Official Report: Minutes of Evidence
Ad Hoc Joint Committee on the Mental Capacity Bill, meeting on Monday, 19 October 2015
Members present for all or part of the proceedings:Mr A Ross (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mrs Pam Cameron
Mrs J Dobson
Mr Paul Frew
Mr Seán Lynch
Mr K McCarthy
Mr Raymond McCartney
Ms R McCorley
Mr N Somerville
Witnesses:Ms Lisa Trueman, Department of Health
Ms Clare Irvine, Department of Justice
Mr Sean McParland, Law Centre (NI)
Mr Alastair Rankin, Law Society of Northern Ireland
Ms Bernadette Hamilton, NI Approved Social Worker Training Programme
Mr Peter Luney, Northern Ireland Courts and Tribunals Service
Ms Gillian McClearn, Northern Ireland Courts and Tribunals Service
Mr Colin Caughey, Northern Ireland Human Rights Commission
Mr John Mackell, Office of the Commissioner for Older People for Northern Ireland
Ms Natalie Whelehan, Office of the Northern Ireland Commissioner for Children and Young People
Ms Delia McCartan, Southern Health and Social Care Trust
Mental Capacity Bill: Parts 6, 7, 8, 11, 13, 14 and 15
The Chairperson (Mr Ross): We will start with Parts 6 and 7, and Alastair Rankin from the Law Society will join us for that. As in previous weeks, Mr Rankin, you can take a couple of minutes for your presentation, and, if members have questions, we will open up. In your own time.
Mr Alastair Rankin (Law Society of Northern Ireland): On behalf of the Law Society of Northern Ireland, I thank the Committee for the opportunity to provide evidence on Parts 6 and 7.
The society notes that clause 112(4)(b) requires that the appointment of a deputy is limited in scope and duration. Due to the limitation on the duration of the appointment, the practice in England and Wales is that the deputy must make a full application for appointment every three years. That includes updating medical evidence. That application is at full cost, and, to date, we understand that no application has ever been refused. There is no ability for the appointment simply to be renewed without the need for a full application. It is the view of the society that a fresh application every three years is completely unnecessary and that, if limitation on duration is required, there is a simpler system for renewal of those appointments.
The society agrees that it is necessary to limit the scope of the appointments in certain circumstances, as envisaged by the Bill. Under the existing controllership system, there is an annual reporting requirement, and included in that is a statement on the condition of a patient. The society sees no reason for that to change.
Since the introduction of the Mental Capacity Act 2005 in England and Wales, approximately 80,000 property and affairs deputies have been appointed but only approximately 800 health and welfare deputies. This is partly due to the fact that, in England and Wales, an applicant pays the cost, not a patient's estate. The scope of their appointment is also limited, so it is often not worth making the application. The society suggests that the costs should be met from a patient's estate so as to facilitate the uptake of health and welfare deputies.
The society has been informed through Assembly questions that it is proposed that the new Public Guardian post will be a Civil Service appointment and, according to the Department, will not exercise judicial authority. It is clear from the Bill that the Public Guardian will indeed exercise judicial authority, and we urge the Department in the strongest possible terms to reconsider its view. The experience in England and Wales is that it is essential that the Public Guardian is legally qualified and has sufficient experience to carry out the difficult role properly.
It is the society's view that the court and the Public Guardian need to be able to access financial records as part of their investigatory powers. They can currently get access to health records without needing to give reasons, and it is the society's view that there is no practical difference for financial records. At the moment in England and Wales, the court and the Public Guardian have to go through the attorney for access to financial records, which obviously does not work as the attorney may be the abuser.
The society notes that, under the current proposals, the Office of the Public Guardian (OPG) does not have retrospective power to investigate deputies or attorneys who have been removed or parties who have intermeddled in a patient's affairs without having been formally appointed as a deputy or attorney. It is our view that this needs to be included in the final Bill and that the definitions of deputies and attorneys need to include prior appointees or those who have intermeddled.
We note that clause 124 places a duty on the Public Guardian rather than a health trust to investigate cases. This duty currently falls to the Office of Care and Protection (OCP), and it is assumed that this will transfer to the new OPG. However, confirmation is required on this point. It is also noted that this duty will be wider than the current function as it will include the deprivation of liberty rules. Resources are a major problem for this area in England and Wales, and the society urges that it be properly resourced in Northern Ireland.
One additional point is that, under the Mental Health (Northern Ireland) Order 1986, the Office of Care and Protection has to be notified if a person goes into a nursing home. The society considers this to be a very useful provision, and it should be retained in the Bill for notification to the OPG. The society also considers that an obligation should be placed on health professionals to notify the OPG in the event of incapacity. The notification provision in the 1986 Order does not apply to a person at home, only to a person in a nursing home. That loophole should be closed.
The society notes that there is no provision in the legislation for the appointment of a deputy of last resort. Currently, the Official Solicitor is appointed as controller of last resort, often in very difficult circumstances when there is no one else in the family who is suitable. Clarification is required on who will perform this function under the new regime.
Clause 268 codifies the common law position so that a third party may make arrangements with a supplier for necessary goods and services on behalf of a person who lacks mental capacity. A recent English case considered the equivalent provision in section 7 of the 2005 Act and had to rely on an 1890 case to clarify that the provision did not apply in circumstances in which it was not intended by the supplier that the recipient should pay for the goods and services. It is the society's view that it may be sensible for this to be clarified in the Bill.
Lastly, the society notes that, pursuant to clause 272 and schedule 9, a lasting power of attorney (LPA) and an enduring power of attorney (EPA) are not classed as protective measures for the purposes of the Convention on the International Protection of Adults. It may be of benefit to so designate them as protected measures so that a court is able to make declarations as to enforceability and recognition of foreign powers of attorney from states that are not convention states.
The Chairperson (Mr Ross): There are no questions on Parts 6 and 7.
Ms Gallagher has apologised that she cannot be here today to present on Part 8, so we will move on to Part 11, and Delia McCartan will give us evidence on that. Welcome back. You can present for a couple of minutes, and we will then open it up for any questions.
Ms Delia McCartan (Southern Health and Social Care Trust): I am speaking on two Parts today, Mr Ross. You will be happy to hear that I will be much briefer on this occasion.
I thank the Committee for the opportunity to attend today in relation to Parts 11 and 15. I represent the Southern Health and Social Care Trust and am a manager in acute psychiatric services. I have been in mental health for many years and am also a practising approved social worker. I am speaking to clauses 248 to 253, which are relatively straightforward. Those clauses deal with the transfer of detained patients between jurisdictions, and the Bill in its present form deals explicitly with the removal from and transfer to Northern Ireland, England, Wales and Scotland. Under clauses 252(1)(b) and 252(1)(c), the regulations may make provision:
"(b) in connection with any removal of a person by virtue of Part 2 to a place outside Northern Ireland (whether or not a place in the United Kingdom);
(c) enabling the Department to authorise, and to give directions in connection with, the removal to a place outside Northern Ireland (whether or not a place in the United Kingdom)".
Similarly, clause 253 deals with persons transferred to Northern Ireland. Situations can occasionally arise when people, both EU citizens and non-EU citizens, need to be moved between countries, and, as we know, those arrangements are managed by the Department in Northern Ireland. However, as the Southern Trust and the Western Trust have a land border with the Republic of Ireland and as there is, of course, free movement across that border, now may be an opportune time to agree procedures in statute for transfers of persons who are either detained or deprived of their liberty under the law in either jurisdiction, because the Republic of Ireland has different laws to us. It is, for example, about agreeing the roles and responsibilities of the social workers concerned, the GPs, police and ambulance staff on both sides of the border. I appreciate that that is happening and is managed by the Department, but I consider that now is an opportune time because the Republic has a land border with us. It is not Cyprus. It happens frequently. I work in an acute psychiatric hospital, and, when those situations arise, they are very difficult, can be very protracted, and a lot is done on goodwill. I thought that, given that we have this opportunity, this may be the time to have things firmed up.
That is all that I have to say on those clauses. It is short and sweet.
Mr McCartney: On clause 248, there is a written submission from the mental health association, in which they express concerns that, once a decision is made, it is difficult to revoke it.
Ms McCartan: Is that the Northern Ireland Association for Mental Health (NIAMH)?
Ms McCartan: What did it say, Mr McCartney?
Mr McCartney: It says that, once an individual is transferred to Britain, the responsibility for care and treatment is devolved, and there appear to be few or no routes to appeal or to revoke a decision, should the individual or family be unhappy with their ongoing treatment.
Ms McCartan: I assume that, if you are transferred to Northern Ireland, you will then be subject to the legislation and appeal process here.
Mr McCartney: With a transfer from here, say, to England, the association is saying that, once you go into care —
Ms McCartan: Yes, you will be subject to English legislation. That is a point.
Mr McCartney: The association's concern is that that makes it difficult for someone here to revoke a decision to have a person transferred back.
Ms McCartan: I have to admit that I had not thought that one through.
Ms McCartan: Is it about a situation of someone being here and being transferred to somewhere like Carstairs, the State Hospitals or something?
Mr McCartney: If a family did not feel that you were being appropriately treated —
Ms McCartan: Yes, you would be. That is what happens now. If you go to Carstairs or any of the specialist units, you will be under the procedures of England and Wales. That is a fair point.
Mr McCartney: The association also made an observation about cost. If you are sent to Carstairs, you are accepted at no cost to a trust, but, if you are sent to any other institution, there is a charge to a trust.
Ms McCartan: Yes, a trust is charged.
Mr McCartney: Might that be a reason for sending people back more quickly than they should be or for a change in their treatment —
Ms McCartan: No, not in my experience. For people who are sent to Carstairs, it is completely different, because that is quite often a criminal justice matter. However, people who go to specialist placements — say, the Priory or St Andrew's in Northampton — are generally extremely high-cost cases. At one stage, we had quite a number of those people in the Southern Trust, and there was a drive to bring them back. However, I have to say that it was not about cost but about the argument that patients should be treated in their own country, and families should have access to them. It was more that we had a deficit in our services. If possible, trusts try to avoid sending people to high-cost places. It is not always about cost and is more often about families wanting their loved ones to be looked after here in their own country.
Mr McCartney: The association is suggesting a recommendation that, if it were accepted, would be amended: the discharging or transferring consultant should:
"continue to review and monitor ... treatment"
of the person while he or she is out of the jurisdiction.
Ms McCartan: Yes, and that sometimes happens in practice. If a patient of ours goes to Carstairs, I know for a fact that consultants from the Southern Trust go across and communicate. However, that is based on good practice rather than on anything setting them off.
Mr Somerville: Obviously, the situation that Raymond described will be the same for the Republic of Ireland. Would it be under its jurisdiction?
Ms McCartan: We would only transfer people to Southern Ireland who are Southern Irish citizens living here. That is the situation. We have never sought a psychiatric service in the South of Ireland. I do not wish to be indiscreet and I am not an expert in this field, but high-cost and specialist placements tend to be in England as opposed to the Republic of Ireland. I could be wrong about that, but I suspect that I am right.
The Chairperson (Mr Ross): We will move on to Part 13. I invite John Mackell, Colin Caughey, Sean McParland and Natalie Whelehan to the table. We can give you a couple of minutes each. John, we will start with you.
Mr John Mackell (Office of the Commissioner for Older People for Northern Ireland): The Commissioner for Older People welcomes the opportunity to provide further evidence and assistance to the Committee during its scrutiny of Part 13, which relates to offences. Specifically, the commissioner welcomes clause 256, which introduces a specific criminal offence of ill treatment or neglect of a person who lacks capacity. The Bill indicates that the relevant clause may apply to a person who has been appointed as an attorney under an LPA. For the avoidance of doubt, the legislation should also apply to a person who has been appointed under an active enduring power of attorney. As proposed, the offence can be committed by a person with an LPA but not by a person with an enduring power of attorney. That anomaly should be addressed. The Mental Capacity Act 2005 for England and Wales covers circumstances in which an enduring power of attorney is also in existence. The commissioner is keen to ensure that there is no gap, particularly in the protection of older people.
The commissioner recognises the importance of proportionate sanctions when criminal conduct is in evidence. When allegations of ill treatment or neglect are proven, the judiciary should have sufficient scope to deal adequately with those serious cases. At present, the Bill places a maximum sentence on summary conviction of six months. That compares with 12 months in England and Wales under the Mental Capacity Act for a similar conviction. Evidently, there is a need for a uniform approach, and it is imperative that older people are equally protected. The judiciary in this jurisdiction should have enhanced scope to sentence perpetrators appropriately. As such, an extension of the current maximum sentence on summary conviction in the Bill would ensure that sentencing powers in this jurisdiction mirror those in England and Wales.
Under clause 257, when a person makes a false statement and knows or is reckless as to whether it is a false statement, that person is liable on summary conviction to a maximum sentence of six months' imprisonment. In the Mental Capacity Act 2005, a person who makes a false statement in the registration of an LPA is liable on summary conviction to receive a maximum sentence of 12 months. The commissioner believes that that disparity should be corrected in the legislation. There is a need for strong deterrence to ensure that a prospective attorney acts in an honest manner that corresponds with the best interests of an older person.
The Bill outlines an offence of obstruction, which should assist practitioners in carrying out their duties effectively and in a timely manner. The commissioner welcomes the clarity provided in clause 261, which indicates that it will be an offence for a person to insist on being present during a visit or examination once he or she has been asked to withdraw. The sanction for obstructing an examination or investigation is, on conviction, proposed to be a maximum of three months' imprisonment. An act of obstruction that has the aim of preventing or unnecessarily delaying an investigation into an older person's capacity should result in serious and significant consequences. At present, an offence of obstructing police, for example, in the execution of their duty carries a sentence of up to six months on summary conviction or up to two years on indictment. The commissioner takes the view that similar sentencing powers could act as a meaningful deterrent whilst offering further protection to older people.
For an offence of obstruction, the Bill does not allow for a prosecution on indictment to the Crown Court. Whilst hopefully a rarely needed sanction, the legislation should permit a prosecution in the most serious circumstances dealing with a vulnerable older person as an injured party to proceed by way of indictment. The impact of obstructing a live inquiry and investigation could have serious safeguarding implications. That should be reflected in the legislation.
The introduction of formal corporate offences under clause 262 is an important step in ensuring that protection is central to those organisations providing care and support to older people. The sanctions for breaching relevant legislation should be proportionate and act as a real and meaningful deterrent. Older people have the right to receive appropriate levels of care, support and protection from care providers. When a corporate body fails in that duty to older people, reasonable sanctions should follow in order to protect and safeguard the interests of those older people affected.
Ms Natalie Whelehan (Office of the Northern Ireland Commissioner for Children and Young People): The Northern Ireland Commissioner for Children and Young People (NICCY) has consistently expressed concern regarding the proposed application of the Mental Capacity Bill only to those aged 16 and over. For under-16s, it is proposed that an amended Mental Health (Northern Ireland) 1986 Order will remain in place for that group as an interim measure, pending a review of the Children (Northern Ireland) Order 1995, to include compulsory powers of detention for mental illness. That means that, on the basis of age, under-16s will not be able to access the protections and safeguards in the Mental Capacity Bill that will be afforded to those aged over 16 who lack capacity as a result of a mental illness or learning disability.
The rationale for the exclusion of under-16s from the scope of the Mental Capacity Bill is the belief that the test of capacity in the Bill cannot be applied to children in the same way as adults because of their developmental stage. That approach is not compliant with article 12 of the United Nations Convention on the Rights of the Child (UNCRC), which requires the state to assess the capacity of each child and emphasises that state parties cannot begin with the assumption that all children of any age lack capacity.
The Bamford review recognised the need for children and young people who lacked capacity to have equal access to the protections and safeguards of any new mental health and capacity legislation. The current approach for under-16s to be excluded from the Bill is not in line with Bamford.
DHSSPS officials have stated that the retention of the Mental Health Order for under-16s is a temporary measure. However, they also indicated that reform of the Children Order could be a bigger undertaking than the mental capacity legislation itself and could take a considerable time to complete. It is, therefore, very likely that the retention of the Mental Health Order for under-16s will remain in the medium term and, possibly, the long term. That is far from ideal, and NICCY wishes children of all ages to come within the scope of the Mental Capacity Bill.
Clause 256 introduces the new offence of ill treatment or wilful neglect, which will apply to anyone caring for a person who lacks or is believed to lack capacity in all or any matters concerning his or her care. That is a capacity-based offence, and, to have access to the protection of the new offence, it must be possible to test whether a person lacks or is believed to lack capacity.
The reason why under-16s have not been included in the Mental Capacity Bill is due to the DHSSPS's belief that capacity cannot be measured in under-16s due to their developmental immaturity. NICCY has consistently stated its belief that capacity in under-16s can be measured and that they should be included in the Bill. Although that was not previously the case, we have been assured by the DHSSPS that this offence will now apply to everyone, regardless of age. That is extremely welcome as it is vital that the new criminal offence provides equal protection to under-16s as well as those aged 16 and over. However, it means that the DHSSPS now intends to test capacity in under-16s. NICCY has been informed by the Department that, as lack of capacity is not defined in the Bill for under-16s, the establishment of a lack of capacity in that age group will be determined in accordance with common law and further guidance in a code of practice.
While the assessment of a lack of capacity in under-16s on a case-by-case basis is welcome, it raises significant questions about the rationale for the exclusion of under-16s from the scope of the remainder of the civil provisions of the Mental Capacity Bill. It appears that, for the purposes of this offence under the Bill, the capacity of under-16s can and will be assessed. If the Department is proposing to assess capacity in under-16s, we can see no reason why under-16s should be excluded from the scope of the capacity-based civil provisions of the Bill.
Mr Colin Caughey (Northern Ireland Human Rights Commission): Thank you for the invitation to appear today and for the opportunity to speak on earlier clauses. International human rights law places a positive obligation on Governments to take measures to protect vulnerable individuals, including those who are reliant on others for care. In light of a number of recent cases of abuse in health and social care settings, the commission advises the Committee to consider the proposed new offences carefully.
Clause 256 will make it an offence to ill-treat or wilfully neglect a person who lacks capacity. The clause largely reflects section 44 of the Mental Capacity Act 2005. The House of Lords, in its report on the 2005 Act, noted that the number of prosecutions brought under section 44 was low. It considered that that may be a consequence of the requirement to prove that a person who has been neglected or ill-treated lacks capacity. In particular, the decision-specific and time-specific nature of the capacity assessment in the 2005 Act was considered to present a difficulty. The Lords asked the Government to carry out a review of section 44, and we understand that that has not yet commenced.
Separate to the House of Lords report, the National Advisory Group on the Safety of Patients in England and Wales recommended that the Westminster Government create a new general offence of wilful or reckless neglect or mistreatment, which should not require a victim to lack capacity. The Government accepted the recommendation, as they acknowledged a gap in the legal framework protecting those reliant on others for their care. In particular, the Department of Health noted that a situation could arise whereby two patients are mistreated and neglected by the same individual with the same intent, but a prosecution for ill treatment and wilful neglect can be brought only with respect to the treatment of the person who lacked capacity, due to the wording of section 44, which is the same as our clause 256.
The situation was resolved by way of sections 20 to 25 of the Criminal Justice and Courts Act 2015. Those sections provide that a care worker who ill-treats or wilfully neglects an individual whom they have care of is liable to conviction and imprisonment for up to five years. Furthermore, the 2015 Act provides that a care provider — meaning a corporate body or an unincorporated association — may also be guilty of ill treatment or wilful neglect. The commission considers that the Bill should be amended to provide for a free-standing offence similar to that in the 2015 Act to provide an important safeguard for all persons reliant on others for their care.
With respect to clause 256, the Committee should enquire how the Department has sought to ensure that the new offence will be operationally effective and not suffer the same problems as England and Wales.
Mr Sean McParland (Law Centre (NI)): This is my first time attending the Committee. I am a solicitor who has been practising since 1991. I have been with the Law Centre since 2007 in the mental health legal unit, so I work exclusively in the area of mental health law. My bread-and-butter work is mental health review tribunals and judicial reviews (JRs). Hopefully, I can offer something to the Committee in its deliberations. In truth, I came here today to talk about Part 15 rather than Part 13. I know that we are not discussing Part 15 just yet. I am happy to go back to the Public Gallery or remain at the table, Chair. I will touch on clauses 258 and 259 as they relate to deprivation of liberty, but I do not want to go into that at this juncture.
Mr Frew: I have a question for Colin. You talk about the difference between the same crime being committed where one victim has mental capacity and the other victim does not. Will you give us examples of two patients or two victims having capacity? What would the care setting be for people who have mental capacity?
Mr Caughey: They would be in a care home or a nursing home for older people. Those people may have Alzheimer's, for instance. They may have capacity in the morning but not have capacity in the afternoon. The Bill takes that decision-specific and time-specific definition of capacity. It could mean that one individual could have fluctuating capacity or an individual may never have a capacity issue but could be in a nursing home or a care home.
Mr Frew: Does no legislation cover that type of crime?
Mr Caughey: There are provisions in criminal law to deal with abuse in those settings, and there are examples of prosecutions that have been brought, but this Bill introduces a specific offence. In my view, in England and Wales, that offence has been proven not to do the job that it was put in place to do, and the Government there extended the definition and brought in a new offence. When the House of Lords examined this, it noted that, in 2012, only 85 cases were brought under section 44 of the Act. I will put that in perspective: in the UK, there are 1·5 million people with learning disabilities and 800,000 with dementia, but only 85 cases were brought, and that was an increase on the previous year. On that basis, the House of Lords felt that the criminal law on that particular offence was not effectively delivering the safeguarding of individuals reliant on others for their care.
Mr Frew: Just because people were not charged with the offence of wilful neglect, can we be sure that they were not caught, charged and punished for other offences?
Mr Caughey: Certainly, there could be circumstances of abuse where people have been prosecuted under separate offences. Our concern is to put in place a specific offence that will send a message to care workers and care providers that abuses in health and social care settings have been criminalised. Ideally, we would like the Department to work with prosecutors to see whether there are difficulties in how the general criminal law is drafted, in order to make sure that the criminal law is as robust as possible in addressing abuses in health and social care settings.
Mr Frew: Is it for this Bill to cover all bases?
Mr Caughey: I appreciate that the Bill focuses on mental capacity. It seems to us unusual to introduce an offence proven not to work in England and Wales. There, because they felt that there was a problem, they sought to remedy it by introducing a new offence in the Criminal Justice and Courts Act 2015.
Mr Frew: Will you explain that new offence?
Mr Caughey: The new offence uses the same wording but is not dependent on the victim lacking capacity. Prosecutors and other stakeholders came to the House of Lords when it was reviewing the Mental Capacity Act in England and Wales and said that they found it hard to prosecute under section 44 of the Act, which is the same as the clause before you, because it was hard to prove whether someone lacked capacity. They asked why it was a necessary component of the offence, given that, if someone is ill-treated in a health and social care setting, it should not matter whether they have capacity or not.
Mr McCartney: When reading this, I assumed that it was an offence to ill-treat or wilfully neglect a patient or anybody in any care setting.
Mr Caughey: There are ill-treatment offences in criminal law but not necessarily one that refers to "a patient". A group working for the safety of patients in England and Wales proposed that it be specific to patients of the NHS because that was its remit. The Government carried out a review and felt that the criminal law needed to be added to.
Mr McCartney: A person who lacks capacity is obviously more vulnerable than a person who has capacity. Would sentencing guidelines be a better way of dealing with it? You could make it a composite offence, but the sentencing guidelines would differentiate.
Mr Caughey: The difficulty in England and Wales was that prosecutors had to prove that a person lacked capacity in order to bring a prosecution against an abuser. They had to prove that the person subject to ill treatment or neglect lacked capacity. The Bill looks at whether an individual has capacity to make a specific decision at a particular time. Imagine, for instance, that a person did not have capacity for a certain period during the day — say, the morning — but the ill treatment happened in the afternoon. Could that be included in evidence? Clear difficulties were identified by the House of Lords and reflected in the statistics on offences.
Mr McCartney: I will not pretend to know all of the subsections and schedules that apply elsewhere, but nothing in clause 257 says that this is only for people who lack capacity — it could be anybody.
Mr Caughey: It could be, yes. Sorry, we focused on clause 256.
Mr McCartney: John mentioned that the maximum sentence on summary conviction is one not exceeding six months. He said that it should be extended to 12 months.
Mr Mackell: Yes, that is the view of the commissioner, Raymond. As it stands, 12 months is the maximum sentence in England and Wales. I am not saying that there would be a 12-month sentence in every case, but it should be an adequate, proportionate deterrent. There is a gap in protection between Newcastle, County Down, and Newcastle-upon-Tyne, for example. It is simple as that.
Mr McCartney: Are there other offences for which the maximum sentence on summary conviction here in the North is six months?
Mr Mackell: Do you mean in criminal law generally?
Mr Mackell: Yes, there are quite a few. I should say, to be candid, that it is not always the case that a term here in the North is the same as a term in England and Wales, but the commissioner felt it appropriate that something as significant as this legislation mirrored similar fact cases in England and Wales.
Mr McCartney: Colin made a point about making this all-encompassing. Is that the same point?
Mr Mackell: Yes, the point was well made: in England and Wales, there were difficulties in proving capacity. The language in clause 256 is slightly different from that in section 44, in that it expands on capacity. The English equivalent talked just about "lacking capacity". Clause 256 states that the section applies when the individual:
"lacks capacity in relation to all or any matters concerning his or her care".
However, you still have the difficulties with being time-specific, particularly when people have fluctuating capacity, as many do. It is a difficult exercise, as is sentencing, generally, but, to get to that point, proving capacity will be difficult.
Mr McCartney: Natalie made the point that, on reading clause 256, it is not clear that it does not apply to under-16s. You are saying that that is because of the definition of capacity.
Ms Whelehan: No. My understanding, Raymond, is that the offence does now apply to under-16s. The offence also applies to all age groups in England and Wales. My understanding is that the Department intends for the offence to apply to all age groups. It is interesting from the perspective that, at this stage, it is a capacity-based offence. I agree with the views expressed about the difficulty in proving capacity, but it is a capacity-based offence in the way that it is written at the minute. In order to be able to have the protections of that clause, you need to be able to assess capacity. If you can assess capacity in under-16s, they should have been included all along. That is the point that I am trying to raise. We now know that capacity will be assessed in under-16s when, all along, there had been difficulty with the developmental immaturity of under-16s. That is the issue.
Mr McCartney: Colin, how would you amend that? Would you exclude or rewrite Part 2?
Mr Caughey: That would be one way of doing it. I have sent the sections from the English and Welsh legislation to the Committee Clerk. It also covers corporate bodies or any corporate associations that provide care. That is about criminalising not only the individual care workers but the employing organisation that allowed the neglect to take place.
Mr Frew: I have a question on that issue. Maybe I made the mistake of reading the explanatory notes first. They state:
"This clause makes it an offence for a person, X, to ill-treat or wilfully neglect another person, P, where: (1) P is in the care of X and X knows or believes that P lacks capacity in relation to matters concerning P's care".
The Bill is double-barrelled. It states:
"X has the care of P, and P lacks capacity in relation to all or any matters concerning his or her care or is believed by X to lack capacity in relation to ... such matters".
Is that too loose? You would have to prove that the carer who committed the crime believed that there was a lack of capacity, rather than that there was a lack of capacity.
Mr Caughey: There has definitely been, in the wording of that clause, some consideration of the wording used in England and Wales. I suggest that you ask officials from the Department when they are before you. There are clear operational difficulties with the comparable provision in the 2005 Act, so I suggest that you ask whether they think that making the wording different from the wording in England and Wales would resolve the difficulty.
Mr Frew: To me, if a patient lacks capacity, that is enough, never mind the other arguments. I do not understand why you would make it an offence if the victim-maker — the culprit or offender — believed that somebody lacked capacity. That should not really come into it. If a criminal has committed a crime, it does not matter what he or she believes. That might be the rationale for someone committing the crime, but it should not be part of the body of evidence to suggest that there was a crime.
Mr Caughey: That sounds very similar to the rationale of the Government in England and Wales for introducing a separate, free-standing offence. Whether someone has or does not have capacity and how that influenced the perpetrator should not matter. It should be about protecting people who are reliant on others for their care, whether they have capacity or not.
Mr Frew: It should not be dependent on the culprit and what they did or did not think. That is the rationale. That could be a reason for the crime. People may commit a crime against a patient because they think that they do not know what is happening or have no capacity. That is only a reason for the crime; it should not be a standard for it.
Mr Caughey: Both this clause and section 44 try to deal with people who lack capacity and are specifically vulnerable, and the people who target them on the basis of that vulnerability.
Mr Frew: It should always be about the victim. It should not in any shape or form be about what the culprit thinks. If a crime has been committed and damage or hurt caused to a victim, it should not really be about what the perpetrator did or not did not think.
The Chairperson (Mr Ross): No one else has any questions on that Part. Thank you very much.
We move on to Part 14, and Mr Rankin joins us again.
Mr Rankin: Chairman, we have already made our submission on that Part. We will take any questions that you have.
The Chairperson (Mr Ross): There are no questions on Part 14, which deals with the miscellaneous stuff. That was short and sweet. Thank you.
We move on to Part 15. Ms McCartan, Bernadette Hamilton, Sean McParland and Natalie Whelehan are rejoining us. We are moving so quickly it is like musical chairs. I apologise. Sean, do you want to go first this time?
Mr McParland: Certainly. The Law Centre believes that the definition of the deprivation of liberty in clause 293(1) should be amended. The clause currently states:
"'deprivation of liberty' means a deprivation of liberty within the meaning of Article 5(1) of the Human Rights Convention (and for the purposes of any reference to a deprivation of liberty, it does not matter whether the deprivation of liberty is done by a public authority or not)".
We propose —this is in our written evidence of 15 July — this definition of the deprivation of liberty: "when a person is under continuous or complete supervision and control and is not free to leave". We would leave in the part in brackets. The key thing is putting in a definition.
The first reason why we think that this is necessary is that, as drafted, the definition is so vague as to render it open to arbitrariness. In our view, the liberty of the individual is such an important part of our democracy that it should be curtailed and deprived only in very precise terms. Secondly, clauses 258 and 259 quote criminal offences specifically connected with deprivation of liberty. There are sentences of up to two years on indictment. We take the view that fundamental legal principle demands that, when a criminal sanction of such gravity is to be imposed, there should be as much clarity as possible on what the offence will be. A third reason is that it can be precarious when legislators leave significant interpretations to the common law. In England, arising out of the Bournewood case, the Government put in a deprivation of liberty statute fix, which was schedule 1 to the Mental Capacity Act 2005 and came into force in 2009. By 2011 — it took only three years — the courts had almost completely reversed what it meant and significantly weakened it. That is why we had to have the Supreme Court case of Cheshire West. It took three years for the courts to undermine what schedule 1 was all about. If, on this occasion, with this opportunity, the legislators fix it properly, in our view, the scope for that to happen will be much lessened.
As I said, our proposed amendment is taken directly from the Supreme Court: Baroness Hale's judgement in the Cheshire West case of March 2014. It is very current, and their Lordships were able to trace the essential elements of their "acid test" formulation all the way back to a European Court case in 1980 of Guzzardi v Italy. This formulation is not picked out of the air; it has been tested, tried and tempered, and we feel that it has good future-proofing. It will not, I think, be found wanting for many years to come.
In our 15 July paper, we did not put "or complete". That is because, subsequent to our submission, we came across a paper by the Law Commission in England on deprivation of liberty safeguards (DoLS). At paragraph 7.22, the Law Commission inserts "or complete" after the word "continuous". We feel that that is a good fix because it deals with any potential arguments about what "continuous" means. Adding the phrase "or complete" deals with that issue, so we include that in our proposed amendment.
The benefits arising out of this — I will return to this later if there are any questions — are that it gives clarity to the healthcare professionals who administer the DoLS scheme. They will have a better understanding of the law. I know that the tribunal is very concerned about costs and will take any opportunity to strip away costs. Having clarity on the definition of a DoL will, we think, deal with a lot of perhaps unnecessary legal challenges, because the healthcare professionals will be applying it correctly. There is a benefit for healthcare professionals, but there is also a benefit to the public at large, in that carers and families will know what a deprivation of liberty means. If a healthcare professional proposes it, that better understanding will help them to come to an accommodation.
Ms Bernadette Hamilton (NI Approved Social Worker Training Programme): Thank you for the opportunity to attend the Committee this afternoon. I am here as the coordinator of the Northern Ireland approved social worker (ASW) training programme, but I can also speak from my experience in training and development in mental health and as someone with many years' experience as a mental health social worker and an approved social worker.
The programme provides training and assessment for social workers being considered by health and social care trusts for appointment under article 115 of the present Mental Health Order. The article places duties on trusts to appoint adequate numbers of approved social workers and to be assured of the competence of those appointed. The programme provides training on behalf of the trusts and processes for the assessment of this competence.
As outlined in our written submission to the Committee, the training programme is comprehensive. It is accredited at master's level by Queen's and at a specialist level in the post-qualifying framework. Training takes place over a 12-month period and is delivered and assessed through three modules. The training and assessment is rigorous, and we argue that it is necessarily so, given that ASWs are required to make decisions that may interfere with an individual's liberty. I would like to point out that the approved social worker role is a professional rather than a procedural role, and one of the most important duties that an ASW has is to consider the need for and, if necessary, make an application for admission for assessment under the Mental Health Order. The need to have an application based on particular criteria that are separate from supporting medical recommendations is well established.
The programme, therefore, welcomes the retention of the statutory duty on trusts under clause 269. However, we are surprised and concerned that no similar competence requirement is to be placed on trusts, managing authorities of hospitals, care homes or an appropriate person, as referred to under schedule 1. No such requirement is placed on others who may undertake similar duties and responsibility in relation to deprivations of and restrictions on liberty under schedules 1 and 2, nor, indeed, on others in relation to the assessment of capacity consent. It relates only to approved social workers. We are thankful that it is there, but we think that it should be extended to other groups. We recommend that this anomaly be addressed in the Bill.
Before I turn to the specific clauses that the programme has been asked to address, I would like, if I may, to raise a number of general issues. I recommend that the Committee consider the Bamford review recommendation that legislative solutions be clear and efficient for professional staff to operate; and the view expressed in a recent House of Lords Select Committee report on the Mental Capacity Act that replacement legislative provisions and associated forms be drafted in clear and simple terms to ensure that they can be understood and applied effectively by professionals, individuals, families and carers. As our submission states, we continue to find the Bill, perhaps because of the complexity of the issues to be addressed, difficult to navigate and interpret. Already, we find that certain clauses are being interpreted in different ways — not even by different professions but within the same profession. As one of the authors of guidance from the Guidance and Audit Implementation Network (GAIN) — we produced that in 2011 after it was commissioned because of a lack of agreed clarity among professionals and others on the provisions of the Mental Health Order, some 25 years after its enactment — I urge that this issue be considered. We have already been through such a lack of clarity.
We believe that social workers have a separate, although complementary, professional role and identity from others involved in the care of the most vulnerable. The profession has much experience in the protection of vulnerable adults and children. Social workers and social care workers are well placed because of this experience and their ability to play key roles in the provisions set out in the Bill at all levels of intervention identified from the routine interventions that the social care workforce carry out in a person's home or in residential and day-care facilities to the more serious interventions in relation to deprivations of and restrictions on liberty in which ASWs will be involved. We feel that it is important and we recommend that all references to healthcare workers in the Bill be amended to "health and social care workers" to reflect this fact and our integrated health and social care system in Northern Ireland. We do not consider ourselves to be healthcare workers, but, if the Mental Capacity Bill goes through, we will play a major role.
The Chairperson (Mr Ross): Can I ask you to stick to Part 15 of the Bill? I know that this is your first time in front of us and perhaps you are looking for the opportunity to give more general comments. I understand that and will give you some flexibility, but I want to keep to time and be fair to everyone.
Ms B Hamilton: OK. We welcome the provision on the code of practice, including the requirements in relation to consultation and revision. We trust that the code will be available to all with duties and responsibilities before they are required to take action under the legislation. We ask the Committee to note the delay of five years in the provision of a code of practice for the 1986 Order, and the complete lack of revision to that code since then. It was issued in 1991, and there have been no revisions to it. We stress that it needs to be revised from time to time. We found that the lack of detail on processes in relation to ASW matters, in contrast with the current 1986 Order, and references to the following regulations, supporting legislation and code of practice, made it difficult to comment on some of these provisions.
In our submission, we raise concerns in relation to warrants. I recommend, first, that clarification be sought on references to justices of the peace in the clause on warrants, which is the one that I have been asked to comment on. It is my understanding that the office of the lay magistrate was introduced by the Justice (Northern Ireland) Act 2002 to replace most of the functions previously carried out by justices of the peace. I know that, at present, approved social workers go to a lay magistrate from a list to get a warrant, rather than to a justice of the peace.
We are concerned that the provisions set out under clauses 278 and 279 do not address the full current provision under article 129 of the Order, and relate only to individuals already liable to detention in hospital or other deprivation of liberty. In the present Order, article 129 allows an officer of the trust or a constable to seek a warrant to facilitate access to a person where there is reasonable cause to believe that a person is mentally disordered but not currently subject to detention or guardianship, and that the person is unable to care for themselves or is being ill-treated or that access to the person is being denied. We are not confident that clause 278 affords trusts similar powers to intervene in similar circumstances to protect vulnerable people who lack capacity to make decisions in relation to these matters. We recommend that a clause similar to article 129(1) be included in the Bill.
We also recommend that ASWs be included in addition to the medical practitioner and constable as those with power of entry to premises. This would avoid additional trauma. At present, if only a GP and a police officer are allowed to gain entry and we ASWs are denied entry, the person has to be taken to yet another place to be assessed before a decision can be made. If the ASW can get entry to the person at the time, the assessment can take place without that additional trauma.
We are also concerned that a similar provision on a warrant under article 129(4) has not been included, which relates to police assistance for the applicant where there is difficulty in conveying the person to hospital for assessment. That leads to concerns about clause 280. In the current Order, under article 131, once the application has been made, the person is deemed to be in the legal custody of the applicant, who then has responsibility to ensure that the person in question is safely and respectfully conveyed to hospital. In most situations, the ASW is able to manage that task without recourse to police intervention and, in our training, we say to people, "Try to avoid the police being involved". However, there are occasions when police assistance is required because of threats of or actual violence towards self or others in the context of mental disorder or because the resistance encountered is such that police assistance is required. Clause 280, however, seems to restrict this provision to the situations set out in Part 1 and Part 10, ie where police are already involved by virtue of legal proceedings or police powers under clause 137.
I want to point out that it is the experience of ASWs and medical practitioners currently that, while in the majority of cases the assistance of police is not required, there are situations where, because of a person's severe mental ill health, they do pose a substantial risk of harm to themselves and others or their level of resistance is such that it is not possible for the approved social worker, even with the assistance of the Ambulance Service, to get that person conveyed safely to hospital. In situations where it is necessary, ASWs and medical practitioners need to be assured that support will be forthcoming from the PSNI. We recommend that that provision be placed in statute rather than in regulations or a code of practice. I thank the Committee for the opportunity to present today.
Ms Whelehan: Under clause 276, Departments must prepare and issue codes of practice for the Mental Capacity Bill, which will contain the necessary detail relating to many elements of the Bill. I will not go into what those will be, but they are really quite fundamental elements of the Bill, so NICCY believes that it is vital for the effective operation of the Bill that the codes of practice are in operation from the outset. We would like to see the codes of practice urgently published for widespread public consultation, including consultation with children and young people, in line with article 12 of the United Nations Convention on the Rights of the Child and section 75 of the Northern Ireland Act, so that they can be published at the same time as the legislation is enacted.
The Bamford review was very critical of the delay in the publication of the codes of practice and failure to deliver an associated training programme when bringing forward the Mental Health Order. It was very clear that lessons should be learned from that. The review stated that the new legislation, the codes of practice and related training programmes must be introduced at the same time. It is very important in bringing forward the Mental Capacity Bill that those mistakes are not repeated.
For the purposes of the realisation of the rights enshrined in the UNCRC, article 1 of the UNCRC states:
"a child means every human being below the age of 18".
While NICCY welcomes the inclusion of 16- and 17-year-olds within the scope of the Mental Capacity Bill, it is important to bear it in mind that 16- and 17-year-olds are still children and require special protections. NICCY has a number of concerns with regard to the ability of 16- and 17-year-olds with capacity to make unwise decisions that may not be in their best interests where such decisions may be life-threatening or cause permanent injury. In order to adequately protect 16- and 17-year-olds from irreversible harm, NICCY recommends that the DHSSPS, in its code of practice, replicates section 19.71 of the code of practice for the Mental Health Act 1983, which is currently in operation in England and Wales. Section 19.71 deals with life-threatening emergencies and under-18s, and states that:
"If the failure to treat the child or young person would be likely to lead to their death or to severe permanent injury, treatment may be given without their consent, even if this means overriding their refusal when they have the competence (children) or the capacity (young people and those with parental responsibility), to make this treatment decision. In such cases, the courts have stated that doubt should be resolved in favour of the preservation of life, and it will be acceptable to undertake treatment to preserve life or prevent irreversible serious deterioration of the child or young person’s condition. The treatment given must be no more than necessary and in the best interests of the child or young person."
Finally, the definition of "mental disorder" in clause 292 of the Mental Capacity Bill will include conditions caused by personality disorder and conditions related to alcohol or drugs. Under the definition of "mental disorder" in the Mental Health Order, conditions caused by personality disorder and dependence on alcohol or drugs are specifically excluded. NICCY recommends that an amendment be made to the Mental Health Order to include conditions caused by personality disorder and conditions related to alcohol or drugs. Thank you.
Ms McCartan: Last but not least. You are probably all half asleep by now, so I will try to keep you awake in some way.
Ms McCartan: That is good. There will obviously be some overlap; that is why I said that. I will go through clauses 276 to 295 in Part 15.
Clauses 276 and 277 appear to be comprehensive with respect to codes of practice and allow for revisions and additions, so that is OK. We recommend that the codes of practice be written in clear and explicit language, as the legislation itself is complex and, for those not accustomed to reading legislation, it can be very difficult to navigate between Parts, chapters and schedules. It makes the Mental Health Order 1986 look like a nursery rhyme.
Clause 278 deals with warrants, and I have particular concerns about that. The Department may believe that powers currently available under article 129(1) and article 129(4) of the Mental Health Order 1986 are covered by clause 278. However, it is not clear that the current and necessary powers to intervene actually translate across to the Mental Capacity Bill. It may have been the intention of the people who drafted the Bill, but it needs to be more explicit. A colleague has already referred to article 129(1), which is concerned with persons not currently subject to the Order but whom an officer of an authorised trust believes to be suffering from a mental disorder and who:
"has been, or is being, ill-treated, neglected or kept otherwise than under proper control"
"being unable to care for himself, is living alone".
That is the 1986 legislation, but this is still a necessary intervention. It is particularly relevant today in the context of the Northern Ireland regional policy for the safeguarding of vulnerable adults, which is about to be rolled out. The wording of article 129(1) reflects the safeguarding concerns that trusts experience with persons who live alone and lack capacity to care for themselves and ties in very much with the criminal justice conversation that we had earlier.
Article 129(4) of the old Order is concerned with patients for whom an application for admission or compulsory detention, as you would know it, has been completed but where it has not been possible to convey them to the hospital or acquire the necessary assistance in order to do so. An approved social worker may sign that application for assessment under the 1986 Order on the basis of the medical recommendation — please pardon this language — and the person may then escape. They could be in an emergency department and then leave, and you would have no right to physically restrain them. In such circumstances, the approved social worker requires the police to find and return the patient. There needs to be an explicit power, which needs to be made explicit in the new legislation, in order that the police can support the approved social worker in that role. I have been in that role many times, and I could not operate without the very valuable and professional backup of the PSNI. That needs to be explicit here. I do not wish to have to beg them to help me, if you take my point.
In the Mental Health Order 1986, warrants are also housed in the miscellaneous and supplementary section, just as they are in the Mental Capacity Bill. However, as the police have powers in relation to warrants in this Bill, I recommend that this sits in the police powers section, which is clause 137(2). It would sit well there. As a person who is in practice, I think that you should see it all in one place or at least be able to cross-reference it. I had to go looking for that and I thought, "Is this completely gone?".
Clause 278(1)(a) could be reworded to state that there is reasonable cause to believe that a person "lacking capacity" is liable to be taken to a relevant place. That would make things a bit clearer. There is a list of definitions in clause 292(1) and (2), and I thought it was unusual to see them at that point. The definition of "mental disorder", as my colleague to my left has pointed out, remains unchanged from the Mental Health Order 1986. The new Bill is based on the assessment of capacity, so does the inclusion of "mental disorder" as a definition at this point mean that the admission of persons to psychiatric hospitals remains, in essence, exactly the same as it does now? If so, that is not in keeping with the Bamford idea of destigmatising people with a mental disorder.
I come at clause 292(2), which relates to the use of alcohol and/or drugs, from a different angle to my colleague who suggests that it be included again. What would need to be explicit is whether alcohol and drug misuse constitutes fluctuating capacity. Obviously, when people have excess alcohol and/or drugs on board, they lack capacity, but will that be deemed fluctuating capacity? That needs to be very clear because, if it is, health and social care professionals could be held liable, particularly by families, if they do not intervene. As you know, people are currently very concerned about their relatives who have drug and alcohol problems. They are already complaining that we do not have the services to meet the need. I am just concerned that it should be very clear whether we, as health and social care professionals, will be liable to intervene.
Those are my main concerns. Before I finish, I want to reference again what Mr Ross said earlier and what I think he has said on other occasions about the concern about the cost of the Bill. If this does not go ahead because of cost, in health and social care land we need something to bridge the gap that has been caused by Cheshire West.
Mr McCartney: Natalie, you said that section 19.71 of the code of practice for the Mental Health Act 1983 should be included the code of practice.
Ms Whelehan: Yes, that is in relation to 16- and 17-year-olds, Raymond. In England, the code of practice for the Mental Health Act 1983 deals with issues relating to 16- and 17-year-olds. One issue that has not been explored is that 16- and 17-year-olds will come within the scope of the Bill but are still children.
What happens when a young person aged 16 or 17 who has capacity wants to make a very unwise decision? If they are a danger to themselves and decide that they do not want to go into hospital as a voluntary patient, what can a health professional do? You have to be found to lack capacity if you come within the scope of this Bill. There needs to be additional protection for 16- and 17-year-olds, at least in the code of practice, to mirror what is in place in England and Wales.
What do health professionals do in situations where young people may be likely to make a very unwise decision that could lead to severe permanent injury or even death? While I am continually reminding the Committee of the need to include under-16s, 16- and 17-year-olds are still children and require additional protections. The best interests of those children need to be paramount. I looked at the code of practice in England and Wales, and it seems that it serves an important purpose. It is about flagging it up to the Committee at this stage.
Ms Whelehan: We need to see the code of practice. I raised the issue with the Department, and I do not think it is opposed to it in any way. It is just unfortunate that we are at this stage of the Bill and the code of practice has not yet been issued for consultation. It is hard to know, to be honest.
Mr McCartney: Going back to Sean's point, I take it there is a legal definition of "under continuous supervision and control".
Mr McParland: As I understand it, there is not. That is part of the problem. These words have not been refined. "Continuous or complete supervision and control" has been discussed in plenty of court cases. It would be quite easy to use the code of practice to set out scenarios as to what that would mean. If the phrase itself had statutory force, which is our key point, that would give clarity.
That formulation has come out of the courts, and judges have commented on it in their decisions. Even though it is perhaps not relevant to the germane point that they were talking about, a paragraph or sentence within a paragraph is then leapt upon by the authorities or an NGO in the voluntary and community sector, as it suits their purpose, to say, "We now have a redefinition or new definition", and so it goes. That is the danger of a common law approach. If we can nail that down, given this opportunity, a deprivation of liberty will be defined. It is completely in accordance with the treaties and conventions that we are bound by. Any court case that might arise would be about whether or not the facts on the ground — the care plan in question — fits or does not fit that definition. Court time would not be taken up in describing what is a deprivation of liberty, because that is what we are getting each time. It is fairly well understood, Raymond. That is the main point.
Mr McCartney: Clause 293 refers specifically to people who lack capacity. I read the phrase:
"under continuous supervision and control or not being free to leave".
I figure that that is not a school setting.
Mr McCartney: That could not be translated to a school setting where you have a situation where someone —
Mr McParland: No. This is where we need to be a bit bold, and this is bold legislation. The old name for the Bill was the Mental Capacity (Health, Welfare and Finance) Bill, so it is to do with people's health and welfare. Obviously, finance does not apply in this situation, so it is very much in that area of life. It will be for people who require health and welfare, and who lack capacity. The applicability of deprivation of liberty will be very tightly confined. It does not apply to the school scenario at all.
Mr McCartney: Would a care home be considered a public authority?
Mr McParland: That thing in parenthesis was put in to accommodate that scenario. The Department was fairly progressive in doing that. Again, it all depends on whether or not the concrete facts fit the definition, but it means that the setting will not be a big issue in the case because it will apply across pretty much all care-type settings.
The Chairperson (Mr Ross): I am a little confused by your position on this issue. You say that you welcome the inclusion of 16- and 17-year-olds in the scope of the Bill, but it is important to bear in mind that 16- and 17-year-olds are still children and require special protections. You are arguing that children younger than 16 should be recognised as having capacity, but you also are pretty much saying that they may well make bad decisions because they do not have the maturity, for want of a better word, to make decisions that will be in their best interests. Are you not almost making the Department's argument for them on this point?
Ms Whelehan: No. The difference is that, in order to be able to access the protections and safeguards in the Bill, you have to be able to prove a lack of capacity as a result of a mental illness or learning disability. International standards are very clear that you cannot say that, just because somebody is a certain age, you can assume that they lack capacity. You can measure capacity. Health professionals will say that they measure capacity in under-16s every day. The thing that we must not forget is that the best interests of the child are paramount, and children are children up to the age of 18.
In England and Wales, they grappled with what happens when under-18s make unwise decisions. It is a very important point because, in order for anybody who comes within the scope of the Bill — so, 16- and 17-year-olds — to be able to be treated if they are suicidal, for example, and they do not lack capacity, what do health professionals do in that situation? Do they allow a 16- or 17-year-old to walk out because they do not fail the capacity test? We need to ensure that we are protecting children and young people and that their best interests are indeed paramount. It is not that they cannot make decisions; we have an obligation to ensure that the best interests of the child are the paramount consideration. That is what this is about. It is about ensuring that, where a child is about to make a very unwise decision, if it is a life-threatening emergency or is going to cause irreversible harm, we step in there in the same way that they do in England and Wales under their codes of practice, which are slightly different.
Obviously, young people under 16 make decisions and have a say in their care and treatment at the minute under common law in relation to Gillick, but we need to ensure that we are affording protection to children and young people, as well as to health professionals who are in a position where they have to find that someone lacks capacity before they can intervene. We need to allow health professionals to intervene when there is a serious threat to a young person's life.
Mr Frew: We are at a Part of the Bill where, because it deals with definitions, we have to refer to bits and pieces. I have a number of questions. I am not a medical expert or a legal expert, for that matter, so please forgive me if my language is loose. With regard to drug and alcohol dependence and the meaning of "mental disorder", I think that it was you, Natalie, who said that you would argue for that to be included: does that not make it extremely difficult for carers, practitioners and experts? Someone could be alcohol-dependent, or they could simply be drunk.
Ms Whelehan: Maybe we all have not been tight with our language in relation to what the Bill actually says around alcohol and drugs. My reading of the Mental Capacity Bill is that it will not include dependence on alcohol or drugs; it will include conditions that are related to alcohol and drugs, which is slightly different. That differentiation needs to be made.
The reason why I suggest that it and personality disorder should be in the Mental Health Order is for consistency of treatment, particularly where you are going to have an age limit of 16. If somebody is receiving treatment for a mental illness and that is a condition that is related to alcohol, drugs or a personality disorder, you do not want under-16s to be unable to access treatment, where treatment is necessary, as a result of restrictive definitions. There should be parity of treatment. It is very unlikely that under-16s will be diagnosed with a personality disorder, but it is being recognised more and more in adolescence. It is a huge issue for the criminal justice system, where 85% of young people aged 16 to 20 show signs of a personality disorder in the criminal justice system, as opposed to 10% to 13% in the general population. It is a big issue. We would not like to see young people who require treatment prevented from accessing it because of restrictive definitions in the Mental Health Order. There needs to be parity of treatment, regardless of age.
Mr Frew: It does not necessarily have an age.
Ms Whelehan: Yes, but the Mental Capacity Bill applies only to 16-plus. My point is that, if there are to be amendments made to the Mental Health Order and it is to be retained for under-16s, we need to mirror that definition to ensure that, in the rare circumstances where an under-16 will have a mental illness that is related to drugs, alcohol or perhaps an emerging personality disorder, they can access that treatment. There will not be many cases where young people of that age come within that definition, but we would not want to see young people unable to access treatment because the definitions are restrictive.
Mr Frew: Yes. You raised a point that I was not aware of. Are personality disorders not classed as mental disorders?
Ms Whelehan: Personality disorder will be included in the definition in the Mental Capacity Bill, but that is not proposed for the Mental Health Order. It is the same issue in relation to under-16s.
Mr Frew: Are there no plans to amend that?
Ms Whelehan: Not from my engagement with the Department. I think the reason is that personality disorder, generally, is not recognised in young people of that age. You would not really get a diagnosis below the age of 16. However, from speaking to professionals, I think that there is recognition that personality disorder — particularly emerging personality disorder — is becoming more recognised in young people. Obviously, we want to future-proof the legislation. There will be instances where personality disorder will be a consideration for young people, so we would like to see the definitions being the same across both pieces of legislation.
Ms McCartan: It just seems strange that we are talking about the definitions of mental disorder when this is capacity legislation. That is one of the points I made earlier: this nearly seems like a rehash of what we have.
The Chairperson (Mr Ross): Though it is for the criminal justice provisions, is it not? That reference, in which, I understand, there is a certain difficulty with language, is for the criminal justice aspect of the Bill, in my understanding, rather than, necessarily, for the health end of things.
Ms McCartan: It is even the fact that we are discussing definitions of mental disorder. The way this was presented to us at the start was that it was a new dawn, this was capacity legislation and it was moving away from what we have. The other jurisdictions have capacity or assisted decision-making legislation, whatever they call it, and they have retained their mental health law. We suggest amalgamating the two, and yet it seems to me that, if the definitions remain, when it comes to serious interventions or being detained in a psychiatric unit, it will probably be very much the same as it was, albeit with nominated persons and advocates and so forth. Will it effectively change the way things work in practice?
Ms B Hamilton: Under the Mental Health Order, there is an article that relates to the voluntary use of services. What it says is that nobody should be prevented from accessing services voluntarily and that you should not be detained. That is a good thing to have. However, in relation to England and capacity, maybe the issue is that, when we look at capacity, we have to include "appreciate". I think that that is absent in England. You might have a young person who is threatening self-harm, and, I suppose, in the new world we will be thinking about whether they appreciate that. I think that that will probably address that issue about 16- and 17-year-olds.
The Chairperson (Mr Ross): We had this discussion in relation to Part 1, and I am reluctant to go over ground that we covered in previous weeks. We will try to stick to this Part.
Ms McCartan: Drugs and alcohol and personality disorders were not included in the definition in the 1986 Order. The exclusion of drugs and alcohol has changed the way in which we deliver services to people with drug and alcohol problems. Back in time, the large psychiatric hospitals had lots of addiction beds. They are largely gone; services are all community-based. If we are going back to fluctuating capacity and, again, being liable to treat or intervene in drug and alcohol problems, that will — I am talking about cost, Mr Ross — change our models of care again and result in the reopening of units that have closed.
Mr Frew: I refer you to clause 281, the retaking of persons escaping from legal custody. To me, there are two types of patient here: people in legal custody and people suffering from an illness and receiving treatment. In both cases, people might want to escape. I know of a real-life scenario where a patient who was not detained — she was an inpatient — "escaped hospital", to use her words, and was found at a very busy junction. The police were phoned by drivers, and the husband was also called. The husband got there first, picked the patient up and took her back to hospital. He then had to grapple and struggle with his wife, manhandling her to the door of the hospital, before anyone would help him.
Ms McCartan: They should have been able to assist him under article 130.
Mr Frew: He was told that the nurses could not help until he got his wife to the door.
Ms B Hamilton: In law that might be right. If it was a public place, the police could come.
Ms McCartan: The nurses could not leave and go out into the public place, but the police can.
Mr Frew: Would this change any of that real-life scenario?
Ms B Hamilton: Somebody subject to the Mental Health Order — presumably it is the same for somebody subject to the mental capacity legislation — in relation to deprivation of liberty is technically in the legal custody of the person who has them. As the approved social worker, if I have custody of that person, they are in my legal custody. I think that is where it is. I would not have said that the lady "escaped" from hospital — she was not being detained there — but I think that the duty of care or statutory duty would be to get her back in.
Ms McCartan: It is about language again. In all the years I have been an approved social worker, I have known that, once I had signed the form, the person was my responsibility. I had to ensure that they got there safely, but I would never have used the language "in my legal custody". Of course, in this Bill, that is precisely what they will be.
Mr Frew: "Retaking" basically just means being part of a handover.
Ms B Hamilton: Yes. The person has absconded, and they are being retaken. It is unfortunate language.
Ms McCartan: That is our worry about police assistance. Currently, if I am in someone's home and the GP and I sign the form, they are then in my legal custody, because I am the person making the application. If the person refuses to go and the police are not explicitly given a duty to assist me with that, what happens? You cannot move into the person's house to ensure their safety. I know that it might sound silly to you, but, believe me, if you are in that situation, it is not funny.
Ms B Hamilton: If anything happens to them, they are in your custody and you are responsible.
The Chairperson (Mr Ross): No other questions? OK; thank you all very much.
Members, we will invite officials to the table now. I welcome Lisa Trueman, Clare Irvine, Peter Luney and Gillian McClearn back to the Committee. As with previous weeks, we will work through the Bill in the same way as we have taken our evidence. If there are any issues that you want to mop up on afterwards, please feel free to do so.
We will start with Part 6. There is no reference to a decision being made by someone acting under an EPA in relation to clause 116(5). Why is that? I know that you want to do away with EPAs, although the Committee probably takes a different view on that, but why is there no reference to that?
Ms Clare Irvine (Department of Justice): Is that in clause 116(5)?
Ms Irvine: We will maybe take that back and have a wee think about it, because there may well need to be a reference to that in 116(5)(a), just after where it mentions "lasting power of attorney". That might make sense.
The Chairperson (Mr Ross): Particularly if the Committee is of a view that we will keep EPAs and run them in parallel. I know that that is not the view of the Departments, but —
Ms Irvine: No matter what happens, enduring powers of attorney will continue to exist.
Ms Irvine: So that is a sensible change.
Mr McCartney: In clause 111, there are some responsibilities in relation to the High Court. The Children's Law Centre asked whether legal aid will be available if people have to go to court in those circumstances.
Ms Irvine: Legal aid is available in civil actions on a means-tested basis. It is not the purpose of the Bill to alter the legal aid provision. If you meet the criteria, you will potentially be awarded legal aid.
Ms Irvine: May I take the opportunity to raise a couple of issues in relation to some things that the Law Society mentioned?
Ms Irvine: The Law Society said that the role of deputies was limited in scope and suggested that the approach that has been taken in England for a renewal every three years is perhaps a bit onerous. The reason why we have decided to limit the deputy's role is a safeguard for the individual: there is a checking mechanism that the court can review after a certain period. There is nothing in the legislative scheme or indeed in the legislative scheme in England and Wales that says that that has to happen every three years. I am sure that a flexible approach could be taken to that.
The Law Society also raised a point about the Office of the Public Guardian having judicial authority: that is not our intention. It is meant to be an official who has been appointed through the departmental route. We really do not see it as being judicial and do not view those functions as being judicial in the future.
Some issues were also raised about the duty to notify in relation to a person being in a nursing home or somebody lacking capacity and needing to have some of the Part 6 powers applied to them. I refer the Committee to clause 126. We consider that that replicates article 107 of the 1986 Order, which deals with those points.
Finally, an issue was raised about the role of the Official Solicitor being the controller of last resort under the 1986 scheme. I would like to raise, for the Committee's attention, section 75 of the Judicature (Northern Ireland) Act 1978, which sets the role of the Official Solicitor. That role can be prescribed by regulations or directed by the Lord Chief Justice, so I do not think that there is any need to state it in this piece of legislation.
The Chairperson (Mr Ross): Thank you for doing that. That was useful.
We move on to Part 7. Why is the Public Guardian not being given any functions in relation to EPAs under clause 124? Without those powers, who will investigate a complaint about the way in which an attorney who is acting under an EPA operates? Is that something that has been overlooked around EPAs as well, or is there a reason for that?
Ms Irvine: The way that the Bill is drafted — the Committee might take a different view — is about preserving the existing scheme of EPAs. The Public Guardian is a new creation and is given various functions in relation to EPAs, but, in preserving the existing scheme, it is not necessary to make that particular function.
The Chairperson (Mr Ross): Where an EPA is still in operation, who would investigate the way in which an attorney acting under that operates?
Ms Irvine: I would have to look at that a little more closely, because I think that it is in one of the schedules. Apologies for not having the answer. Can we maybe revert to you in writing on that one?
The Chairperson (Mr Ross): That is fine.
At clause 125, did the Department consider creating the power for the Public Guardian to request from institutions such as banks records that may be relevant to attorneys dealing with a person's property and affairs?
Ms Irvine: That question was raised during consultation. We are having a wee think about whether we need to explore that a bit further.
The Chairperson (Mr Ross): In relation to clauses 125 and 126, are residential care homes and supported living facilities covered either by "managing authority of a care home" or by "HSC trust"?
Ms Irvine: The managing authority of a care home should cover it, we think. Obviously, my colleagues in the Department of Health think differently.
Ms Lisa Trueman (Department of Health, Social Services and Public Safety): I think that it would cover it, but we can commit to double-checking that and will confirm with you.
Mr McCartney: I have a comment on that last point. Mencap feels that the legislation should reflect the range of accommodation provision, to include nursing homes and supported living. That is something to ponder, as well.
The Chairperson (Mr Ross): No one else? No.
We move on to Part 8. Obviously, we did not get oral evidence today, but we have the written submissions. One of the issues that were raised by the Information Commissioner's Office relates to clause 133. They suggested that it would make more sense for the researcher to have to identify and secure the participation of a person willing to act as the person's representative before the project is approved; ie the person who gives advice about whether they believe that P would have wanted to take part in such research and who can ultimately withdraw them from the research. If there is no one whom the researcher can identify to take on this role, the Bill as drafted allows the researcher to appoint such a person under clause 133(3)(b). Would it not make more sense in those circumstances to err on the side of caution and ensure that the research project does not go ahead?
Ms Trueman: We do not think that the amendment suggested to clause 133 is necessary; it is already covered under clause 132(7). It requires the appropriate body to make reasonable arrangements to ensure that the requirements of clause 133 are met before the research can be approved. That would include arrangements such as the researcher consulting someone's carer or someone interested in the individual's welfare. The appropriate body would have to be satisfied that those arrangements were in place. If it was not, it could not approve the research. So, while we take the point that is being raised, we think that the Bill already deals with that scenario.
The Chairperson (Mr Ross): Anyone else on Part 8? OK.
We move on to Part 11. The Northern Ireland Association for Mental Health suggested that the Bill include a duty that, for all patients transferred to GB, the Northern Ireland trust should have a responsibility for ongoing monitoring of the patient. We heard earlier that this happens in practice in many cases. Is it something that the Department has considered?
Ms Trueman: I think that it comes down to the difference between practice and legislation. Once the individual is transferred to another jurisdiction, the Act would no longer apply; it cannot apply. The legislation of the receiving jurisdiction would apply. There will be review mechanisms in place in that country. Certainly, there is nothing to stop the individual's doctor back home from keeping an interest in the individual's treatments. It is just that, in legislation, you could not provide for that; you would not have the legislative competence.
Mr McCartney: A person, then, has no right to challenge whether it is right for their family member to stay in another jurisdiction.
Ms Trueman: There would be a right of review in that jurisdiction. If they transferred to England, there would be English legislation providing for a right of review of their continued detention. The right of review would be under the GB legislation.
Mr McCartney: Say that it was a legal challenge. If someone wanted to apply for judicial review, they might not have access to legal aid outside the jurisdiction.
Ms Trueman: Again, that would be a matter for the legislation in the other jurisdiction. What I should point out, though, is that we have a regulation-making power to notify the individual before they transfer that they have a right to apply to the tribunal for a review of the transfer. That is an added protection for the individual in Northern Ireland.
Mr McCartney: If a person decided to apply for judicial review in England, legal aid would not cover them, because they would not have an address in England.
Ms Trueman: I cannot profess to know the details of legal aid; that is not within the Department of Health's remit. However, my understanding is that the legislation across the water would apply.
The Chairperson (Mr Ross): There are cases where people transfer from Northern Ireland to GB. Neil asked a question earlier and there did not seem to be circumstances in which you would go from Northern Ireland to the Irish Republic. Are most people doing that for treatment purposes? Would people go to GB because there are specific treatments? Or is it that they are closer to family? What are the reasons for people doing that?
Ms Trueman: The transfers are in place on the civil side largely because there are specialist services available elsewhere. The point about the Republic of Ireland is that it is not possible for the Bill to change the law down South. The provisions that we have in Part 11 are only one side of the coin. If you look at the legislation across the water in Scotland and England, you will see that they have very similar provisions; so, it is the other side, if you like. The provisions in Part 11 would require reciprocal provisions in the Republic, which do not exist.
Earlier, one of the witnesses referenced the fact that we have regulation-making powers. So, if similar provisions were introduced down South, we could make regulations around arrangements for that. However, as it stands, we do not have any power to amend legislation down South, because it is not within the same legal jurisdiction.
The Chairperson (Mr Ross): Does anyone else have any questions on Part 11? No. Everyone is happy enough that there are no other issues.
We move on to Part 13. Again, clause 256 contains no reference to anyone who has been appointed under an EPA: is there a reason for that?
Ms Trueman: No, that is a good point. We agree with that proposed amendment and are prepared to work with counsel on that.
The Chairperson (Mr Ross): One issue raised earlier by the Commissioner for Older People was around the maximum sentences for an offence under clauses 256 and 257 being set at six months rather than a year, as it is with the Mental Capacity Act 2005. Again, we are talking about "maximum"; there is still discretion there for the judiciary in any sentencing. What is the rationale for having it capped at six months as opposed to 12 months?
Ms Trueman: That ultimately boils down to differences in practice and in legislation around offences in Northern Ireland. Custodial sentences for the Magistrates' Court are limited to six months here, so the Bill cannot conflict with that. We are basically putting in place what is current practice and law.
Ms Trueman: The Department's intention is that this offence will apply to anyone who lacks capacity, regardless of their age. I appreciate that there has been some confusion around that. It is a complex area, so perhaps the best approach would be, if the Committee felt that further clarity was needed, that we discuss with counsel whether there is any way of clarifying that in the Bill. Certainly, the policy intention is that it applies to under-16s, and that is the case for the similar offence in the Mental Capacity Act across the water.
Ms Trueman: Again, this boils down to the fact that, obviously, for people aged 16-plus, there is the capacity test in the Bill. For children, there is a wider framework in place around emerging capacity, because children are in the process of gaining capacity, and there is Gillick case law and a wider framework for that. Healthcare professionals assess children's competence on a regular basis, I assume. It is something that we could clarify further if the Committee felt that there was a need for it.
The Chairperson (Mr Ross): That would be useful, because, presumably, you would need to establish capacity to bring forward a prosecution. We need a little clarity around that.
Finally, the Northern Ireland Human Rights Commission argued earlier for a new offence of ill-treatment or wilful neglect by a care worker: would you support that, or is there a view that that is for the Department of Justice to take forward?
Ms Trueman: I can see the point that is being raised, but the Bill would not be the vehicle to do that. It is certainly outside the scope of the Bill. The long title makes it clear that this is a framework for people who lack capacity, so it would not be something that the Bill could take forward, in our view.
Ms Irvine: To be honest, I think that it falls within the policy area of DHSSPS. Certainly, we have an interest in the criminal law, but, as you are aware, other Departments create offences that they then run past us to make sure that they are proper offences and have effect in law. To be honest, I think that this would be down to DHSSPS rather than us in DOJ.
Is Health minded to write to Justice and ask for that?
Ms Trueman: I can certainly raise it as an issue with relevant colleagues in the Department. It is just not within the remit of the Bill.
Mr McCartney: You say that it is outside its scope, but is the Bill not wide-ranging enough to allow you to do that if you so desired?
Ms Trueman: The Bill is a framework for people who lack capacity. My understanding is that the offence being proposed relates to people who have capacity. In that way, it falls outside the scope of the Bill.
Mr McCartney: Would it be legislatively competent to go ahead with it? Maybe that is a better way of putting it. What is to prevent someone tabling an amendment to address the fact that, as the Bill stands, where two people in the same circumstances are wilfully neglected or ill-treated, charges are brought in only one set of circumstances and the other is not seen as the victim?
Ms Trueman: It boils down to the scope of the Bill.
Mr McCartney: I understand the point, but, if an amendment is tabled, would the Speaker deem it as competent?
Ms Trueman: We will have to check that, because obviously the long title makes it clear that the Bill relates to people who lack capacity. Therefore, I could not give a definite answer on that at the minute.
Mr McCartney: For other Bills, such as the Justice (No. 2) Bill, amendments came forward that were outside the scope, but they were considered to be competent. There does not seem to be much of an extension here, because you are talking about a crime being committed, yet one person is covered and another is not in the exact same circumstances. That just seems to be a bit contradictory, if not unfair.
Ms Trueman: As I said, I can certainly raise the matter with relevant colleagues in the Department.
The Chairperson (Mr Ross): The end of the long title reads, "and for connected purposes." If you were imaginative enough in your argument, there is probably remit there, but I am not a draftsman.
Mr McCartney: I do not say that in a challenging way. It is understandable that you would say that it is outside the scope of this Bill, but that does not mean that it is outside the scope of legislation.
Ms Trueman: I take your point.
Mr McCartney: Similarly, I take it that there is legislation somewhere that states that a magistrate cannot sentence anybody for longer than six months.
Ms Trueman: There is justice legislation —
Mr McCartney: That is why, because you would have to change another piece of primary legislation.
Ms Trueman: It is my understanding that that is already in law here. It is the current practice.
Mr Peter Luney (Northern Ireland Courts and Tribunals Service): Allow me to clarify one point. There are specific offences in the Magistrates' Court for which you can go above the six-month maximum. The general principle is that the maximum for the Magistrates' Court is six months, but there are offences for which the sentence can be longer. For criminal damage, for example, the maximum sentence in the Magistrates' Court is two years.
Mr Luney: Yes, it is technically and legally possible.
Ms Trueman: If there were anything that warranted a sentence of longer than six months, you could take the case to the Crown Court.
Mr McCartney: I am dealing with it only as a technical matter. You say that you want to go over six months but that, legally, you are prohibited from doing so. However, it does not look as though we are legally prohibited from doing it if we so desire.
Ms Trueman: If there are exceptions, I will need to speak with relevant colleagues in the Department of Justice on that. My understanding, as my colleague said, is that it is the practice at the minute.
Mr McCartney: In fairness to us as legislators, if we view this as an exception, we can make it an exception —
Ms Trueman: I will need to consult the Department of Justice.
The Chairperson (Mr Ross): Are there any other questions? Members are happy enough. We will therefore move on to Part 14.
Clause 272 and schedule 9 give effect in Northern Ireland to the Convention on the International Protection of Adults, which is about recognising and enforcing protective measures taken for adults under the laws of other countries. It is an issue that Alex Ruck Keene raised. He raised concerns with the Committee about the impact that that has had in England and Wales. Courts there have had to enforce a measure taken for an adult from anywhere in the world, if the adult has an impairment or insufficiency of his personal faculties. That is a lot wider than our standard of lacking capacity to make a decision. Has the Department engaged with either Mr Ruck Keene directly or the authorities in England on the issue?
Ms Trueman: My colleagues on the implementation side have been engaging with colleagues across the water on the convention. I personally have not spoken to Alex Ruck Keene about the matter.
My understanding is that, if we were to restrict the scope of what has been drafted, we could have arrangements in place only with Scotland, for example, because it has ratified the convention. England and Wales have not ratified the convention, and, indeed, I think that the Republic of Ireland has not signed up to it at all. At the minute, if we were to reduce the scope, as suggested, it would mean that we could have arrangements in place only between Northern Ireland and Scotland, if Northern Ireland were to ratify it, which is why we are minded at the minute to keep the current scope in place. That would mean that, in future, we could have arrangements with England and Wales, for example.
The Chairperson (Mr Ross): There are no other questions on that Part, so let us move on to Part 15. The Southern Health Trust has suggested an amendment to clause 278(2) to require an approved social worker to be with the medical practitioner and constable. Has the Department any view on that suggestion?
Ms Trueman: We certainly understand the point made, and there may be merit in considering it further, so we are content to work with professional colleagues and the Office of the Legislative Counsel to determine whether an additional instruction is required here.
The Chairperson (Mr Ross): The trust also suggested that the clause be added to, to allow for the objective of assessing the premises, not just for removing a person from the premises. Have you any views on that suggestion?
Ms Trueman: It is my understanding that, if you have a warrant, you will be able to enter the premises, and there is nothing in the clause that stops an individual from assessing the person. The person would have to be assessed before being removed. You would have to have a belief that the person lacked capacity and that what you were about to do was in his or her best interests. Therefore, I am not sure that I understand the purpose of the suggested amendment.
The Chairperson (Mr Ross): Is the issue not that they were unable to gain access to the premises in order to make that assessment?
Ms Trueman: Social workers?
Ms Trueman: That is the previous point, then. The trust thinks that a social worker should be included, and that is something that we are keen to look at ourselves. If we were to include that, that would mean that a social worker could enter with the medical practitioner.
Ms Irvine: In the conversation on clause 278, it was also mentioned that "justice of the peace" should actually be "lay magistrate", and that is indeed correct. That is something that we will pick up on.
The Chairperson (Mr Ross): OK. The other issue pointed out by the representative of the approved social worker training programme concerns clause 278 on warrants, and it is that Bill does not contain powers currently available in article 129 of the Mental Health (Northern Ireland) Order 1986, which allows a trust to enter people's homes if it believes that they lack capacity and are being ill-treated or they lack capacity and are living alone and not attending to their health needs. Can you clarify whether those powers in article 129 are in the Bill, and, if not, why have they been excluded?
Ms Trueman: Clause 278 refers to individuals "liable to be detained". That means people who are liable to be detained under Part 2. In other words, where there is a reasonable belief that the person lacks capacity and the intervention proposed is in their best interests. We considered the clause recently in the light of comments made, but it is our view that clause 278 achieves the objective of what is in the Mental Health Order. There is no separate provision set out because it is already covered under Part 2. That might be a learning point for us, however, and something that we need to explain further in the code of practice to make it absolutely clear.
The Chairperson (Mr Ross): Finally for Part 15, the Law Centre suggested changing the definition of "deprivation of liberty" to reflect the fact that it is a person who is under continuous supervision and is not free to leave, and so on, rather than a reference to article 5 of the European Convention on Human Rights (ECHR). Have you any view on the Law Centre's proposal?
Ms Trueman: The Department would not want to amend the definition at this point. We framed the definition currently in the Bill around the requirements of article 5 of the European Convention on Human Rights, and that will ensure that we remain compliant, should case law in the area develop. It is very much an evolving area of law. We feel that it would be premature to fix the definition in statute at this point. For example, if another case were to emerge the following year, it would mean a change to the primary legislation. That having been said, there is nothing stopping us putting in guidance and in the code of practice about the sorts of factors that we think a "deprivation of liberty" would cover, or, indeed, would not cover, and a range of case scenarios. We think that the approach that we have at the minute future-proofs the Bill for future ECHR case law and, indeed, domestic case law. Therefore, we are not prepared to make an amendment at this point.
Mr McCartney: On the Law Centre's suggestion, are you saying that there would be an unintended consequence of taking forward that amendment?
Ms Trueman: Our concern would be that, if we were to fix in statute a definition of "deprivation of liberty" at the minute, there could be another case — this is an evolving area of law — that would mean another change to primary legislation was required. By framing the definition as we have done, we have future-proofed it: we will be able to comply with future case law, whether that be ECHR case law or domestic case law. The point being raised by the Law Centre is that we need to be clearer about what a deprivation of liberty is, and we think that the code of practice is the vehicle for doing that, because that could be easily amended, if, indeed, future case law were to arise.
Mr McCartney: On clause 276 on codes of practice, the Children's Law Centre recommends including section 19.71 of the code of practice for the Mental Health Act 1983. Have you a view on that? You heard the point that was made by Natalie Whelehan.
Ms Trueman: We are certainly happy to take back any comments or input that stakeholders have about the code, and, as the code develops, there will be further consultation with them and, indeed, a public consultation. Any comments on that are welcome. [Interruption.]
The Chairperson (Mr Ross): I think that the Division Bells are ringing for a vote in the House. I cannot think of any other reason why. We will suspend for five or 10 minutes until we get the vote out of the way.
Committee suspended for a Division in the House.
On resuming —
The Chairperson (Mr Ross): We have fulfilled our democratic duties, so, if everyone is agreed, we will start again. Raymond, you had the floor. [Laughter.]
I think that Raymond has something in his mouth. I apologise.
The Chairperson (Mr Ross): Happy enough? If there are no other issues to do with Part 15, we will move on
I will just pick up on a few issues that were raised when Daniel Greenberg held his briefing session here. I know that, after the fun that we had on the Justice (No. 1) Bill after the Greenberg session, that makes officials nervous. There were a few issues raised that it might be useful to tease out. One was to do with clause 276(5). It states:
"The Department may delegate the preparation or revision of the whole or any part of a code under this section so far as the Department considers appropriate."
What circumstances would make it appropriate to delegate, and whom would the Department consider delegating that function to?
Ms Trueman: We might ask the trust for help in preparing certain aspects of the code, depending on the subject matter or, again, if any amendments were needed. I imagine that, in that case, ultimately, the Department would retain responsibility, but we would maybe need input from professional experts.
The Chairperson (Mr Ross): Clause 283(3) deals with panel requirements. It does not state quorum details. Subsection (2) states the requirement for there to be three members. Subsection (3) would therefore be the natural place, you would imagine, to state the quorum requirements. The explanatory and financial memorandum states:
"Further membership requirements may be provided by regulations".
Would it not be better to put that in the Bill to avoid any doubt, given the role of panels in authorising deprivations of liberty?
Ms Trueman: I think that, given the way in which the Bill is drafted, the intention is to put that in the regulations. Clause 283(3) allows further provision about the membership to be made, so it might be in those regulations that you would set what the quorum will be. Alternatively, provision might be made under subsection (4), which deals with the procedure of the panel. I think that it is our intention at this point to put it in the regulations.
The Chairperson (Mr Ross): You do not reject the idea that it might be better putting it in the Bill, given the seriousness of some of the decisions.
Ms Trueman: It is a drafting matter, so we will have to speak to counsel about that. Certainly, we can consider the Committee's views.
"provision for cases where the panel cannot reach a unanimous decision"
will be provided for in the regulations. The panel will ultimately have the decision on whether a person will be deprived of his or her liberty. Not being able to reach such a unanimous decision is, of course, a major issue. Does the Department consider that regulations, again, are the best place for that?
Ms Trueman: I take the point that it is an important decision. However, as the scope of the Bill is very wide, there would be a lot of different interventions. We have left it to regulations because we cannot guarantee that we will cover in primary legislation every single case that comes up, so we thought that subordinate legislation would provide us with the flexibility. As time goes on, we will start to see the types of cases that are coming through. That is why that it left to the regulations.
The Chairperson (Mr Ross): Flexibility always makes Committees nervous, though.
Clause 285 deals with the definition of "risk of serious physical harm to others", but it seems to consider the past behaviour of a person: the person has been violent in the past, or other people have been afraid of the person in the past. What about situations in which the person is threatening future violence to another person? Why has that not been included in the clause?
Ms Trueman: I might have to go back and double-check the drafting of that to see why it was framed in that way. Ultimately, it is a protection for P, so we have tried not to generalise it too much. We want it to be more specific. I see the point that you are raising, however. I will take that back and have a look at it.
The Chairperson (Mr Ross): Finally, we come to clause 288. I raised this at the very beginning of our consideration. It is a Henry VIII clause. A commitment was given that the Department would have a look at it again, because it was probably aware that the Committee might not be too keen on granting that sort of power to the Departments. Have you had a chance to look at the clause again, or have you any proposals to bring forward amendments for Consideration Stage?
Ms Trueman: We appreciate the Committee's views on it. We have looked at the clause again, but we remain of the view that this is a large and complex Bill and the new framework has not been tested. We think that it is the right mechanism for promptly rectifying any unintended consequences or loopholes that might inadvertently be created because of the Bill; otherwise, we risk not only creating a lot of primary legislation but, if we were to cover some of the detail that we want to put in regulations in the Bill, there would be a vast number of additional clauses, and we are already at 295 clauses. We are trying to look at this proportionally, and we are still of the view that a provision along those lines is necessary.
The Chairperson (Mr Ross): I take the point that you risk additional primary legislation. Some of us would argue that that is the only way in which to have proper scrutiny of some of this stuff and that, if you just leave it to regulations, the Committee is very limited in the scrutiny that it can do.
In trying to be helpful, I will say that the Justice Committee members of this Committee, in particular, will not be minded to support a Henry VIII clause with its current wording. It may be prudent for the Department to look at tightening it up before we end up bringing forward an amendment that may be more difficult for you. It would be useful if you were to have a look at the wording again.
Ms Trueman: We are certainly happy to have a look at any of the Committee's suggestions or views on the clause. We can discuss those with counsel.
The Chairperson (Mr Ross): Thank you. No other members wish to add anything.
Thank you very much. I apologise for the delay during the Division.