The sticking plaster Bill that discriminates against young people

1 Oct 2015 Nick Garbutt    Last updated: 1 Oct 2015

Eamonn McNally

The Mental Capacity Bill discriminates against children and represents a missed opportunity to protect the most vulnerable, argues Eamonn McNally from the Children’s Law Centre

The provisions of the Mental Capacity Bill, a new law which is designed to replace Northern Ireland’s old and outdated mental health law, the Mental Health (NI) Order 1986 for those over the age of 16 is currently being considered by the Northern Ireland Assembly. 

The Mental Capacity Bill will, for the first time anywhere in the world, combine the law on Mental Capacity with the law on Mental Health.  This project is a joint policy and legislative development by the Department of Justice and the Department of Health, and will impact upon the lives of everyone in Northern Ireland, except for those under the age of 16.  For under 16s it is intended to keep in place the Mental Health Order, despite the fact that the purpose of the Mental Capacity Bill was to replace this now outdated piece of legislation with a fit for purpose 21st century law.

The Children’s Law Centre has been working on the issue of child and adolescent mental health for 14 years and it is our experience that young people with mental health needs are amongst the most vulnerable in our society.  Any new law should provide for these young people in at least as robust a manner as adults.  The Mental Capacity Bill will contain a number of protections and safeguards which those under the age of 16 will not be able to benefit from because of their age alone. This exclusion is in clear breach of government’s obligations under the United Nations Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities.

Breaches human rights

For those under the age of 16 it is proposed to keep in place the Mental Health (NI) Order 1986 with some amendments, pending a review of the Children (NI) Order 1995.   This review of the Children (NI) Order 1995 will be a long process and will in effect mean that a law which the Bamford Review, deemed to be non-compliant with the Human Rights Act 1998, will remain in place for perhaps another generation of our young people.

The proposal to retain and amend the Mental Health (NI) Order 1986 for under 16s is a relatively recent development and is at best a sticking plaster approach to law making.  It will mean that whilst those over the age of 16 will have the protection of the Mental Capacity Bill, there will be no additional provision for children receiving care or treatment in the community or for children with learning disabilities. Likewise there will be no provision for conditions caused by personality disorder, or conditions caused by drugs or alcohol abuse for under 16s, as these conditions as specifically excluded from the Mental Health Order.

The proposed amendments to the Mental Health (NI) Order 1986 will provide limited access to advocacy services and only for under 16s who are in hospital.  Statutory independent advocacy should be available to all children and young people who require it, both in the community and in a hospital setting. It is also important that children should be able to choose their own advocate.

Missing safeguards

The Mental Capacity Bill will protect those who lack capacity and who have their liberty deprived by having their freedom restricted, but who are not detained in hospital, through Deprivation of Liberty Safeguards.  These safeguards have existed in England and Wales since 2009 and protect people’s right to liberty under the European Convention on Human Rights (ECHR).  These safeguards will not be incorporated in the Mental Health (NI) Order 1986 for under 16s. Given the rights protected in the (ECHR) apply to everyone in society regardless of age, the failure to legislate to protect the rights of under 16s who have their liberty deprived by having their freedom restricted, is a breach of the Convention rights of under 16s.

Our current mental health law means that anyone detained in hospital for treatment has to declare that admission when asked to do so by employers, insurance companies and on visa applications.  As a means of reducing the stigma often attached to mental health the Department proposed that no young person detained for treatment would ever have to declare their time spent in hospital.  This was welcomed as a positive development, unfortunately this promise has not been fulfilled and young people will still have to declare their detention in hospital for treatment of a mental illness.

In 2009, in its first consultation on the new legislation, the DHSSPS made a clear commitment to include education and appropriate accommodation clauses in the proposed legislation.  There are no education rights included in the either the Mental Capacity Bill or the amended Mental Health (NI) Order 1986.  The accommodation clauses that it is intended to place in both do not prohibit the admission of young people to adult psychiatric wards.  An amended Mental Health (NI) Order 1986, and for 16-18 year olds, the Mental Capacity Bill, should contain a statutory right to age and developmentally appropriate accommodation. No child should be admitted to an adult psychiatric ward.

 Mentally ill youngsters put in prison cells

There should also be a statutory right to education for all children in mental health hospitals. The criminal justice clauses of the Mental Capacity Bill will apply to everyone regardless of age.  Given that the health side of the Mental Capacity Bill will not apply to under 16s the different positions adopted by DHSSPS and the DoJ are challenging to reconcile.  We are also faced with the situation that in Northern Ireland in law from the age of 10 a young person can have the capacity to commit a crime but not be capacitous for the purposes of their mental health until the age of 16. 

While the criminal justice clauses of the Mental Capacity Bill will apply to under 16s on paper in practice many of the disposals based on the mental health of the defendant will not be available to the courts for children as the services simply do not exist. By way of example we have no forensic paediatric inpatient service in Northern Ireland.  It is also intended in the absence of alternative suitable accommodation to continue to use police stations and the Juvenile Justice Centre as places of safety for mentally ill young people.  These are wholly unsuitable and should be removed from the legislation.

It would appear to the Children’s Law Centre who have been working in respect of this proposed new legislation for six years, that the DoJ has not adequately assessed the impact that excluding under 16s from the scope of the health element of the Bill will have for children and young people in the youth justice system.  There can be no doubt that the exclusion of under 16s from the scope of the health side of the Bill and the retention of the Mental Health (NI) Order 1986 will have significant potential for adverse impact on children and young people who come into contact with the criminal justice system. There will also be serious implications for the operation of the Police Service of Northern Ireland (PSNI), the Probation Board for Northern Ireland (PBNI), the Youth Justice Agency (YJA), including the Juvenile Justice Centre (JJC) and the Northern Ireland Courts and Tribunal Service (NICTS).  Children who are within the criminal justice system and have a mental illness or learning disability are significantly over represented and are one of the most vulnerable groups of children and young people in Northern Ireland.  They should be afforded the highest degree of protection not less.

Old, outdated and not fit for purpose

The DHSSPS has suggested that amendments to the Mental Health (NI) Order 1986 will provide some safeguards and protections to under 16s who are formally detained in hospital for treatment of a mental illness.  It is vital that all children who require hospital treatment, whether they are voluntary or detained patients, have access to adequate safeguards and protections which are at least equivalent to those over 16.  The proposed amendments to the Mental Health (NI) Order 1986 are minimal and do not make the Mental Health (NI) Order 1986 fit for purpose. 

The 1986 Order was not designed specifically with young people in mind, it is old and outdated, it predates the Human Rights Act, the United Nations Convention on the Rights of the Child, the United Nations Convention on the Rights of Persons with Disabilities and the Children (NI) Order 1995.  It has its origins in a law that was designed to protect the public from harm rather than to protect the individual with mental health needs.  The Bamford Review did not recommend the retention of the Mental Health (NI) Order 1986 for any of Northern Ireland’s population, least of all for children. It is in this context that the Mental Capacity Bill is a missed opportunity, this is the first chance in a generation to have one single inclusive law, which removes the stigma of mental health from legislation and which provided protections and safeguards for those who need them most.  Instead we will now have a two tier system, a new modern up to date law for those aged 16 and over and a patch on the sinking ship of the Mental Health (NI) Order 1986 for under 16s.

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