Table 4.
Statutory ADMs in Northern Ireland.
| Northern Ireland – Mental Capacity Act 2016 | Purpose | Required Parties Involved (preferable inclusions) | Capacity Assessment Required (MCA) | Legally Binding for MH Services | Point at which effective | Requirements to alter/cancel plan |
|---|---|---|---|---|---|---|
| Advance Decision (ADRT). | Prospective management of a condition in the long term/future. Made when service user has capacity to make the decision (presumed). Only applies to refusals of treatment. |
Service User Witness (MH Services) (Family/Friends) (Independent Advocates) |
Service User is presumed to have capacity unless reason to doubt it. |
Yes: If deemed incapacitous under MCA and deemed valid and applicable. Including mental health matters. No: If subsequent LPA covering same ground as ADRT, has the effect of deeming donor to have withdrawn ADRT |
When a service user is judged not to have capacity (MCA). | If no valid reason to doubt capacity then can be altered. Can be challenged on grounds of existence/validity/applicability via common law not in statute. |
| LPA – Health and Welfare | Appointment of an individual/s as an attorney to decide on health and welfare matters when the service user lacks capacity to do so. Can Include ‘Preferences’, which Attorneys should bear in mind. Can include ‘Instructions’, which Attorneys MUST adhere to. |
Donor Attorney/s Witness Certificate Provider (Person of a Prescribed Description) Office of Public Guardian (MH Services) (Replacement Attorney) (Family/Friends) (Independent Advocates) |
Donor is presumed to have capacity unless reason to doubt it. Certificate Provider confirms that Donor understands significance of LPA |
Yes: If deemed incapacitous under MCA. Including mental health matters. No: Decision of giving/refusing life-sustaining treatment unless expressly provided. Doesn't authorise an attorney to deprive the donor of their liberty. Decision in respects to psychosurgery. Note: If subsequent LPA covering same ground as ADRT, has the effect of deeming donor to have withdrawn ADRT |
When a service user is judged not to have capacity (MCA). | If no valid reason to doubt capacity then can be cancelled by Donor through witnessed deed. Deed then sent to Office of Public Guardian. |
| Nominated Person | Appointment of an individual (over the age of 16) to be involved in decision making in regards to prospective care. Note: If no individual is ‘nominated’ a default nominated person is appointed as per a pre-defined list in the Act. Service user can declare for an individual from list not be nominated person |
Service User Nominated Person Witness (Prescribed Description) (MH Services) (Family/Friends) (Independent Advocates) |
Witness of Prescribed Description certifies that individual understands the effect and not under undue pressure. | No: A duty to consult (if practicable/appropriate) and take into account views in determining best interests. A duty to inform in regards to individual. | After the appointment of the Nominated Person. Including when individual no longer has capacity. | Alteration/revoking requires same process of appointing a Nominated Person, including a capacity assessment. Tribunal can appoint/revoke a nominated person |
Note: NI do not have statutory provisions about existence/validity/applicability but have reference to common law relating to ADRTs.
Northern Ireland – Mental Capacity Act 2016.
Review of law relating to advance decisions.
284.—(1) Before the third anniversary of the day this section comes into operation, the Department must—.
(a) review the law relating to advance decisions to refuse treatment; and
(b) produce a report setting out the conclusions reached on the review (including any proposals for changes to that law).
(2) The Department must lay a copy of the report before the Assembly.