Official Report: Minutes of Evidence

The Chairperson (Mr Ross): I welcome Eamonn McNally from the Children's Law Centre, Mirjam Bader from Mindwise, Natalie Whelehan from the office of the Northern Ireland Commissioner for Children and Young People (NICCY), Ms Heather Palmer from the PSNI, and Valerie McConnell from the Public Health Agency (PHA). If everyone is ready, please present for a couple of minutes each, and then we will move to questions.

Ms Heather Palmer (Police Service of Northern Ireland): Good morning. On behalf of the Police Service of Northern Ireland, I thank the Committee for the opportunity to provide evidence on Part 9 of the Mental Capacity Bill.

The PSNI spends considerable resources at emergency departments on having to remove mentally disordered persons to a place of safety under the existing powers in article 130 of the Mental Health (Northern Ireland) Order 1986. The PSNI has engaged with the Department of Justice and the Department of Health, Social Services and Public Safety in the preparatory work on the Bill. I welcome the clarity brought by the clauses in Part 9 in relation to the powers of police to remove a person to a place of safety.

In the event of an individual being detained under clause 137, it is our view that there should be an agreed handover of that person into the care of the relevant health and social care trust, allowing police to leave. The PSNI has engaged with the Health and Social Care Board (HSCB) and the Northern Ireland Ambulance Service (NIAS) to address continuing problems with the police delay at emergency departments with persons detained under article 130. An agreed protocol on the operation of place in safety, which includes a joint risk assessment for this purpose, is being disseminated across the PSNI, Health and Social Care (HSC) and NIAS.

Clause 137 is clearer in that it clarifies that the constable must reasonably believe that failing to remove a person could cause serious harm, and that removing that person to a place of safety must be proportionate and in the best interests of that person.

Clause 138 continues to add clarity in that the person being removed to a place of safety must be informed as soon as is practicable that they are being removed. That is helpful. Clause 138(4) also states that article 30 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE) does not apply to a person removed to a place of safety.

The ability to discharge the individual is welcome, as that is not provided under the Mental Health Order. The expansion of the definition of "place of safety", set out in article 129 of the Mental Health Order, includes criteria and conditions for a person to be removed from a public place to a police station.

Clause 143 adds to the current order in providing for the transfer of an individual between places of safety. That happens where an individual's behaviour is such that they could not initially be taken to an emergency department (ED), but could later be transferred from police custody to hospital once other factors have been resolved. It is important that police custody as a place of safety is by exception and that due regard is given by officers to other settings that better meet the needs of an individual in the situation as it is presented at that time.

ACC Noble's letter to Kathryn Aiken states that the PSNI welcomes a reduction of the period that a person can be detained to 24 hours as opposed to the current 48 hours. It is notable for the Committee that, under the current order, police have been delayed in excess of 24 hours, but I understand that that will be captured in the codes of practice and developed with the Department. We continue to consult with DOJ on possible clarification of the roles and responsibility of officers in the execution of the powers.

Clause 147 requires the record of detention being made as soon as possible. The PSNI accepts that current improvement in data capture is important in relation to persons detained in a place of safety, but it may require technical changes in police information systems. We note that we are content that the provisions of PACE will continue to apply. As mentioned earlier, the roles and responsibilities in particular reviews have been subject to ongoing discussions with DOJ officials. PSNI accepts that the six-hour review period set out in the Bill recognises the vulnerability of those individuals detained under clause 137. Whilst that differs from the intervals in PACE, the PSNI is content to accept the intervals of six-hour review periods for those particular circumstances. I remind the Committee that the detention to a police station would be by exception and that treatment in meeting the complex needs of those individuals would be expeditious. The agreed responsibilities for the reviewing officer will also be captured in the codes of practice. The PSNI will address with the Department any potential practical issues with police officers ensuring legal advice at hospital through operational guidance and protocols.

Following written evidence, the PSNI has further engaged with the Department and is content with clause 154. Capturing that information may require some procedural and technical development but the PSNI agrees that, in the interests of openness and transparency, it is essential to capture that information. We are also content with the definition of "custody officer", as outlined in clause 158, and with the wording of clause 159. It is clear from this Part that if the individual is detained under clause 137 and is subsequently arrested for an offence, the relevant provisions of PACE will apply.

We will continue to engage with the Department of Justice in the development of the Bill. The Mental Capacity Bill has a training implication for PSNI, because there are significant changes from two short articles providing police powers from the Mental Health Order to the new Bill. We recognise the importance of keeping people safe, and we fully support the collaborative approach adopted in the development of a simple, comprehensive and legislative framework for Northern Ireland.

Ms Valerie McConnell (Public Health Agency): The Health and Social Care Board very much welcomes the Mental Capacity Bill in that it provides a robust framework for the care, treatment and social welfare of people whose mental capacity is impaired to the degree that they are unable to make an informed decision on their own behalf. One of the main principles underpinning the Bill is the requirement for carers and health and social care professionals to always act in the best interests of the patient, and to use the least restrictive option in providing that care and treatment. However, criminal justice agencies have another remit for the protection of the public and the prevention of crime. Therefore, it is important that, when considering the criminal justice aspects of the Bill, the difference in remit between the two sectors is clearly articulated and that the Bill provides a coherent framework for agencies and professionals working across any interface. The Health and Social Care Board comments in respect of those articles were focused on identifying where there was a lack of clarity or a risk of confusion in that regard, or where the stipulations in the article risked impeding the delivery of appropriate care or treatment.

Clause 137 relates to places of safety. The board felt that the use of the term "control" here, which was essentially within the civil part of the legislation, is inconsistent with elsewhere in the Bill, where "care and treatment" is more frequently used.

In respect of clause 140, on police powers to detain the person at a hospital, the board took the view that, given the enhanced remit of the Bill to cover the broad range of health and social care interventions, it would be helpful if this clause did not restrict the authority of officers to detain to the narrow focus of being seen by a medical practitioner or an approved social worker. This implies that the person is being assessed for a detained admission for treatment of a mental disorder, when in fact they may require a different type of medical intervention. This stipulation could risk a delay in providing the most appropriate medical intervention. Also, it could delay officers unnecessarily when they could appropriately hand over responsibility for the supervision of the patient to the health professionals. For example, if the person was experiencing delirium as the result of an infection, the most appropriate response would be treatment for the infection, not an assessment for a mental health disorder. It would also be helpful if this clause clarified the role of police officers in terms of their remit to protect the public or to prevent crime. This way, there would be clarity for officers about when they can hand over responsibility for the care of the patient to health and social care staff, who will now be enabled to intervene in the best interests of the patient, without express consent if the patient's capacity is impaired.

In respect of clause 158, on the definition of a place of safety, given that the Bill provides a framework that addresses the full range of interventions in respect of the care, treatment and social welfare of people with impaired capacity and provides authority for best-interest interventions by family carers and social welfare professionals, it would be helpful if the Bill enabled a broader range of health and care settings to be used as a place of safety, rather than restricting this to a police station or a hospital. For example, it may be more appropriate to return an individual with dementia to a care home where they reside than to take them to a hospital or a police station.

Finally, clause 158(2) implies that the Department of Justice is the only agency that can redefine place of safety. It may be appropriate in the future for health and social care to develop appropriate places of safety in non-medical settings, where the individuals need or may use care or social welfare. It would be helpful if this potential was not restricted by this clause and that powers to redefine were also available to the Department of Health, Social Services and Public Safety.

Ms Mirjam Bader (Mindwise): MIndwise is a Northern Ireland-wide mental health charity focusing on supporting people with severe mental health conditions through the provision of support, housing and day services. Over the past number of years, our work has also extended to include issues around people with severe mental health issues coming into contact with the police, either as a victim or as a detained person. Mindwise also holds part of the Department of Justice contract for the provision of appropriate adult services, supporting young people and vulnerable adults who are detained by the police. This has given us a unique insight into the workings of a custody suite from the viewpoint of someone with a mental health condition.

Our main concern with the current Bill in relation to the criminal justice provision is clause 155(3). It discusses circumstances when P is taken into a custody suite as a place of safety or when a person is taken in otherwise. We find that, quite often, people who could be identified as lacking capacity are arrested rather than identified as lacking capacity by the police officers on call; it does not become clear until they actually reach the custody suite. Under the current Bill, the custody sergeant is named as the relevant officer who would act in place of a doctor. We argue that this is concerning for several reasons. The custody sergeant is not a medically trained person and their role is to safeguard and protect all in the custody suite. They are a custody specialist rather than a mental health specialist or a medical specialist. The custody suite is a noisy and pressurised environment, and there can be considerable physical distance between the custody sergeant and the person being detained. Also, the current computer system, which is called Niche, requires around 30 questions to be completed, rather than focusing only on the capacity aspect of the person who is detained. We are definitely calling for an amended clause 155(3) to provide that the relevant officer in the custody suite should be the forensic medical officer on call, who should carry out duties associated with establishing capacity, as well as engaging with the relevant people, including the Northern Ireland Appropriate Adults Scheme (NIAAS) worker acting as an independent advocate and deciding what is in the best interests of P, the detained person.

Ms Natalie Whelehan (Office of the Northern Ireland Commissioner for Children and Young People): Parts 9 and 10 of the Bill relate to policing and justice and will apply to all age groups. While this is welcome, as it does not assume a lack of capacity in all under-16s, NICCY has concerns that the care and treatment of young people in the justice system will be determined by the civil provisions of the Bill, which will be capacity-based and governed either by the Mental Capacity Bill or by the retained and amended Mental Health (Northern Ireland) Order, depending on the age of the young person, which may not always be easy to ascertain.

Part 9 provides a power for the PSNI to remove a person from a public place to a place of safety. Clause 137 details the circumstances in which such a removal can be made. Clause 143 provides a welcome power to transfer a young person from one place of safety to another within a maximum 24-hour detention period, where discharge is not suitable and there is appropriate care or treatment available in the new place of safety and where this is in the best interests of the young person.

In order for the police to use the power to remove a person to a place of safety, certain conditions need to be met. One of those is outlined in clause 137(2)(c), which is:

While this test is not identical to the test for "lacks capacity" in clause 3 of the Bill, it is worth noting that, under clause 158 of the Bill, the definition of "unable to make a decision" is stated as the same as the test for "lacks capacity" — a test that applies only to those over the age of 16. Despite the obvious similarities between the two tests, the place of safety test will be applied to everyone, regardless of age, and the test for "lacks capacity" will not, due, according to the Department of Health, Social Services and Public Safety, to difficulties in assessing capacity in under-16s because of their developmental immaturity. The fact that the very similar place of safety test can and will be applied to under-16s raises significant questions about the rationale for the exclusion of under-16s from the scope of the civil provisions of the Bill.

Clause 158 provides a definition of a "place of safety" and includes a hospital and a police station. NICCY does not believe that a police station is a suitable place of safety for a young person. The use of a police station as a place of safety is entirely inappropriate in the cases of extremely vulnerable mentally-ill young people and it implies that, in these circumstances, a criminal justice response is appropriate and necessary, which it is not. We want to see police stations being removed from the definition of a place of safety for children and young people.

As this new definition and associated power will apply to all age groups, the use of a juvenile justice centre as a place of safety will cease. This is a very welcome development, which should be replicated across all other pieces of criminal justice legislation, including the Police and Criminal Evidence (Northern Ireland) Order 1989.

Mr Eamonn McNally (Children's Law Centre): As with the Mental Health (Northern Ireland) Order 1986, the Mental Capacity Bill will contain a power for the PSNI to remove a person from a public place to a place of safety. The Children's Law Centre acknowledges that this is a necessary power and its value is recognised for some young people. However, we have some ongoing concerns regarding the use of place of safety powers.

First, it is intended that the current list of places of safety, including hospitals and police stations, should be retained. The Children's Law Centre believes that police stations should never be used as a place of safety for a young person. Clause 143 of the Mental Capacity Bill will allow for the transfer of people from one place of safety to another within a 24-hour period. The ability to move persons from one place of safety to another is welcome, provided that the power is used to move persons from unsuitable places such as police stations to more suitable environments such as healthcare settings and not vice versa.

As the representative of NICCY outlined, when it comes to the tests for the PSNI to remove persons to a place of safety and for the transfer of persons from one place of safety to another, the PSNI appears, in essence, to be assessing the capacity of the young person. I refer members specifically to clause 137(2)(c). Since the Health Department has stated that it cannot measure capacity in children, we question how the Department of Justice proposes to measure it in relation to places of safety.

We welcome the approach by the Department of Justice to have the period of time for a place of safety restricted to 24 hours under clause 144. It was previously proposed to be 48 hours, which is the current time frame. The reduction to 24 hours is in line with the current position in Scotland and is more compliant with the United Nations Convention on the Rights of the Child (UNCRC) requirement that the deprivation of liberty should be for the shortest appropriate period. We suggest, however, that a clause be inserted into the Mental Capacity Bill that places an obligation on the PSNI to record statistics on the use of place of safety powers for young people, including the ultimate disposal of the young person under the place of safety powers because, currently, accurate statistics regarding this power are not available. Thank you for the opportunity to comment on Part 9 of the Bill.

The Chairperson (Mr Ross): Thank you all very much. I have a couple of questions before I call on other members. Heather, the police have recommended that, in clause 149, the term "reviewing officer" be used rather than "appropriate officer". What is the practical difference? What would that mean?

Ms Palmer: We are happy to go with "reviewing officer" because it is in line with the six-hour review particular to this Bill. There will be a review of the appropriate level and experience, so, whether it be a sergeant in custody or a sergeant at the local hospital, they will conduct the review.

The Chairperson (Mr Ross): You mentioned training implications for the PSNI. Do you have any idea of the potential cost of training need?

Ms Palmer: The training would be for all officers working in local policing and crime teams. We have not established costs at the minute. Skills and instructions run as the norm across the entire Police Service to ensure that our officers are up to date and have a clear understanding of and direction on the protocols that are required of them in exercising their powers.

The Chairperson (Mr Ross): There would not be any additional cost, effectively; it would just be —

Ms Palmer: The time frame may be slightly longer for training and delivery, but we do not have indicative costs for that at the moment.

The Chairperson (Mr Ross): Natalie and Eamonn both mentioned that a police station is not appropriate as a place of safety. For a 15-year-old boy who may be bigger and stronger than I am, how could a hospital be an appropriate safe place if they were, for example, lashing out and potentially causing harm to doctors and nurses? Is a police station, in those circumstances, not a more appropriate place to be? If that person were brought to a hospital, is there not the risk that they could end up causing harm to somebody and being charged with a criminal offence, whereas if they were brought to a police station as a safe place, that would be prevented?

Ms Whelehan: NICCY is very clear that there is a need for place of safety powers. Young people, particularly mentally ill young people, will have things happening in their life, and there may well be circumstances where the place of safety power will have to be used. My big concern about the use of a police station as a place of safety is that a young person who is very mentally unwell is not committing criminal offences in a public place when the place of safety power is being used. They very clearly need treatment. There are big concerns about moving young people who are really vulnerable and possibly very frightened to a police station. That sends a message to the young person that a criminal justice response is necessary, when, in those circumstances, it is not. A hospital or some alternative health and social care response is the correct provision for a young person who is mentally unwell. Hospitals have protocols in place; they deal with very difficult and unwell young people every day. Just because the young person might be challenging or a big, strapping young man does not mean that they should not have the response that they very clearly need. They are incredibly vulnerable and ill when a place of safety power becomes necessary.

Mr McNally: I was a solicitor in private practice for many years before coming to the Children's Law Centre. I have been in busy police stations on a Saturday night, and they are definitely not appropriate places for young people. I have also been in busy A&E wards on a Saturday night. There are difficulties there too, and that is recognised. In reality, we really need a proper dedicated health-type setting to bring people as a place of safety to avoid the necessity to go to an A&E unit or a police station. As Natalie rightly said, the young person has not committed a criminal offence; they are in a public place and they are unwell. The police station environment could cause them to, for want of a better phrase, kick off. I realise that a hospital environment could also be difficult, so we really need something similar to what was tried in England for a while, namely the provision of a dedicated and proper place of safety that is neither an A&E department nor a police station.

The Chairperson (Mr Ross): Obviously, significant resources would be required to do that.

Mr McNally: In reality, it could be cost-neutral, if you think about it. If you use the police and police stations or you bring someone to A&E, there are staffing implications. There are also implications for waiting lists and for the police in having to stay at that hospital and perhaps come back. If someone is arrested at the hospital, that person is brought to a police station. The criminal law system then kicks in, which involves solicitors and interviews.

If you add all that up, it could be cost-neutral.

The Chairperson (Mr Ross): Does anyone else want to pick up on that?

Ms Bader: Quite a number of our adult service users have reported that, after being brought to a police station and because of the environment there, their condition worsened very quickly. Another place would have been far better for their health and the long-term outcomes. We are talking about cost savings.

The Chairperson (Mr Ross): Does anyone else want to pick up on that?

Ms Palmer: A police station as a place of safety is not the first port of call. Officers on the ground will assess a situation as they find it, and the experience is that, more often than not, people are taken to an emergency department or another medical setting that is more appropriate to meet their needs. We do not want vulnerable people being detained in custody for considerable periods. Handling people expeditiously is key to the success of the Bill.

Mr Frew: What happens at present?

Ms Palmer: Presently?

Mr Frew: Yes. What happens now?

Ms Palmer: I will give you an example. Just over 500 people have been brought through police custody under article 130 since 2006. We also have situations in which individuals are brought to emergency departments and are then reported missing, so the police are often required to respond and bring a person to a place of safety. Sometimes, people are brought to custody, but, in other situations, they are brought back to an emergency department or the health setting that they left.

Ms Bader: I want to emphasise that a number of people who are deemed to lack capacity after an assessment are brought in after being arrested rather than being brought there as a place of safety. That happens. For example, when a person is called in, it may become clear during an interview that he or she is psychotic, so that person can still be a danger to himself or herself but would have been arrested rather than detained under the Mental Health Order.

Mr Frew: I will come back to your point in a wee minute, because it is very interesting. On those 500 people, how do you relate that to missing persons?

Ms Palmer: One third of missing persons in Belfast over the past month have had mental health issues. They were brought to an emergency department by the police.

Mr Frew: When they were found?

Ms Palmer: Yes.

Mr Frew: Are those people arrested?

Ms Palmer: Not in every case. It really depends on whether article 130 is the primary reason. Unfortunately, there are situations in which there have been incidents, and that is when PACE will apply as the primary reason for the charge, and the person will be brought through custody and have access to a forensic medical officer for a full assessment. It is at that point during the assessment of the well-being of the detained person that there may be other references to parties in health or, in the case of juveniles, to juvenile justice centres.

Mr Frew: How does a constable get the training and the capacity that he or she needs to make decisions at the coalface?

Ms Palmer: The ability to assess individuals is core to police training. It is not a medical assessment but an assessment of harm and risk at the point at which they meet the incident and the individuals involved.

Mr Frew: If someone is drunk and a constable comes across something that he or she deems to be a risk to that person or another person, how does the constable judge whether that person is drunk or has mental capacity issues?

Ms Palmer: Police do not make an assessment about whether people are drunk or incapacitated. It is about whether they are vulnerable at that point. The assessment of whether they are drunk, incapacitated or whatever is made in consultation with other practitioners.

Mr Frew: A constable who comes across such a situation will detain the person to a place of safety as opposed to arresting him or her. That could be a police station, a hospital or somewhere else — excuse my ignorance, because I have not read the definitions of the places used — and an assessment then takes place. Has the constable already handed over the individual or is he or she still part of the process?

Ms Palmer: If an individual is brought to a police station, he or she is handed over to the custody suite under the care of the custody sergeant and custody team and the forensic medical team. They will have phoned through to an emergency department and will transfer the individual there, based on the immediate protection of the individual's life and so forth. That is the primary direction in calling an ambulance or being transferred directly by police.

Ms Bader: I think that you hit the nail on the head. In our opinion, police officers are not trained adequately. As well as that, many people working through their mental health conditions will use alcohol and drugs to mask their symptoms, to make them feel better or just because they enjoy it. It is sometimes hard to identify someone who lacks capacity and needs to be brought to a place of safety. People end up getting arrested, and it is not realised until late in the process that they lack capacity.

A lot of mental health conditions present differently than people would assume. People who become unwell because they have schizophrenia will often become withdrawn and aggressive before they become paranoid. People are not aware of how something like a mental health condition presents in public. People are trained that bipolarity and schizophrenia present in a certain way when, in reality, that is very difficult. People with mental health conditions have also learned to mask their symptoms because of their life and people's prejudices. Reasonably often, people like that are not identified until they have passed the police officers, the custody sergeant and are called into an interview. People sometimes need a second or third interview before it is realised that they are psychotic rather than making things up, as any detained person could act who is drunk.

Mr Frew: Sorry for my confusion and ignorance on the issue. Is it right that you can detain people without arresting them?

Ms Palmer: Under the article?

Mr Frew: Under this legislation.

Ms Palmer: Under the present and under —

Mr Frew: Do you have to read them their rights?

Ms Palmer: No, and that is an exception under mental health.

Mr Frew: What happens if someone has a mental illness and is involved in crime?

Ms Whelehan: In that case, PACE regulations will take priority for support, and the welfare of the detainee is addressed by the forensic medical reviews.

Ms Bader: The Bill is specific because having a mental health condition does not mean a lack of capacity; it is only how you act in a situation. People with a mental health condition can be well for a long time and commit crimes. They will still be subject to arrest and PACE. Other legislation comes in only if they become unwell or are unwell.

Mr Frew: I am trying to think about a real case scenario. Say someone who is clearly mentally ill — I am not an expert, so I am sorry if I am using loose or incorrect language — starts a riot, what happens in that scenario? Let us say that a riot is already taking place, and this individual is involved in it.

Ms Bader: If someone is mentally ill or has a disorder, he or she could say that he or she is obviously very well today and can do this. It all depends on how unwell a person is. People with a mental health condition can be well and manage their condition for a long time. A situation of someone committing a crime such as that and being unwell at the same time will be quite unusual. When you become unwell, your first thought is not about committing a crime. The crime that you commit is by behaving in a certain way because you are paranoid or psychotic, which is not a major risk to the public. I do not see the situation arising whereby you would start a riot. Maybe you would — I do not know.

Mr Frew: What if you were a part of a body of people taking part in a riot?

Ms Bader: If you are taking part in a riot because you are unwell and the balance of your mind is disturbed, you would obviously not be arrested However, the most likely scenario in practice is that everybody gets arrested, and that person is then or, hopefully, later identified by the custody sergeant.

Mr Frew: Is it a crime to resist detainment in the way that you might resist an arrest?

Ms Bader: I would assume not.

Mr Frew: If a constable was trying to remove you to a safe place, but you resisted that —

Ms Bader: I would assume not, because it is all due to your disturbance of the mind. Maybe you would know.

Ms Palmer: We can get clarification on that.

Mr Frew: That would be useful. Thank you.

Mr McGlone: I am trying to work my way through a situation as it might happen on the ground. I am thinking of situations in which the reality is that the first port of call is the police. Let us say that a disturbed person has been seen by others and is leading people to believe that he or she will harm either themselves or others. Sadly, especially at weekends, the first port of call for the public will be the police rather than social services or a health clinic, which will not be open anyway. The first people on the scene, aside from those associated with whatever is happening, will be the police. I am trying to tease out what happens after that. Of those 500 cases of being brought into police custody, how many were determined to be a situation in which the person could cause injury to themselves or others? Maybe you do not know that at the moment.

Ms Palmer: That is the detail of the openness and transparency for the future.

Mr McGlone: We are trying to balance people's rights with the reality of what happens on the ground, which is that the police are called, and the person is either detained or arrested, depending on the nature of what he or she is doing. If police officers are called to a situation, what do they do? First, they try to calm the situation down, and then, if the person needs to be removed from the situation, they either detain or arrest him or her. If arrested, the individual is taken to a police station. I am wondering about the sequence of events after that. Police constables, with the best will in the world, are not psychiatrists or mental health nurses. None of us is. They cannot make the evaluation on-site. Their job is to calm down and alleviate the situation, remove the problem and then try to deal with the situation.

If you could bear with me a wee minute, I am trying to work through the sequence. If the police are adequately empowered or skilled to make that call, they can take a person to a hospital if there is an injury or something associated with it. If not, the person is taken to a police station. On arrival at a police station, people in those circumstances may be disturbed because they have mental health problems, had taken alcohol or drugs or a combination of all three, and they have got themselves into a pickle. The custody sergeant may then involve a medical person to make that call. In dealing with the practicalities and reality of everyday life, take me through what is wrong with that sequence up until the point at which a medical intervention comes at a police station. What are the failings?

Ms Bader: One of the main reasons why we are not calling for adults never to be admitted to a police custody suite is that we realise that, in practice, that could happen. We are not saying to do away with it completely. We are saying that it should only be an exception. It also has to be noted that most people who become mentally unwell because of a mental health condition are a risk to themselves rather than others. Police officers work on the ground. They arrest people who are later deemed to lack capacity, because they are in a very pressurised situation. We recognise the good work of the police in doing that, so bringing someone to a custody suite may be the best option in that type of case.

Mr McGlone: I am trying to get to the point. The police would not have been involved other than if they had been asked to be involved and to be there. I want to make sure that the person gets to the appropriate safe place, but the police would not have any role unless they had been asked to become involved or had to become involved because they had seen a difficult situation. An inevitable part of the course of events will involve, first, the police being there and, secondly, a police station.

Ms Bader: The difference is that it is not an arrest under PACE but someone being detained under the Mental Health Order. That person comes before a custody sergeant, who directly refers to the forensic medical officer.

Mr McGlone: There may be other instances. There could be damage to the person, to someone else's property or maybe to another person. We just cannot make the call to say that it is as black and white as that.

Ms Bader: If someone has wounded someone else in the street and is being very aggressive, he or she is brought to the custody sergeant, who refers them to the forensic medical officer. The person will then be diverted to the Shannon clinic, which is a mental medium secure forensic unit, so the time in the custody suite will be very short. It will not be a PACE arrest, so it is a detention under the Mental Health Order with a diversion via the forensic medical officer.

Mr McGlone: That is the case if it is determined very early on that the person may not have alcohol or drugs on them, but, as we know, real life can lead to all sorts of difficult situations, and addictions can be a contributory factor to a person's mental health issues. I am trying to get something that probably does not exist, and that is a cut-and-dried solution. I do not think that there is one.

Ms Bader: We have been working with the PSNI on an alert card, so people who have a diagnosis of a serious mental health condition or who live in supported housing for some reason such as a learning difficulty will be voluntarily on this list and will carry the card with them. They only need to show the card or to make it clear that they are on the list, and the list will state that that person has a diagnosis of whatever and that he or she tends to get unwell at certain times. We are working on a system with the PSNI for people held in a custody suite.

The Chairperson (Mr Ross): Valerie, did you want to make any remark? You have been sitting very politely, so maybe you will be less polite so that you can get in.

Ms McConnell: I wanted to pull things back a bit to consider what the legislation is about, because we are away down the path of people with a mental disorder. The Bill is not about people with a mental disorder, and it is not a direct replacement for the Mental Health Order. It is about people who have impaired capacity, and it is not restricted why that is. That could be temporary because they are drunk, or it could be because they have had a brain injury. It could be, for example, someone who has a severe chest infection and gets delirium, which presents as a mental disorder. They may be under the age of 18 and not of sufficient maturity to make informed decisions on their own behalf. The Bill provides a framework for family members, carers and health and social care professionals and other professionals to do the right thing to act in the best interests of that individual.

The place-of-safety powers are necessary, but I suppose that the point that we are trying to make is that the way in which they are framed is too inflexible. It is either a police station or a hospital, and sometimes neither of those two places is the right place. The Bill — maybe it could happen in regulation — could be more flexible and allow agencies to work better together to develop alternatives so that people get the correct intervention, which, if it is a serious crime scene, may have to be a police response with the support of health services. It could be a medical intervention, with the main responsibility on health professionals with police support when necessary. Our comments are about deficits in the current legislation. In fact, it is a retrograde step because, in the current legislation, a police station, a hospital and another place can be designated. That is missing from the new legislation, and we need those alternatives for different interventions that are not medical or an arrest.

Mr McGlone: I was going to come to that, but I am trying to tease out this other situation. In order to make the proper call, officers on the ground will clearly be at the coalface — it could be ambulance staff, depending on the nature of the situation — so they need training. Back at the custody suite, sergeants needs training. If they are experienced, they will know when to call for a bit of help.

I listened very carefully to what you said, because there will be circumstances in which it will take a bit of time to determine a person's problems and difficulties, because he or she may be drunk or have other addiction issues. That is the point at which we are talking about the small card or ID. I was going to come to that in relation to your figure of 500 being taken into police custody. How many of those were repeat cases? If they were repeat cases, it comes back to an identification issue for the police whereby they can say that this is Mr X or Miss X, and we need to take them straight to hospital rather than back to the custody suite. If people are in very difficult circumstances, that would seem to be a communications issue.

Ms Bader: People with severe mental health conditions tend to be repeat victims rather than repeat offenders. The idea of an alert card system is being used for autism, and we would definitely push for something like that. That has been put on the back-burner because of cuts to the PSNI budget, but it would be very effective in identifying people who become unwell quite frequently.

Mr McGlone: Surely that would save money, ultimately, for the police.

Ms Bader: Definitely.

Mr McGlone: Thank you for talking me through that. I am trying to get it clear in my mind. You suggested that there should be more designated places of safety. What are you suggesting? What places — aside from a hospital or a police station?

Ms McConnell: It is hard to say. I am not necessarily thinking of a specific place. If someone with dementia wanders off from a care home setting and is found by the police or reported by the public to the police, it is certainly not appropriate to take that person to a police station, and it is probably not all that appropriate to take the person to an A&E department. It may be appropriate to take the individual back to the care home where he or she lives and into the care of people who can maintain his or her safety into the future. That is what I mean when I talk about flexibility. The Bill states this and this: it is all high level and refers to the medical assessment by an approved social worker. That implies that you are being assessed to be detained in hospital. There is nothing in between, and that is our concern.

Mr McGlone: How do you see that with under-16s and children? Clearly, you want to make sure that a child stays as far away as possible from a police station, because, if there are mental health problems, that could exacerbate them. It could exacerbate them in anybody.

Ms McConnell: The legislation provides a framework for substitute decision-making for adults with impaired capacity, because there is an absence of that at the minute. There is no robust substitute decision-making; everything is based on case law and different things. There is a substitute decision-making system for children — their parents, to whom we should be turning.

Mr McGlone: If they are there.

Ms McConnell: There is also the Children Order, which gives powers to the state to intervene when parental responsibility has fallen down. We have a general concern about children of any age being considered in the Bill. At the minute, the cut-off point is 16, and we can live with that. However, we do not feel that it is appropriate to apply the Bill to people under the age of 16.

Mr McGlone: Eamonn, maybe you would like to add something.

Mr McNally: The problem is that the justice side applies to everybody, regardless of age. That is the starting point. Justice does not have an age 16 cut-off point. The difficulty that we are stuck with straight away is that, if a young person is on the street, the police are called because that young person is behaving erratically and may need to be brought to a place of safety. The police may not be able to identify the parents or be able to identify whether the young person is a looked-after child and there is a corporate parent. Young people may not be in a position to tell the police their address, so they have to be brought somewhere. The first port of call should not be a police station, but the difficulty is that it may not necessarily be the best thing to bring them to A&E either. That is why we suggest that there be a suitable alternative health-type environment to which to bring the young person.

You might be able to establish very quickly who they are, where they are from and who has parental responsibility. That is fine, but the immediate need to deal with that situation will not be covered by the Children Order. It simply does not do it for this. We are dealing with people who may have severe mental health issues, so it will be a place-of-safety power, and the PSNI will be called on to deal with it. There needs to be an appropriate response. That is the reality.

Mr McGlone: Where would that place of safety be? Would it be in a hospital or in a health service environment? Are there other examples that you can give us where that is working like that?

Mr McNally: We need to look outside Northern Ireland. We need to look to England, as it tried to pilot places of safety as a particular place. I am not sure how the outworkings of that were gathered. One of the points that I raised is that there is very little good information available on places of safety, where people go, and ultimate disposal. It is the same in England. The information just does not seem to be there. I have tried to collect it. We know the number who are [Inaudible.]

but it is back to the point that you made about how many are repeats, how many are young people, how many are children, what is the ultimate disposal, was it necessary for a place of safety in the first place, where were they brought. That information does not seem to be available; it is hard to say what the best thing is when you do not really know what is happening.

Mr McGlone: On that point, is there any way that we can get research to find out some stuff around that? It may be difficult. If Eamonn cannot find it, it could be difficult, but is there any way that we can get some research done around that?

The Chairperson (Mr Ross): We will write to the Department —

Mr McGlone: On the figures and the place of safety stuff.

The Chairperson (Mr Ross): We will write to the Department in the first instance, and, if it does not give us anything that is to our satisfaction, we can ask Research.

Mr McGlone: Thanks very much.

Mr Frew: I have a small point on that issue. Sorry if I am butting in on someone. Eamonn, I should have asked you this when I had my chance, but I forgot, to be honest with you. Is there not a risk with having another place? If someone is found, or the police stumble upon someone, or the police are called out to someone who needs to be removed for their own safety and that of others, it would be very clear to see if someone has a split head and has to go to hospital. If somebody is in danger of committing a crime or has committed a crime, they go to the police station. For someone younger, I can understand entirely what you mean, but is there a danger that, if you have another place, you will end up having all sorts of needs and vulnerabilities in one spot whereby it could be nearly impossible to cater for the vulnerabilities and needs of those individuals?

Mr McNally: Entirely. I am only speaking about the children's world when I say these things. It would be a very bad idea to have a one-stop shop and say that that is the place of safety and have one building for Northern Ireland. Apart from anything else, regionally speaking, it would not be practical. If someone is collected under the place-of-safety power in Strabane, but the place of safety happens to be Belfast, it will not be practical. There would need to be a few places that can cater for different needs.

I am thinking particularly of a child. Most children will be able to be catered for in the same general type of facility. I understand where you are coming from: if someone is injured, it will be a hospital; if it is an offence, it will be a police station. It is to fill that gap for somebody who does not inadvertently commit an offence by being brought to a police station or commit an offence by going to hospital. It is the under-18s that I am specifically thinking of. I know that colleagues from the adult world will have their own version of what they believe is needed, but you are right in what you say. There is less definition with police stations or hospitals. There is no A N other.

Mr Frew: So, we need to have greater flexibility, but we cannot pinpoint what that "other" should look like.

The Chairperson (Mr Ross): Surely, if we are dealing with such small numbers, it is hard to see how on earth it could be value for money for the public purse. If you are dealing with only about 50 cases a year — for argument's sake, about one a week — having a separate place that is manned and resourced and everything else is just not going to happen. The Department will not fund that type of place, will it?

Mr McNally: It does not have to be a separate place as such.

The Chairperson (Mr Ross): Are you saying that it could be a suite in a hospital or something like that?

Mr McNally: It could be a suite in a hospital. It does not have to be an all-singing building by itself somewhere, but it needs to be somewhere that is not A&E, to be perfectly honest. It could be part of an existing hospital that could be manned on demand, for want of a better way of looking at it, but not an A&E department; that is definitely not suitable for a lot of the young people who come through the system. There are fewer young people than adults, let us be honest about it, but that is not a suitable environment for most people who are mentally unwell.

The Chairperson (Mr Ross): Who would staff it? If the service was on-demand, presumably somebody from the hospital staff would do that.

Mr McNally: It would have to be hospital staff; it would have to be healthcare staff.

Ms Whelehan: The place of safety would be used only for a maximum of 24 hours under the Bill, which is really welcome, and more and in line, as Eamonn said, with the UNCRC and the position in Scotland. The concern with the use of a police station as a place of safety for a young person who is mentally unwell and who has had to be removed because they are a risk to themselves, more often than not, from a public place, is that the response should be healthcare-based.

The place of safety might well, as Eamonn said, be part of an existing facility. You do not want to remove a very unwell young person from a public place to a police station if that might exacerbate the issue or might make them more unwell or more likely to commit a criminal offence and drag them even further into the criminal justice system. It is about having the appropriate response to what is effectively an episode of somebody being very unwell.

Ms McCorley: Go raibh maith agat. I want to explore the same idea. Would a person, particularly a young person, be more likely to be arrested by dint of the fact that they have been brought to a police station? Looking back over cases that you have been involved in, would you say that, had that person not been brought there, they would never have been arrested and ended up with that on their record? Is there evidence to show that that happens?

Mr McNally: That is one of the things that we have asked for in the Bill. There is a clause on the collection of data, which is not great in any of this area, as far as I am aware. I have tried to collect it through freedom of information, but it has not been overly clear. That is why I would like there to be a clause in the Bill that means that data is collected so that we can see exactly what is going on and can plan for the future. It is hard to plan when you do not know.

Ms Bader: Through anecdotal evidence, we have found that young people tend to get arrested, especially if they become ill when they are at home, rather than detained under the Mental Health Order. If you come across a young person who is quite aggressive because they are unwell, that can be a very difficult situation for police officers, and people get arrested and have a criminal record. That does happen.

Ms McCorley: It is almost as if the easiest way to deal with it is just to arrest them, and that is the thing that you want to avoid.

Ms Bader: Yes, although I acknowledge that police officers have a difficult job to do and that they make the best decisions in a bad situation, but it will not always be right.

Ms Palmer: For my colleagues in their day-to-day operations, arrest is not the first port of call when dealing with vulnerable individuals; it is about understanding the situation as it presents. We would certainly not be in the business of arresting people in that situation. However, if there are issues involving criminality, we are under an obligation to exercise powers appropriately. It is about what is proportionate and legal and necessary in the circumstances. I am encouraged by colleagues that the actions that they have taken, having identified, from members of the public, people who are vulnerable, show that bringing them straight to custody is not the first port of call. The local policing teams will work with local people to make sure that people are moved either to a place of safety or returned to family in order to ensure that that does not happen.

Ms McCorley: Do you believe, too, that there should be, as Eamonn said, an alternative place so that the place of safety should be somewhere specific?

Ms Palmer: Absolutely, particularly for children. Bringing young children, sometimes juveniles, into a custody suite is not the best thing for them, as they are vulnerable individuals.

Ms McCorley: So nobody disagrees with that. OK, thanks.

The Chairperson (Mr Ross): Thank you. Nobody else has indicated that they would like to ask a question, so, thank you very much.

Mr Frew: Can I ask one question? It is something that has come up in my experience as an MLA, and this is basically a real-case scenario. A patient who was mentally unwell in hospital through due medication or whatever became worse and ran out of hospital. She was found at a very dangerous junction of a road in nothing but her nightwear. The husband was called, and when he came — he had gone to see the police — he had to grapple to get the individual into the car. He took her to the hospital and parked in the car park. Whilst he was struggling to get his wife back into the hospital, the nurses would not — it is not their fault, as they could not — help him to get her into the hospital. Is there anything in the Bill to change that?

Ms McConnell: Absolutely. The Bill entirely changes that. The civil part of the Bill gives a lot of powers and abilities to all healthcare professionals and family carers and others to intervene proportionately to ensure the best interests of the patient. This provision does not exist under the current legislation: the Mental Health Order is restrictive vis-à-vis people with a mental disorder, and there are no other civil powers, other than case law, for doctors to provide emergency interventions. The civil part of the Bill provides a framework whereby all health and social care professionals and family carers can intervene appropriately and proportionately to keep people safe when, at any stage, they do not have the capacity to make a decision on their own behalf.

Mr Frew: It is not in this part of the Bill.

Ms McConnell: It is not in this part; it is in the civil part.

Mr Frew: Thank you.

Mr McGlone: That is interesting. I say that because I have dealt with a case involving a person over 18 with severe mental health problems. They walked out of a mental health hospital, and nobody could force them back in against their will, albeit they might not have been in a very good place mentally. That cannot be done unless the person has been sectioned, obviously, and then people can intervene proportionately and do what is reasonably required. However, it is a grey area, unless the person himself desires to —

Ms McConnell: The other bit of the Bill entirely clarifies that and provides a robust framework for all those interventions. It resolves that problem.

Mr McGlone: I will believe that when I see it.

Mr McNally: It does not resolve the problem if the person happens to retain capacity even though they are very mentally ill. They are then completely excluded from the Bill.

Mr McGlone: That is exactly the point that I am talking about. What happens if they are over 18 and have a form of mental capacity — they have big issues, but a form of mental capacity?

Mr McNally: If they retain capacity at all, they do not fall within the Bill. There is no extra mechanism to protect that person covered by this Bill.

Ms McConnell: I cannot see a scenario where someone with that severity of mental illness would not be deemed to lack capacity to make an informed decision.

Mr McGlone: In the case given. This other one was bad, but maybe not quite as bad as that. We will see. Thanks for that.

Mr Frew: Sorry for going off on one.

The Chairperson (Mr Ross): Thank you very much. Natalie and Eamonn are staying with us for Part 10. Dr Adrian East will join us. Eamonn, do you want to kick off? We will move from right to left.

Mr McNally: In previous consultations, the Department of Justice stated that it was not intended to have a criminal justice section in the Mental Capacity Bill; instead, the Bill would insert clauses into existing criminal justice legislation. The Children's Law Centre would be concerned that this is not the case and that the Mental Capacity Bill now contains clauses relating to criminal justice that have not been consulted upon and on which views have not been sought from stakeholders during the consultation periods.

It is well recognised that there are disproportionate numbers of young people in the criminal justice system who have mental health needs. In our response to the Department of Justice's 2012 consultation, we highlighted that the Department of Justice is faced with the difficulties of potentially implementing mental health and capacity legislation that states that a young person does not gain capacity until they reach the age of 16, along with an existing minimum age of criminal responsibility that presumes that they have the capacity to commit a criminal offence from the age of 10.

It is difficult, then, for us to see how the Department of Justice intends to fulfil its obligations to those children and young people over the age of 10 but under the age of 16 with mental health needs or learning disabilities in the criminal justice system. It would appear that it is intended that the justice clauses will apply to everyone regardless of age, and it would seem from the consultation that the codes of practice, which are not yet available, will contain substantial detail regarding this. The codes of practice should be published immediately so that we can understand that interface. We are also concerned that the stock answer to the questions from the Committee and others is that the codes of practice will contain information but with no real detail.

I now turn to Part 10 of the Bill. The Mental Capacity Bill will create a capacity-based model for treatment in the criminal justice system for persons aged 16 and over. It appears that a person over the age of 16 who has capacity will be able to make a decision about their care, treatment or personal welfare and that that decision will be respected. Where a person aged 16 or over is deemed to lack capacity, interventions will be carried out by implementing the principles and safeguards of the Mental Capacity Bill. It is unclear from the information available how that will work in practice. Further detail is required in relation to arrangements for those under the age of 16, and details are required as to how the capacity decisions of 16- and 17-year-olds will be respected in the criminal justice system. It is also unclear how the Juvenile Justice Centre, which has residents who are over and under 16, will operate a dual system in practice.

Courts will be required to take account of the capacity of the defendant when making certain determinations. That has implications for the courts and the young person, and further details are required as to how this capacity-based system will operate in practice. Further scrutiny of the sentencing powers and procedures that courts will have in dealing with 16- or 17-year-olds under the Mental Capacity Bill is also required.

It is also unclear how young people will transition from one legislative framework to another. For example, where a young person is charged with an offence when they were 15 but found guilty at 16, it is difficult to understand which piece of legislation will have precedence. Under the Mental Capacity Bill, a court making a treatment-based order for a person aged 16 or over will be required to consider not only the person's capacity but the likelihood of serious harm to the person or to others and the availability of appropriate and suitable treatment. It is important that suitable treatments be provided and that funding be in place for such treatments so that courts are not fettered by the unavailability of them.

In its 2014 consultation document, the Department of Justice stated its intention to remove the stigmatising term "mental disorder" from the criminal justice system in relation to persons covered by the Bill. However, the term "disorder" appears throughout the Mental Capacity Bill, and it is clearly not in the best interests of children or adults. In our view, it is discriminatory and is contrary to the Bamford vision. The courts, the PSNI and the Northern Ireland Prison Service will retain their overarching statutory powers on detention. The capacity of a person aged 16 or over to consent to or refuse treatment will be respected; however, that will not be extended to the decision to be detained in custody. Capacity, or a lack thereof will, therefore, not be determinative in relation to detention in the criminal law.

The Mental Capacity Bill creates a new suite of court disposals that appear to be unavailable to under 16s. That places them at a considerable disadvantage, as even if a court were to believe that one of the new disposals was suitable it seems to be prohibited from making such an order by virtue of the age of the defendant. In its previous consultation document, the DOJ stated that persons who retained capacity would be able to request treatment and consent to treatment in the criminal justice system. That does not appear in any of the clauses in the Mental Capacity Bill before the Committee for consideration. It may be contained in the codes of practice, but we are unsure.

The Mental Capacity Bill permits the courts, as they do now, to have two remand powers for examination to obtain a report and for treatment. If a court remands the accused person, they will be taken to hospital, admitted and detained there for 28 days initially and for up to a maximum of 12 weeks. The person will be able to retain a report at their own expense from a medical practitioner and apply to the court for a termination of the remand. It is essential that legal aid be available for the obtaining of such reports, as people may not have the means to pay for it themselves. While it can be seen how the remand for treatment option would work in practice for the adult population, it is difficult to see how the new power would work in practice for 16- and 17-year-olds. There is no forensic inpatient treatment facility for young people in Northern Ireland, so it is difficult to see how a court could, in practice, remand a young person aged 16 or 17 to hospital for treatment.

The Law Commission carried out a review and consultation on "unfitness to plead" in 2013 and considered that elements of the mental capacity approach could enhance the test for determining unfitness to plead and recommended that, in order to be unfit to plead, an accused person must also be shown to be unable to make a decision for themselves in relation to particular matters.

It is difficult to see how the DOJ intends to apply the test. The DOJ does not intend to apply the test of unfitness to plead to the Youth Court. The difficulty seems to be that Part 3 of the Mental Health (Northern Ireland) Order 1986 will be erased for everybody completely, so it is difficult to see how the test for unfitness to plead will not be applied to either 16- or 17-year-olds or what we will do in the situation of a person under 16 who is unfit to be tried. This gap needs to be looked at and filled.

Finally, the Mental Capacity Bill creates public protection orders to provide a model that would allow an unfit person who retains capacity, remains ill, refuses treatment, and is at serious risk, to be detained for protection rather than for treatment. It is recognised that that situation must be legislated for. The concept of a protection order has implications for the rights of a person under the Human Rights Act 1998. Such an order would mean that a person is deprived of their liberty without ever having been the subject of a court disposal or been compulsorily detained in hospital, in compliance with the law for the treatment of mental illness. The intervention has the potential to impact upon a person's rights under articles 5, 6, 8 and 14 of the European Convention on Human Rights. There must be robust mechanisms in place in relation to public protection orders, including a right of challenge for the person affected.

I thank the Committee for the opportunity to present on Part 10.

Ms Whelehan: The criminal justice clauses in the Bill have not been consulted upon previously, in line with the Department's statutory equality obligations under section 75 of the Northern Ireland Act 1998. NICCY has concerns that significant amendments, including the repeal of Part 3 of the Mental Health (Northern Ireland) Order 1986, are not included in the provisions of the current version of the draft Bill. Under 16s are excluded from the scope of the civil provisions of the Bill, due, according to the Department of Health, Social Services and Public Safety, to difficulties in assessing their capacity because of their "developmental immaturity". There is an obvious tension when compared to the minimum age of criminal responsibility in Northern Ireland, where a child of 10 is presumed to have the capacity to commit a crime. It is also unclear how the exclusion of under 16s from the civil provisions of the Bill can be rationalised with an assumption of capacity in young people aged 10 and over to admit guilt and/or give their informed consent in order to avail of certain criminal justice disposals, for example, youth conferencing.

As the civil provisions of the Bill will apply only to young people over 16, that may present challenges for staff and young people in the Juvenile Justice Centre in relation to their treatment, care and welfare. Given the age range of young people in the Juvenile Justice Centre, it is likely that the protections offered through the Bill will be available to some young people and not to others. There will also be implications for other justice agencies, including the PSNI and the Youth Justice Agency, in operating to different systems in the care and treatment of children and young people based on their age, which may not always be possible to ascertain.

Staff from all agencies must be fully trained in the operation of both the Mental Capacity Bill — including running the capacity test — and the Mental Health Order, as amended.

As Eamonn said, the term "mental disorder" is used throughout the justice section of the Bill. NICCY recommends that the language of the Bill be reviewed to ensure that it adheres to Bamford's vision to eliminate the stigma surrounding mental ill health. The Bill introduces new court disposals relating to health care that will apply to everyone, meaning that a court can make disposals in cases involving young people if it believes that it may be beneficial to the young person. In the new court disposals, it is proposed that young people can be referred to an inpatient facility for treatment. However, as there is no inpatient forensic treatment unit for under 18s in Northern Ireland, it is unclear where young people who require inpatient forensic treatment will be referred.

NICCY is concerned about legislative provisions being progressed that will impact on young people which cannot be used but agrees that there is a pressing need for the availability of an appropriate inpatient forensic facility in Northern Ireland for children and young people. That is also an issue in relation to the transfer of prisoners, as well as the court's powers to remand the person to hospital for examination or treatment. Where a young person cannot be remanded to a forensic inpatient facility in Northern Ireland, there is the possibility that very vulnerable mentally ill young people may be refused bail and remanded to the Juvenile Justice Centre in the absence of any alternative facility.

There is also a lack of clarity on the issue of "unfitness to be tried", as dealt with in clauses 202 to 207.

While the Bill, as drafted, does not extend the test of unfitness to be tried to the Youth Court to anyone under the age of 18, we understand that the Department of Justice is awaiting the findings of the English Law Commission's review of unfitness to plead before making a decision on amending that area of the law. It is vital that the extent of the application of the test of unfitness to be tried with regard to under-16s and 16- and 17-year-olds is urgently clarified, as there will be a range of issues for consideration depending on its application. Thank you.

The Chairperson (Mr Ross): Thank you.

Dr Adrian East (Royal College of Psychiatrists in Northern Ireland): I am a consultant forensic physiatrist. Relative to the earlier Parts of the Mental Capacity Bill, Part 10 is actually quite straightforward. Despite some rebranding, there are actually few substantive changes in Part 10 compared with the criminal parts of the present mental health legislation. In practical terms, that means that there will be little change in the practice of forensic psychiatry as a result of the enactment of Part 10.

It is important to note that Part 10 refers only to the detention of mentally disordered offenders, and any treatment decisions will be subject to the earlier Parts of the Mental Capacity Bill. That is seen as being a great strength of the Bill.

The residual areas of Part 10 that are to be addressed are the definition of some of the terms, particularly the use of the words "serious" and "substantial" as regards harm to public safety. Where that has not been addressed in previous legislation, including criminal justice legislation, it has led to inconsistency and uncertainty.

There are two missed opportunities in the Mental Capacity Bill. First, the failure to identify serious psychological harm by focusing only on serious physical harm is indefensible in the 21st century. It is also inconsistent with the approach that is being taken elsewhere and, indeed, the criminal justice legislation. Secondly an opportunity to clear up some of the more cumbersome aspects of the mental health legislation has not been taken.

The major impact of Part 10 of the Mental Capacity Bill will be quantity. A number of mentally disordered offenders who, at present, are detained in hospital under the terms of the civil mental health legalisation will no longer be viable for detention there. That means that those mentally disordered offenders will find themselves in prison, and we will see a substantial increase in the numbers of transferred prisoners.

We do not feel that Part 10 is likely to cause significant problems.

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

There is no specific facility for under-16 forensic inpatient treatment. You will tell me that it is not suitable to bring children into an adult facility. Could arrangements not be made to ensure that child protection issues are dealt with so that children could potentially go to an adult facility if there is not anything specific for children?

Mr McNally: They do not at present. Shannon is the medium secure unit that we have in Northern Ireland. They do not go there. That is the bottom line.

Part 3 of the Mental Health Order is not really used for young people. We have a convoluted system whereby young people go to the juvenile justice centre, and the director of the juvenile justice centre uses his power of transfer to send them to the Beechcroft unit, and we then do a civil detention of the young person under that.

That is a very roundabout way of achieving what you want to achieve, but, practically speaking, that does not really happen. The Beechcroft unit is not really set up to take people from juvenile justice centres, and very few have gone there. As far as I am aware, they go to the intensive care unit. That essentially means that the intensive care unit is closed for anybody who is already in the hospital, and the young person is more or less imprisoned there. It is an unintended consequence, but that is what, in fact, happens. Practically speaking, what we have at the moment is not really used and does not work. The law, as it exists, is not used for under-18s full stop.

Dr East: One of my roles is as the chair of the admission panel for the regional secure unit at the Shannon clinic. We deal with the most dangerous offenders in the region. The levels of violence and, indeed, sexual offending that we experience in our admission wards simply would not be compatible with a person under-18 being admitted to that ward. We have had some cases referred to us, perhaps those in the 16- or 17-year-old bracket, but we have never deemed it appropriate to admit those people, and they have always ended up at Beechcroft. We are talking about very small numbers, and we would not advocate putting someone under the age of 18 in the regional secure unit.

Mr McGlone: Picking up on your point on clause 163(1)(a)(ii) about:

do you feel that the clause requires proper clarification to include "psychological or other". What is the wording that you feel is absent there?

Dr East: In the criminal justice legislation, it says "serious harm, whether physical or psychological". In a fairly recent example, we struggled to detain a man who had committed rape, because rape does not cause serious physical harm. It clearly causes very serious psychological harm. This is an archaism in the Northern Ireland mental health legislation that has been carried over and causes us a great deal of anxiety.

The other aspect of that is the use of the word "serious". It has not really been defined in any of the legislation, and that causes us great issues, as well. It is defined in the public protection arrangements for Northern Ireland in a very useful way, and, again, if the code of practice could capture that definition, that would certainly address the issue. Yes, the failure to recognise serious psychological harm is of great concern to us.

Mr McGlone: Thanks very much indeed.

Mr Lynch: Eamonn, you said that trying to work two legislative frameworks for under-16s would cause contradictions and difficulties: can you expand on that?

Mr McNally: It is something that we have sought clarity on, because what we have is that the Mental Health Order will cover the civil side up until the age of 16. The criminal justice side of the Mental Capacity Bill applies to everybody, but the civil side does not. The bit that was confusing us when we were looking at it is this: the juvenile justice centre runs up to the age of 18, so you will have people who will be covered by the civil side of the Mental Capacity Bill when they are in the juvenile justice centre and people under the age of 16 who will be covered by the Mental Health Order in the juvenile justice centre. So, you have two different legal regimes covering the same population, and we ourselves had sought clarity on what that means. We have been told, I think, that codes of practice and guidance will elaborate on these things, but that is not really an answer.

Mr Lynch: Natalie, you were saying that there is the capacity to commit crime at 10, and this is capacity for over-16s.

Ms Whelehan: We would be very supportive of the Department of Justice's approach in terms of the application of the criminal justice side of the Bill to everybody, regardless of age. There are some concerns about how that is actually going to operate in practice in terms of the determination of capacity in young people, and there are some issues around consent, particularly in relation to some of the hospital orders and directions and things like that and what exactly a judge will take into account if a young person refuses a treatment-based disposal. So, that all has to work itself out, but, fundamentally, it is preferable that the Department of Justice has applied the criminal justice provisions of the Bill to all age groups.

There is a question for me that has not really been resolved. I do not think that the question is one for the Department of Justice. The minimum age of criminal responsibility is 10, and this Bill applies to all age groups, so part of what constitutes capacity to commit a crime has to have some impact here in relation to the definition of capacity and what capacity is. This is not really an issue for the Department of Justice, but there is a question around how does one Department, i.e. the Department of Health, Social Services and Public Safety, introduce a piece of legislation saying that you cannot assume capacity in anybody under 16 because of developmental immaturity, when, on the other hand, there is an assumption of the capacity to commit a crime from the age of 10 up? There are all sorts of questions there that I do not think have been answered.

Mr Lynch: If somebody commits a crime at 15 and they are found guilty at 16, where do they fit?

Ms Whelehan: The other issue, as well, is that justice in Northern Ireland has moved toward the use of diversionary disposals to deal with a lot of young people. Again, this is something that I am really supportive of and think is really necessary, but quite a lot of those disposals rely on the young person admitting guilt or consenting to the disposal. How can we rationalise the assumption that everyone under the age of 16, for the purpose of the civil provisions of this Bill, does not have capacity, but, on the other hand, a 14-year old or a 13-year old does have capacity to admit guilt or consent to avail themselves of a criminal justice disposal? I do not think that has been answered, and I would imagine that, in the future, we are going to see some of these points being argued in court because it just is not that clear. Justice is really at odds with itself, because it applies to everybody; but I do think that there is a fundamental issue there around how the civil provisions will operate and how the minimum age of criminal responsibility will operate.

Mr Frew: I am sorry for going over this again, but it seemed to be a fundamental point. Adrian, you talked about the transfer to prison of people who fall out of a part of the legislation that is being repealed. Can you just go over that again for me, please? It is probably a fundamental piece of this, but it is only my second week here.

Dr East: As things stand with the mental health legislation, we recognise that mental illness has a nature and degree. What that means is that I can recognise that a patient who is currently well and has capacity to make decisions, because of the nature of his illness, is likely to become ill in the near future if he is not detained. We are now losing that by moving to a solely capacity-based model. What that means is that an awful lot of the people who I am managing will no longer be liable to detention. We know that in those kinds of circumstances such people will end up in jail.

Mr Frew: Is that because they do not have the support so they go out and commit crime?

Dr East: That is correct.

Mr Frew: But there is not a direct transfer, if you like.

Dr East: It is not a direct transfer.

Mr Frew: It is a consequence.

Dr East: Yes. We know that when mental health services retract, the number of mentally disordered offenders in prison increases.

Mr Frew: Is there any way that you could put a figure on that or estimate how many you think would go to prison?

Dr East: No. The problem is that we do not have a metre stick of a jurisdiction that does not recognise mental illness as having a nature and degree. That is why I am very much in the dark in terms of providing data on that.

Mr Frew: You talked about a scenario in which you struggled to detain someone who was involved in rape, is that right?

Dr East: Yes.

Mr Frew: Because you could not prove that there had been physical harm. Surely that cannot be right.

Dr East: I am afraid that the tribunals take a very strict view on this. One has to demonstrate serious physical harm.

Mr Frew: Rape in itself does not —

Dr East: It is, perhaps, an extreme example, but it is difficult to argue that it causes serious physical harm. It certainly causes physical harm, but is it death, life-threatening injury or injury from which recovery would be difficult or impossible? It would be very difficult to demonstrate that to a tribunal, and we find ourselves having so to do.

Mr Frew: How, against the picture that you paint, does this legislation, lack of legislation or repeal of legislation impact on that work?

Dr East: The opportunity has been missed to include psychological harm by specifying that the harm be physical, which, again, is not common in any other legislation, either mental health or criminal.

Mr Frew: Thank you very much.

The Chairperson (Mr Ross): Thank you very much.

I now welcome Clare Irvine, Laurene McAlpine and Karen Pearson from the Department of Justice. We will go through Part 9 and then, if there are any questions, Part 10. If there is anything that you have picked up in the evidence that you want to respond to, please feel free. Department of Health officials are always very reluctant to do so, but I am sure that you will want to pick up on anything that you think will be useful to mop up before we move on.

Clause 140 in Part 9 provides that if a person is taken to hospital it must be for the purpose of being examined by a medical practitioner and interviewed by a social worker. The Public Health Agency (PHA) has queried the use of the term "medical practitioner", rather than "healthcare professional", and cites a range of conditions that could have led to the person being removed, such as detention and things like that. Could you respond to that and provide a rationale for specifying "medical practitioner" in this regard?

Ms Clare Irvine (Department of Justice): Our original thinking had been that it helps provide a bit of confidence for the police that somebody who is suitably qualified had looked at this person and then released them. We do take the point that was raised today at the Committee about somebody having lost capacity for a reason that is not about a mental illness or learning disability. Perhaps we do need to have a look at that and see if we could widen it in any way. Throughout the Bill, there are definitions of various types of healthcare professional who can do things. Maybe we could take that a little bit wider. We will take it back to the Department and have a look at it and see whether it is something that we can do something about.

The Chairperson (Mr Ross): OK. I want to ask you about the idea of a safe place, and how police stations should be used as a last resort. Is it something that you can put in the Bill, or are you going to tell me that it will be done through regulations and guidance?

Ms Laurene McAlpine (Department of Justice): The Bill has had to be crafted around the infrastructure and the physical facilities that are available. One of the stakeholders made reference to the possibility that, if someone is removed to hospital, it could be to a particular suite in the hospital rather than an A&E department. The Bill is crafted in such a way that it just refers to someone being removed to hospital. If the hospital had the capacity and facilities to create a dedicated unit, that would require no amendment to the Bill; it would however, perhaps, require some effort and resources in the hospital.

The Chairperson (Mr Ross): In terms of ensuring that police stations are not seen as the first resort, as opposed to having to be the last resort for many cases, is that something that you could put in the Bill?

Ms Irvine: There has been a lot of discussion about using police stations in exceptional circumstances, but the trouble with using words such as "exceptional circumstances" is that they are open to interpretation as well. What we have tried to do, in clause 141, is be really specific about when a person can be detained in a police station. It is obviously:

but there is also that second purpose, which is in clause 141(2)(b):

We think that that is quite specific, and, hopefully, it should narrow the circumstances in which somebody should arrive in a police station under a place-of-safety power.

The Chairperson (Mr Ross): Have you any figures — I do not expect you to have them to hand — to give reassurance to the Committee that police stations are not being used as the first port of call? Have you any figures to show us that, in most examples, people in these circumstances are being brought to medical facilities as opposed to police stations?

Ms Irvine: The statistics on place of safety are difficult to get hold of. We have put specific provisions in the Bill so that we can collect such statistics more accurately. Obviously, the police have given us some statistics.

Ms McAlpine: Some 54 persons were removed to a police station as a place of safety between April 2012 and March 2015. We do not have comparable figures to show how many people were removed to a hospital.

Ms Irvine: There is a job of work to be done in gathering statistics to allow us to see how often these powers are used. Certainly, Eamonn from the Children's Law Centre very helpfully, during the consultation, gave us some figures that he had received as a result of a freedom of information request. That is pretty much all we have.

The Chairperson (Mr Ross): It would be useful to have those figures. Why is a hospital only designated as a place of safety if the managing authority is willing to receive the person? Police stations do not have a choice in this matter, so why is there a difference in approach between hospitals and police stations?

Ms Irvine: That is language which was used in the 1986 Order, and it reflects the fact that there has to be a conversation with the hospital to see whether it can offer an appropriate service to people in these circumstances. Certainly, all emergency departments (EDs) are designated as places of safety across Northern Ireland. Certainly, it is to enable that conversation to be had.

The Chairperson (Mr Ross): I must ask you about the records kept under clause 147, of people detained under these powers, to whom are those records disclosed? Must those who are detained divulge it to future employers? We had a conversation about this last week. To whom is that information disclosed, or to whom does it have to be disclosed?

Ms Irvine: I do not believe that it has to be disclosed. I do not think that it is the same issue as somebody detained under Part 2 of the Mental Health Order. We can check that out, but, as far as I know, you do not have to disclose to anybody that you have been detained in a place of safety.

The Chairperson (Mr Ross): The police have suggested that clause 149 should be amended so that reviews of whether detention conditions are in place are carried out by a reviewing officer, as opposed to "the appropriate officer", arguing that it requires somebody of superior rank rather than a constable. Have you any views on that? Is it something that you would look at?

Ms Irvine: We are having conversations with the police about that and trying to resolve the issue. With regard to a constable carrying out a review in a hospital, it is going to be the constable who is on the ground, so, obviously, you would not expect that constable to carry out that review in isolation; he would perhaps call on someone of a higher rank to help carry that out. As well as that, we do not really want to get into a situation where a police officer of a higher rank has then to go to the hospital in order to carry out the review. There will be some way of working around it. I am sure that we can resolve it with our police colleagues.

The Chairperson (Mr Ross): I turn to clause 150. Who is responsible for ensuring access to legal advice, if the person is being detained in a hospital?

Ms McAlpine: The constable.

Ms Irvine: Yes, it is the constable, and then, obviously, there needs to be a facility offered to the person so that they can consult with their solicitor, if they wish to, in the middle of a busy ED.

The Chairperson (Mr Ross): Mindwise has suggested that, if the person is removed to a police station, the officer should be obliged to refer the case to the forensic medical officer on duty. Is that something that you would support? Do you have any view on it?

Ms Irvine: It is important to think about the roles of individuals in police stations, because if it is for the review mechanism, then the forensic medical officer would not be in the best place to review detention but would be giving a view on the medical condition of the individual. We try to keep the review mechanism as close to PACE as possible, to try to reflect that particular scheme. At the end of the day, if these officers are doing a review of detention, it does not stop a forensic medical officer coming along and giving a view on the person's medical condition. That is their part of the process.

The Chairperson (Mr Ross): Does anyone else want to ask questions on Part 9? Are there any questions?

Mr Frew: I just want to paint a picture that the Police Service of Northern Ireland and its constables are under extreme pressure. Sometimes, if there is a lot of paperwork or a large workload, everything else that goes with detaining and arresting people, would they throw the person off at the door of the A&E department? I am not saying that that will happen, but we all have to guard against that happening. Is it something that is reflected in your thinking; that you could be burdening one agency rather than another, or allowing one agency to burden the other?

Ms Irvine: It is very difficult to strike the balance. The police have a responsibility to keep this person safe until they can affect a handover to healthcare staff, who will then take on the responsibility to keep them safe. In the conversations between the police and the board this morning, it was indicated that protocols were being put in place under the existing legislation, to try to make sure that that handover happens seamlessly, so that a burden is not placed too much on either organisation.

Mr Frew: If there is a changeover, it has to be controlled, monitored and everything else. You get a scenario or picture in your mind where it is just basically offloading or dropping off at the door. With regard to the review and then the changeover, it would not be in the interest of the person who is detained to go through a procedure that was not robust and organised.

Ms Irvine: Very much so. It has been expressed that Part 9 of the Bill seems so much longer than what is under the 1986 Order, which is only a couple of articles. However, we have to remember that this person has committed no crime, is very ill and very vulnerable and is being deprived of liberty by the police using this power. In order to make sure that they are adequately protected, we need this very robust scheme under Part 9, which is about review, looking at detention conditions and making sure that this person should still be detained.

Ms McAlpine: And keeping records.

Ms Irvine: Yes, and trying to keep a balance between the role of the police and that of the healthcare professionals until the handover that you refer to is effected.

Mr Frew: What if the problem is just the place that they were at? OK, someone has a mental illness; someone is in a place where they are coming to people's attention, and the police are called. What if it is actually that environment? I am struggling with the wording of my question.

If the problem is their current or recent environment, the very fact that the PSNI has driven them away would make you question the need for detention.

Ms McAlpine: I think that they would be released as soon as the detention conditions ceased to apply.

The Chairperson (Mr Ross): If somebody who has dementia is wandering the streets and the police identify them, do the police have to invoke the powers in the Bill, or, if the person is known to the police, can the police simply bring them back to their care home or house without this provision having to kick in?

Ms Irvine: It is only a power, and the police have discretion in using it. In a small community, for example, where the person is known and lives in a care home around the corner, the first response will be to take them back to where they will be safest. In larger environments, however, such as Belfast, the police do not know everybody, so, if somebody is confused and cannot tell you their name and where they live, that would push the police towards using the power to remove them to a place of safety.

Mr Frew: Can you hear the cogs turning? I asked a question earlier about somebody resisting detention. Where do we all stand on that? If somebody resists arrest, it is a crime, but what about somebody who resists detention? Is detaining the right word?

Ms McAlpine: The constable is entitled to use reasonable force, which would probably be necessary.

Mr Frew: If you have to manhandle someone into the back of a police car — it takes tremendous effort to get someone in through the small space of the back door, no matter how light the person's frame — does that become a crime?

Ms McAlpine: Resisting detention to bring you to a place of safety —

Ms Irvine: It is not a specific crime under the Bill, but say, for example, you hit a police officer, the situation escalates or you have a weapon and try to use it, it could become a crime at that point.

Ms McAlpine: Whether you have the capacity to have committed the crime is another issue.

Ms Irvine: You go down the route of the criminal justice system then. It may well be that you did not have the requisite mental capacity to be able to carry out the offence at that stage, and there is prosecutorial discretion in whether to go ahead and prosecute something like that.

Mr Frew: Is there any way in which someone who happens to have a mental illness could use this legislation to find a loophole in the law?

Ms Irvine: I would not like to think so. Place of safety powers have been around for quite some time now, and I must admit that we have not heard of anybody trying to avoid something by trying to use this scheme. I hope that that would not be the case.

Mr Frew: This is completely hypothetical, but I am trying to get this into my head: if someone came to the attention of the police, could they cry for a detention rather than an arrest, if you know what I mean?

Ms Irvine: It depends on what they have done. If someone was standing in front of a police officer saying, "I should be taken under the place of safety power", you might think to yourself, "You seem fairly clued in".

Ms McAlpine: Or rational.

Mr Frew: Yes, too switched on.

Ms Irvine: The police have to exercise discretion. If somebody is giving you chapter and verse from the Mental Capacity Bill, you would think that they must be fairly well, but who knows?

The Chairperson (Mr Ross): Can someone be removed but not detained if the police do not recognise them? Say, the police lift someone out of a situation and bring them to a police station, but, by the time they reach the station, the person has capacity and does not present any sort of risk to anybody. Having removed the person, do the police have to detain them, or can they say that, because the person no longer presents any sort of risk to themselves or anyone else, they will let them go? Could that happen?

Ms McAlpine: The police would have to organise a medical examination or an interview with a social worker and then review the detention no more than six hours later. I imagine that, if, on examination by a medical —

The Chairperson (Mr Ross): That would be after detention, but I was asking about people who are removed from a situation, brought to a police station for potential detention, but, because their attitude or circumstances have changed on the journey, are not detained

Ms Irvine: As soon the police remove somebody and put them into a police car, that is detention.

Mr Frew: That starts the process.

The Chairperson (Mr Ross): They are not detained in a custody suite.

Ms McAlpine: No, but they are detained — they are no longer at liberty.

The Chairperson (Mr Ross): Could they be released on arrival at the police station without a medical?

Ms McAlpine: I wonder whether a police officer would want to do that before allowing the person to be examined by a medical practitioner. That would run the risk that, five minutes after release, they revert to the behaviour that brought them to the attention of the police in the first place. It would be a matter for the custody officer, I think. It would be more sensible to carry out a medical examination and then decide that the person was safe for release.

The Chairperson (Mr Ross): I was just wondering what the Bill says about that. Under the Bill, it is possible that a police officer, having removed the person from a circumstance, could release them on arrival at the police station.

Ms McAlpine: The custody officer must reasonably believe that the detention conditions are met. I do not think that, if the detention conditions are not met, he has the power to detain.

The Chairperson (Mr Ross): Are there any other issues? Is there anything else from the previous evidence on Part 9 that you want to mop up?

Ms Irvine: The board raised an issue earlier. Valerie mentioned extending the definitions of places of safety. I draw your attention to a regulation-making power in clause 158(2). It allows us to identify other places of safety so that Part 9 would apply to them, too.

The Chairperson (Mr Ross): OK. We will move on to Part 10, and I have a few issues to raise here. Some stakeholders had concerns about the language used and felt that it was stigmatising, particularly the term "unfit to be tried" in clause 202. Is there any response from the Department?

Ms Irvine: "Unfit to be tried" is the name of the law in that area, and the Bill reflects that. It is not meant to stigmatise or be discriminatory in any way. All the case law uses that language, and, until such times as that changes, we have to call it what it is.

The Chairperson (Mr Ross): Is "unfit to be tried" defined in the Bill?

Ms Irvine: No. Unfitness to be tried is a common-law test known as the Pritchard test. You need to go through a series of steps in order to demonstrate that you are fit to be tried. You have to understand the charges, decide whether to plead guilty, exercise your right to challenge jurors, instruct solicitors and counsel, follow the course of proceedings and give evidence in your defence. If you are unable to do any one of the six, you will be deemed unfit to be tried.

The Chairperson (Mr Ross): The PPS expressed concern that you have not decided to include the procedure for unfitness to be tried in the Magistrates' Court. Do you want to respond to that?

Ms Irvine: We talked about this during our previous evidence sessions in June. The English Law Commission is carrying out a very big project looking at reform of the law on unfitness to plead and the law on the defence of insanity. It is due to publish its findings this autumn. It has been looking at unfitness for five years now. It might well be that it is the missing piece of the jigsaw that we need to look at before we make any proposals for law reform. This area is a movable feast, and pressing ahead might not be appropriate at this time.

The Chairperson (Mr Ross): Two other issues were raised at the last session. The first was inpatient forensic treatment facilities for under-16s. Have you a view on that or how the issue can be rectified?

Ms McAlpine: It is about the infrastructure available at present. It is hard to argue against the desirability of that facility, but it becomes a question of affordability. I am not sure whether DOJ officials are really the ones who can address that. It may be more for DHSSPS colleagues.

The Chairperson (Mr Ross): There is an issue of serious physical harm versus psychological harm, and everyone in the room would find rape a disturbing example of that. Previously, we raised the issue of how most people are moving away from the notion that harm is simply physical to accepting that it can also be emotional and/or psychological. Will you seek to rectify that in the Bill?

Ms Irvine: It is a really difficult issue. As Laurene said, physical harm is where ECHR case law is headed. All the case law relates to article 5 of the European Convention on Human Rights. At the moment, psychological harm is outwith where it tells us we can go when it comes to detaining people on the basis of mental ill health and learning disability. We have to ensure that the Bill is ECHR-compliant. We looked at this area to see how far we can go and do not feel particularly confident as a Department that we can go any further than we have, but we appreciate that it is difficult.

The Chairperson (Mr Ross): Is there anything else that you suggest could help to give confidence on those issues and that could be done without potentially breaching any European guidance?

Ms Irvine: It is very difficult. The advice that we received on the law is the advice that we feel the Department should follow. It does not look as though we can expand, say, the public protection order to cover psychological harm. Although we appreciate the arguments that have been made, our hands are tied on this one unfortunately.

Mr Frew: Are we repealing anything that makes it worse?

Ms Irvine: No. Under the 1986 Order, psychological harm is not included. There is a very useful judicial review, JR 45 of 2011, in which the judge spells out very clearly what is under the 1986 Order, and that might be helpful for the Committee. We are not making the situation worse; we are just maintaining the status quo — [Inaudible.]

Mr McGlone: I do not understand the problem with including psychological harm, but maybe I am in thick mode. We heard a case outlined earlier. Why can it not be incorporated into law in some form or other? You mentioned the European Convention: are you telling me that the convention does not recognise emotional harm or the potential for emotional harm?

Ms McAlpine: Not for the purpose of detaining someone in a way that is consistent with article 5 of the convention. It would contemplate that sort of detention if there were a risk of serious physical harm to others.

Mr McGlone: Just talk me through article 5. I am not a whizz-kid lawyer or anything like that. I am just a guy here trying to do my job, you know.

Ms Irvine: Article 5 has various aspects. Article 5(1)(e) is detention for medical or social reasons. It states:

The case law that we are interested in is on the detention of persons with "unsound mind". That is the language used by the ECHR at the minute. In all the case law that has come out of that, the focus has always been on the prevention of serious physical harm to others. They have not gone down the route of looking at psychological harm to others. If we were to go down that route, we would have to be aware that we would be going into new, uncharted territory. It may well be that the ECHR would back us up in —

Mr McGlone: Is it reluctance on the part of the Department, as opposed to something in the ECHR, that has determined that you do not go down that route?

Ms McAlpine: No. We are reticent because we think that we would potentially be in breach of European Convention law. The Attorney General or the Speaker might say that the Bill is not ECHR compatible.

Mr McGlone: They might; they might not. I was particularly struck by the evidence that I listened to earlier. I do not think that we can just forgo this because of what it might do. I, personally, would like to find out whether this is done in other EU member states and, if it is, how. It is a very important issue that has been raised here.

Ms McAlpine: We have advice from the Attorney General on this specific issue.

Mr McGlone: I am not disputing that you have advice on it. My concern is that I would be surprised if this had not cropped up elsewhere internationally and been dealt with in some of the more progressive legislatures. All that I am asking, Chair, is that we satisfy ourselves that we cannot do anything about it, because I think that we have a duty to do something about it.

The Chairperson (Mr Ross): I think that that is right.

Is there anything else that you want to mop up from the evidence session?

Ms Irvine: Eamonn made a point about there being a wee bit of confusion about how under-16s who are in the juvenile justice centre can obtain medical treatment and how they are ferried about at the moment. I will clarify that: there is a lacuna in the 1986 Order that makes it difficult to move people from the juvenile justice centre into a medical environment for treatment. We have made sure that the Bill addresses that so that under-16s can move to facilities, wherever they may be, in the same way as those who are over 16.

Mr Lynch: One of the stakeholders said that "disorder" should be removed so that this is compatible with Bamford. What is your view on that?

Ms McAlpine: We have kept the terminology to the absolute minimum, but, to some extent, we are in the hands of legislative counsel and the language that he can use to achieve objectives. We cannot think of any other language.

Ms Irvine: We have had to use terms such as "mental disorder" when talking in a very technical sense, such as when talking about which doctor is qualified to make judgements.

Ms McAlpine: As opposed to a physical disorder.

Ms Irvine: We have had to — [Inaudible.]

— use terms such as "mental disorder".

Mr Lynch: There was some discussion about the difficulties in operating within two legislative frameworks. What are your views on that?

Ms Irvine: It is really about treatment, and the treatment of under-16s is extremely complicated. Our criminal justice clauses do not change that in any way. If, for example, the question of welfare or treatment arises for somebody under 16 who is detained in a criminal justice setting, the law that relates to that will apply. You look at whether an individual is competent to consent for himself, whether a parent or somebody with parental responsibility can consent for them or whether somebody else can provide that consent. If there is disagreement, the court might weigh in and say whether a person should receive treatment. As soon as a person turns 16, you will, as a result of the Bill, look at that through the prism of Part 2: you will ask whether a person has capacity to make treatment decisions and, if so, whether they have consented; or, if a person lacks the capacity to make treatment decisions, you will look at whether you wish to authorise particular treatment under Part 2. That is how we see it working in a setting with a mix of ages.

Ms McCorley: Go raibh maith agat, a Chathaoirleach. I might have missed this bit, so forgive me if I did. You will know of the anomaly — well, it is not an anomaly — whereby 10 is the minimum age for criminal culpability and the capacity to commit a crime but 16 is the age at which a person can be deemed not to have capacity. What sort of difficulties do you see with that, and how would you deal with it?

Ms McAlpine: The criminal justice provisions are internally consistent. The criminal age of responsibility is 10, and the criminal justice provisions of the Bill apply to those who are under 16. The civil aspects of the Bill are different, and yes, that does create a bit of tension.

Ms McCorley: Can that be resolved?

Ms McAlpine: I think that it can be worked. It is not an insoluble problem; it is just that there will be two different systems.

Ms Irvine: It will not affect the way the powers under Part 10 and Part 9 operate. Basically, people are being conveyed from one area to another, be it from a criminal justice setting to a healthcare setting or, under Part 9, from a public place to a healthcare setting. For those Parts, age does not really come into it. They are simply conveyancing powers.

Ms McCorley: What about a situation in which a young person is charged with committing a crime but is deemed not to have capacity?

Ms Karen Pearson (Department of Justice): Do you mean capacity to agree to treatment as opposed to culpability for the crime?

Ms McCorley: Yes.

Ms Pearson: Conceptually, they are different. As Laurene said, the justice aspects of our detention scheme are consistent with the way that the courts operate. If it comes to treatment, however, capacity will be relevant.

Ms McCorley: It seems like an area where there would be difficulties.

Ms Irvine: We are aware that the courts will make decisions about whether to make one of the healthcare disposals in Part 10. Those provisions require a court to think about the likelihood of a person consenting to treatment, whether consent can be obtained, by which we mean the consent of a parent, a court or someone else, or whether the person lacks capacity to make decisions about treatment. Therefore, an authorisation could be obtained under Part 2 or the person could, if under 16 years old, even be treated under the 1986 Order.

The court would still look to those healthcare disposals as an option but would also have to carry out the thought process of whether the person could be treated. How that person receives treatment will depend on their age because different laws will apply.

Ms McCorley: All right, thanks.

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