GUIDELINES ON THE USE OF THE MENTAL HEALTH (NORTHERN IRELAND) ORDER 1986

Offences, including those Against People with a Mental Disorder (Part X)

Introduction

The Mental Health (Northern Ireland) Order 1986 recognises that those with a mental disorder may be particularly vulnerable to abuse and exploitation from others. The Order therefore contains a number of provisions designed to protect the rights of those with a mental disorder.

These provisions, as contained in Part X of the Order, will be described in this Chapter.

The Provisions can usefully be divided into the following categories:

  • Offences in relation to the abuse of the legal process
  • Offences in relation to obstructing those tasked to carry out functions under the Order
  • Offences in relation to the ill-treatment and neglect of people with a mental disorder
  • Sexual Offences against people with a mental disorder.

Offences in relation to the abuse of the legal process It is unlawful for any person to knowingly receive or detain a person with a mental disorder except through the processes and procedures set out in the Order.

What are the specific offences and penalties in relation to the improper operation of the Order? Part X of the Order sets out a list of offences and penalties in relation to:

  • Possession by a person without lawful authority or excuse of any document in relation to this Order which that person knows or believes to be, false within the meaning of Part I of the Forgery and Counterfeiting Act 1981.
  • Making or possession of any document which closely resembles a document purporting to be:
    • An application under Part II
    • Any recommendation or report and
    • Any other document required or authorised to be made for any of the purposes of the Order.
  • Wilful making of a false entry or statement in any application, recommendation, report, record or other document required or authorised to be made for the purposes of the Order.
  • Making use of any entry or statement in any application, recommendation, report, record or other document required or authorised to be made for the purposes of the Order with intent to deceive.
    Article 119

What penalties are available to the Courts for those who commit these offences?

Penalties can range from a term of up to 6 months imprisonment or fine, or both. This will depend on the seriousness of the offence.

Offences in relation to Unlawful Detention What is the law in relation to the unlawful detention of a person with a mental disorder and who do these offences apply to? The Order states that it is unlawful for any person who knowingly receives or detains a person with a mental disorder except through the processes and procedures set out in the Order.

In addition the Order makes it an offence for any person to knowingly exercise any powers of detention or any other powers conferred by or under the Order, after that the power has expired. Article 120 What penalties are available to the Courts for those who commit these offences? Penalties can range from a term of imprisonment for a period of up to 6 months or a fine up to a term of imprisonment for a period up to 2 years or fine, or both. This will depend on the seriousness of the offence. Offences in relation to obstructing those tasked to carry out functions under the Order The provisions in relation to detention and guardianship contained in the Order are legal provisions enacted to ensure protections for a person with a mental disorder who may be a risk, as a consequence of that disorder to themselves and/or others. Persons who obstruct those tasked to carry out functions under the Order may be placing both the person who is subject to detention or guardianship and potentially others at risk.

The Order sets out specific offences in relation to these matters in Articles 124 and 125 as set out below: When can a person be deemed to have committed an offence under Article 124 of the Order? Article 124 makes it an offence for anyone to induce or knowingly assist a person who is liable to be detained or who is subject to guardianship, to go absent without leave, or to induce or knowingly assist a person who has been legally detained to

It is also an offence to knowingly harbour a person who is subject to detention or guardianship and who is absent without leave or who has escaped from detention or place where they are legally required to be, or to give that person any assistance with intent to prevent, hinder or interfere with their being taken into custody or returned to the hospital or other place where they ought to be. What penalties are available to the Courts for those who commit these offences? Penalties can range from a term of imprisonment for a period of up to 6 months or 2 years or a fine. This will depend on the seriousness of the offence. In what circumstances can a person be deemed to have committed an offence under Article 125?

Article 125 states that it is an offence to:

  • Refuse to allow the inspection of any premises by a person authorised in that behalf by or under the Order;
  • Refuse to allow visiting, interviewing or examination of any person by a person so authorised;
  • Refuse to produce for inspection of any person so authorised any document or record the production of which is duly required or
  • Otherwise obstruct any person in the exercise of his functions.
  • Refuse to leave when asked to do so by a person who is authorized to interview a person believed to have a mental disorder in private.

What penalties are available to the Courts for those who commit these offences?

Any person guilty of an offence under this Article shall be liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine or to both. Offences in relation to the ill-treat ment and neglect of people with a mental disorder The Order makes it an offence for any person to ill-treat or wilfully neglect a person with a mental disorder. (Article 121) and specifies penalties for those found guilty of doing so. What is the law in relation to ill-treatment and neglect of persons with a mental disorder? The Order makes it an offence for any person who is:

  • An officer on the staff of or otherwise employed in a hospital, private hospital or nursing home or
  • A member of the Board or director of the Health and Social Care Trust managing a hospital or
  • A person carrying on a private hospital or nursing home

to ill treat or wilfully neglect a person who is receiving treatment for a mental disorder as an in-patient or an out-patient in that hospital or nursing home or on premises of which the hospital or nursing home forms part of where a person is Article 121 (1)

Does this offence only relate to those persons listed above? No, the Order also makes it an offence for any individual who is:

  • A guardian to a person received into or subject to guardianship under the Order
  • Has custody of a person with a mental disorder
  • Has care of a person with a mental disorder regardless of whether that person is subject to legal provisions within the Order

to ill-treat or wilfully neglect a person with a mental disorder. Article 121 (2)

What penalties are available to the Courts for those who commit these offences? Penalties can range from a term of imprisonment for a period of up to 6 months or 2 years and or a fine. This will depend on the seriousness of the offence. What is the process for instituting proceedings against a person under Article 120 (Unlawful detention of patients) and Article 121(Ill-treatment of patients)? Consent must be sought by or with the consent of the Director of Public Prosecution Service for Northern Ireland before instituting legal proceedings. Sexual Offences against people with a menTAl disorder. Article 122 and 123 of the Mental Health (Northern Ireland) Order 1986 previously

These provisions have now been repealed and replaced by more comprehensive legislation in Part IV of the Sexual Offences (Northern Ireland) Order 2008 which came into force in February 2009. LINK TO Part IV of the Sexual Offences (Northern Ireland) Order 2008

Explanatory Guidance on the Sexual Offences Order 2008 is available on the NIO
LINK TO Explanatory Guidance to the Sexual Offences (NI) Order 2008

A leaflet is also available LINK TO "Working Within The Sexual Offences Order"

This Order introduced important new legislation to protect people with a mental disorder:

  • Articles 43 to 46 of the 2008 Order relate to offences against people who cannot legally consent to sexual activity because of a mental disorder.
  • Articles 47 to 50 relate to offences against people who may or may not legally be able to consent to sexual activity but who are vulnerable to inducements, threats or deceptions because of a mental disorder.

None of these measures are intended to interfere with the right of people with a mental disorder, who have capacity to consent, to a full and active life, including a sexual life.

However those caring or providing treatment for people with a mental disorder have particular responsibilities towards patients in all settings.

  • Articles 51-54 relate to particular offences carried out by those in a "relationship of care". These provisions prohibit all sexual activity between a care worker and a person with a mental disorder, whilst a relationship of care continues.
  • Article 55 provides a definition of "relationship of care".
  • Articles 56 and 57 set those who are exempted from the Articles 51 to 55.

Is it always unlawful to engage in sexual activity with a person who has a mental disorder?No. If the person with a mental disorder has the capacity to consent freely to the sexual activity a crime will not be considered to have taken place. In most situations a person with a mental disorder will be able to consent freely to sexual activity and therefore has the same rights to engage in consensual sexual activity as anyone else.In what circumstances then can a person who engages in sexual activity with a person with a mental disorder be considered to have committed a crime? An offence will be considered to have been committed if:

  • The person with a mental disorder is a victim of unlawful inducements, threat or deception or
  • The person with a mental disorder is an individual who lacks capacity to make decisions and or who is unable to communicate his decisions.

What specific sexual offences exist against people with a mental disorder under the Sexual Offences (Northern Ireland) Order 2008?

That law states that a person will be guilty of an offence if he:

  • Engages in sexual activity (touching) with a person he knows or should reasonably be expected to know has a mental disorder and who lacks the capacity to agree to such activity or is unable to communicate such a choice. (Article 43)
  • Causes or incites a person to engage in sexual activity, who he knows or should reasonably be expected to know has a mental disorder and lacks the capacity to choose whether to agree in engaging in the activity or is unable to communicate such a choice. (Article 44)
  • Intentionally engage in sexual activity in the presence of a person who they know or should reasonably be expected to know has a mental disorder and who lacks the capacity to choose whether to agree to be present or is unable to communicate such a choice.
    (Article 45)
  • For his own sexual gratification intentionally cause a person who he know or should reasonably be expected to know has a mental disorder and who lacks the capacity to choose whether to agree to be present or is unable to communicate such a choice, to watch or look at an image of a third party engage in a sexual act. (Article 46)
  • Procure sexual activity by means of inducement offered or given, a threat made or deception practised with a person they know or should reasonably be expected to (Article 47)
  • Causes a person he knows or should reasonably be expected to know has a mental disorder by means of an inducement offered or given, a threat made or a deception practised to, engage in or agree to sexual activity. (Article 48)
  • Procures, for personal gratification, a person he knows or should reasonably be expected to know has a mental disorder to be present while engaging in sexual activity. (Article 49)
  • Intentionally causes, for personal gratification, a person with a mental disorder, to watch a third party engaging in a sexual activity or look at an image of a person engaging in such activity. (Article 50)

What penalties are available to the courts for those persons found guilty of these offences? Any person found guilty of an offence under

  • Article 43, 44, 47 and 48 is liable –
    • On summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
    • On conviction on indictment, to imprisonment for a term not exceeding 14 years.
  • Articles 45, 46, 49 and 50 is liable -
    • On summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
    • On conviction on indictment, to imprisonment for a term not exceeding 10 years.

Do these provisions also relate to care workers?

Similar but separate provisions relating to care workers are contained in Articles 51 to 54 of the Sexual Offences (Northern Ireland) Order 2008

These provisions prohibit all sexual activity between a care worker and a person with a metal disorder whilst that "relationship of care" continues.

What if the person with a mental disorder is able to communicate and give consent? The laws relating to care workers of people with a mental disorder apply whether or not the victim appears to consent, and whether or not he has the legal capacity to consent. The apparent consent of the victim is only relevant in so far as it may mean that the care worker is not guilty of a non-consensual offence, such as rape or sexual assault. These particular provisions can apply to anyone, including family or friends, if they provide care, assistance or services in relation to the person's mental disorder. What is a "relationship of care"? A relationship of care is defined as where one person has a mental disorder and another is regularly involved or is likely to be involved, face to face in their care, where that care arises from a mental disorder. It applies to any person working on both a paid and voluntary basis such as:

  • Doctors, nurses, social workers, medical receptionists, cleaning staff, advocates and voluntary helpers.
  • Workers in a care home, community home, voluntary home or children's home.
  • Workers who provide services through the Health and Social Care Board or Trusts or a private medical agency or independent clinic or hospital.
  • Workers who provide services in the home or for a body or agency which brings them into or could bring them into, regular face-to-face contact with people with mental disorders.
  • Workers with regular face-to-face contact with people with mental disorders who provide any services where care or assistance are given. This could include paid or unpaid staff who take people with mental disorders on outings every week, or visit them at home to provide complementary therapy.

Also included is anyone (including a friend or family member) if they provide care, assistance or services in connection with the person's mental disorder. What specific sexual offences can a care worker be charged with? Care workers can be charged with:

  • Sexual Activity with a person with a mental disorder including where the care worker knew or could reasonably be expected to know that the person had a mental disorder. (Article 51)
  • Causing or inciting sexual activity. (Article 52)
  • Sexual activity in the presence of a person with a mental disorder. (Article 53)
  • Causing a person with a mental disorder to watch a sexual act. (Article 54)

What are the penalties are available to the courts for those care workers found guilty of these offences? A person found guilty of an offence under

Article 51 and 52 is liable –

  • On summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
  • On conviction on indictment, to either imprisonment for a term not exceeding 10 years. However where the person is found guilty of the more offences set out in Article 51 (3) that person may be liable to imprisonment for a term not exceeding 14 years.

A person found guilty of an offence under

Articles 53 and 54 is liable -

  • On summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
  • On conviction on indictment, to imprisonment for a term not exceeding 7 years.

Are there any exceptions? Yes, there are certain situations in which Articles 51 to 53 do not apply. These include:

  • Where the care worker is legally married to, or is a civil partner of, the person with a mental disorder, or
  • Where it can be proved that the sexual relationship pre-dated the start of the relationship of care, as long as that sexual relationship was lawful. This would apply, for instance, where someone who looks after his or her partner following the onset of a mental disorder continues to have a consensual sexual relationship with them.