

Adult in danger etc

28

(1) This paragraph applies if a public authority is told that an adult—

(a) who is in serious danger, and

(b) in relation to whom the public authority has taken, or is considering taking, protective measures,

is, or has become resident, in a country other than Northern Ireland.

(2) The public authority must tell an appropriate authority in that other country about—

(a) the danger; and

(b) the measures taken or under consideration.

29

A public authority may not request from, or send to, an appropriate authority in a country other than Northern Ireland information in accordance with Chapter 5 (co-operation) in relation to an adult if it considers that doing so—

(a) would be likely to endanger the adult or the adult's property; or

(b) would amount to a serious threat to the liberty or life of a member of the adult's family.

Part 6 — General

Certificate

30

A certificate given under Article 38 by an authority in a Convention country other than Northern Ireland is, unless the contrary is shown, proof of the matters contained in it.

Powers to make further provision as to private international law

31

(1) Regulations may make provision—

(a) giving further effect to the Convention; or

(b) otherwise about the private international law of Northern Ireland in relation to the protection of adults.

(2) The regulations may—

(a) confer functions on the Department of Justice, the court or another public authority;

(b) amend this Schedule;

(d) make provision relating to countries other than Convention countries.

Exceptions

32

Nothing in this Schedule applies, and no provision made under paragraph 31 is to apply, to any matter to which the Convention, as a result of Article 4, does not apply.

SCHEDULE 10

Judicature (Northern Ireland) Act 1978 (c. 23)

1

In section 116(1) (fees) after “Enforcement of Judgments Office” insert “ or the Public Guardian ”.

2

(1) In Schedule 1 (appeals to Supreme Court in certain criminal matters), paragraph 4 is amended as follows.

(2) In sub-paragraph (3)—

(a) for the words from “the Mental Health” to “45)” substitute “ Part 10 of the Mental Capacity Act (Northern Ireland) 2016 (except an order under section 162 of that Act or an interim detention order within the meaning of Part 10 of that Act) ”;

(b) for each “the said Order” substitute “ that Act ”;

(d) for “patients” substitute “ persons ”.

(3) In sub-paragraph (3A)—

(a) for the words from the first “interim” to “1986” substitute “ interim detention order within the meaning of Part 10 of the Mental Capacity Act (Northern Ireland) 2016 ”;

(b) in paragraph (b)—

(i) for “Part III of that Order” substitute “ Part 10 of that Act ”;

(ii) for “transfer direction together with a restriction direction” substitute “ direction under section 220 of that Act ”;

(c) in paragraph (c) for the words from “paragraph (2)” to the end substitute “ section 178(6) of that Act (power of court to make public protection order in absence of person subject to an interim detention order) applies as if the defendant were still subject to an interim detention order. ”.

Criminal Appeal (Northern Ireland) Act 1980 (c. 47)

3

(1) Section 7 (supplementary provisions as to retrial) is amended as follows.

(2) In subsection (3)—

(a) for the words from “under Part III” to “of that Order)” substitute “ under Part 10 of the Mental Capacity Act (except an order under section 162 of that Act or an interim detention order) ”;

(b) in paragraph (b) for “the said Part III” substitute “ Part 10 of that Act ”.

(3) In subsection (3A)—

(a) for the words from “remand” to “that Order” substitute “ remand under section 162 of the Mental Capacity Act or an interim detention order ”;

(b) for “Part III of the Mental Health Order” substitute “ Part 10 of that Act ”;

(c) for “transfer direction together with a restriction direction” substitute “ direction under section 220 of that Act ”.

4

In section 10(5) (appeals against interim hospital orders) for “interim hospital order under Article 45 of the Mental Health Order” substitute “ interim detention order ”.

5

In section 11 (appeal against conviction: substitution of finding of insanity etc) for each “Article 50A(2) of the Mental Health Order” substitute “ section 207(2) of the Mental Capacity Act ”.

6

In section 12(1) (appeal against finding of not guilty on ground of insanity) for “Article 50(1) of the Mental Health Order” substitute “ section 206 of the Mental Capacity Act ”.

7

(1) Section 13 (disposal of appeal allowed under section 12) is amended as follows.

(2) In subsection (5A) for “Article 50A(2) of the Mental Health Order” substitute “ section 207(2) of the Mental Capacity Act ”.

(3) Omit subsection (6).

8

(1) Section 13A (appeal against finding of unfitness to be tried) is amended as follows.

(2) In subsection (1) for “Article 49 of the Mental Health Order” substitute “ section 204 of the Mental Capacity Act ”.

(3) In subsection (6) for “the Mental Health Order” substitute “ Part 10 of the Mental Capacity Act ”.

(4) In subsection (7)—

(a) for “the Mental Health Order, Part III of that Order” substitute “ Part 10 of the Mental Capacity Act, that Part ”;

(b) for “transfer direction together with a restriction direction” substitute “ direction under section 220 of that Act ”.

9

(1) Section 29A (effect of interim hospital orders) is amended as follows.

(2) In subsection (1) for each “interim hospital order” substitute “ interim detention order ”.

(3) In subsection (2) for “Article 45(6) of the Mental Health Order” substitute “ section 178(7) of the Mental Capacity Act ”.

10

(1) Section 30(1) (interpretation of Part 1) is amended as follows.

(2) In the definition of “sentence” at the end insert “ , and any hospital direction under Part 10 of the Mental Capacity Act ”.

(3) After “any such order or recommendation” insert “ or direction ”.

11

(1) Section 36 (detention of defendant pending appeal by the Crown) is amended as follows.

(2) In subsection (3)—

(a) for “the Mental Health Order (otherwise than under Article 42, 43 or 45 of that Order)” substitute “ Part 10 of the Mental Capacity Act (except an order under section 162 of that Act or an interim detention order) ”;

(b) for the second “that Order” substitute “ that Act ”;

(d) for “patients” substitute “ persons ”.

(3) In subsection (3A)—

(a) for the words from “Article 43” to “Article 45 of that Order” substitute “ section 162 of the Mental Capacity Act or an interim detention order ”;

(b) in paragraph (b)—

(i) for “Part III of the Mental Health Order” substitute “ Part 10 of that Act ”;

(ii) for “transfer direction together with a restriction direction” substitute “ direction under section 220 of that Act ”;

(i) for the first “interim hospital order” substitute “ interim detention order ”;

(ii) for the words from “paragraph (2)” to the end substitute “ section 178(6) of that Act (power of court to make public protection order in absence of person subject to an interim detention order) applies as if the defendant were still subject to an interim detention order. ”.

12

In section 45(3ZA) (powers of court exercisable by single judge) for “interim hospital order” substitute “ interim detention order ”.

13

(1) Section 50 (interpretation) is amended as follows.

(2) In subsection (1) insert at the appropriate places—

interim detention order” has the meaning given by section 177 of the Mental Capacity Act;

;

“the Mental Capacity Act” means the Mental Capacity Act (Northern Ireland) 2016;

(3) Omit subsection (1A).

14

Omit Schedule 2 (consequences and effect of order under section 13(6) for detention in hospital).

County Courts (Northern Ireland) Order 1980 (NI 3)

15

(1) Article 28 (appeals and applications to county courts) is amended as follows.

(2) In paragraph (3A) for “interim hospital order under the Mental Health (Northern Ireland) Order 1986” substitute “ interim detention order under Part 10 of the Mental Capacity Act (Northern Ireland) 2016 ”.

(3) In paragraph (3B)—

(a) for “an interim hospital order under the powers referred to in paragraph (3)” substitute “ an interim detention order under Part 10 of that Act ”;

(b) for “Article 45(6) of the said Order of 1986” substitute “ section 178(7) of that Act ”.

(4) In paragraph (4) at the end insert “ (and “sentence” includes a hospital direction under Part 10 of the Mental Capacity Act (Northern Ireland) 2016) ”.

Magistrates' Courts (Northern Ireland) Order 1981 (NI 26)

16

In Article 140 (appeals against conviction, sentence etc) after paragraph (2) insert—

(2ZA) In paragraph (1) “sentence” also includes a hospital direction under Part 10 of the Mental Capacity Act (Northern Ireland) 2016.

SCHEDULE 11

Principle: best interests

General limitations on section 9

Appointment of nominated person

Functions of independent mental capacity advocates: provision of support, etc

Restrictions on scope of lasting power of attorney

The court's powers to make decisions and appoint deputies: general

Functions of the Public Guardian

Section 132: exception for clinical trials

Information to be given on removal

Section 162: meaning of “an accused person”

Conditions for transfer under section 211

Amendments of Mental Health Order: children etc

Forgery, false statements etc

Visiting etc powers of medical practitioners in connection with the Tribunal

Review of law relating to advance decisions

Effect of code

Editorial notes

[^c22565501]: S. 303 partly in operation; s. 303(3) in operation at 10.5.2016 see s. 307(1)

[^key-4c77946ba695b5e4111998d55f813c81]: Words in s. 306(1) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 206 (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

[^key-6ef352a7339773cfdd995adcfea6a36b]: S. 132 in operation at 1.10.2019 for specified purposes by S.R. 2019/163, art. 2(1), Sch. Pt. 1 (with art. 3) (as amended by S.R. 2019/190, art. 2)

[^key-26b947d492565bf6a98c1fd27de76916]: S. 133 in operation at 1.10.2019 for specified purposes by S.R. 2019/163, art. 2(1), Sch. Pt. 1 (with art. 3) (as amended by S.R. 2019/190, art. 2)

[^key-993c30575d36e5e21d237c295de34e12]: S. 134 in operation at 1.10.2019 for specified purposes by S.R. 2019/163, art. 2(1), Sch. Pt. 1 (with art. 3) (as amended by S.R. 2019/190, art. 2)

[^key-b043c632c4973da60f1c70e665bb872a]: S. 135 in operation at 1.10.2019 for specified purposes by S.R. 2019/163, art. 2(1), Sch. Pt. 1 (with art. 3) (as amended by S.R. 2019/190, art. 2)

[^key-92fe3e79db838f5a77d4c49a784484fe]: S. 136 in operation at 1.10.2019 for specified purposes by S.R. 2019/163, art. 2(1), Sch. Pt. 1 (with art. 3) (as amended by S.R. 2019/190, art. 2)

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