Mental Health (Northern Ireland) (Amendment) Order 2018

Baroness Harris of Richmond Excerpts

Wednesday 28th November 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

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.

[Baroness Harris of Richmond (LD)]

My Lords, I thank the Minister for introducing this order. We on these Benches of course recognise that the proposed change is needed and is a matter of both patient and public safety. It is certainly in the public interest for this change to be made. We also recognise that the political parties in Northern Ireland have been briefed on the proposed changes.

However, we are again deeply concerned that it is necessary for this change to be made by this Parliament, rather than by the Northern Ireland Assembly. We remain deeply disappointed that more progress has not been made to restore the devolved Executive, and we have been urging the Government for many months now to take a number of steps, including appointing an independent mediator, to invigorate the talks process.

During the progress of the Northern Ireland (Executive Formation and Exercise of Functions) Bill, my noble friend Lord Bruce raised a number of important policy issues for Northern Ireland that are currently not being resolved there, as there is no Executive or Assembly in place. The Belfast Telegraph recently revealed that a backlog of 164 important decisions has piled up since the collapse of Stormont because there are no Ministers to make decisions. Those outstanding decisions include: an investment strategy; an action plan to tackle paramilitary activity, criminality and organised crime; dozens of public appointments; stiffer penalties for driving while using a mobile phone; minimum pricing for alcohol; publishing the Protect Life 2 strategy to tackle suicide; a superfast broadband strategy; an arts and culture strategy; and school development proposals.

The people of Northern Ireland are suffering. Budgets are being cut, services are under extraordinary pressure and no decisions can be taken to alleviate any of this. What a shameful situation—one that is clearly unsustainable. With each passing day, crucial decisions are not being taken, and the services on which people rely are getting deeper into financial difficulty and falling further and further behind where they should rightfully be. As well as causing real suffering to people today, this also carries with it a lost opportunity cost, with planning and infrastructure delays holding up investment and job creation.

Despite this, there appears to be no urgency in the efforts to restore the Assembly. We urgently need a talks process to restore devolution. Can the Minister tell this House when the Secretary of State will call all-party talks, so that this sort of SI will be a one-off event?

[Lord Murphy of Torfaen (Lab)]

I very much agree with the noble Baroness, Lady Harris, on the issues surrounding the current position in Northern Ireland. We obviously support the Government in this change to put right the legislative anomaly that has led to the SI. The problem, of course, is that there is no Assembly or Executive in Northern Ireland to deal with these matters. I am glad the Government consulted extensively with the Northern Ireland Courts and Tribunals Service, the Northern Ireland Department of Justice and the Health and Social Care Trust, as well as other professionals.

Of course, at the end of the day, this should not be before us at all. It is a matter for people in Northern Ireland and their elected representatives. I know that, at the moment, with the chaos surrounding Brexit and everything else—which is likely to last until Christmas, if not beyond—the chances of reviving the Northern Ireland institutions are pretty slim. However, it does not mean the Northern Ireland Office, the Minister and his boss cannot be active; they can. They can at least deal with talks about talks, and look at how those talks are arranged—the all-party talks, for example, or the possibility of an independent mediator. These points are made constantly by Members of your Lordships' House and in the other place.

The noble Baroness, Lady Harris, talked about urgency—or the lack of it. It seems to all of us observing the situation in Northern Ireland that Brexit has added to this lack of urgency, so I hope the Minister can tell us that efforts to get those institutions up and running have not completely gone to sleep. The sooner they are, obviously, the better.