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
Ms R McCorley


Ms Alison McCaffrey, Department of Health, Social Services and Public Safety
Ms Lisa Trueman, Department of Health, Social Services and Public Safety

Clause 5: DHSSPS Officials

The Chairperson (Mr Ross): Thank you for coming in today, Alison and Lisa. You will be aware that there have been some suggestions on clause 5. To help the Committee, it may be worthwhile for Patsy to outline his suggestion, and you can say whether it is workable or why you would not accept it.

Mr McGlone: By way of a wee bit of background, this came from the case of a former police officer, a lady who had suffered a stroke. It appeared that she was fully compos mentis and able to communicate, but people did not realise that she was able to do so on that particular wavelength. This is about incorporating being quite specific about communication.

At the previous meeting, I suggested something off the top of my head. There are two ways of looking at it, and I have reflected on this. Clause 5(2)(c) makes provision for:

"ensuring that persons whose involvement is likely to help the person to make a decision are involved in helping and supporting the person."

You could add after "supporting the person" the phrase "to communicate their views", which is what I suggested the last time, or something along the lines of:

"in helping, supporting and communicating with that person".

That would be clause 5(2)(c). Alternatively, I am interested in your views on a simple insertion at clause 5(2)(a) to include "and communication" after the word "provision". It is currently drafted:

"the provision to the person, in a way appropriate to his or her circumstances".

Do you get where I am coming from?

Ms Alison McCaffrey (Department of Health, Social Services and Public Safety): Will you repeat the last one?

Mr McGlone: You have the Bill in front of you.

Ms McCaffrey: Yes, I have.

Mr McGlone: Do you see clause 5(2)(a)?

Ms McCaffrey: Yes.

Mr McGlone: It states, "the provision to the person": I want to add "and communication" after "provision". It looks like that that would carry, I think, everything else with it. I do not know, but I am interested in your views.

Ms McCaffrey: We could reflect on that. The overall point that we tried to get across in the original session was that we were a bit wary of singling out a particular type of support that relates to one of the reasons why somebody may be unable to make a decision over other types of support. That was our concern.

Mr McGlone: Do you get that putting "supporting the person including to communicate" in an amendment to clause 5(2)(a) might carry that without, in your view, singling out a particular element of support? Inevitably, you have to communicate with the person.

Ms McCaffrey: Sure. I think that we could look at that. Certainly, it may be better than the amendment to clause 5(2)(c), which may, in some way, be a duplication The phrase used in clause 5(2)(c) is:

"likely to help the person to make a decision".

Clearly, to be able to make a decision, you need to be able to communicate, so that may already be covered. However, the amendment to 5(2)(a) is something we could perhaps look at and speak to counsel about.

Mr McGlone: Yes, please. Thank you. That is grand, Chair.

The Chairperson (Mr Ross): No other members wish to speak while we have the officials here, so thank you very much.

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