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At Francis Hanna & Co Solicitors, we have a special interest in issues affecting our ever growing older community and those with a learning disability. 

Northern Ireland has the fastest growing elderly population in the UK with a predicted 60% increase in the over 65 age group in the next 15 years.

The Department of Health has indicated that most people in Northern Ireland will at some point in their life either lack mental capacity or encounter persons who lack capacity.

The Mental Capacity Act (NI) 2016 was enacted by the Assembly in May 2016. The Act is being implemented in phases, with the most notable provision in Phase One being the introduction of the Deprivation of Liberty Safeguards (DOLS) in December 2019.  This is a ground-breaking piece of legislation that, when fully commenced, will impact on the lives of most of us in the future in one way or another. 

Essentially, the legislation could affect the following people:

  • Those who have a learning disability or mental illness
  • Those who have suffered a stroke or acquired a brain injury from a traumatic accident
  • Those with dementia or intermittent capacity
  • Those who have diminished capacity through drink, drug or substance abuse
  • Those with a desire to plan for the unexpected

The proposed legislation is complex but there are certain principles set out which will be fundamental to how the legislation will operate. These are that:

  • A person is assumed to have capacity to make decisions unless it is decided otherwise.
  • It cannot be concluded that a person is unable to make a decision unless all practicable help and support has been given without success.
  • It cannot be concluded that a person is unable to make a particular decision because their decision appears unwise.
  • It cannot be concluded that a person lacks capacity merely on the basis of their appearance, condition or behaviour.

If, having followed these principles, it is decided that a person does not have capacity to make decisions for themselves then the legislation will provide that any decision made on behalf of a person who lacks capacity must be in their best interests.  The person intervening will be required to help and encourage the person without capacity to participate as fully as possible in deciding what would be in their best interests. In addition, any intervention on behalf of someone who is incapable must be carried out in a way that has the least amount of interference with their rights and freedoms.

Given that there are currently an estimated 197,000 carers in Northern Ireland who are likely to be making decisions for persons lacking capacity, many of us await with interest the outworkings of this new legislation once commenced.

If you have a query relating to mental capacity, please contact us by email on or call us on 028 9024 3901.