Official Report: Minutes of Evidence

Ad Hoc Joint Committee on the Mental Capacity Bill, meeting on Monday, 23 November 2015

Members present for all or part of the proceedings:

Mr A Ross (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Paul Frew
Mr Seán Lynch
Mr K McCarthy
Mr Raymond McCartney
Ms R McCorley


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

Clause 272 and Schedule 9: DHSSPS Officials

The Chairperson (Mr Ross): I welcome Lisa and Alison. I refer members to the research paper "Convention on the International Protection of Adults in the Mental Capacity Bill". Lisa and Alison, whoever wants to kick off can do so, and then we will open up to any questions.

Ms Lisa Trueman (Department of Health, Social Services and Public Safety): Thank you, Chair.

Clause 272 provides that schedule 9 gives effect in Northern Ireland to the Hague Convention on the International Protection of Adults. The underlying principle of the convention is to improve the cross-border protection of adults and their property when they are not in a position to protect their interests. Therefore, it is a matter that cuts across a number of Departments.

The convention and schedule 9 itself have two broad purposes: first, to provide a framework that allows protective measures taken in one country to be recognised and enforced in a different country and, secondly, to establish principles to help to resolve difficulties that may arise in cases with a cross-border element, when someone has made advance arrangements about how they wish decisions to be made in the event that they might lose capacity, such as lasting powers of attorney. For example, when the convention is ratified here, a lasting power of attorney could be effective in another country where, say, someone from Northern Ireland spends a lot of their time or has substantial assets. The aim is to avoid conflicts between different legal systems and strengthen international cooperation in this field with, among other things, greater information exchange.

The provisions in schedule 9 largely mirror the provisions of schedule 3 to the Adults with Incapacity (Scotland) Act 2000 and schedule 3 to the Mental Capacity Act 2005 in England, as they are intended to be compatible. Northern Ireland is the only UK jurisdiction not to have given effect to the convention in domestic law. The Mental Capacity Bill was considered to be a suitable legislative vehicle to address that.

Incorporating the convention into our law is one of the many steps that have to be taken before ratification can happen, but it is a necessary first step. This is a complex area of law so it will take time to work out all the implications and ensure that all the necessary systems are in place to support its implementation. Secondary legislation will be required, including court rules. That work will be taken forward during the implementation phase of the project, and a significant lead-in time will be required for that.

The Chairperson (Mr Ross): OK, thanks very much. Why have England and Wales not ratified the convention when Scotland has?

Ms Trueman: We understand that the Foreign and Commonwealth Office is responsible for the overall ratification process, but the Ministry of Justice has policy responsibility for the convention itself. In a report by the Ministry of Justice in June last year, reference was made to the importance of ratification and the Government's intention to take steps to commence that process. As you say, that has not progressed at this stage.

The Chairperson (Mr Ross): Is there a policy reason?

Ms Trueman: We are not aware of any policy reason.

The Chairperson (Mr Ross): If we were to ratify the convention in Northern Ireland, what is the process? Would that have to be done through Westminster and a legislative consent motion (LCM), or can we do that in the Assembly? How does it work?

Ms Alison McCaffrey (Department of Health, Social Services and Public Safety): You would need to go through the Foreign and Commonwealth Office, so a declaration would have to be made by it. Also, we would need to seek policy clearance from the Ministry of Justice, which has policy responsibility for the convention as a whole.

Mr Lynch: Is it the Department's intention that, if the Bill becomes law, the convention will be ratified? What would be the time frame?

Ms Trueman: The first step is to give the convention effect in domestic law, which is what the Bill would do. It is a cross-cutting issue, so the decision to ratify would require Executive approval, but that is certainly the intention because we are taking the first step in the process.

Mr Lynch: What would be the key benefits if the convention was ratified here?

Ms Trueman: It would, for example, help to determine which country's laws apply when an individual is abroad. It would also help to clarify some of the difficulties around, for example, whether lasting powers of attorney are valid in other jurisdictions.

Mr Frew: How many times and in what circumstances have the courts in Scotland, England and Wales invoked the convention? What types of cases were involved?

Ms McCaffrey: I am not aware of the statistics but there have been a number of cases. I know that case law is starting to emerge where the convention has been relied on. More articles are coming through on the types of cases that arise.

Mr Frew: Is there nothing of substance there to assess yet?

Ms McCaffrey: There is some case law that I am aware of. A case in June, for example, was a particular one that I am aware of around an individual who was being detained in an English psychiatric hospital on foot of a court order that was made in the Republic of Ireland. That is the sort of circumstances in which the convention is used.

Mr Frew: Schedule 9 will give effect to the convention in Northern Ireland. However, this is an ongoing thing. How are cases handled now across jurisdictions?

Ms McCaffrey: It is our understanding that they are dealt with by the High Court here, under the inherent jurisdiction, and that the convention would help to clarify the framework under which such decisions would be made.

Mr Frew: Take the example of someone who has given enduring power of attorney (EPA) in Northern Ireland and has lost capacity and their attorney wishes to make decisions in relation to property that they own in England or the Republic of Ireland. How does that operate? Is that through the High Court?

Ms McCaffrey: I am not entirely sure how that example of enduring power of attorney would operate. The convention has been implemented into domestic law in England and Wales and in Scotland but not here. I imagine that, if it were in relation to property in England and Wales, it would advise in that context. How it is given effect to would depend on the cases as they arise there.

Mr McCartney: In relation to how the convention is applied, particularly in countries where there is not a convention, what will the relationship there be? We get the example of Argentina. It has not signed up to the convention. How do you relate that to powers of attorney if it has not signed up to the convention?

Ms McCaffrey: In that context —

Ms Trueman: If a country has not signed up to the convention, there would not be a common framework. Which country would the lasting power of attorney (LPA) be made in, for example?

Mr McCartney: If someone comes from Argentina and says that they have a power of attorney bestowed on whoever, but as Argentina is not signed up to the convention, obviously, the standards would be different. This is not done to try to trick you.

Ms McCaffrey: I understand. It is quite complex.

Mr McCartney: It is not 'Mastermind'; you cannot say, "Pass".

The Chairperson (Mr Ross): It is whether the courts here would be charged with implementing a procedure from another jurisdiction that had not signed up.

Ms McCaffrey: There are different rules that apply — that is probably what our hesitation is about — in relation to protective measures that are taken and other rules in the schedule and the convention that apply in relation to powers of attorney. The point is that the convention and the schedule provide a framework whereby foreign powers of attorney could be effective here. It is then for the courts to work out how that might be the case. There is also a regulation-making power in the schedule that sets out what form the foreign power of attorney would need to take in order to be effective here.

In relation to protective measures, the scope of the schedule goes beyond convention countries, so the effect of schedule 8 would be to allow protective measures taken in countries that are not convention countries, such as Argentina, for example, to be applied and to be effective here.

Mr McCartney: The standards in relation to the tension would be those that we set, not the other state. Is that open to challenge in court? Are we certain enough that the standards that we will be imposing are the standards that the courts will address?

Ms McCaffrey: The point of the schedule is to allow the measure that has been taken in that other country to be applied here. The implementation would have to be done in accordance with the law here, but the point of the framework is to allow protective measures taken elsewhere to be applied here according to the law of that land.

The Chairperson (Mr Ross): Will you explain that bit again? Presumably, if the standard that is set in another jurisdiction is deemed to be not in keeping with our law, our law would take precedence over that: is that right? Can you give us an example of where this would kick in? I did not understand the answer.

Ms McCaffrey: There are caveats to that. That is the general principle, but part 4 of the schedule, which concerns recognition and enforcement, states:

"recognition of the measure would be manifestly contrary to public policy".

Also, if it is inconsistent with some mandatory provision of the law in Northern Ireland, you could disapply that recognition and enforcement. There are grounds for disapplication, but that is the general rule. I hope that is helpful.

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

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