Official Report: Minutes of Evidence

Ad Hoc Joint Committee on the Mental Capacity Bill, meeting on Monday, 2 November 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 Raymond McCartney
Ms R McCorley
Mr N Somerville


Ms Alison McCaffrey, Department of Health
Ms Lisa Trueman, Department of Health

Clause 11: DHSSPS Officials

The Chairperson (Mr Ross): Welcome back, Lisa and Alison. I suspect that there will be Division Bells in the next 15 minutes or so. If so, we will have to adjourn for the vote. Do you want to make any opening comments before we go to questions?

Ms Lisa Trueman (Department of Health, Social Services and Public Safety): The Committee has the paper on our position, but, if it would be helpful, I can repeat that and explain some of the rationale.

Ms Trueman: It is important to note that clause 11 gives statutory recognition to advance decisions. That means that treating a person, when it conflicts with an effective advance decision, will not attract the defence in clause 9. The common law rules on what is an effective advance decision continue to apply, so they have not been set out in the Bill. The Department remains of the view that it is best to allow the courts to determine those rules in light of how the Bill develops in practice. The key reason for that approach is to ensure flexibility so that the common law rules can continue to evolve.

The common law rules were developed by the courts in England against a very different legal backdrop. As we have mentioned, there is separate mental health legislation there that can, if necessary, override an advance decision. The law in relation to advance decisions has not therefore, in our view, been fully progressed in England and Wales. Of course, when this Bill comes into effect, there will be a radically different legal framework in Northern Ireland. There will not be separate mental health legislation; we will be fusing the two areas of law. There could, therefore, be a wider range of treatments covered that the courts did not have to consider before. We are developing that legal framework further, so we believe that the courts should also be given the opportunity to develop the common law rules further. Otherwise, we would set in stone rules that were created for a completely different legal landscape. We fear that that could have unintended consequences and might not adequately cover the situations that could arise under the Bill because we are not comparing like with like.

Ultimately, taking a flexible approach allows for greater public debate when the Bill is in operation. It will allow us to see the types of case coming through, and that, in line with developments in practice, could inform further debate down the line. The key for us is that we think that this area of law needs to be further developed in line with the courts.

The Chairperson (Mr Ross): Thank you. One of the reasons given in your paper for not codifying advance decisions is to avoid any unintended consequences. You refer to the Wooltorton case, which we have just been briefed on by the Research and Information Service. You state that further information on the case is at annex A, which includes this:

"Doctors allowed a young woman, Kerrie Wooltorton, to kill herself because she had signed a 'living will' that meant they could have been prosecuted if they intervened to save her life."

That is from an article by Rebecca Smith, Aislinn Laing and Kate Devlin. Where was that quote taken from? Where was it published?

Ms Trueman: I believe that it was a press cutting.

Ms Alison McCaffrey (Department of Health, Social Services and Public Safety): I think that it was. It was attached to papers that we had in the Department when the policy on this issue was being developed.

The Chairperson (Mr Ross): You cannot tell me where it was published.

Ms Trueman: We probably have it in our records back in the office. We can check.

The Chairperson (Mr Ross): We will have to break in a few minutes, and I imagine that it will take us 10 or 15 minutes to get the vote out of the way, so it would be useful if you could get that information. I thought that you would have been able to tell us where you were quoting from. The reason I ask is that there is a lot of material on this case, as we have just heard from the Research and Information Service. I am sure that you are aware of what was said about the case in 'Medical Ethics Today: The BMA's Handbook of Ethics and Law'. I think that it would be useful for the record and for members to read a short quote from that:

"Media coverage of the case was inaccurate and confusing, with several commentators suggesting that this was the first time that a 'living will' — an advance decision refusing treatment — had been used by an individual wanting to commit suicide. There were even suggestions that the Mental Capacity Act 2005, which placed advance decisions on a statutory footing, should be amended as a result. In fact, neither the advance decision refusing treatment, nor mental capacity legislation, other than in assessing Ms Wooltorton's capacity to refuse treatment, was applicable in this case."

That leads on to the question of why the Department focused on this one case to back up its rationale, given that, from all the evidence available to us, it is far from clear that the case was about advance decisions at all.

Ms Trueman: From memory, I think that the case was raised initially by stakeholders in a previous session. That was one of the reasons why we included it. Yes, Ms Wooltorton had capacity and was able to refuse the treatment, but it is our understanding that there would have been a time before she died when she lost capacity. In that scenario, an advance decision would come into play. We were also trying to highlight the confusion over the rules in place in England.

The Chairperson (Mr Ross): You will have read what the coroner said. The coroner did not say that. From the research that we have, it is clear that she had capacity.

Ms Trueman: She had capacity, but, at some point, she would have lost that capacity. I take your point about the coroner's report, but it was merely an example of a case.

The Chairperson (Mr Ross): Surely it is not a very good example.

Ms Trueman: It was the most prominent example that we had. As I said before, it was raised by a stakeholder, so we tried to follow through on the same theme.

The Chairperson (Mr Ross): One of the other reasons that you have given for not codifying is that the Bill fuses mental capacity and mental health legislation, which the English Mental Capacity Act 2005 did not. The whole point of the Bill, as we understand it from what we heard in the first session, is to put mental health and physical health on an equal footing. Are you now saying that one reason why you do not want to codify the law on advance decisions is that you are not comfortable with people making advance decisions in relation to treatment for mental illness?

Ms McCaffrey: The point that we are highlighting is that it is not necessarily comparing like with like. The Bill does not simply replicate what is in the English Mental Capacity Act. Essentially, that Act codified what was common law at the time in England and Wales. Those rules were created in a different legal framework, a framework that has and maintains separate mental health legislation. Our Bill will create a completely different legal framework, and we think that it would be useful to see how the courts develop the rules in light of that framework, as opposed to fixing the rules —

The Chairperson (Mr Ross): Why would we not develop our own rules for here to give that clarity?

Ms McCaffrey: That would be possible. We felt there was not enough evidence or consensus in the consultation and policy development phases of the Bill, in which we engaged quite heavily with stakeholders. We feel that, in light of the fused Bill and the fused approach that we are taking, there needs to be a wider debate about what those rules should be. Should the rules be the same, no matter what the treatment or the scenario is, or should there be different rules for different scenarios?

The Chairperson (Mr Ross): Your paper mentions a few times that the law in this area is still evolving. A consultation paper, recently issued by the Law Commission in England and Wales, stated:

"As a matter of law, advance decision-making is well established."

Why are you not satisfied that the law on advance decision-making is well established but the Law Commission is?

Ms Trueman: It comes down to the fact that across the water continues to have separate mental health legislation. In our view, the law In England has progressed only to a certain point, because the advance decision of someone who is detained under mental health legislation there can be overridden. We do not think that England has taken it as far.

The Chairperson (Mr Ross): What would satisfy you that the law had become well established for Northern Ireland?

Ms Trueman: The point is that we are progressing the law even further. We will have a fused mental health and mental capacity Bill. Only when we see how that works in practice will we be in a position to legislate further on advance decisions, and that will take us a step further than England.

The Chairperson (Mr Ross): OK. Some stakeholders suggested that, if advance decisions were not codified in the Bill, it should at least contain a duty on health trusts to promote advance care planning, including advance decisions to refuse treatment. What are your views on that proposal? Would you look to propose an amendment on that?

Ms Trueman: As part of the implementation phase, we plan to take forward raising awareness of the Bill in its entirety and, in particular, advance decisions and powers of attorney. It is not our intention, at the minute, to include in the Bill a specific duty on the trusts. We see that more as implementation.

Ms Trueman: It would be difficult to manage in practice. How, for example, would you check that it was promoted? What would the sanction be if it were not promoted? At this stage, it does not feel like an amendment to the Bill; it feels more like an implementation issue.

The Chairperson (Mr Ross): Have members any questions?

Mr Frew: Yes. This leads on from the Chair's question. I understand that the parameters of establishing law here are different from those of the Mental Capacity Act 2005 in England and Wales; they are more confined to what it will bring out and establish. Surely that is a positive, in that, sooner or later, you should be confident that common law has been established and you can put that into a Bill?

Ms McCaffrey: That is the point. The Bill makes it absolutely clear that, where there is an effective advance decision, it is legally binding. However, leaving the decision on what is an effective advance decision to the courts to continue to develop allows us to see what those rules should be and provides an opportunity to reflect that in an updated code of practice. Then, when the picture becomes clearer, there may be an opportunity in the future to legislate.

Mr Frew: I am asking you to gaze into a crystal ball, but have you a time frame within which you can be confident that it will be settled or established?

Ms McCaffrey: That depends on the rate at which cases come before the court. There will be a period of settling in for the Bill, and it is likely that more cases will then come forward. I really cannot offer a view on a time frame.

Mr Frew: What I am leading on to, maybe accidentally as it is coming into my head, is that there might be some type of sunset clause whereby you would be duty-bound to look at the establishment or codification in an appendix or — what is the word I am looking for?

Mr Frew: Yes, guidance. Thank you, Chair.

Could there be a sunset clause whereby you would be duty-bound, within a period of years, to codify at the point at which you saw it becoming established? There is an argument that you could go on for ever and just allow common law to keep informing us of the law on advance decisions. Perhaps there needs to be an assurance or maybe a compromise position, whereby a period could be specified for you to put that in guidance, with the flexibility to amend that every so often.

Ms McCaffrey: I am not sure about the technicalities of having a provision of that nature in the Bill, but I know that, for example, the implementation of the Bill will have to be reviewed after a certain point. The Department will take the decision on exactly when that is, but that will provide an opportunity to look at this type of issue.

Mr Frew: I take the Chair's point about Kerrie Wooltorton's case. I had heard of it, but I was not aware of the detail. I am intrigued to know when, why or how she lost capacity. I take it that it means when she went into an unconscious state. It seems surreal that someone was so adamant that she knew exactly what she wanted and instructed the medical staff around her that that is what she wanted. You can imagine all the medical staff — nurses, doctors and everyone else — around her bed working to a certain agenda and in a certain way in order to suit her needs — perhaps "wants" is a better word. All of a sudden, when she goes into an unconscious state, they completely change tack. That seems surreal. Are you suggesting that that is what could and should have happened? [Interruption.]

The Chairperson (Mr Ross): Members, we will have to break until after the vote.

Committee suspended for a Division in the House.

On resuming —

The Chairperson (Mr Ross): We will make a start again. I think that Paul had the Floor.

Mr Frew: Thank you. I was just winding up my long-winded question or observation. It was just about the —

Mr McGlone: What was it again, Paul? [Laughter.]

Mr Frew: I will try to explain it better this time.

The Chairperson (Mr Ross): Hansard is here to help out.

Mr Frew: It was to do with a situation where someone falls into a state of incapacity, I suppose, even if it is just an unconscious state rather than some sort of mental incapacity, and how surreal it seems that medical professionals treating someone in one context can, once that person falls into an incapacitated state, somehow reverse course or start trying to save that person's life. It was about how that actually plays out.

Ms Trueman: I do not think that, in that circumstance, the outcome would be any different. The reason why I highlighted earlier that an advance decision would come into play is that it is only when a person lacks capacity that the advance decision would become part of the decision-making routine. If the person has capacity, the advance decision is not a factor.

Mr Frew: If someone were to fall unconscious, how does that logic apply? If they had, in a state of capacity, made an advance decision, how could it be that, if they fall into an unconscious state, you treat that person differently?

Ms Trueman: If the person, when they had capacity, had told the doctors, for example, that they no longer wanted to refuse treatment and would like to receive it, that would make the advance decision invalid. The doctor would make the decision on the basis of when the person had capacity.

Mr Frew: But, in this case, it was very clear that the patient did not want to receive treatment.

Ms Trueman: Yes.

Mr Frew: It a very difficult area. Is there anything in common law where a time lag comes into consideration? This is similar to a question that I asked the researchers. If someone makes an advance decision in their 20s but is now in the 50s, 60s or 70s, this could come into play. I think differently now to the way that I did when I was 20 or in my teens. Is there a time limit after which an advance decision could become redundant, even though you have not physically done something to remove or withdraw it?

Ms Trueman: There is no specific timeline but, in that circumstance, I imagine that the doctor would ask, "Am I doubtful that the same circumstances apply?". There could have been developments in medical practice that the person was not aware of when they made the decision. That would raise a lot of doubts and, in that case, they might go to court to decide whether it was valid and applicable in the circumstances.

Mr Frew: Is that being played out in our courts on a monthly basis? Is that where we are forming the common law on issues like advances in medicine, rather than the individual and their mindset or belief structure at any given time, whether it is on a religious basis or because of a fear of medication and side effects? If there have been advances in medication, surely that should come into play. Maybe that person is not even aware of advances in medication to the point where their concerns would be alleviated. Is that what is being played out in our courts today?

Ms McCaffrey: That sort of issue would be likely to arise if a case were to come to court, I imagine. To increase the legal standing of the advance decision, keeping it under review would certainly help to prove that it is valid and effective.

Mr Frew: How many common law cases have there been? Is there a large sample here, or is it just a select few? What depth is there in this common law?

Ms Trueman: It is our understanding that the cases are actually in English common law.

Mr Frew: OK, so it is not —

Ms McCaffrey: There have not been any cases to date in Northern Ireland.

Mr Frew: Your concern, of course, is that it is such a selective sphere of law over in England because of the Mental Capacity Act, which you cannot really compare with the situation here. Is that the problem?

Ms McCaffrey: Yes. The rules have been developed in a legal framework that mirrors our legal framework at the moment, but, when the Bill comes into play, that framework will be different.

Mr Frew: OK. If common law is mirrored throughout the jurisdictions now and if there have been no common law cases in Northern Ireland, you could — it is crystal ball gazing again — be confident enough to say that you will get only one or two cases here in common law over a given period. Is it not right and proper that you could settle and codify that now?

Ms Trueman: The point is that you cannot be confident. The courts have not had the opportunity to develop the case law as there have not been any cases. We would not want to set that in stone at the minute. I think that that is the point of view.

The Chairperson (Mr Ross): Surely the legislature and the Executive make policy. The courts are there to make sure that it is compliant with European law and everything else. You are almost suggesting that you want to wait for the courts to make the law and the policy, as opposed to the Department.

Ms McCaffrey: We are doing something so unique here that it might be best to allow the courts to look at the issue in the context of this new legal framework to guide what might be the future of policy in this particularly controversial and tricky area. You are absolutely right; I do not disagree with you at all. It is just a question of what the rules should then be, and we think there should be a wider public debate on that before we fix those or put forward policy options for what they should be. That debate has not taken place yet.

Mr Frew: I take the point that the Chair makes on legislating through the courts, but, if there has not been any case law to date, even though we are doing something different from England and Wales, the chances that we could get case law would be slim, surely. If there has been nothing here yet, those issues are still out there and people are grappling with them. It is life and death, basically. There has been nothing in the courts so far for us. In England, it is different. How could we ever settle at a point where we would be consistent and content with leaving it to the courts when perhaps nothing will be going through the courts? Are we leaving a blind spot in the legislation by not codifying this?

Ms Trueman: By raising awareness as part of the implementation phase, the intention is that more information will be out there about advance decisions and people will be more aware of it. From that, there could, potentially, be more cases. Indeed, this new fused approach, which has not been done before, could generate more cases. It would not be like for like in that circumstance.

The Chairperson (Mr Ross): Surely if people are going to court to create case law, that is a failure, because you do not want people to go to court. It might help to clarify the issue, but surely you are not saying to us that you want cases to go to court around this.

Ms McCaffrey: That is where the rules have developed on the issue to date.

The Chairperson (Mr Ross): Yes, but Lisa just said that, as this is spun out, there will be more awareness and you will get more court cases. Is that not a failure? That is not something that you want to happen, is it?

Ms McCaffrey: The Bill goes slightly further than the common law at the moment in that it gives statutory recognition to advance decisions. It makes it absolutely clear what their position is in the hierarchy of the statutory framework that the Bill provides. It is making it clear that, if you have an effective advance decision, it will take precedence over any decision that would be made under Part 2 or any decision of the court. It is just allowing the rules around what is effective in advance decisions to continue to develop.

Mr Frew: Imagine that you were a doctor, nurse or healthcare professional around a table and a scenario develops in front of your very eyes. Surely the lack of a code on the issue leaves them in a precarious position. We hear all the time from health professionals that, whenever we issue guidelines that test an issue or do not issue guidelines, we leave them in a place where they are unsure. Would it be fair to assume that we are doing the same in this case? We are leaving the matter pretty much in a state of limbo, waiting for things to happen. In the meantime, it is healthcare professionals who will be left facing a real-life situation without the assurance and law to know that they are on a firm footing with regard to the care that they provide.

Ms McCaffrey: The Bill changes the situation slightly in that, as I said, it makes it clear that, where the advance decision is effective, that overrides any other best-interest decision that could be taken under Part 2 or any decision that a court would make. The Bill makes that absolutely clear, so that is an advance on the current position.

Ms McCaffrey: That, then, allows some flexibility for the rules on what is effective to continue to develop in the courts. It also allows us, through the vehicle of the code of practice, to clarify and provide more guidance on what common law says around what is effective. That is a slight advance on the current position.

Mr McCartney: Did the inquest have a big bearing on how you framed the legislation?

Ms McCaffrey: Which inquest?

Mr McCartney: The inquest into the death of Kerrie Wooltorton.

Ms McCaffrey: It was one of the issues that we were aware of when we were looking at the policy, but it certainly was not the only one. Throughout the policy development and consultation stages, we did not think that there was consensus on whether the rules should be codified in the Bill or left to the code of practice. Furthermore, the framework was different because the Bill was introducing this new fused approach, which is different from the position in England and Wales. We were not comparing like with like.

Mr McCartney: Nobody would want to be in the position in which the medical doctor in particular was put, because he had to make a decision that was looked at afterwards. Clause 3 says that there can be a temporary loss of capacity. Reading that, in another instance, the doctor could have made a decision that Kerrie Wooltorton could have lost capacity temporarily.

Ms McCaffrey: If she had lost capacity temporarily and the decision was valid, then it would dictate what would happen in the circumstances.

Mr McCartney: So it is not clear. The idea is that you are framing something to make it clear, but this, ultimately, will always be tested in court. If that same circumstance happened here, the law would provide for the doctor to make a decision either way.

Ms McCaffrey: The doctor would then be faced with a judgement to make on whether he considered the advance decision to be effective under the common law. If he had any doubts about that, the option would be to go to court. Clause 11 provides the authority to do that.

Mr McCartney: But these are circumstances where someone dies. I do not want to second-guess the circumstances, but you can understand where a medical practitioner might say that, given the circumstances, this is someone who is deliberately trying to end their life. You can make a judgement and say that perhaps they lacked capacity at that moment.

Ms McCaffrey: If they have capacity to make the decision, that is what the doctor must follow.

Mr McCartney: Yes, but it also says in clause 3 that a person can lack capacity, even if the loss of capacity is only temporary. You could make a decision with capacity but someone deems that, for 10 awful minutes, you have lacked capacity and it was in that moment that we decided that the decisions that you were making were not rational.

Ms McCaffrey: Clause 11 makes it clear that the protection from liability under clause 9 will not apply. A doctor would not be protected from liability if they acted in conflict with a valid and effective advance decision under the common law at a time when the person lacked capacity.

The Chairperson (Mr Ross): If the Bill is enacted — we will look at that later in terms of costings, but let us work on the assumption that an influx of money into the Executive in May and we will be awash with money and the Bill will be implemented — and, on day one, an issue arises and somebody is relying on case law but there is no case law in Northern Ireland, it strikes me that you are being left in limbo. What advice can we give to somebody who presently has a mental health illness and wants to make an advance decision about refusing treatment that they know will be pretty horrific for them? Whom do they go to for advice on that? If you are saying that you are relying on case law and the courts will determine that, how do you advise a person in that circumstance?

Ms Trueman: Well, that individual could include their wishes and feelings in a statement, for example in their medical notes. There would be nothing stopping the individual making an advance decision or seeking advice on that. When it comes to —

The Chairperson (Mr Ross): Whom are they getting that advice from?

Ms Trueman: I would say that, in the first instance, they would go to their GP possibly. It would depend on the circumstances of the case. It would be judged on a case-by-case basis.

The Chairperson (Mr Ross): If you go to a GP, who is not a legal expert —

Ms McCaffrey: The code of practice will attempt to set out the current common law around that. Ultimately, if there is doubt about whether a particular advance decision is effective or not, the option exists to go to court, as it does in England and Wales. The formalities around what is a valid and effective advance decision in England and Wales applies to both written and oral decisions, so cases arise there in which there are uncertainties as well. The code of practice provides a vehicle through which we can provide more guidance on the issue until the courts look at particular cases, on a case-by-case basis, and give us some idea of what the rules should be in particular circumstances.

The other thing to mention is that, even if the advance decision or the person's written statement is not an effective advance decision under the common law, any decision-maker who is operating under Part 2 has to give effect to it. The position in the Bill is slightly stronger than that in the Mental Capacity Act, because we have made reference to the fact that the decision-maker must have "special regard to" the person's wishes and feelings, which gives that more prominence in the overall decision-making framework.

The Chairperson (Mr Ross): We were not entirely sure what "special regard to" meant though. You were not able to tell us what exactly that meant.

Ms McCaffrey: The intention behind it was to give the P's wishes and feelings more prominence. It is a particularly important consideration that the decision-maker would have to take into account when considering what is in the person's best interests. That does not mean that it will always override every other factor. It is just something that the person cannot ignore and must give particular attention to.

Mr Frew: I want to flip this on its head a wee bit or come at it from a different angle. You might have someone who quite validly made an advance decision — everyone knows it; it is there on paper and is documented in their medical notes or through a will or whatever — and there is a very sure and clear-cut case of what they do and do not wish for. When you get to the point that that person is in severe pain and cries out at the medical table for help and assistance and for something to help with not only the pain but with the cause of the pain, what does the doctor do? Would that mean the removal of the advance decision, even though it is documented and has been for years. Would their crying out on the table be enough for a doctor? If it is enough, are there protections for doctors here?

Ms McCaffrey: If somebody had said that they did not want a particular type of treatment and then decided that they did, it would be enough, if the person had capacity at the time, to set aside what that previous —

Mr Frew: So severe pain is not anything to do with incapacity. If somebody survives on that table — that bed — who has had a belief structure all their life, but, at the critical moment, they flunked it and basically gave in, you can imagine that that person may want redress and may take it out on the medical practitioner who helped them by administering that drug or treatment and go to court. All the paperwork would be there with regard to the advance decision. Even though they cried out, could they argue that they did not have capacity because of their severe pain? Is their crying out in pain strong enough to mean that the doctor can take their instruction forward?

Ms McCaffrey: That would have to be judged by the clinician on the ground. You have painted a very difficult scenario but, ultimately, if the person who is treating the patient had doubts about whether the advance decision remained that person's advance decision and true will and preference, they have the option and will be protected under Part 2 in advance of going to the court.

Mr Frew: Is there any history of that type of scenario in the case law in England and Wales?

Ms McCaffrey: I am not aware of the details of a specific case of that nature. The Bill would cover that scenario because it allows the doctor to do what he thinks is necessary in the best interests of the patient, either to save the person's life or to prevent their health from seriously deteriorating whilst they go to court to find out whether it was a valid advance decision or not. The Bill covers that particular scenario.

Mr McGlone: I want to seek a point of clarification on the inquest into Ms Wooltorton's death. I read here that:

"Campaigners gave warning that living wills were not designed for patients who wanted to commit suicide and questioned whether someone who had repeatedly tried to kill themselves had the capacity to refuse treatment."

Have you sought legal advice around the issue that has been raised by these campaigners, whoever they are, namely that living wills were not designed in law or even motivation for anyone who wanted to take their own life?

Ms McCaffrey: Not on that particular issue, but I think —

Mr McGlone: It bounces out of the page at me as something that was used here, and someone died as a consequence. Her family, naturally, had serious concerns about how doctors had acted in a situation where some campaigners clearly say that living wills should simply not be used for that purpose or abused for that purpose. Maybe you do not know at this stage — I do not expect you to — but is there anything in law or any guidance around that matter?

Ms McCaffrey: I know from material that I have read that it was never the policy intention that it would be used for those purposes. That is why, for example, one of the rules around making an advance decision is that you have to specify the treatment that you are refusing. It is not enough to say that you do not want all life-saving treatment or something generic or general of that nature; you have to be very specific.

Mr McGlone: I do not know whether the doctors were privy to this information, but she had drunk poison up to nine times in the year before her death. You would ask whether that person was in any position to make a rational decision. I am not sure whether that information was at the doctors' disposal at the time; nevertheless, it is an issue that is impacting now. Can you find out a wee bit more about the legal import of that point about the interpretation and direction of those living wills? Is there anything that can be inserted in legislation to ensure that that does not become the consequence of them?

Ms Trueman: We have a provision in the Bill: it is in clause 275.

Mr McGlone: That relates to murder. It says:

"For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 13 of the Criminal Justice Act (Northern Ireland) 1966 (encouraging or assisting suicide)."

I just do not know. I am a novice at legislation. I do not know whether that would cover the living wills issue or not.

Ms McCaffrey: I think that that replicates what was in the Mental Capacity Act and was inserted due to the debate that arose during the passage of the Mental Capacity Bill around —

Mr McGlone: Sequentially, to get it into my head, was that before or after this lady's case arose?

Ms McCaffrey: The passage of the Mental Capacity Act was before that, but the debate around advance decisions and how those might be used in such scenarios happened during its passage. I think that an amendment was made to the Mental Capacity Act in light of that debate.

Mr McGlone: Can you check that out, please, just to be clear? If that was a consequence of the unfortunate woolliness that occurred following that lady's sudden death, can we establish whether there was provision to cover or address that issue? If it was in statute before her death, it obviously did not work or did not work as it should have. Thank you.

The Chairperson (Mr Ross): Clause 11(2) states:

"In this section 'an effective advance decision to refuse treatment' means a decision which, under the common law relating to advance decisions, has the same effect".

Therefore, we are talking about:

"under the common law relating to advance decisions".

You have said that, because there is no common law for this in Northern Ireland, you had to look to common law in England: surely England operates under a different legislative framework. Does that not cause difficulties for people living in Northern Ireland?

Ms Trueman: The common law on what makes an effective advance decision in England applies here. It applies in Northern Ireland even though there are no cases here.

The Chairperson (Mr Ross): Therefore, even after we have fused the two, the case law from England and Wales is still applicable here when a decision is being taken, as there is no common law for this in Northern Ireland. It struck me that you are looking at common law in England and Wales and that is under a different legislative framework, because they do not have the fusion of the two types of legislation that we have. Are you telling us that that does not cause any difficulties?

Ms McCaffrey: The courts will look to the common law in England and Wales as a persuasive authority when considering what might be interpreted as an effective advance decision. That is our understanding. It is likely that the courts will also look at it in the context of what this Bill is doing.

The Chairperson (Mr Ross): OK. There are no other questions. Were you able to find out where the quotation was published?

Ms McCaffrey: Yes, it is from 'The Daily Telegraph' in September 2009.

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

Find Your MLA


Locate your local MLA.

Find MLA

News and Media Centre


Read press releases, watch live and archived video

Find out more

Follow the Assembly


Keep up to date with what’s happening at the Assem

Find out more



Enter your email address to keep up to date.

Sign up