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The Mental Capacity (Deprivation of Liberty) (No. 2) Regulations (Northern Ireland) 2019

Type Ni-Statutory-Rule

Publication 2019-11-07

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

Reform history JSON API PDF

Made: 7th November 2019

Coming into operation: 2nd December 2019

The Department of Health , in exercise of the powers conferred by sections 14(4), 39(2), 39(2)(e), 42(1), 43(5), 57(1)(a), 58(1), 58(3), 61(1), 79(2)(b), 79(4), 297(3), 300(2) and 307(4) paragraphs 5(1)(a), 6(1)(a), 6(1)(e), 7(1), 7(1)(c), 8, 14(1)(a), 19(3)(b) and 20(6) of Schedule 1, paragraphs 1(2), 2(4), 2(4)(d), 3(1)(b), 4(1), 4(1)(c), 7(1), 7(1)(b), 9(2)(b), 9(3) 11(3)(b), 11(4), 13(3)(b), 13(4), 14(4)(b) and 14(5) of Schedule 2 and paragraphs 3(1)(a), 4(1)(a), 4(1)(f), 5(1), 5(1)(c), 6, 7(1)(a) and 9(3)(b) of Schedule 3 to the Mental Capacity Act (Northern Ireland) 2016 , makes the following Regulations:

PART 1 — Citation, commencement and interpretation

Citation, commencement and interpretation

1

(1) These Regulations may be cited as the Mental Capacity (Deprivation of Liberty) (No. 2) Regulations (Northern Ireland) 2019 and shall come into operation on 2nd December 2019.

(2) In these Regulations—

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

”emergency” period means the period during which section 10(4) of and paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of Schedule 11 to the Coronavirus Act 2020 are in force;

“occupational therapist” means a person entitled to use the title and currently registered with the Health and Care Professions Council under the Health and Social Work Professions Order 2001;

“P” means a person who is 16 or over who lacks capacity in relation to the deprivation of liberty;

“panel” means a panel constituted under Schedule 1 or 3 to the Act in accordance with section 297 of the Act;

“practitioner psychologist” means a person entitled to use the title and currently registered with the Health and Care Professions Council under the Health and Social Work Professions Order 2001 ;

“registered” in relation to nurses and midwives, means registered in the register maintained under Article 5 of the Nursing and Midwifery Order 2001 by virtue of qualifications in nursing or midwifery as the case may be;

“registered dentist” has the same meaning as in the Dentists Act 1984 ;

“relevant trust” is the HSC trust in which the deprivation of liberty of taking place or is proposed to take place;

“social worker” means a person registered as a social worker with the Northern Ireland Social Care Council in accordance with the Health and Personal Social Services Act (Northern Ireland) 2001 ;

“speech and language therapist” means a person entitled to use the title and currently registered with the Health and Care Professions Council under the Health and Social Work Professions Order 2001;

“suitably qualified person” means a person who is suitably qualified to make formal assessments of capacity in accordance with section 14(4) of the Act; and

“X” means a person making an appointment, revocation or declaration mentioned in section79(1) of the Act.

PART 2 — Formal Assessment of Capacity and Nominated Person

Suitably qualified person to make formal capacity assessments

2

(1) Subject to regulation 2A, for the purposes of section 14(4) of the Act a person is a suitably qualified person to make a formal capacity assessment and provide a statement of incapacity if paragraph (2) and (3) are met.

(2) The person must be one of the following—

(a) a medical practitioner;

(b) a social worker;

(d) a registered dentist;

(e) an occupational therapist;

(f) a speech and language therapist; or

(g) a practitioner psychologist.

(3) The person must—

(a) have successfully completed training that has been approved by the Department;

(b) except in the 36 month period beginning with the date the person has successfully completed the training referred to in sub-paragraph (a), in the 36 months prior to the formal capacity assessment, have completed further training relevant to their role as a suitably qualified person to make a formal capacity assessment;

(c) have two years experience in a professional role, within the previous ten years, working with persons who lack capacity; and

(d) be appointed by his or her employer as a suitably qualified person to make formal capacity assessments.

Witnesses and persons unable to sign

3

For the purposes of section 79(2)(b) of the Act a person can only be a witness in relation to the formalities under section 79 of the Act if he or she—

(a) is unconnected with X; and

(b) is not X's nominated person.

4

For the purposes of section 79(4) of the Act if X has capacity to make an appointment, revocation or declaration mentioned in section 79(1) of the Act but is physically unable to make a signature, section 79(2)(a) is replaced by—

(a) an addition sheet is added to the document containing the appointment, revocation or declaration and the addition sheet must include— (i) a signature in his or her own name by a person who is unconnected with X; (ii) a statement by that person that the signature on the addition sheet is on behalf of X and that in his or her opinion X has capacity to make an appointment, revocation or declaration; and (iii) a signed statement by one witness, in addition to the witness in paragraph (b), who must be unconnected with X stating that in their opinion X— (aa) understands the effect of the appointment, revocation or declaration; and (bb) has not been subject to any undue pressure in relation to the appointment, declaration or revocation.

PART 3 — Information, Authorisation and Extensions

CHAPTER 1 — Information

Information

5

(1) For the purposes of section 57(1)(a) as soon as practicable when P is detained in circumstances amounting to a deprivation of liberty by virtue of the Act the persons in paragraph (2) must be given the information in paragraph (3) by the managing authority where P is deprived of liberty.

(2) The persons that must be notified are—

(a) P;

(b) the nominated person;

(3) The information that must be provided includes—

(a) under what provisions of the Act is P detained in circumstances amounting to a deprivation of liberty;

(b) P's rights under the Act; and

6

(1) For the purposes of section 57(1)(a) as soon as practicable when P is discharged from detention amounting to deprivation of liberty by virtue of the Act the persons in paragraph (2) must be given the information in paragraph (3) by the managing authority where P is deprived of liberty.

(2) The persons that must be notified are—

(a) P; and

(b) any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a) that the person has been discharged from detention under the Act; and

(b) the effect of the discharge.

CHAPTER 2 — Trust panel authorisations

Persons who can make an application for Schedule 1 authorisation

7

Subject to regulation 7A, for the purposes of paragraph 5(1)(a) of Schedule 1 to the Act a person can make an application under Schedule 1 to the Act if he or she is—

(a) a suitably qualified person;

(b) involved in the care or treatment of P;

(d) unconnected with P.

Form of application

8

For the purposes of paragraph 6(1)(a) and (e) of Schedule 1 to the Act an application for authorisation under Schedule 1 to the Act must be made on Form 5, include the information in Form 5 and the Forms in regulation 9.

9

When making an application under Schedule 1 to the Act—

(a) the statement of incapacity must be included and made on Form 1;

(b) a statement of best interests must be included and made on Form 2;

(d) the medical report must be made on Form 6; and

(e) the statement in paragraph 6(2) of Schedule 1 to the Act must be made on Form 7.

Medical report

10

For the purposes of paragraph 7(1) and 7(1)(c) of Schedule 1 to the Act the medical report must be made on Form 6 and include the information in Form 6.

Care plan

11

For the purposes of paragraph 8 of Schedule 1 to the Act the care plan must be made on Form 4 and include the information in Form 4.

Information

12

(1) For the purposes of paragraph 14(1)(a) of Schedule 1 to the Act when an application is received by the relevant trust, it must as soon as practicable notify P and persons in paragraph (2) with the information in paragraph (3).

(2) The persons that must be notified (in addition to P) are—

(a) the nominated person;

(b) any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a) information that an application has been received in respect of P;

(b) the purpose of the application;

(d) information about the workings of the trust panel; and

(e) information about P's rights under the Act.

13

(1) For the purposes of paragraph 19(3)(b) and 20(6) of Schedule 1 to the Act as soon as practicable after granting or refusing an authorisation under paragraph 15(1) of Schedule 1 to the Act or granting an interim authorisation under paragraph 20(1) of Schedule 1 to the Act, the panel must notify P and the persons in paragraph (2) with the information in paragraph (3) and (4).

(2) The persons who must be notified (in addition to P) are—

(a) the nominated person; and

(b) any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a) notification of the decision; and

(b) contact details for the HSC Trust in which the trust panel made the decision.

(4) If an authorisation is granted under paragraph 15(1) and 20(1) of Schedule 1 to the Act, the panel must also provide information to P and the persons in paragraph (2) on—

(a) the purpose or purposes of the deprivation of liberty;

(b) the place or places where the deprivation of liberty will take place; and

(5) As soon as practicable after granting or refusing an authorisation or granting an interim authorisation under paragraph 15(1) or 20(1) of Schedule 1 to the Act the panel must notify—

(a) the person who made the application; and

(b) the managing authority where the deprivation of liberty will take place

and furnish such information to those persons to facilitate the deprivation of liberty as authorised or not.

(6) If the application contains a statement mentioned in paragraph 6(2) of Schedule 1 to the Act (statement that P lacks, or probably lacks, capacity in relation to making an application to the Tribunal), the Attorney General must be notified and all information used by the trust panel, and the decision made by the panel, must be sent to the Attorney General.

CHAPTER 3 — Short-term detentions in hospital for examination or examination followed by treatment or care

Responsible Medical Practitioner, alternative medical practitioner and medical practitioner

14

(1) Subject to regulation 14A, for the purposes of paragraph 1(2) of Schedule 2 to the Act a medical practitioner can only carry out the functions of the responsible medical practitioner as defined in paragraph (2) if he or she—

(a) is a suitably qualified person; and

(b) has membership of a relevant Royal college and holds a full-time or part-time appointment at a Consultant level, Speciality Doctor level, Associate Specialist level or Post Membership Trainee level.

(2) The functions of a responsible medical practitioner include—

(a) examination and report in accordance with paragraph 11(2) and (4) of Schedule 2 to the Act;

(b) examination and report in accordance with paragraph 13(2) of Schedule 2 to the Act; and

15

For the purposes of paragraphs 11(3)(b), 13(3)(b) and 14(4)(b) of Schedule 2 to the Act a medical practitioner who may make a report under paragraphs 11, 13 or 14 in Schedule 2 to the Act as another medical practitioner is a person who meets the criteria for being a responsible medical practitioner in regulation 14 but who is not in charge of P's care.

16

For the purpose of paragraph 9(2)(b) of Schedule 2 to the Act a person is a medical practitioner who can make an exception certificate if he or she—

(a) meets the requirements of a responsible practitioner in regulation 14;

(b) meets the requirements of an another medical practitioner in regulation 15; or

Persons who can make a report

17

(1) Subject to regulation 17A, for the purposes of paragraph 3(1)(a) of Schedule 2 to the Act a person is an appropriate healthcare professional for the purpose of making a report under paragraph 2 of Schedule 2 to the Act if he or she is—

(a) an approved social worker; or

(b) a person who—

(i) is—

(aa) a medical practitioner;

(bb) a registered nurse or midwife;

(cc) a social worker;

(dd) a registered dentist;

(ee) an occupational therapist;

(ff) a speech and language therapist; or

(gg) a practitioner psychologist;

(ii) has in the last 36 months successfully completed training approved by the Department;

(iii) except in the 36 month period beginning with the date the person has successfully completed the training referred to in head (ii), has, in the 36 months prior to the completion of the short-term detention authorisation, completed further training approved by the Department; and

(iv) has two years experience in the last 10 years in a professional role working with persons who lack capacity

and who is designated by the managing authority of the hospital specified in the report under paragraph 2 of Schedule 2 to the Act as a person who may make reports under that paragraph.

(2) A person cannot be an appropriate healthcare professional under paragraph (1) if he or she is the person who made the statement of incapacity relevant to the short-term detention authorisation.

Form of Schedule 2 reports and certificate

18

For the purposes of paragraph 2(4) and 2(4)(d) of Schedule 2 to the Act a short-term detention authorisation for examination or examination followed by treatment or care must be made on Form 8 and include the information in Form 8 and the Forms in regulation 19.

19

When making a short-term detention authorisation for examination or examination followed by treatment or care under Schedule 2 to the Act—

(a) the statement of incapacity must be included and made on Form 1;

(b) a statement of best interests must be included and made on Form 2;

(d) the statement in paragraph 2(5) of Schedule 2 to the Act must be made on Form 7; and

(e) the report of the approved social worker must be made on Form 9.

20

For the purposes of paragraphs 9(3), 11(4), 13(4) and 14(5) of Schedule 2 to the Act—

(a) a certificate for the purposes of paragraph 9(2)(b) of Schedule 2 to the Act must be made on Form 10 and include the information in Form 10;

(b) a report for the purposes of paragraph 11(4) of Schedule 2 to the Act must be made on Form 11;

(d) a report for the purposes of paragraph 14(5) of Schedule 2 to the Act must be made on Form 13.

Medical report

21

For the purposes of paragraph 4(1) and 4(1)(c) of Schedule 2 to the Act the medical report must be made on Form 6 and include the information in Form 6.

Information

22

(1) For the purposes of paragraph 7(1) and 7(1)(b) of Schedule 2 to the Act when a short-term detention authorisation is made, the person making the short-term detention authorisation must as soon as practicable notify the persons in paragraph (2) with the information in paragraph (3).

(2) The persons that must be notified are—

(a) P;

(b) the nominated person; and

(3) The information that must be provided includes—

(a) notification that P is detained in circumstances amounting to a deprivation of liberty;

(b) the hospital where the detention is taking place;

(d) the date of the detention decision;

(e) information on short-term detentions;

(f) guidance regarding the Review Tribunal; and

(g) a person's rights under the Act.

(4) As soon as practicable after making the short-term detention authorisation, the person making the report must inform the managing authority of the hospital where P is to be detained and furnish such information as required for the detention to take place.

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