Mental Health (Northern Ireland) (Amendment) Order 2018 — House of Lords, 2018-11-28
Topic: Health
Ian Duncan (Conservative, Centre-right): My Lords, the draft instrument will correct an unintended consequence of the Mental Health Review Tribunal (Amendment) Rules (Northern Ireland) 2016 due to its interaction with the Mental Health (Northern Ireland) Order 1986. Because of a legislative deficiency, the current regime in Northern Ireland presents a risk to life. Currently, patients suffering from mental illness or severe mental impairment could be released when they are a risk to themselves or others. This order addresses that issue The Mental Health (Northern Ireland) Order 1986 covers the assessment, treatment and rights of people with a mental health condition in Northern Ireland. It also provides for a person to be detained in hospital where such an outcome is in their best interests. Any detention involving the state must be compliant with the European Convention on Human Rights, which provides that a detained person must have the right to, "take proceedings by which the lawfulness of his detention shall be decided speedily by a court" In the 1986 order, this is manifested in a right to apply to the mental health review tribunal That order also provides that a patient can apply to the tribunal at any time in the first six months of their detention. Rule 20 of the Mental Health Review Tribunal (Northern Ireland) Rules 1986—hereafter known as the court rules—provides that at least 14 days’ notice must be provided before a tribunal hearing unless all parties consent to a shorter period. The court rules, in combination with the 1986 order, created the effect that no challenge to the admission for assessment could be made, as the assessment period could only last 14 days and 14 days’ notice was required for a tribunal hearing The court rules were amended by the 2016 amending rules to enable the notice period to be shortened where it is in the interests of justice to do so. The changes to the court rules therefore made it possible to have a hearing in the assessment period, and the first such hearing was held in 2017. A conflict between the court rules and Article 77 of the 1986 order, resulting from the changes made by the 2016 amending rules, has now been identified An unintended result of the 2016 amending rules is that the mental health tribunal is required to apply more stringent criteria, which relate to continued detention of patients outside their initial assessment, when deciding whether to continue detention for assessment purposes. The order before the House this evening will amend Article 77 of the 1986 mental health order so that the same criteria for admitting and detaining a patient for assessment apply to the discharge of patients by the mental health tribunal during the period when patients are being assessed The anomaly created by the legislative deficiency effectively means that patients who are in the process of being diagnosed with a mental illness or severe mental impairment could be released before the period of assessment is complete. If the criteria used by the tribunal are left unamended, this will continue to enable release of patients who have not yet been diagnosed with a mental illness or severe mental impairment, even if they suffer from a mental disorder that poses a substantial risk of physical harm to themselves or others, should they be released. Moreover, there is a concern that, left unamended, the legislation is in conflict with professional codes of practice for health professionals The House will be aware that this order, in normal circumstances, would have been taken through the Northern Ireland Assembly. However, as noble Lords well know, Northern Ireland has been without a devolved Government for over 20 months. The principle established in our interventions thus far over the past year is that we will legislate where doing so is necessary to ensure good governance, protect the delivery of public services or uphold public confidence. This measure does not set or change policy direction on devolved issues in Northern Ireland; that is rightly for the Executive and Assembly, and our overriding priority is to see them up and running again, and running well. The order before the House corrects a legislative deficiency; it does not set or change policy direction in Northern Ireland. On that basis, I beg to move.