Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I invite our guests, Theresa Nixon, Eamonn McNally, Natalie Whelehan and Mr Colin Caughey, forward. You are all very welcome. Given that this is the only evidence session from stakeholders, we will be more generous with time today. You can take four or five minutes each, and we will then move to questions. Colin, will you kick off?

Mr Colin Caughey (Northern Ireland Human Rights Commission): The Northern Ireland Human Rights Commission welcomes the recognition in clause 254 that those aged 16 or 17 are still children. As a result of this fact, the United Nations Convention on the Rights of the Child (UNCRC) is relevant. It is important that their rights contained therein are protected throughout the Bill. With respect to clause 254 and the obligations on a managing authority of a hospital, the commission's view is that it would not be appropriate for a 16- or 17-year-old to be placed on the same hospital ward as an adult. This would be inconsistent with the UNCRC, as it would not be in the best interests of the child.

With respect to the obligation at clause 254(3), which concerns a hospital managing authority's duty to consult a person about the fulfilment of its duties towards an inpatient, the commission advises that it would be useful if the consultee had a knowledge of the UNCRC. These comments apply equally to the proposed new article 3D of the Mental Health (Northern Ireland) Order 1986.

Clause 255 restricts the application of the Mental Health (Northern Ireland) Order 1986 to under-16s. The commission is disappointed that the 1986 Order will continue to apply to children under 16 who have been compulsorily admitted to a hospital. As set out in our submission, the commission recommends that a separate project be developed to consider a bespoke legal framework governing the capacity of children under the age of 16. This week, the commission, along with others, will be providing a briefing on the Mental Capacity Bill to the UN Committee on the Rights of the Child and envisages that the UN Committee will provide its views on the position of under-16s in its final report, to be issued next year.

With respect to amendments to the 1986 Order, set out at schedule 8 to the Bill, the commission had understood that article 10 of the 1986 Order would be amended to provide that the disregard principle would be extended to include a period of detention for treatment. This extension would have meant that under-16s detained for treatment would not be required to disclose this period of detention when applying for educational courses, employment or to travel abroad. Given that such disclosures can result in opportunities being denied to persons who have been detained for treatment, not to mention that they can have a long-term stigmatising effect, the commission encourages the Committee to seek clarification as to why it appears that the disregard principle will not be extended.

The commission notes amendments to article 36 of the 1986 Order to provide that an individual who is detained under that Order may apply to the County Court to change his nearest relative and extending the power of the County Court to remove someone who is not a proper person to act as a patient's nearest relative. These amendments are required to ensure compliance with the European Court of Human Rights settlement judgement in the case of JT v UK. The commission notes that, in 2014, in HM's application to the High Court in Northern Ireland, Mr Justice Treacy, using the section 3 interpretive obligation in the Human Rights Act 1998, read in wording to article 36 reflecting the proposed amendments. Noting that for over-16s the use of nearest relatives has been replaced with a more sophisticated nominated persons framework set out in Part 3 of the Bill, the commission advises the Committee to ask the Departments how confident they are, if the proposed amendments are made to article 36, that this will safeguard against future challenges at the European Court of Human Rights.

Finally, the Committee will recall that the commission has recommended that provision be made for a post-implementation review of the Bill to consider, among other things, compliance with international human rights law. The commission advises that compatibility with the UNCRC should be included in such a review.

Ms Theresa Nixon (Regulation and Quality Improvement Authority): Thank you for the opportunity to attend the Committee this afternoon. The Regulation and Quality Improvement Authority (RQIA) is Northern Ireland's independent health and social care regulator. In 2009, the functions of the former Mental Health Commission were transferred to RQIA under the Health and Social Care Reform (Northern Ireland) Act 2009. These include, among other duties, preventing ill-treatment and remedying any deficiency in care and treatment and terminating improper detentions in a hospital or guardianship by monitoring the appropriateness of all completed application forms received from trusts.

I wish to present our views, particularly in respect of clauses 254 and 255 of the Bill. We welcome the Bill and regard it as a very progressive step forward for people in Northern Ireland who lack capacity. Clause 255 provides for schedule 8 to the Bill to amend the Mental Health (Northern Ireland) Order 1986 so that Part II of that Order, which relates to compulsory admission to hospital, only applies to children, a child being defined as under 16.

Schedule 8 to the Bill makes provision for independent advocates for children and to require persons making decisions to have a child's best interests as their primary consideration. While RQIA welcomes the introduction of these safeguards, we have some concern that children under 16 are excluded from accessing the same range and extent of safeguards as are enshrined in the Bill for over-16s, for instance, the offences of ill-treatment and neglect. We note that a review of the Children (Northern Ireland) Order 1995 is planned, but we are not clear about the timeline for that. We would like to see a priority given to the legislative provision for the rights and needs of young children and young people as vested in the 1995 Order.

The issue of emerging capacity in young people also makes this children's group very complex. We believe that a capacity framework is required to be developed that takes into account emerging capacity and emotional maturity as well as other aspects. In a situation of emerging capacity, there will clearly be an interplay between the child, their parents and the state in terms of the child's decision and respect for that. RQIA, therefore, considers that an expert group with representation from a number of stakeholders would be helpful in this regard.

RQIA also has concerns that aspects of the Mental Health (Northern Ireland) Order 1986 are ambiguous and are not clearly defined either in the code of practice or the guide to the Mental Health Order. We consider that a number of these areas could be amended under schedule 8 to the Bill and we think that this is a good opportunity to provide further clarity in these matters. RQIA will be very happy to write to the Committee with a list of such issues for its consideration.

Schedule 8(56) amends article 118(4) of the 1986 Order, which currently places a statutory duty on each trust to maintain a register of all persons under 18 years of age who are for the time being receiving medical treatment for mental disorder as inpatients in hospital. It also requires that the trust forward to RQIA a copy of the register every three months, detailing the number of admissions of young people under 18 to adult wards and other details of their age and medical treatment.

This comes to us because a circular was issued by the Department for the trust to send that to us, and we are concerned that schedule 8 of the Bill amends the age of children to be included in the register from under 18 years of age to under 16 years of age. The consequence of that amendment is that the register that is currently required to be sent to RQIA will now only be sent in relation to children under 16. As a result, RQIA's intelligence about the admission of 16- and 17-year-olds may be limited. That will also include details of patients referred outside of Northern Ireland for treatment.

Under the present requirement to supply RQIA with the register, we may undertake an unannounced inspection to review the effectiveness of the safeguarding actions put in place by trusts. That provides an additional protection that will only be afforded to children under 16 in the future. The Committee might be interested to know that there were 22 admissions of young people under 17 to adult wards in 2014-15 and 12 admissions from April to September this year. We suggest that the Committee gives consideration to adding a requirement to the Mental Capacity Bill for trusts to notify RQIA of any young person over 16 but under 18 years of age accommodated in an adult inpatient psychiatric facility.

We also note that clause 254 places a new duty on hospital managers to ensure that any person aged 16 or 17 who is an inpatient in hospital for the purposes of assessment or treatment of a mental disorder under the Bill is accommodated in an environment that is suitable for their needs whether they are detained or voluntary, but we note that there is no definition of "suitable" in the Bill. It may be that the code of practice to accompany the Bill will provide further clarification on that matter. The current DHSSPS circular states that young people should not be accommodated in adult learning disability or mental health wards, but, in extreme cases, that may be unavoidable. The circular sets out the steps to be taken by the trusts in those extreme circumstances, and we would like to see the same requirements included in the codes of practice to the Bill.

I will now turn to advocacy. We welcome that schedule 8 to the Mental Capacity Bill proposes amendments to the 1986 Order to include provision for independent advocates for under-16s who are admitted to hospital for assessment and treatment for mental disorder or where it is proposed to give a child certain kinds of treatment. However, the role of the independent advocates for under-16s outside hospital, where their admission to, for instance, a psychiatric hospital is being considered, is less clear. Schedule 8 states:

It also says that it "may" require trusts to "make provision about such arrangements". The use of the word "may" suggests discretion, and RQIA has a concern that the under-16s will not be afforded the same protection and parity of esteem as the over-16s. It is critical that the Department prioritises the completion of the regulations in a timely way concerning independent advocacy and also clarifies the role and the appointment of continuing duties of an advocate.

I will move to the best interests principle. We welcome that schedule 8 makes provision for a new overarching principle that requires persons making decisions to have a child's best interests assessed and taken as their primary consideration, and we also welcome the wide number of people who should be involved in making such a best interests decision.

Finally, I move to electroconvulsive therapy (ECT). We welcome that schedule 8 amends the 1986 Order and that the independent advocate will be instructed to represent and provide support to the patient. Since 2005, no child under 16 has been administered ECT in Northern Ireland, and, in such a situation, RQIA would expect that the codes of practice and the guide will reflect the National Institute for Health and Care Excellence (NICE) guidance on the use of ECT.

Ms Natalie Whelehan (Northern Ireland Commissioner for Children and Young People): The Northern Ireland Commissioner for Children and Young People (NICCY) has consistently expressed concerns about the exclusion of under-16s from the Mental Capacity Bill. Their exclusion means that vulnerable children will not enjoy equal access to the protections and safeguards that over-16s, who come within the scope of the Mental Capacity Bill, will enjoy. The Department's rationale for the exclusion of under-16s is that a lack of capacity cannot be determined in a child as being as a result of a mental illness or learning disability or as a result of their developmental immaturity. We now know that, for the purposes of the new offence at clause 256 of the Bill, the Department is proposing to measure capacity in under-16s, as this offence will apply to all age groups. If the Department is proposing to assess capacity in under-16s, NICCY sees no reason why under-16s should be excluded from the scope of the rest of the Bill.

Clause 254 applies to young people aged 16 and 17. It places a duty on the managing authority of a hospital to ensure that the hospital environment is suitable, having regard to the age of the young person. NICCY does not believe that this duty goes far enough to ensure that the practice of admitting children to adult psychiatric wards will cease.

The admission of children to adult wards is an issue of serious concern, and the risks to the safety of children and the potentially detrimental impact on their social and emotional well-being are significant. We recommend an amendment to this clause to place an unequivocal duty on hospital managers to ensure that all children and young people under 18 will never be placed on adult psychiatric wards and will receive treatment in age and developmentally appropriate settings. This stronger obligation is the only way to ensure compliance with international children's rights standards, which require that children and young people are not detained with adults and have their best interests upheld. There is a similarly worded proposed insertion of article 3D to the Mental Health Order, which will apply to under-16s, set out in schedule 8, and we reiterate this recommendation regarding the wording of the duty on hospital managers relating to this even more vulnerable group of children and young people.

Clause 255 covers the proposed amendments to the Mental Health (Northern Ireland) Order 1986 and will apply to under-16s. NICCY welcomes the insertion of a best interest principle in proposed article 3A to the 1986 Order, as set out in schedule 8, which must be the primary consideration when making decisions about the treatment or care of a patient under 16. The determination of a patient's best interests as detailed in proposed article 3B, as set out in schedule 8 is unclear. We do not believe that there is adequate emphasis on the need to facilitate young people to express their views about what is in their best interests and to have these views taken into account. Such emphasis is necessary to ensure compliance with article 3 of the UNCRC.

The Bill contains very little information on how advocacy services for under-16s will operate and what services will be available to whom in what circumstances. The advocacy provisions under proposed article 3C to the Mental Health Order, as set out at schedule 8, are extremely vague, however it is clear that advocates for under-16s will be employed by the health and social care trusts. NICCY has concerns regarding the perceived independence of the advocates, their ability to challenge decisions made by trusts as employees of the trusts, and the impact that this will have on young people's confidence in the service and their willingness to avail themselves of it.

NICCY wishes to see independent advocacy being available to all children who require it, both under the Mental Capacity Bill and the Mental Health Order, when they require it and at their request, both in the community prior to the consideration of detention and on discharge and in a hospital setting. Children should be able to choose their advocate.

Proposed article 3D, as set out at schedule 8, amends the nearest-relative provisions of the Mental Health Order for under-16s. NICCY has concerns that the proposed amendment to the nearest-relative provisions of the Mental Health Order will not ensure compliance with the European Convention on Human Rights. NICCY wishes to see under-16s being afforded the right to choose their nearest relative who is not on the statutory list under article 32 of the Mental Health Order and under-16s being afforded the right to choose a suitable nearest relative from the list, regardless of the order that they come on the list. This would be in line with the European Convention on Human Rights and the UNCRC.

NICCY also believes that additional amendments should be made to the Mental Health Order that would allow under-16s in the care of the state, for example looked-after children or children detained in the juvenile justice centre, to displace the state. These young people are particularly vulnerable, and, given the importance of the role of the nearest relative as a significant safeguard for children who are detained under the Mental Health Order, it is particularly important that the child is happy with the person who is acting as his or her nearest relative. In the event of an application for displacement of the nearest relative being made by a child, the suitability of the nearest relative will be determined by the County Court. This process will ensure adequate oversight of the suitability of the nearest relative.

In its consultation on the Mental Capacity Bill in 2014, the Department stated its intention to extend the disregard provision in article 10 of the Mental Health Order to include periods of detention for treatment of young people aged under 16. This would have meant that under-16s would not have had to declare a period of detention for treatment or for assessment of a mental illness. The obligation to declare a period of detention for treatment of a mental illness has an extremely detrimental impact on young people with regard to employment, travel and insurance purposes. NICCY firmly recommends the extension of the disregard provision to include periods of detention for treatment for all children and young people aged under 18. This should be applied retrospectively to everyone who was detained for treatment of a mental illness in childhood. This is a vital safeguard to ensure that everyone who has been detained for treatment of mental illness in childhood is not discriminated against and is able to access the full range of lifetime opportunities and chances as all other children.

Also in its consultation, the Department stated that it was considering access to educational provisions for children and young people. It is extremely disappointing that there are no education clauses either under the Mental Capacity Bill or under the Mental Health Order. NICCY recommends that amendments are made to both pieces of legislation to contain strong educational provisions that oblige the Department to ensure that children and young people have equal access to the same educational provisions as their peers.

NICCY also wishes to see amendments being made to the Mental Health Order to address its stigmatising language and to ensure that it adheres to the Bamford report's vision of eliminating the stigma surrounding mental health issues. The Mental Health Order should include safeguards and protections that are at least equivalent to those young people over 16 will be able to access under the Mental Capacity Bill. These should include a statutory recognition of the views of carers, restraint safeguards and legal protection to a person providing care or treatment to someone who lacks capacity. These safeguards should be available to both voluntary and detained patients.

We also recommend that an amendment is made to the Mental Health Order to include conditions caused by personality disorder and conditions related to alcohol or drugs or the definition of mental disorder in line with the definition proposed for over-16s at clause 292 of the Bill.

Mr Eamonn McNally (Children's Law Centre): The Children's Law Centre (CLC) has engaged with both the Department of Health and the Department of Justice from the beginning of this process, and we have made a number of detailed written submissions to the Department outlining our concerns regarding the mental ill health of children and young people in Northern Ireland. We have consistently outlined our disappointment and concern at the exclusion of under-16s from the Mental Capacity Bill. NICCY has outlined the Department's rationale for the exclusion of young people. However, we have asked continuously for the Department to produce evidence or a study to back up this assertion and have yet to be provided with the same.

Clause 254 merely places a duty on the managing authority of a hospital to ensure that the hospital environment is suitable, having regard to the 16- or 17-year-old's age. This does not place a statutory duty on hospital managers to ensure that no young person is detained on an adult psychiatric ward. Children's Law Centre has serious concerns regarding the use of the term "suitable" and wishes to see a clear legislative duty on hospital managers to ensure that no young person is ever detained on an adult psychiatric ward.

Clause 254(3) places a duty on the managing authority to consult a person:

Clause 254(3) does not state the purpose of consulting with a suitable person or define the knowledge or experience that is required to make the person "suitable to be consulted". It is unclear whether the knowledge and experience that make a person suitable are knowledge and experience of the young person or knowledge and experience of the hospital. There is a similar situation in relation to under-16s in proposed article 3D of the Mental Health Order, as set out at schedule 8. The same duty is placed on hospital managers in respect of age-appropriate accommodation, but the same problems that I have outlined for 16- and 17-year-olds apply.

Clause 255 amends the Mental Health Order. The Children's Law Centre maintains its position that under-16s should be included within the scope of the Mental Capacity Bill; however, in our response to the consultation by the Department we laid out what we thought should be included as amendments to the Mental Health Order 1986. It is unfortunate that none of our suggestions have been included in the amendments.

Proposed article 3A inserts a best interests clause into the Mental Health Order and, whilst CLC generally welcomes this proposal, it is our view that the text of the proposed best interests clause is not fully compliant with the UN Convention on the Rights of the Child.

Proposed article 3C, as set out at schedule 8, puts in place regulations for the instruction of advocates for those under the age of 16. It appears that in limited circumstances advocacy services may be available to all young people, regardless of whether they are voluntary or detained. This is a welcome development from the previous position of advocacy being available only for detained under-16s. However, we are of the belief that advocacy must be provided for all under-16s at the earliest possible stage, and we have some concerns about when advocacy services will become available and for what purposes.

It is vital that advocacy services are available in the community when detention is being considered as an option for a child prior to the test for detention being applied because that may actually prevent the detention from being necessary.

It appears that under-16s will not be provided with an independent advocate of their choosing, nor have the right of continuity of service and, therefore, access to a familiar advocate should they require the appointment of an advocate in respect of a range of separate issues. We urge a commitment to be made to young people being able to choose and, indeed, revisit their own independent advocate once they have established a relationship of trust with the advocate or the particular service. It is critical, given the particular vulnerabilities of children and young people — they may have formed relationships of trust with independent advocates — that they are able to access that service as and when required. Information is also required as to the type of training that will be required for independent advocates for under-16s. It is necessary that that training is at least accredited.

In 2014, the Department stated its intention to amend article 10 of the Mental Health Order so that it would essentially mean that young people would not have to declare periods of detention for treatment. We greatly welcomed this proposal as that has impacted on a number of people we have acted for. However, it is unfortunate that the disregard provision has not been included anywhere in schedule 8. We are also concerned that this provision under the Mental Capacity Bill should be extended to include 16- and 17-year-olds. We also advocate that adults who were detained as children should have the benefit of this amendment to the clause.

Schedule 8(3) inserts article 3D into the Mental Health Order, which amends the nearest-relative provisions of the order. That provides for a person, generally a family member, to have certain rights and responsibilities in relation to the detained patient. The nearest-relative provisions, as they currently exist, are not compliant with the Human Rights Act. We have a number of concerns regarding the proposals to amend the nearest-relative provisions as we do not believe that they ensure European Convention on Human Rights (ECHR) compliance.

We wish to see applications by under-16s that would place an unsuitable nearest relative being brought to the Mental Health Review Tribunal, as this would be faster and in line with similar provisions in the Mental Capacity Bill for over-16s. We wish to see a young person being able to choose an appropriate person who is not on the current statutory list as their nearest relative if they are suitable and willing to act as such. We believe that the term "any other person deemed suitable by the review tribunal" should be inserted into the default list.

The displacement of the nearest relative should not systematically follow the default list but should be as a result of the child choosing a suitable person from the list. While the first person available from the statutory list may be suitable, they may not be the most suitable person from the list. We also wish to see specific provisions being put in place in relation to looked-after children and children who are in the Juvenile Justice Centre (JJC) to be able to displace either the Health and Social Care trust or the director of the JJC as their nearest relative.

Back in 2009 when the first consultation came out, we were promised that there would be education clauses in any new legislation relating to children and young people. It is unfortunate that there are no education clauses at all in either an amended Mental Health Order or the Mental Capacity Bill. We wish to see that situation remedied.

Lastly, I come to our further proposed amendments to the Mental Health Order. The language of the Mental Health Order needs to be reviewed and amended. It is littered with stigmatising phrases such as "mental disorder", and these need to be removed. Conditions caused by personality disorder, drugs and alcohol need to be included in the legislation; they are currently excluded. There must be a right of access to the Mental Health Review Tribunal at the earliest possible stage. Under-16s should be able to apply to the tribunal during the assessment period. A tribunal should be constituted within the assessment period rather than after six weeks, which is currently the situation.

Article 73 of the Mental Health Order relates to the automatic referral mechanism to the tribunal. This should be amended to ensure that applications are made on time to allow the tribunal to hear the case within a year. Currently, the Mental Health Order permits a young person to apply to the tribunal only once every six months. We wish to see the removal of this restriction and the inclusion of a provision to allow for multiple applications to be made, if necessary, with the leave of the tribunal. The legislation should include a list of safeguards that are at least equivalent to those for over-16s under the Mental Capacity Bill. We believe that article 127 of the Mental Health Order should be substantially amended. It is the provision that covers voluntary patients, and there needs to be more robust safeguards for them in the order.

I thank the Committee for the opportunity to present today.

The Chairperson (Mr Ross): Thank you all very much. Do members have any questions?

Ms McCorley: Eamonn, you said that you suggested amendments to the Mental Health Order for under-16s and that none of them was taken up. That is a disappointment. What will be the implications of that in your view?

Mr McNally: We have always held the view that the Mental Health Order should be scrapped, to be perfectly honest. We realise that, in this situation, we need to be pragmatic and suggest amendments that we think are required to make the order a workable piece of legislation, at least for under-16s. We carried out a task where we reviewed the Mental Health Order internally, met the Department for several hours, detailed what we thought should be the appropriate amendments to the order and then, when we formulated a response, we included those.

We did not shoot for the stars, for want of a better way of putting it. We suggested small, practical amendments, such as the one that I suggested to article 73, which refers to the automatic review mechanism. Currently, it allows the trust to submit an application for the automatic review on the last day of the year. Essentially, that means that a person can be detained for another six to eight weeks, depending on when the tribunal can be set. We thought that a very basic amendment should be that the tribunal should hear the case within the year so that a person would not be detained for long periods of time.

Other small amendments suggested were things like being able to make multiple applications to the tribunal. At the minute, you can make an application and, if it is unsuccessful, you have to wait six months. Six months is a really long time in the life of a young person, so we would like to see the ability for the young person to make multiple applications. If there is a concern about that, it can be done with the leave of the tribunal so that applications are not being made constantly. The amendments that we suggested were all practical things like that.

In our view, what has been suggested means that there is actually less now in schedule 8 than was in the consultation, because article 10 of the Mental Health Order will not be amended under the proposals. That has a fairly devastating impact. I have acted for a number of young people who have been substantially affected by that because, first, they believe that it is a stigmatising thing. They think, "I have to declare this when I am 40 or 50, but I am now 15." We have worked with young people who have lost opportunities because they have had to declare their situation. I have worked with families who have had financial implications through insurance, travel insurance, things like that, when their child has been detained, so it is a difficult and ongoing situation.

The under-16s are worse off than the over-16s because the assessment period is 28 days under the Mental Capacity Bill and 14 days under the Mental Health Order, so they are in a worse position by virtue of that to begin with. You have a bigger chance of being detained for treatment as a child than you do as an over-16.

Ms McCorley: Does that mean that a person has to declare that throughout their life?

Mr McNally: It never becomes spent, for want of a better way of looking at it.

Ms McCorley: It is like a life sentence.

Mr McNally: Basically, if I am detained when I am 14 or 15, even if it is only for one day into the treatment period, I am stuck with that for the rest of my life, if I am asked about it. You will not be asked about it in every situation, but it can have an effect. The biggest example would be if you were going to America. You have to apply under section 212 of the US Immigration and Nationality Act for a visa to travel there and you can be denied a visa on the basis that you have detained for treatment for a mental illness. So, somebody who is 40, for example, and who has never had another detention since the age of 15, will have to declare that and may or may not get in. It depends on the situation. The knock-on effect that we have seen is that various people have encountered courses or employment opportunities that have been tricky, to say the least, to be able to take up because of a short detention in childhood.

Ms McCorley: Is it your view that someone should not have to declare that?

Mr McNally: Article 10 should be amended so that nobody under the age of 16 should have to declare a detention for treatment. I also think that 16-year-olds and 17-year-olds should have an amendment to the Mental Capacity Bill as well, because they are still children. The UNCRC recognises you as a child until the age of 18 so, if they are still children, they should not have to declare that either. I also think that something should be considered for people who are in adulthood who have never had another detention after childhood; they are stuck with this stigmatising obligation to declare. Even though they may never have had a recurrence, it is required that they declare that they have been detained in hospital. If you are a voluntary patient, you do not have to declare; if you are detained, you do. That is the difference.

Ms McCorley: What educational provision currently exists for young people?

Mr McNally: At the minute, it depends. Beechcroft Hospital, for example, has the Beechcroft education unit (BEU), which is run by the Education Authority. It can cater for a certain level of education. We have worked with young people who are on particular courses or are statemented children with educational needs that cannot be met.

Part of the problem with it seems to be that, if you are in education before you go into the unit, you can continue; if you want to re-engage with education, you do not have an automatic right to take up your courses at the unit. There are also issues around young people who are statemented at a particular school or who have particular special educational needs and there is a difficulty in meeting them. Part of what I am thinking of is that, when you engage with a young person who is returning to the community, there is often a difficulty in getting the young person back into school, education or a training course when they leave the hospital because some people may have been out for a year or a few months, but it is enough to throw them off their studies. So, we would like a good, strong education clause in place that places an obligation on the board to work with the trust and ensure that the young person can go back into education, resume their course and finish, rather than drop off.

Ms Whelehan: Eamonn referred to the children who attend Beechcroft. We know that other children are detained on adult wards across Northern Ireland and their education provision would, obviously, be much less than having access to the on-site education facility at Beechcroft. I do not think that there is a straightforward answer, in terms of access to education for all children. That is why it is so important that there are education clauses in the Bill. We all have major concerns about the strength of that duty on hospital managers. Obviously, if this legislation goes forward as it stands, it is not going to prevent all children from being detained on adult psychiatric wards, and that is going to have an impact on things like their access to education. That is why it is so important that there are really strong education clauses in the Bill.

Mr McNally: I do not want to give the impression that there is anything wrong with the BEU; it is a very good service. It is just that I think that there needs to be something really strong in the legislation, both the 1986 Order and the Mental Capacity Bill, to provide for the young people who need to access education.

Ms McCorley: It is bound to be very complex. Thank you.

The Chairperson (Mr Ross): Can I just pick up on the disregard issue? Is there, perhaps, an argument that, after a period of time, it should no longer have to be disclosed? Rather than for anybody under the age of whatever, it not having to be disclosed, is there an argument for a period of 10 years when you have to disclose it and, after that time, it is a spent issue, much the same as the argument around youth justice and things like that? Is that something that you —

Mr McNally: Like the spent convictions rule.

The Chairperson (Mr Ross): Yes. Is that something that you would find favour with, or are you of the view that, if it happens to a child, it should not have to be declared at all?

Mr McNally: I have issues with it. Let us take the example of a young person who is detained for treatment and makes an application to the Mental Health Review Tribunal. Let us say that the young person wins that tribunal or, which is very common, the young person is regraded to voluntary status prior to the tribunal. To me, that is a successful application. It is essentially a statement that, "You did not need to be in hospital. Therefore, you can either go home or remain as a voluntary patient." You are still stuck with the obligation to declare, even though a tribunal has found you not required to be in hospital, or, essentially, the governing body of the hospital has agreed that you do not need to be there. In situations like that, I think it would be very unfair for someone still to be stuck with that obligation to declare for years into the future.

Another problem is that, if you look at the cases of young people who are detained, a lot of the detentions for treatment are very short. If someone is detained and they even go one day into the treatment period, they are obliged to declare it. I think that it is very unfair for someone who is detained for treatment for a week or two weeks to be stuck with that obligation for years. It is not a criminal conviction. It is a period of time when you have been unwell and you have had to go to hospital and be assessed. It has a stigmatising effect on you regardless. You have been to hospital and you have to tell everybody. That has its issues. The other thing is that a lot of the opportunities that young people want to take up will be within that first 10-year period, for example college and university courses and travel experiences. Even when applying for a driving licence, there is a box on the form to be ticked. A lot of the things that young people want to do will be delayed — for want of a better way of looking at it — for that period of time when they have to declare the detention.

Ms Whelehan: There was a lot of consensus about the disregard provision. I think everybody agreed that that was a very good thing. What we have been arguing about with the Department was whether it would extend that up to age 18. There was a clear understanding. The Department had stated its intention in the consultation that the disregard provision would be extended to everybody below the age of 16.

It was surprising when the Bill came out that there was no mention of that. We thought that it was a given that the disregard provision would be extended, at least up to the age of 16. My understanding is that the Department is looking at its legislative competence in terms of the disregard provision because, obviously, we will not have control over some of the legislation that it applies to, such as US immigration legislation etc. That may be an issue, but NICCY certainly urges the Department to introduce the legislation as far as the legislative competence of the Assembly extends. In relation to insurance purposes, driving and anything that we have control over, we absolutely should do it. That is my understanding of why it is not in the Bill as yet. Nobody disagreed with the need to ensure that children did not have fewer life chances as a result of having to be treated for a mental illness.

The Chairperson (Mr Ross): Given what you are saying about having no control over US immigration policy, there would be a difficulty if US customs required this information. If a person did not declare it, that would be an offence, even if the Bill said that it would be wiped clean: is that right?

Ms Whelehan: Yes. We will never be able to control legislation in America, but that should not prevent us from doing what we can, now, in terms of lifetime opportunities for young people who have been treated for a mental illness.

The Chairperson (Mr Ross): I am just wondering whether, when the Department is here, it will tell us that there are certain circumstances in which it is important that that information is declared. It must have a rationale.

Ms Whelehan: I do not want to speak for the Department, but I know from discussions with it at that time that the Department was happy to extend the disregard provision. It was in the consultation document as something that it believed needed to be done, so I think that there is still scope to progress that. I am just not sure where the Department is with that. It may well be that it wants to do it but is looking at whether it can, or the extent to which it can.

The Chairperson (Mr Ross): I just wonder whether you could create something so that an employer was not able to ask for that information on a job application or a driving licence did not require that information. There may be other ways in which you could do it. We will explore that with the Department, I presume. A number of people have mentioned that issue. Does anyone else have comments on it?

Mr Caughey: It is not a very good comparator, but the Department of Justice here has brought in the filtering mechanism for criminal records. That was brought in to ensure compliance with the European Court of Human Rights judgement in MM v UK. It seems to me that, in terms of proportionality, if they adopt a blanket approach of saying that you are always required to declare it, regardless of how short it was or the circumstances, that could possibly raise a compatibility issue down the line, with challenges brought.

The Chairperson (Mr Ross): Thanks for that. One of the other issues raised was a desire for something in the Bill to prevent a 16-year-old or 17-year-old ever being placed in an adult psychiatric ward. Again, whilst I understand the importance of that and why you would say that, I just wonder if there are circumstances in which, if you were so prescriptive in the Bill, there may be possible unintended consequences if a situation arose where you may have to do that for the child's well-being, or something like that, and whether being overly prescriptive in the Bill may actually cause problems. I wonder whether there are any views on that.

Ms Nixon: Sometimes, a child who is 17 and a half or coming towards their eighteenth birthday needs to transfer into adult services, and a bed may not be available for them immediately. Whilst you would not look at children going into adult wards, that has happened, and then they have a transitional plan into adult services. The flexibility around that has sometimes helped some of those children move into adult services.

The Chairperson (Mr Ross): Does anybody else have a different view on that? Would you accept that, actually, having a little flexibility in the Bill is a good thing and that being overly prescriptive may cause difficulties in practical terms?

Mr McNally: It depends on who the flexibility is for. What I mean by that is that the young person often does not get a choice. I have worked with young people who did not get a choice. I am thinking of one particular young person who spoke about the experience in an adult ward and did not find it a particularly pleasant one. The choice was not with them to say, "I'm 17 and a half; I'll go to an adult ward", or, "I'll go to a children's ward". I think that, in tight times, with pressures on beds in the children's unit, if the choice is left to the trust, it is unfair if there is no input from the young person or their advocate to that system.

Ms Whelehan: Practically speaking, it has certainly been my experience that young people on adult wards are held in separate rooms and they are not allowed to leave them. It can be an incredibly restrictive regime for those young people. I suppose that the hospital feels that it is keeping the young person safe, but it is incredibly restrictive. In certain circumstances, it could amount practically to solitary confinement. That is not a rehabilitative-type environment. That is certainly not something that we would encourage for young people. There are also issues around child protection and the ability of staff working on adult psychiatric wards who are not trained to deal with young people. It would not be ideal at all. I do not think that there would be any argument for flexibility in relation to under-16s because they will not be transferring to adult services any time soon. Certainly, in the case of under-16s, we want to see a very clear amendment to the Mental Health Order to ensure that there is absolutely no scope for movement there at all.

Ms Nixon: Eamonn is right on the issue of who has the choice. Last year, I noted a situation where a 17-year-old said, "I do not want to go from Londonderry to Beechcroft". If it is for a short period, they would go into an adult ward. It has happened in that way. As Natalie said, the provision of child protection, the training of staff and the vetting of other people is important. All those requirements need to be looked at. Where a child is on an adult ward, the circular from the Department is helpful because it specifies what must be in place. That register comes to us, and we can then choose to go out and look at that situation to afford additional assurance that all the provision that can be made in that short period is made for their protection.

The Chairperson (Mr Ross): Natalie mentioned that the independent advocates should be available whenever and wherever the child wants. Clearly, there would be a cost implication to that. The Bill is already hugely expensive, to the point of perhaps being beyond actual implementation. Is there not a little bit of confusion around what an independent advocate, in the purpose of the Bill, is actually meant to be for? It is not a general advocate, which charities provide; it is quite a specific role at the point at which a decision has to be made.

Ms Whelehan: What I am asking for sounds like it would be hugely expensive, but I am talking about it in the context of the purpose of an advocate in the Bill. In relation to under-16s, there is a real lack of clarity about what an advocate should be. All that I could glean from looking at that part of the Bill was that the advocate for under-16s is going to be employed by the health and social care trusts. I know that we are not discussing Part 4 today, but it deals with advocates for over-16s. I have quite a few issues with that. There is no mention of support for the individual to make their views and wishes known. It is very important that the advocate speaks on behalf of, rather than in place of, young people.

Under Part 4, we have to assume that it is intended that advocacy for under-16s will progress in the same way as for over-16s. We want to see a young person being able to employ the services of an advocate of their choosing, particularly if they have built up a relationship with that advocate. There is no definition in the Bill of what independent advocacy actually is. It seems that there are going to be future regulations that will determine functions and arrangements in relation to advocacy.

The instruction of an advocate has to be made by the trust, not by the young person. Obviously, we would like to see young people being able to ask for an advocate if they felt that they need one. Young people can refuse or discontinue the advocacy service, but they themselves cannot request an advocate. It is very unclear when advocacy services will be available. It appears to be very limited in relation to serious interventions when both the young person and their nominated person refuse the serious intervention. The advocate will then be instructed to consider what would be in their best interests. However, that falls far short of what Bamford recommended.

The advocacy provisions are really needed for children and young people. An advocate in the community would be absolutely vital in looking at detention, for example. When detention is being considered, we would like a young person to be able to have an advocate working with them.

As Eamonn said in his presentation, maybe the need for the detention of young people would not be necessary if you employed an advocate at that stage. Also, in the community setting, when someone is discharged from hospital, an advocate would make their rehabilitation better and seamless. It might well be that there are cost-saving measures there, because, if you can get a young person to agree to treatment through an advocate working on their behalf in the community, then we know that children who are voluntary patients in hospital often tend to recover more quickly because they are there willingly and not against their will in the way that they would be if they were detained. There may be cost-saving measures around what an advocate's role should be.

To comply with the UNCRC, advocates should be there to make the process much easier for young people. That is ultimately what this legislation was supposed to achieve. That is where we are coming from. It is not that I want to see an advocate for all children in all circumstances when they need it, I know there are limits on resources; but we do not want advocacy to become meaningless because then it is a hugely missed opportunity.

Mr Frew: Just on that point, who is best placed to be advocates?

Ms Whelehan: My position is that young people with a mental illness and who require advocates may already have an existing relationship with an advocate. They may have a relationship of trust from before. We would like to see young people being able to continue that relationship. The young people we are talking about are really vulnerable. The trust will employ advocates, and it will be up to it to do so. As I said, there is quite a lot of detail to come out in regulations and codes of practice on advocacy, but there should not be a blockage to young people being able to engage the services of an advocate they already trust.

Mr Frew: Are we talking about a social worker, a GP or someone of that ilk?

Ms Whelehan: There is an advocacy service in Beechcroft which is run by an NGO — the Voice of Young People in Care (VOYPIC). Advocacy services are provided by a range of providers. One of the things that Bamford wanted to see was a range of advocacy providers across the board being able to be accessed for a range of different purposes. There will be advocates operating who have relationships already built up with young people, and if those young people were able to access the services of those advocates, it would make things much easier. Things would be much smoother, and you would not have to spend the time developing that relationship of trust because it already exists.

Mr Frew: I am aware of VOYPIC's work. Does it have the capacity?

Ms Whelehan: That is just one example of an advocacy service provider. There are lots of organisations that offer similar services. I used it as an example for young people who may have been in Beechcroft already, and if they are being discharged, surely they would like to be able to access the same advocate to help them to reintegrate into the community and for rehabilitation purposes. There are lots of advocates working with young people. Rather than having to spend time with a young person and build up a relationship of trust at each intervention stage, if you did not have to do that, and the young person already trusted that advocate, then, to me, in terms of making sense and for the best use of money and time etc, that would be a much better, quicker, and cheaper way of doing things.

Mr Frew: That would be essential. It would be effective and essential to keep that continuity going the whole way through.

Ms Whelehan: Yes. These are very vulnerable young people and, particularly if they have been detained in hospital for treatment, it is vital that they have people around them whom they can trust and who are working on their behalf.

Ms Nixon: One of the things children say to us is that they may have been in a situation where they have had a lot of fractured relationships and that trying to confide in someone, starting again and telling your story over and over again to different people is very frustrating for them. The continuity of the relationship is very important for them, so that people listen to them, represent their views and have that awareness of the UN convention and the equality legislation and are able to communicate with children who are in those very distressing situations.

Mr Frew: They have a two-way process.

Ms Nixon: Yes.

Mr Frew: I think it was you who mentioned figures. Forgive me, but were those the figures for patients aged 16 or 17?

Ms Nixon: They were for the over-16s who were admitted to adult wards.

Mr Frew: What was that again? Could I ask you to repeat it?

Ms Nixon: From memory, I think it was 22.

Mr Frew: Twenty-two. In a year?

Ms Nixon: Last year.

Mr Frew: In adult wards.

Ms Nixon: Yes. That may not be just those with learning disabilities. Some folk have gone into adult psychiatric wards.

Mr Frew: How many 16-year-olds and 17-year-olds who were admitted to hospital in that year went into adult wards?

Ms Nixon: Those 22 went into adult wards. We had about 65 admissions last year.

Mr Frew: Were those the admissions in total?

Ms Nixon: For detention.

Mr Frew: That is detention.

Ms Nixon: They were detained. Yes.

Mr Frew: Does that include voluntary figures, too?

Ms Nixon: No, just detained patients.

Mr Frew: Of those 65 detained admissions, 22 went to adult wards.

Ms Nixon: Yes.

Mr Frew: Thank you for that clarification. What does "suitable" look like?

Ms Nixon: Do you mean in relation to advocacy?

Mr Frew: No, I mean with regard to the clause that places a duty on the managing authorities of hospitals to have hospital environments that are suitable for children. What does "suitable" look like?

Ms Nixon: We touched on some of that in relation to, for instance, education provision in an environment that is child-friendly, has lots of activities and lots of supports with a full scheme of psychotherapeutic interventions offered by a range of professionals. From some of the hospitals we have, we know that a range of professionals are required, from psychiatrists to psychologists, social workers and family therapists.

The definition of "suitable" can be as wide or as narrow as you wish, but there will be some minimum requirements that you must meet to ensure that it is suitable. All the issues around child protection, affording the child choice, and the ability to have an advocate all come into that definition of "suitable". The environment is also important. That is an environment in which you have privacy, your own room, and the ability to do other things on site, even, as I said, to attend to your education requirements.

Mr Frew: This is maybe an unfair question, but is there a best-case scenario or best practice out there?

Ms Nixon: In Northern Ireland, Beechcroft and Iveagh are two of the treatment units for children under 18. They are both relatively new units which have a lot of the provision built in, and the professionals there are required to attend to the needs of young people as well as, as Eamonn referenced, their education provision. That can be difficult sometimes when children come into those units, because they have left school, are very unwell and may not be able to attend immediately to their education needs. Further work may be required on that.

Mr Frew: I can understand how you would grapple with this age range in any piece of legislation. They are at the age when although they might be defined as children, they are most definitely young adults. I am sure that there will be many occasions on which it is not suitable for 16-year-olds or 17-year-olds to be in adult wards. I am also sure that it would not be suitable for 16-year-olds or 17-year-olds to be in a children's ward. Is that the case?

Ms Whelehan: As far as international standards are concerned, the UN Convention on the Rights of the Child is clear that children should not be detained with adults except when it is in their best interests. It would be on very rare occasions that children would be detained with adults, particularly in these types of settings, because of child protection concerns.

In transition instances, it may well be a consideration that it would be in the best interests of the child, if all the other safeguards that Theresa talked about were in place, such as education, child protection, training for staff so that they know how to deal with young people and the vetting of people who they would interact with. It is never suitable for children to be detained in adult psychiatric wards with adults, apart from in very prescribed circumstances in which it would be in their best interests. I do not think that there would be too many of those. I do not think that it would be suitable at all. It is interesting that the examples that Theresa gave around what she considered to be suitable are children's facilities, and I think that that is right. I think that children should be held in children's facilities.

Mr Frew: This might be a hard question to answer, but what is the range of timescales for treatment or being in hospital?

Ms Nixon: That can vary. Last year, I noticed that one child was in for between 50 and 100 days, but that was fairly exceptional. This year, I noticed that it was between five and 12 days for detention for assessment. However, you could be in Beechcroft or Iveagh for much longer periods than that in terms of the full review of your needs and your treatment package.

Mr Frew: I asked that question because of the education clause and the needs of 16-year-olds to 17-year olds who are studying for GCSEs or AS level. Those are critical time-pressured years. Someone could have a condition that could prevent or delay that learning, and they would suffer for that; and then they could get detained or go into hospital. There is also the gap away from school, and some children may already have that issue. How do we cover that sufficiently, in words, so that those children do not lose that opportunity or that year? Things move on very quickly, and you cannot pull back a year at school very easily. How do we get that down in print?

Ms Nixon: I think that we have to be cognisant also of where that child is at that time. If you are in acute pain, then you are not amenable to studying and doing some things for a period of time; you need to take a step back. However, it is incumbent on the trust that assesses the needs of that child to say, "How could I maintain their education curriculum. What other services can I put in and what is suitable?" A lot of those decisions are perhaps guided by the psychiatrist who is assessing or the multidisciplinary team. I think that the proviso has to be that, in that child's best interests, they should try as much as they can to maintain that child's educational needs in the setting they are in. In some situations, children from Iveagh have gone to school locally, because they are maybe living in Belfast. During the day, they can be bussed to that education facility and bussed back in the evening, so there is some continuity. I think that it is very important to try to do that.

Mr Frew: Would it be acceptable and fair not to pressurise someone in such a condition into education at that time?

Ms Whelehan: That has happened.

Mr Frew: Should there be a facility where they could freeze their education and be allowed to resit a full year? Should that provision exist? Maybe it does exist.

Ms Nixon: The parents and the child's multidisciplinary team discuss those situations. Sometimes, it is decided that the child will take a year out and, after discussing it with the school, go back at a different time when the child is in a better place to take up their education.

Mr Frew: That happens at present.

Ms Nixon: Yes. It is a choice.

Ms Whelehan: With regard to how we put it on paper, we would like to see strong education clauses in the Mental Capacity Bill and in the Mental Health Order. Obviously, there will be all of the statutory assessments of children when they are in hospital to see what they are capable of or what they can do or are willing to do in terms of education. However, there should be an obligation to have the same access to education provision as everyone else. Young people who are not well and who have to be in hospital should not be discriminated against in terms of accessing education provision. That is fundamental.

Mr McNally: Also, when the young person leaves hospital, there needs to be a really strong clause that puts some sort of duty on the trust and the Education Authority to ensure that the young person gets an education placement as soon as possible to get back and complete their studies, because we have had cases where there is a significant time lag between someone going home and then actually getting back into education. The processes involved if someone has to apply for a statutory assessment — the statementing process — can be very slow, so there needs to be something in place that means that the trust, on discharge, will ensure that there is cooperation between it and the Education Authority.

The Chairperson (Mr Ross): OK. No one else has any questions. Thank you all very much.

I now welcome Lisa Trueman, Alison McCaffrey, Clare Irvine and Paul McConville. Before we go into the clauses, I would like to go through some of the points that arose in the research briefing that we had on costs; I think that you were all here for it. You will know that, virtually every week, we ask questions about the cost of the Bill in order to recognise whether it is achievable. If you can answer these points, I would appreciate it; if you cannot, I hope that you can get us something as soon as possible.

A number of points came up during that briefing, the first being around the estimates to support a person to make a decision. We talked about the 5% figure that the Department seemed to be focusing on, although we heard that some of the data is perhaps incomplete and that the recent SEN review by the DEL Committee indicated that the 5% figure may not be accurate. Would you stand over the 5% figure, or do you wish to review it?

Ms Lisa Trueman (Department of Health, Social Services and Public Safety): Chair, we are not in a position to comment on costings. My colleagues and I are part of the Bill team; we have a separate costings team that looks at that side of the project. Of course, we can take your queries back to colleagues in the Department and ask them to respond.

The Chairperson (Mr Ross): We will get an oral briefing on this rather than write down our questions, because there are issues about some of the assumptions that have been made that we need to test thoroughly in order to do our scrutiny of the Bill.

We will move on to today's session on the two clauses. I will ask a few questions, as will other members, and, if you pick up on anything else during the session that you want to respond to, please feel free to do so.

The first issue is young people of 16 or 17 being placed in adult psychiatric wards. We heard that some stakeholders would like that to be prohibited in the Bill. Can you tell us why that is something that you would not support?

Ms Trueman: We do not want to be too prescriptive in the legislation, and I think some views were expressed on that previously. We have to ask what would happen if no children's beds were available or if the only bed available was far from the child's home or parents. This was certainly an issue raised by children themselves, and we consulted them directly. It could result in a child not being admitted, even though it was clearly in their best interests. It is our view that we cannot ignore the reality of what might happen, so we have what we think is the most practical and workable solution in the Bill. However, it can be addressed further in guidance and, of course, in the accompanying code of practice.

The key point for us is that we do not feel that we can be too prescriptive in the legislation, and so we have had to build in flexibility for the extreme cases.

The Chairperson (Mr Ross): What is the purpose of clause 254(3)?

Ms Alison McCaffrey (Department of Health, Social Services and Public Safety): It is to ensure that appropriate people have been consulted when making a decision about where to place a young person or child. The thinking is that the person is likely to be a child and adolescent mental health service professional with knowledge and experience of the treatment and care of young persons with mental disorder.

The Chairperson (Mr Ross): What does the phrase "knowledge or experience" mean, or what does that look like?

Ms Trueman: It would be, for example, a CAMHS professional, someone with knowledge of the care and treatment of a child with a mental disorder. It is our view that this is an additional protection, so it is a good thing that we have it in the Bill. Again, associated guidance would set out the outworking of that.

Ms McCaffrey: It is in addition to the best interests principle that applies to all decisions relating to a young person's care and treatment, which is a new safeguard that we have introduced in the Mental Health Order and applies to 16-year-olds and 17-year-olds who are being dealt with under the Bill. That has a specific requirement for the relevant people to be consulted and is set out fully in clause 7. It is an additional protection.

The Chairperson (Mr Ross): OK. Turning to clause 255, in terms of the use of independent advocates for under-16s, can you specify the situations under legislation that would require an independent advocate to be appointed?

Ms Trueman: Yes, for an inpatient in hospital who has been detained or who is there voluntarily for the assessment or treatment of a mental disorder. There are also requirements where certain treatments are proposed in relation to psychosurgery; for example, ECT, as we mentioned earlier. Those are the situations where an independent advocate would be in place.

The Chairperson (Mr Ross): In the previous session, we heard from one stakeholder about the desire to have advocates available any time, any place. Are there situations where an independent advocate could be appointed under the Bill for a child who was still in the community and where detention was being considered as an option?

Ms McCaffrey: In terms of a 16-year-old or 17-year-old, the duties in regard to —

The Chairperson (Mr Ross): If they were still in the community and whether to detain them or not was being considered, would an advocate be made available to them at that point?

Ms McCaffrey: Under the Bill, any decision that is a serious intervention and is being resisted by the person or objected to by their nominated person would involve an independent advocate. Under the Bill, the proposal in relation to the independent advocacy service is where it is proposed to admit a young person and in the circumstances that Lisa outlined, where they require treatment around psychosurgery and ECT.

The Chairperson (Mr Ross): In those cases, is it not more than likely that the child will already be in hospital?

Ms McCaffrey: Under the —

The Chairperson (Mr Ross): In terms of the very serious intervention, would they not probably already be in hospital?

Ms McCaffrey: They could be, but it could also be an emergency situation. Somebody could require to be admitted to hospital urgently.

The Chairperson (Mr Ross): As for the ability for somebody under the age of 16 to build up a relationship with an advocate, could under-16s choose their own independent advocate?

Ms McCaffrey: I think this came up in the context of last week's discussion about the independent advocate service as well. That would be very difficult to guarantee in legislation. The practicalities need to be considered. For example, if the independent advocate that the person wants is on holiday or is sick, you would not want to stop something from happening just because of those practical considerations. However, I take the point about the need for good relationships; in particular, there may be circumstances where there is a breakdown in relationships as well. We think that this is the sort of thing that the code and guidance can deal with, as opposed to being too prescriptive in the Bill and, therefore, creating difficulties on the ground.

The Chairperson (Mr Ross): OK. Concerns have been raised about the best interest clause in article 3B, as set out in schedule 8. We heard some stakeholders argue that there is not enough emphasis on taking the views of the young person into account.

In clause 7, the term "special regard" is used in relation to C's wishes and feelings. The Committee has already written to the Department with concerns about that phrase in relation to adults, and the fact that it does not seem to make clear what weight is to be given to the person's wishes and feelings, particularly in circumstances where the views of the relevant people are at odds with the person's wishes and feelings. Can the Department clarify where the phrase "special regard" came from? Is it used in other legislation? If so, what does it mean in other legislation?

Ms McCaffrey: It came about really in direct response to the ongoing debate that you heard in the session on Part 1 around the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the need to take account of the person's wishes, feelings, will and preferences.

The wording that was used in the consultation draft of the Bill was "take into account", and, in listening to the views that were expressed during the consultation and in listening to the debate that was going on around the UNCRPD, we felt that there was a need to make that a little bit stronger, if you like, to place more prominence on the wishes and feelings of the individual; because it is pretty clear that just because a child is involved, or somebody who lacks capacity, their wishes and feelings are no less important to them than they would be to anyone else. So, we looked around, basically, for wording that might capture the placing of more prominence on those, and I think that it was the draftsperson who came up with the wording, "have special regard to". My understanding is that it is used in other legislative fields, but not extensively. It is something that would develop through case law. It is intended to respond to that ongoing debate around the UNCRPD, whilst still achieving the balance that needs to be there around the protection of autonomy and protection of other rights that the person is entitled to, which the best interests clause as a whole tries to encapsulate.

The Chairperson (Mr Ross): I presume that if it is seen as beefing up the language, there would be some sort of legal definition around it. It would be useful if you could get us more information on that.

One of the other suggestions that NICCY made was that there should be an additional paragraph in article 3B to ensure that young people are supported in having their views heard when decisions are being taken on their best interests. Have you have any view on that? Are you willing to accept that?

Ms Trueman: Sorry, is the proposal to insert a support clause similar to that in the Bill?

The Chairperson (Mr Ross): Yes, they suggested an additional paragraph that would be there in article 3B to ensure that young people are supported in having their views heard.

Ms Trueman: I think that it is important to look at what the support clause in the Bill actually does. It relates to clause 1(4), which applies for the purposes of making a determination about whether a person has capacity, which is a criterion for interventions under the Bill. "Lacks capacity" is not a criterion under the Mental Health Order. The primary consideration for children has to be what is in their best interests, as required by the UNCRC. Of course, the situation is very different for children, because they have parents for support. I would emphasise, again, the new best interests principle, which requires you to encourage and help the child to participate and to ensure that the child is provided with appropriate information and advice. Of course, an independent advocate can be appointed to represent and support the child.

The Chairperson (Mr Ross): A lot of children will not have parents, of course, to be supportive of them, which is something we need to —

Ms Trueman: The role of parental responsibility is placed in the trust in that case.

The Chairperson (Mr Ross): ECT will continue to be permitted for use on under-16s. Have you considered whether this Bill could be used to stop that form of treatment for children?

Ms Trueman: I appreciate that ECT is very rarely used on children, but it is important, nonetheless, to have the protection in the legislation, because, if it were for some reason to be used in the future, the amendments that we have put in would ensure that ECT would always require a second opinion whether the child is capable or not capable. So, in our view, if we did not include that in the Mental Health Order it would be taking a significant protection away, if a case arose in the future. Of course, there are the additional protections of best interests and independent advocate around the use of ECT, as well.

The Chairperson (Mr Ross): Concerns have also been expressed to us about the proposals to amend the "nearest relative" provisions in the Mental Health Order 1986. The Children's Law Centre argued that applications to displace an unsuitable nearest relative should be brought to the mental health review tribunal rather than to the County Court. Has the Department any view on that proposal?

Ms McCaffrey: Yes, it is something that we did consider. It was in a list of amendments that the Children's Law Centre very helpfully put forward. Our view was that, given the significant powers that are conferred on a nearest relative in the Mental Health Order, which include making applications for detention for assessment and discharging the patient, it would be more appropriate for that displacement to be a court decision, as opposed to that of a tribunal.

The Chairperson (Mr Ross): Again, the Children's Law Centre and NICCY both argued that a young person should be able to choose an appropriate person as nearest relative who is not on the current statutory list. Do you have any view on that proposal?

Ms Trueman: It is our view that that would undermine the fundamental concept of parental responsibility under the new best interests clause; however, the views of the child would of course have to be taken into account, and certainly the child's preferred choice of an individual could be on the application that goes to the court. Ultimately, in that situation it would be the court's decision, because, obviously, the best interests of the child would be the primary consideration.

The Chairperson (Mr Ross): Again, one of the issues that we had a discussion on, and on which Paul had a question, was access to education. Why have you not put any amendments into the 1986 Order relating to access to education for children in mental health hospital settings?

Ms McCaffrey: We listened very carefully to the arguments that were made by stakeholders, and, in our consultation documents, we said that we would look at it. Following the consultation period, we sought legal advice on the issues that had been raised. It is our understanding that there are existing duties and powers within the Education (Northern Ireland) Order 2006 to deal with that.

The Chairperson (Mr Ross): Finally, we had a conversation around an individual having to declare a period of detention. Why is the Department not taking the opportunity to amend the 1986 Order so that no one would have to declare a period of treatment in hospital for mental ill health when they were under the age of 16? Is there a reason why you do not wish to do that?

Ms McCaffrey: Again, it is something that the CLC and NICCY have pointed out. It was raised during the consultation, and we have discussed it with stakeholders. It is not as straightforward an issue as we would all maybe like it to be. We reflected in the consultation report that we would look at it. Again, we sought legal advice on the issue, because if we are legislating for something, we have to be absolutely clear that we have the competence to do it and that it is the right thing to do. That legal advice basically advised us to give it careful thought and to consult medical professionals on the issue. It also pointed out that it is something that is unique to Northern Ireland. These disregard provisions do not exist anywhere else in the United Kingdom. It is not in the equivalent legislation in England, Wales or Scotland. At the moment, it applies to detention for assessment, which is why the criteria are mental illness and risk to others or self. However, it seemed to us that there might be a question around having a special rule beyond that detention for assessment where there is no equivalent special rule, such as where a child is being treated for a very serious physical condition on a long-term basis, for example. So, it gave rise to some questions in our mind and some additional thinking. We think that it is something that needs to be thought about very carefully, and we need to be clear about what the impact might be on the ground.

The Chairperson (Mr Ross): OK. Do members have any questions?

Ms McCorley: Go raibh maith agat. Will you elaborate a wee bit on that last point? What does it mean? Are you going to consider the circumstance of having to declare for under-16-year-olds? Are you saying that it might not need to be the case?

Ms McCaffrey: It is something that would need to be given very careful thought. Our legal advice indicates that that should be the case and that there should be consultation with medical professionals around that issue. The issue is around the equivalence of children who may be suffering from long-term physical conditions and having treatment on a long-term basis, for example. If you have a special rule for one, why not have a special rule for the other?

Ms McCorley: But there is a stigma attached to mental illness; it is different, completely. It is very important. This must be something that comes back to us.

Ms McCaffrey: We have not put forward an amendment on this, at this stage.

Ms McCorley: So, at the moment, the change that is being asked for is not going to happen, is that what you are saying?

Ms McCaffrey: It is certainly something that we have looked into and taken legal advice on. If we need to carry out more work in relation to it, we will.

Ms Trueman: Another important point to highlight, which Alison mentioned, is that this equivalent provision is not in any of the legislation across the water. We already have a disregard in respect of an assessment period. They do not have that in England, Wales or Scotland, and I believe that they do not have it in the Republic of Ireland. We already have a unique safeguard for disregard for the assessment period.

The Chairperson (Mr Ross): Lisa, surely you cannot use the argument that this is not used anywhere else in the world, given that this is a groundbreaking Bill and that we are leading the way by way of the Mental Capacity Bill. You cannot have the argument that we are leading the way in a groundbreaking Bill and then hide behind an attitude of, "Well, nowhere else is doing it".

Ms Trueman: It is just to reflect the difficulty of the matter that we are discussing. It is to try to show some comparison as to the difficulty of the situation, should we have the disregard in respect of assessment extended even further into treatment, when they have not gone that far across the water in relation to assessment.

The Chairperson (Mr Ross): I am a little confused about whether you are not doing it because there are legal difficulties around it — that is fine, and I understand that — or whether you do not want to do it. You can want to do something and say, "But there is legal advice saying that we have to be very cautious about that". I understand that position. Is that where we are: you would like to do something on this, but there are legal considerations that might make it difficult?

Ms McCaffrey: We can see the strength of the arguments that are being put forward by the stakeholders, but we would want to be very clear about the consequences of doing this and providing for something of this nature.

Ms McCorley: What consequences could arise? What do you envisage?

Ms McCaffrey: For us, the initial thinking was around the equivalence of not requiring one set to disclose information but requiring it of another. That would be one situation. It is about whether that would actually be legal.

Ms McCorley: So it is not what it might mean for a person; it is more about whether you are in line with something else, really?

Ms McCaffrey: Yes.

Ms McCorley: We are very concerned about what it will mean for people because we have heard the evidence. We have heard that somebody may be in having treatment for just one day and their whole life can be affected by it. That is a big issue, and it needs more consideration.

Ms McCaffrey: We will certainly take the Committee's views on board.

Ms McCorley: You talked about education and said that existing education duties deal with the situation, but that is not what we hear. We have heard that there needs to be robust educational provision for young people, because they are vulnerable as it is, and the need for education is really important. We do not want some sort of watered-down provision or something half-baked. I think that it is a good idea to have something robust that would ensure that a child or young person will not be deprived of the type of education that they need because they happen to be in this situation. Can you say something further about that?

Ms McCaffrey: Not really. Our understanding is that there are existing duties and powers in the education legislation at it stands. How that is implemented on the ground is perhaps a matter that could be taken forward administratively, but it would not be in the gift of the Department of Health, as such, to impose duties relating to education.

Ms McCorley: Would it be something for the Department of Education to have to take on?

The Chairperson (Mr Ross): It might be useful if you could provide us with the other legislation. I understand why you do not want to duplicate legislation; it is bad form to do that. That does not stop us doing it in Northern Ireland, but it is bad form to do it. It would be useful if you could provide the Committee with that and show us where the provisions are, so that we have some assurance around this.

Ms McCaffrey: Yes.

Ms McCorley: If we could see that, it would give us something to work from.

Concerns were also raised in relation to the Mental Health Order and what automatic review mechanisms would mean. That could be very disempowering, and it could mean someone being kept in a situation for long periods of time. Another concern was raised about multiple applications to tribunals and how that has a similar effect, in that it prevents someone being able to move through the system more easily. There was a comment on that saying that there is a concern that things would be made worse as a result of this legislation.

Ms Clare Irvine (Department of Justice): We had a conversation last week about viewing access routes to the tribunal as a scheme. Sometimes, I think that it is easy to look at one provision and think, "Oh well, if somebody is going to be in there for a year, there will be no opportunity to have their detention looked at by an independent judicial body". The effect of what we are doing in the Bill is to amend the 1986 Order for the under-16s. A great deal of Part V of the 1986 Order will stay intact, but obviously we are taking out the bits that relate to Part III or, to use the phrase, "mentally disordered" patients. Article 71 will still be there, which is about the ability of the patient to apply to the tribunal themselves. There is the opportunity for the nearest relative to apply as well, and there are also reference provisions in articles 72 and 73. So, looking at it as a scheme, again, there are plenty of access points to have that person's case reviewed. We must confess that we think that this scheme is OK. We think that it is ECHR-compliant and that it gives sufficient judicial oversight to give these people protection. Obviously, we do hear the voices of stakeholders who maybe do not agree with us on this point.

Ms McCorley: OK. We will come back to that then.

This might have been covered. Will there be some firm assurance that no child will be kept in a ward for adult psychiatric patients?

Ms Trueman: We had given the view that we could not be prescriptive in legislation. I think that I raised a few questions about what happens if no children's beds are available or if the bed is far from home and far from the child's parents. I think that we cannot ignore the reality of what might happen on the ground. We have included what we think is the most practicable and workable solution. Obviously, we have to cover for those possibly extreme cases where it is not practicable to have the child in the suitable accommodation. Obviously, guidance and the code of practice will emphasise the importance of that. The key point is that we cannot be completely prescriptive. We need to have some flexibility there because, ultimately, we do not want to leave it to a case where it might result in a child not being admitted where it is in their best interests, which obviously is the primary consideration.

Ms McCorley: You can see that, if it is left loose, it could be the case that adult wards will be used to accommodate children. I do not believe that that is the proper way.

Ms Trueman: The other way, in saying that a child must never be admitted to an adult ward, would mean that you could have a case where it is in that child's best interests to be admitted but it is not possible because the legislation is too prescriptive. We want to leave flexibility in there to ensure that a child will always have the appropriate treatment that they need in extreme cases where it is not possible.

Ms McCorley: Can you have a safeguard against allowing it to happen? Do you understand what I mean? If you leave it open, it means that it could just be treated very loosely. I accept your point that you cannot be too prescriptive because there could be an emergency, but can you limit it? Is there some way that it can be written so that the scope would not be too wide?

Ms McCaffrey: I think that there would be merit, as there currently is, in having very strong guidance around this issue. As you are aware, there will have to be a code of practice with this piece of legislation, and the Bill will require certain people to have due regard to it, so that, in any legal proceedings that issue under it, they must be able to demonstrate how they have had regard. I think that that is probably the strongest — a very strong — avenue through which you can make those.

Ms McCorley: Given that we are taking on this groundbreaking legislation, it seems perverse that its upshot might be that some children might be disadvantaged and might be placed in a more dangerous or inappropriate situation. That is a big concern.

Ms McCaffrey: Clearly, that would only be in exceptional circumstances. The ultimate test here is what is in the child's best interests, and that is being put as a primary consideration not only in the Bill but in the Mental Health Order. That may mean, in some cases, being nearer to their parents and, therefore, not where a children's bed is available not near to their parents.

The Chairperson (Mr Ross): Will you accept that it is not exceptional at all, though? The figures that were given to Paul, when he asked, were about a third, so it is not being done only in exceptional circumstances; it is almost the norm if, in a third of cases, children are in adult wards. Is there not some scope there to tighten that up? It should not happen unless it is in the child's best interests, reflecting guidance elsewhere.

You cannot say that it is only happening in exceptional circumstances when a third of cases are in an adult ward.

Ms McCaffrey: We can look at that. The code of practice will be incredibly important. It has some weight.

Mrs Cameron: I wanted to come in a few questions ago on the back of the discussion about educational provision. You said that the educational provision is already there, and I know that you will come back with the detail. To provide clarity, if that educational provision is there and would apply in this situation, is it possible to refer to that in the Bill? I do not know whether you would do that in the Bill or in guidance.

Ms McCaffrey: We would have to discuss that with the draftsperson. They have control over what goes in. The guidance could certainly address that.

Mr Frew: I will go back to your last question, Chair. A total of 22 out of 65 admissions are detainees. That is a third. Is that suitable?

Ms Trueman: We do not have the details of the individual cases to say whether it was suitable in each case.

Ms McCaffrey: The statutory provision is new. It will be in the Bill. It does not exist at the moment. The statutory provision should provide more protection.

Mr Frew: I will maybe direct it more towards Paul. The figures show that, of the 65 admissions, 22 are in an adult ward. Is that figure of over 30% increasing or dropping year-on-year? Do you know?

Mr Paul McConville (Department of Health, Social Services and Public Safety): I do not know off the top of my head. I would need to look at that information. It is reported on in the trusts' delegated statutory functions reports to the Health and Social Care Board, which, in turns, reports to us. I would need to go back and do a comparison on that.

Mr Frew: There is something else that we need to glean from the information. It is not just about the pure figures and the percentage of admissions to an adult ward. We need to look at the length of stay. That is very important to give you a real quantum and a real value of how many bed nights we are talking about. That would shed light on the issue. It alarms me that that is so high, because, if the rationale is to be close to parents, the question is all about resource and about facilities being close to people. It leads you into all sorts of other scenarios. I can understand the argument about leaving it loose — that is not a very nice word to use in this context, of course — in the Bill. We work with trusts every day of the week and decisions are made, and it is not necessarily all to do with the best interests of the patient. A lot of it is to do with space and capacity, and we have seen in other scenarios and other worlds of health that elderly, vulnerable people have had to move miles and miles to get a step-down bed. That worries me. That leads on to my next question. Who exactly is the managing authority of a hospital? I take it that it is the trusts.

Mr McConville: Yes, the trust board.

Mr Frew: Sometimes, it is not the trust that has the say in the decisions that are made. Again, there is an issue with leaving it so loose that "suitable" is justified for 30% of admissions to adult wards. It would be useful to get that information on the length of stay, which is very important for us in regard to Part 12 and the clause itself.

Mr McConville: We can undertake to find some more quality information on the numbers, proportions and the length of stay. I do not want to take anything away from what you are saying, or your concern for the protection of young people who are admitted to adult wards, but each of those admissions — detentions — will have been the result of clinical decisions. The only other thing that I would say is that we may need to look at what motivated those decisions. Was it someone in the north-west saying that it will impact negatively on the mental health or emotional well-being of this young person to dislocate them further from their family? Taking all the points that you are making, we would also want to enquire as to what other factors contributed to those decisions, to assure that it is not a blanket or easy solution.

Mr Frew: That would be invaluable information for us to have. I would appreciate that, Paul; thank you very much. With an individual, there will always be unique circumstances.

Mr McConville: Yes.

Mr Frew: That will always have to be taken into consideration. I am not one for tightening a Bill up so much as to restrict people's hands with regard to care, but we need to tease this out. I do not think that a third of admissions to adult wards should ever be suitable; that is basically my whole point. Thank you.

The Chairperson (Mr Ross): OK. Are there any other questions? Are there any other issues that you want to wrap up from the questioning earlier?

Ms McCaffrey: I think that we have covered them quite extensively.

The Chairperson (Mr Ross): OK. All right. Thank you all very much.