Official Report: Minutes of Evidence

Ad Hoc Joint Committee on the Mental Capacity Bill, meeting on Monday, 30 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 Alex Easton
Mr Paul Frew
Mr K McCarthy
Mr Raymond McCartney
Ms R McCorley


Ms Clare Irvine, Department of Justice

Supervision and Assessment Orders: Department of Justice

The Chairperson (Mr Ross): Clare Irvine will outline the Department of Justice's position on supervision and assessment orders and the new schedule 7A. Then, if there are any questions from members, she will take those.

Ms Clare Irvine (Department of Justice): Thanks, Chairman. I will start with a slight caveat and inform the Committee that any amendments provided to the Committee are subject to Executive approval. They have not yet been through the Executive.

Clause 205 and the new schedule 7A make provision for supervision and assessment orders that will replace the supervision and treatment orders currently available under schedule 2A of the Mental Health (Northern Ireland) Order 1986. The orders are available following a determination of unfitness to plead and a finding that the person has committed the act or made the omission with which he or she was charged.

Clause 205 contains disposals that are available to the court following that determination of unfitness and that finding: public protection orders with and without restriction, supervision and assessment orders and absolute discharge. The supervision and assessment order is a community disposal. If public protection orders have the criterion that failure to detain is a risk to other people and a person does not need to be detained to manage the risk that they pose, a community disposal is appropriate. As unfitness to plead does not result in a conviction, other sentencing options, such as probation, for example, are not available.

There are three elements to the supervision and assessment order. It must contain supervision and assessment elements, and it may contain a residence requirement. The conditions for making the supervision and assessment order make it clear that the person must have a disorder. Examination for assessment is desirable for the purposes of seeing, first, whether the disorder needs treatment and, secondly, whether the person will consent to treatment or whether treatment can be delivered in accordance with Part 2 of the Bill or under the 1986 Order as amended if the person is under the age of 16. This condition takes account of the recommendations of the Bamford review, which places great emphasis on the importance of respecting an individual's autonomy to make decisions about medical treatment. The supervision and assessment order must also be desirable for securing the rehabilitation of the person, protecting the public from harm or preventing the commission of offences. It must also be the most suitable means of dealing with the offender.

The person will be supervised by an approved social worker or probation officer for not less than six months and not more than three years. The assessment element is that the person must attend a specified place at specified times or make himself available at specified times, for example, in his own home, for assessment by or under the direction of a medic. The assessment may be for the whole or part of the supervision period. The purpose of the assessment is to assess a person's condition; assess whether he or she needs treatment; and assess whether the person lacks capacity to make decisions about treatment or whether consent can be obtained for that treatment.

Under the residence element, the person may have to live in a particular place for the whole or part of the supervision period. Under the schedule, a person cannot be required to live in a hospital or care home. That is different from the current position available under the 1986 Order and reflects the current position in England and Wales.

Schedule 7A also contains a number of procedural requirements. It must be explained to the supervised person what the order does, that the court that made the order or a court of summary jurisdiction can review the order on application of the supervised person or the supervising officer in particular circumstances, and that copies of the order are to be given to the supervising officer, the Probation Board — that is, if the supervising officer is an approved social worker — and the supervised person.

The effect of the order is that the supervised person must comply with the assessment element and any residence element and keep in touch with the supervising officer during the lifetime of the order. The order can be amended or revoked, generally on the application of the supervising officer or the supervised person. The court can amend any element of the order and can include any extra elements, but cannot amend the order by extending the period beyond the three years of the original order.

On change of residence, if the order specifies supervision by an approved social worker and specifies a health and social care (HSC) trust area in which the person is living, the order can be amended if the person moves to another HSC trust area.

The responsible medical practitioner can make a report to the supervising officer when various conditions apply. Maybe, if the person is doing very well, longer intervals between treatment are needed. If the person is not doing so well, treatment might be needed more frequently. The person may no longer require treatment at all or may no longer be susceptible to treatment. An amendment can also be sought for the extension of the assessment period, if the medic is unwilling to treat the individual or where the medic becomes aware of a hospital admission. If any of those conditions are met, the supervising officer then informs the court.

The order can also be revoked. The court that made the order can revoke it on application of the supervising officer in the interest of the health of the supervised person.

We have also included a requirement about breach of order. That is new and does not exist in the 1986 Order. Under that provision, the supervising officer can apply to the court that made the order and bring the matter back to court if the supervised person has, without reasonable excuse, failed to comply with any requirement of the order, if that is in the interests of justice. The court can deal with the supervised person as if a finding of unfitness and a determination that he did the act charged had just been made.

We have also included a regulation-making power to vary the length of the supervision element, which also appears in the 1986 Order. This regulation-making power also allows us to amend paragraph 8(2) of new schedule 7A, because it also mentions the three-year period, so it is a very limited power indeed.

You will notice some transitional arrangements at the end of new schedule 7A. They reflect the single jurisdiction policy contained in section 1 of the Justice Act (Northern Ireland) 2015, which removes the concept of petty sessions districts. Currently in legislation, including in the 1986 Order, probation officers are appointed or assigned to particular petty session districts. Until section 1 of the 2015 Act is commenced, we need to refer to the appointment of probation officers to those petty session districts. After section 1 has commenced, the schedule as drafted, without references to those districts, will reflect the single jurisdiction policy.

The Chairperson (Mr Ross): Why did it take so long for these amendments to come forward? Part of our function at Committee Stage is to take evidence on Parts of the Bill, and we are not able to do that now.

Ms Irvine: We must offer our apologies. As you are aware, the Department of Justice consulted on policy proposals as opposed to the clauses, and we had to take pragmatic decisions to make sure that we were ready for the Bill to be introduced. Unfortunately, as we mentioned in June, there were some areas in which we just were not able to put forward our clauses at that stage because it was taking us a little longer to get through the work. This is one of those areas. We can only apologise for that and hope that the Committee is not too inconvenienced.

The Chairperson (Mr Ross): Have there been discussions with stakeholders on this?

Ms Irvine: Yes, certainly. The orders were discussed in the consultation paper. We have also liaised with the social services side and probation. As we said, the situation is not ideal, but, as I also said, we had to make some pragmatic decisions to keep the process moving forward.

The Chairperson (Mr Ross): While you are here, Clare, there are a couple of other issues that you were informed that we might want to pick up on. I have been contacted by a practising barrister. He gave the example of someone who had been accused of stalking but was found to be unfit to plead because of mental illness. In that circumstance, can a restraining order be made under the Protection from Harassment Order?

Ms Irvine: This is an interesting one, and thank you for raising it with us. It was not an issue that the Department was aware of, so thank you for that. I am not the policy lead for the Protection from Harassment Order, although I have raised that issue with colleagues who are, and we are seeking advice to help us to answer that question.

It appears that there might be a slight lacuna in the law. Case law from January this year, R v Chinegwundoh, suggests that a restraining order cannot be made if somebody has been found to be unfit to plead. Perhaps the Committee could leave that with the Department. We need to have conversations internally to see what we want to do about it.

The Chairperson (Mr Ross): It would be useful if we could get that back pretty quickly.

We also received information from the Minister — we discussed it earlier — about the Committee's belief that separate statistics should be collected on young people detained in a hospital or police station under safety powers. The Minister seemed to suggest that it was his intention for his Department to work with the police to ensure that all relevant statistics were collected, but he did not want a statutory requirement to do so. What is the rationale for that? If he wants to do it anyway, why would you not have it on a statutory basis?

Ms Irvine: We had been asked to put a specific reference in the Bill to age, particularly to statistics in relation to children and young people. The Minister's view and that of the Department is that the clause is wide enough as drafted to allow that information to be collected. We also wish to note that there might be other statistics that would be very relevant as well, such as the venue that the person is taken to — which police station or hospital — how long the person is detained and the gender breakdown. The difficulty with beginning to list those in the legislation is that it is very restrictive. If we do not mention something that we later find we should collect statistics on, we could find ourselves in a situation in which we need an amendment to the primary legislation, which, obviously, would not be great. We are confident that clause 154 is wide enough to give us the flexibility. The Minister is certainly keen for his officials to work closely with the PSNI to make sure that all relevant information is collected.

The Chairperson (Mr Ross): How can the Committee get comfort that such work will be done? If we put it into the Bill, it will ensure that that information will be collated.

We have raised the detention of young people in a number of evidence sessions. Whilst the Committee is generally agreed that we need the flexibility to allow young people to be taken to adult facilities, for a range of reasons, we do not want it to become the norm. Therefore, we wanted to ensure that we had the information. Without having it in the Bill, how can we ensure that that work is carried out?

Ms Irvine: We and the Minister hoped that his letter would offer you some comfort. We are satisfied and confident that that information will be collected and will be widely available to all who are interested in it. We are not thinking about tabling an amendment. The Committee may take a different view, but I do not think that a departmental amendment on that will be tabled.

The Chairperson (Mr Ross): OK. There are no other questions from members. Thank you very much, Clare.

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