Official Report: Minutes of Evidence

The Chairperson (Mr McGuigan): I welcome Professor Pushpinder Singh Mangat, director of education and standards, and Cathy Finnegan, assistant director for standards and guidance, both from the General Medical Council (GMC), and Donna O'Boyle, acting executive director of the Nursing and Midwifery Council (NMC). You are all very welcome. Thank you very much for attending today and for forwarding your briefing. I invite you to make some brief introductory remarks, and then we will take questions.

Professor Pushpinder Singh Mangat (General Medical Council): I will kick off, if that is OK. Before I introduce myself, I am going to ask Cathy to introduce herself.

Ms Cathy Finnegan (General Medical Council): My name is Cathy Finnegan. I joined the GMC in 2014, and I lead on all aspects of our work on professional standards. That includes developing and reviewing the standards, working to ensure that they are reflected in and aligned with guidance from other bodies, and also supporting doctors, physician associates (PAs) and anaesthesia associates (AAs) to put them into practice.

Professor Mangat: Thank you, Cathy. Good afternoon, and thank you for the invitation to talk to you today and the opportunity to give evidence on the Bill, alongside our colleagues from the NMC. My name is Pushpinder Singh Mangat, commonly known as Push. I was appointed to the General Medical Council in the early part of last year, and I commenced in July 2025 as the medical director and the director of education standards in the GMC. I qualified in 1983 from the University of Birmingham. I trained largely in south Wales, culminating in a role as a consultant in intensive care medicine, which is relevant to a lot of adults with mental capacity issues and in anaesthetics. I then held several senior clinical and managerial roles. I became the medical director of Health Education and Improvement in Wales, which is the equivalent of the Northern Ireland Medical and Dental Training Agency, back in 2018, and then in 2024, I started a year with the Welsh Government as the deputy chief medical officer. That is my background. I will go on to give our thoughts on the Bill that you are considering.

First of all, the General Medical Council is the independent regulator of all doctors, physician associates and anaesthesia associates in the UK. We set the standards of patient care and professional behaviours that all our registrants need to meet. We give guidance and advice to help our registrants understand what is expected of them and to make sure that those whom we regulate have the education and training required to deliver good, safe patient care. To be clear, we absolutely welcome and support the intent of the Bill, which is to prevent harm to vulnerable patients. Doctors, physician associates and anaesthesia associates often see patients at times of distress and difficulty, so they will likely come into contact with someone who is at risk of, or is experiencing, abuse or neglect.

Our written evidence to the Committee has focused on two main areas, and I will deal with them one by one. First, the duty to report in clause 4 and how that interacts with our registrants' existing legal and professional duties. Secondly, the Department's proposal to name individual professionals in clause 4, so that the duty to report engages at an individual rather than an organisational level.

With regard to the duty to report, the Committee will hopefully have seen our supplementary evidence, which summarises our interpretation of clause 4. We understand that there have been concerns from other bodies that the duty to report would inevitably override the duty of confidentiality, particularly in relation to adults with capacity. We think that the situation is a little bit more nuanced and that there would be scope for health and care professionals to exercise their professional judgement in deciding whether to refer an adult at risk by weighing up the relevant considerations and applying them to the facts, context and circumstances of that individual patient's case. That balancing exercise would include consideration of the duty to report under clause 4, but would also have to consider the common-law duty of confidentiality; the relevant European human rights conventions, particularly article 8, which is the right to private and family life; data protection legislation; and GMC professional standards and guidance, which focus on registrants working in partnership with patients and empowering them to make decisions in their own interests.

There will be individual cases in which not referring, even when the necessary grounds are met, can be justified. For example, we think that, if there is no risk of harm to others and if the patient has capacity and does not consent to a referral being made, the duty of confidentiality outweighs the duty to report in those specific circumstances. That approach is consistent with what we understand the Department's policy intention to be from our meeting with the Bill team in September, which is that there is scope for professional judgement when deciding whether to refer. It is also consistent with relevant guidance issued in relation to the equivalent adult safeguarding legislation that has existed in Scotland since 2007 and in Wales since 2014. Adult safeguarding is a complex area. There are often competing considerations that can make the decision-making process challenging. In complex cases, we encourage our registrants to discuss with experienced colleagues and consider seeking advice from a Caldicott guardian or personal data guardian, or a legal representative. We also expect our registrants to document all their discussions and decision-making processes clearly.

I will move on to the second area. In a letter sent by the Department in July 2025, we were made aware of a proposal under clause 4 to name individual professionals and make them individually responsible for failing to report cases. We have concerns that individual healthcare professionals will fear criticism and scrutiny and that, rather than act in the best interests of patients, they will be driven not to make a decision, which is not what we want for patients. We would prefer to set a statutory duty at organisational level, using statutory guidance to set out the detail of how an organisational duty will interact with individuals and the existing duties of health and social care professionals. Our understanding is that that is consistent with the approach that is taken in Scotland and Wales.

Lastly, we welcome the opportunity to support the Department during the drafting process for statutory guidance. We are happy to answer any questions in due course.

Professor Donna O'Boyle (Nursing and Midwifery Council): Thank you for the opportunity to speak at today's session and for the invitation to contribute to the development of the Bill. I have been a registered nurse for 40 years and, for the past 15 years or so, have worked in professional regulation in the Scottish Government. Latterly, for the past year and a half, I have been supporting the NMC as an interim executive director. I will set out the Nursing and Midwifery Council's role as a regulator and how that relates to safeguarding adults at risk. We have already provided our views on specific areas of the Bill in our response to the call for evidence, so I will not go into detail on each of those, but I will provide an overview of our thoughts on how the Bill is implemented and how that impacts on professionals on our register.

The role of the Nursing and Midwifery Council is to protect the public and maintain confidence in the nursing and midwifery professions. The NMC is a professional regulator of over 860,000 professionals across the UK, including over 29,700 healthcare professionals in Northern Ireland. We work with the professionals on our register to ensure that they have the knowledge and skills to develop consistent, high-quality care that keeps people safe. We are responsible for protecting the public through the registration and education of our professionals; setting and upholding clear standards of conduct and practice, including the code of professional practice; and investigating and acting on concerns. We welcome adult safeguarding being put on a statutory footing through the Bill, and we are pleased to see greater protections for adults at risk, which aligns Northern Ireland with other parts of the UK. We see this Bill as important because professionals on our register have a key role to play in safeguarding adults at risk. These professionals often play a key role in identifying and managing safeguarding risk, and many will regularly interface with adults at risk. Health and social care professionals, particularly nurses and midwives, are also in a unique position to advocate for a person who is using the services.

The Bill also matters to us because we believe in a safeguarding system that is centred on the needs and preferences of the adult at risk, protects them from harm, considers context and is supportive and equitable. Safeguarding is a key part of the NMC's code to which all professionals on our register must adhere, and safeguarding also forms part of our standards of proficiency that all those joining the register must meet. Safeguarding should be included in education programmes delivered by approved education institutions. Once professionals have qualified and registered with the NMC, employers are responsible for ensuring that there are adequate safeguarding policies in place and that staff receive adequate and appropriate training on those policies. The NMC code requires those on our register to comply with local guidance and policies.

We provided specific feedback in our response to the call for evidence on clause 4, the duty to report and cooperate; clauses 7 and 10, the power of entry; and clause 22, guidance to support the implementation of the Bill. We have suggested that it would be helpful to have further details in the statutory guidance about the expectations of health professionals to comply with the duty to report in practice, including the level of accountability placed on professionals. We support the avoidance of criminal sanctions from non-compliance with that duty, and we feel it is important that professionals retain the flexibility to use their professional judgement on how best to manage a safeguarding concern in line with our code, standards and any statutory guidance. This recognises that safeguarding is a complex area for many professionals, with a range of issues and interests to be balanced proportionately. We welcome the introduction of the Adult Protection Board for Northern Ireland to ensure strategic oversight of safeguarding. We would welcome further clarity on how the board will work in practice and how the NMC might engage with the board, particularly in relation to information sharing and high-profile cases.

Finally, we welcome the opportunity to embed effective reciprocal information sharing within the legal framework. The development of the Bill presents an opportunity to incorporate findings from public inquiries and reviews across the four nations, many of which have made recommendations to strengthen information sharing between the relevant organisations. It is crucial to make sure that the right agencies have the correct information at the right time to discharge their statutory functions and protect the public, and that includes the NMC in its role as a statutory regulator of nurses and midwives in Northern Ireland. Sharing information at an early stage allows us to take action where appropriate, in line with the regulatory processes, and to protect the public. We would welcome the opportunity to feed into the development of future statutory guidance in relation to the implementation of the legislation, particularly where it relates to the expectations for nursing and midwifery professionals who work with adults at risk.

We are grateful to the Bill team for engaging with us on the development of the Bill. We are happy to provide our views to the Committee and answer any questions.

The Chairperson (Mr McGuigan): Thank you very much. That was very useful and informative. I will start with Donna and clause 4. The NMC is happy to have individuals and nursing staff named, and I will ask the GMC about its opposition to that. Do you share any of the concerns that the GMC has about naming individuals?

Professor O'Boyle: We recognise the responsibilities of organisations, particularly those that employ professionals on our register. I mentioned the need for clear policies and procedures and training to implement those policies, and our code already has the individual responsibilities and accountabilities that professional nurses and midwives must adhere to. In that respect, the responsibility already exists.

The Chairperson (Mr McGuigan): I will move right across, then. You are saying that you have concerns and you think that it would have an impact on professionals doing their jobs?

Professor Mangat: It is a really good point. Our concerns are that clinicians on the ground who are facing those decisions are human beings and, equally, they have their own fears and concerns about their own practice. Our concern is that this will be potentially an additional pressure on them to make decisions, which might then result in adverse outcomes for themselves. We do not want that pressure on somebody; we want them to make the right decision for a patient. Therefore, it might have an unintended consequence of a clinician not making a decision in the best interests of a patient. We are concerned about that.

The Chairperson (Mr McGuigan): If the clinician is making a decision in the best interest of the patient, surely that should be protection enough?

Professor Mangat: An organisational responsibility would already have that, because any investigation done by an organisation has to include individual and relevant clinicians. Therefore, that organisational duty would cover all those responsibilities without having the impact that holding an individual directly responsible would have.

The Chairperson (Mr McGuigan): Obviously, the Department has put that in the Bill. Have you had any engagement with the Department about your concerns? Is it prone to taking on those concerns?

Ms Finnegan: We have definitely had engagement with the Department. We originally submitted evidence in 2021, when legislative options were being considered, and then we submitted evidence again last year and had a meeting with the Department. We have focused a considerable amount of our conversations with them to date on the confidentiality point, because this point about naming individuals came up a little bit later, so our conversations on this point are probably ongoing.

The Chairperson (Mr McGuigan): OK. I will go back a wee bit then to the kind of concerns that have been raised previously at this Committee about the definition. GPs raised the point about reporting people at risk. You are less concerned about that. You said that there could be a more nuanced approach to it. Can you explain that?

Professor Mangat: I will kick off, and Cathy may want to come in as well. Every case is unique and, with a complex scenario such as we would describe or expect in this, judgements need to be made on each and every case, even those that do not have mental capacity. Even then, you need to make the right decision for that person at that point in time. Professional judgement, if not in the Bill itself but as part of the code of practice or any statutory guidance that is attached to it, is really important to include to allow those professionals, who are the ones who are exposed to this most of all and most of the time, to be able to use their experience and judgement, talk to their colleagues and come out with the best decision for that individual patient.

The Chairperson (Mr McGuigan): There is a distinction in the Scottish Bill between an adult who is unable to protect themselves, deemed at risk, and an adult who is unwilling to protect themselves. Do you think that that would be helpful?

Ms Finnegan: We are open to different options in the exact wording. It is really important to us is that, somewhere, space is maintained for doctors and other professionals to make their own judgements. That is the key point, really.

The Chairperson (Mr McGuigan): Thank you very much. I will go on to other members.

Miss McAllister: I will follow on from that last question. I want to explore a little further the idea of needing space maintained for clinical judgement, which, of course, we respect as obviously very important. Can you give us examples of those who normally, or typically, or usually have capacity and for whom you need that clinical judgement, and you are concerned that it could be restricted and that it could not include them? Can you give us a real-life example?

Ms Finnegan: I can probably talk about something that we did when we were thinking about our confidentiality guidance last time. When we last reviewed it, that was one of the things that we thought really hard about. One of the situations that we might think about relates to people who are in an abusive relationship, for example. They may have capacity and be able to make their own decisions, but they may be under considerable coercion or pressure. In that round table, we spoke to a number of organisations and people who had lived experience of that sort of situation. One of the things that came through clearly was that finding safety is a process and that building up trust, having conversations, hearing about options for support, perhaps signposting to other organisations, and thinking about risk assessment are all really important. It may be that at the end of that process, some information might be shared, or it might not. Our guidance says that in those sorts of situations, where an adult patient has capacity to make their own decisions, our registrants will usually abide by their wishes. There may be some very exceptional circumstances where the risk to that patient is so high —. It is a bit different if there are other people at risk; we are really just talking about situations where there is only one person at risk. There are very exceptional circumstances where information may need to be shared — for example, very serious crimes, such as murder or serious assault. There is still space for doctors, PAs and AAs to share information in those circumstances, but we would expect them not to do that by themselves. It is a difficult decision to make, and it is important to weigh up that sharing of information against someone's wishes, their autonomy and what is for the best. It is hard to tell in those circumstances. We would expect them to seek other expert input and to talk to more senior expert colleagues.

Miss McAllister: I was thinking about the possibility of coercion or acts of a non-physical abusive nature, which I know can be covered in other laws. For myself, just to keep it as an example, if we were to use those who are unwilling to help themselves, would they fall into that? Or is it not enough, because they cannot?

Professor Mangat: It would depend on the consequences. If, by not referring, there was a significant risk, you have to make one decision. If, by not referring somebody who had capacity, there was no risk to anyone else or to that person, you would say that there was probably no point in referring that person. Your duty of confidentiality to that person will outweigh that. The duty of confidentiality is an important point. It is the basis of a patient-clinician relationship. If you lose that, particularly in these days of social media, you can lose trust in the medical profession in one instance. That is a real concern for us. If that trust is lost, it can become a big issue for that one clinician, practice or hospital, because a decision has been made that has not gained the consent of somebody who has mental capacity.

Miss McAllister: That is helpful for us — not just the confidentiality but the definition as well. It is something for us to think about.

I have a question on the statutory guidance that you say is needed and the use of professional judgement in making referrals. I want to draw a correlation with children's services and making referrals to children's services about under-18s — minors. That might be simpler, but is there statutory guidance for it? Is it something that has been done before?

Professor Mangat: For children?

Miss McAllister: Yes.

Professor Mangat: We have not considered that.

Miss McAllister: Is it necessary?

Professor Mangat: In many ways, you have to think about children differently, because of guardianship, parental concerns, parental rights and who makes the decisions for the children. You almost need a different set of rules.

Miss McAllister: I know that it would be different. I am just asking if statutory guidance is something that is always required, or is it just that you want it there to assist in the —.

Professor Mangat: In that circumstance, statutory guidance would be really helpful as well, because, as with adults, no single situation will be the same as another; everything will be unique. In medicine, we have books on respiratory medicine, cardiac medicine and gastrointestinal medicine. Nobody writes a book about every single aspect together, and the same applies to everybody's individual circumstances as a patient. Their positions — their social, financial and cultural circumstances, as well as those relating to the people around them — are unique. That is why we think that it is very hard to make firm rules on that.

Miss McAllister: OK. That is helpful. I want to ask about the other jurisdictions. You mentioned Scotland a few times. Outside what has already been brought up today, are there any lessons to be learned from the other jurisdictions that you could perhaps share with us?

Professor Mangat: We can talk about what we have heard from our outreach teams.

Ms Finnegan: We have not heard about any issues through our outreach teams or our ethical enquiry service. Nothing has been raised with us that suggests that there are difficulties in how that legislation is working. When we were looking at and thinking about the Bill, the fact that similar legislation in those jurisdictions is working well gave us some reassurance. However, clear guidance and codes of practice sit alongside that legislation, which is where that kind of detail is given.

Miss McAllister: OK. That is helpful. Thank you very much.

Mr Donnelly: Thank you for your presentation and submissions. Neither of your written submissions address the CCTV provisions. What is your view on the use of CCTV as a safeguarding tool, if the appropriate measures under article 8 are met? What safeguards would you expect to see in legislation and/or guidance?

Professor O'Boyle: As you will be aware, our role as a regulator is to regulate individual professionals, and it does not extend to systems regulation, so we do not have a formal position on the development of regulations or guidelines in that area. However, we note that the mandatory use of CCTV and/or body-worn cameras in care settings needs to be considered very carefully when it comes to balancing privacy and particularly in dealing with consent in residential areas and/or private home settings. We consider that clear proposed benefits might need to be set against privacy and human rights implications, particularly where CCTV is used in private care home settings, and a discretionary option could therefore be preferable to ensure that decisions are taken in a balanced manner with due consideration of privacy implications for people using services.

We think that there are also considerations about decision-making in that area for people without capacity, and one could argue either way about whether CCTV could be helpful in that scenario. Nurses already act in line with the Mental Capacity (Northern Ireland) Act 2016, and further guidance needs to be clear about how decision-making regarding CCTV, in line with the Adult Protection Bill, interacts with existing legislation. As a regulator, we see that the use of CCTV footage could be instrumental in either exonerating practice or in supporting fitness-to-practice referral. We are, of course, aware that the absence of examples of a lack of care or bad care on CCTV does not mean that bad care is not occurring. It is a challenging scenario. We ask that, where CCTV is used, organisations have robust governance in place to ensure that footage is appropriately retained, reviewed and disclosed.

There needs to be clarity around which organisation is responsible for approving and overseeing implementation of the arrangements, and clear protocols should be set out to advise on when footage should be escalated, how it should be preserved as evidence and, crucially, how it should be shared securely with the relevant parties that need to see it, including regulatory bodies. That would help to ensure that any concerns identified are translated into timely and well-evidenced referrals in order to support fair and transparent fitness-to-practice processes and avoid situations where potentially significant evidence is unavailable or cannot be relied upon due to poor handling or retention practices. We rely on evidence being shared with us so that we can take proportionate action against registrants who are under investigation, and reciprocal sharing arrangements would enable us to fulfil our statutory duties and, in turn, enable local systems to be assured that appropriate safeguarding mechanisms are in place. It is a challenging situation. I understand that.

Mr Donnelly: It is about balancing —

Professor O'Boyle: I would say so.

Mr Donnelly: — rights to privacy. Is there anything that you would like to add from the GMC?

Professor Mangat: Very briefly. We think that other organisations are better placed to comment on the issue. We think that, in Northern Ireland, the Regulation and Quality Improvement Authority would be the right body and that it should be a system decision rather than an individual decision for the regulator. Having said that, the GMC has guidance and advice in its ‘Good Medical Practice’ guidance that are relevant to making and using audio and visual records of patients. We are not against using CCTV, and it is something that we would consider in fitness-to-practice procedures. We think that the decision on the matter sits elsewhere.

Mr Donnelly: I will take you back to the wording of clause 2. My question is about the definition of "an adult at risk" and about where issues of capacity sit in that. Can you accept the wording in that clause? Philip mentioned the example of Scotland, where there is a distinction between patients who are unable to look after themselves and those who are unwilling to do so. Does the wording need to be strengthened to reflect the capacity of the person involved?

Professor O'Boyle: Again, each situation stands on its own merits. You could be capacitous for many reasons, but, when you go into healthcare, your capacity could diminish and your mental state could fluctuate, which is the case for many people. Therefore, issues to do with an individual's vulnerability and safeguarding can fluctuate. It can depend on the circumstances and the support. A broadly based definition would give the latitude for people to act within a broader base. There is a danger in very strict, tied-down definitions, because the legislation could be narrowly interpreted. If the legislation is to apply in a multitude of circumstances and contexts to do with care, it should be as broad as possible to allow for individual context-building and professional decision-making.

Ms Finnegan: I am not sure that we have a great deal to add to what Donna said. I note her point about not having a blunt instrument in which definitions are too strictly outlined. We want the legislation to leave space for judgement.

Mr Donnelly: My final question is about the Adult Protection Board that was mentioned. How independent does it need to be in order to function properly?

Professor O'Boyle: We very much welcome the establishment of the Adult Protection Board for Northern Ireland as a real mechanism to provide strategic plans to protect adults at risk and an overview of that work. However, as a regulator of professionals, we do not have a formal view on the specific structure or remit of the board, but it is important to ensure that there are effective mechanisms so that those who are closest to areas of risk can escalate issues at an early stage. It will allow for proactive information sharing, and it might provide a strategic view, so that action can be taken, if necessary, to protect the public. It is about striking out inconsistencies in approach and making sure there is an all-Northern Ireland approach, which would be helpful. We very much welcome any further detail on how you envisage that the board will function in practice and on how information sharing and collaboration across agencies, particularly, as already mentioned, concerning the use CCTV and other information, can be facilitated through the board, particularly in high-profile cases.

Professor Mangat: We are aligned to that position.

Mrs Dillon: Nuala, Danny and the Chair have covered some of my points. I agree with what you said about definitions, given our recent experience with issues around coercive control. I think specifically of the Katie Simpson case. She had attended A&E on more than 20 occasions — it may have been significantly more than that — and her abuser attended with her every time. No report was made, and he murdered her. There are definitely issues that we need to keep an eye on.

My question is about your final point in response to Danny's question about the board. You said that you would appreciate an update. Do you think that you should be consulted about what that should look like and what the board should do? Speaking to you after the fact could be a problem, because, if there are issues, trying to reverse things can be more difficult.

Professor O'Boyle: In the development of the board, it would be helpful to have clear terms of reference and escalation mechanisms. We are at your service to support you in developing that approach. You are right; it is challenging to reverse-engineer something that does not fit or mesh with the legislation. We all want the best for people. We would be very grateful and happy to support the development work by commenting on your plans for the establishment of the board.

Mrs Dillon: OK. Thank you. My other issues have been covered.

Professor Mangat: It is the same for us as well. We are here to assist you to look after your patients. We are in the same ballpark.

Mrs Dodds: Thank you. I will go back to the clause 4 issue, if I may. You said that — I hope I have picked you up correctly; if not, do sort it out for us — an issue in clause 4 is the potential conflict between the duty to report and the duty of confidentiality to your patient. However, you say that there is scope within clause 4 for individual professionals to make judgements. I think of the statutory guidance that might accompany the clause. How might that issue be codified? Is there a need to codify it? Does not codifying it leave too much not tied down on the issue? Is that a good way of putting it? Probably not.

Ms Finnegan: It is fair to say that our understanding of clause 4 has evolved a little bit over time. When we first started looking at it, we shared the concerns that have been raised in Committee about the tension with confidentiality, and we raised those with the Department. We put that in our written evidence. We further scrutinised it and compared it to the situation in Scotland and Wales and how that works in practice, and our understanding now is that it could be a little bit more nuanced than that binary approach that says, "If somebody meets this definition, you must report", because other factors might need to be considered, which Push mentioned in his opening remarks, such as convention rights, our professional guidance, the right to privacy and all those other things.

Our understanding at the moment is that there will be some scope for that. We would welcome having something that makes that really clear, because it is really important that people do not read or hear about the legislation, and think, "I must report in all circumstances." We want to avoid that and to make it clear to people that there is still space for judgement. It would probably be helpful for the statutory guidance to work through some scenarios or case studies and talk through the steps that a professional might take when they think about whether information needs to be disclosed, because they are not easy decisions; they can be really complex.

Mrs Dodds: I completely accept that, which is why I want to know whether more specific language needs to be used. We will not get a second crack at the Bill, so we need to do the best that we can to make sure that it works as well as it can for clinicians, patients and those who are potentially at risk. That is important.

This is probably a comment rather than a question: I have listened now to a number of people present on the use of CCTV, and, almost invariably, I have had the same answer from everyone, which is that it has to balance rights and harms etc. I have not found anyone who is willing to give me a more specific line on it than that. I worry about it. I understand why people who have come through that system and to whom harm has been done might want CCTV. However, for many people who live in care homes, for example, their room is their home. It is important that the balance of privacy and individual rights is respected. I struggle with that aspect of the Bill. I would love someone to come in and give me more of an answer.

Professor Mangat: I do not think that I could answer that question. My father was in nursing care. He had a habit of getting up and walking around, but he was not steady on his feet. Several times, he was found, having fallen in his room. In his case, his mental capacity changed every time that he had a waterworks infection. That is when those sorts of things can happen. What would be the balance there? Would it be to have CCTV to prevent him fracturing his hip, going to hospital and using lots of resources or to not have it and risk those things? It is a difficult balance of risks. I cannot answer your question, but I can see lots of applications where CCTV could be discussed on an individual basis, using judgement and so on, as we keep saying.

The Chairperson (Mr McGuigan): We probably all share Diane's concerns, because a person's bedroom in a care home is their home, but it is kind of the same conversation as the one we had about whether there is a case to report. Sometimes, there are competing risks. The legislation's job is to find the answer to those competing risks in the CCTV scenario, as well as in the reporting scenario.

Professor O'Boyle: It is about a balance in the approach to risk. As has been mentioned, people's condition can fluctuate over time or, sometimes, for short periods. Push mentioned the example of how that can happen when there is a specific infection and how, once that is treated, the person can become more capacitous. It is a real challenge. It is about the management of risk, and caregivers have to think about how they manage those risks, which might mean balancing the needs of the individual with the staffing complement or the environment that they live in etc. I am sorry that I, too, cannot give you a direct answer. [Laughter.]

We are not just talking about CCTV. We now have smart glasses through which people can record you without you knowing much about it. If you limit new legislation to CCTV, you risk not future-proofing your approach. You might want to talk about recording devices or surveillance in a wider sense rather than just CCTV. That is just a thought. CCTV has its place, but it is about balancing privacy and the management of risk.

Ms Flynn: The GMC provided evidence that stated its opposition to the provision in clause 4 about naming individual professionals, because to do so would be inconsistent with legislation in Britain. In contrast — I think that I am right in saying this — the Nursing and Midwifery Council supports adding nurses and midwives as named professionals, if the proper statutory guidance were in place. I would like some feedback on those varying positions.

Professor O'Boyle: We already have those responsibilities at an individual level in our code of practice. Other countries have duty of candour legislation, for instance, which translates across. Regardless of the fact that the legislation was initially only in Scotland, that duty was required of all registrants across the four countries of the UK by virtue of its being a requirement in our code of practice. There are definitely ways in which legislation can sometimes be a blunt instrument, but the professional codes clearly take context into account. I mentioned education, the underpinning standards, our proficiencies and ongoing revalidation processes. People have to show how they maintain their practice in line with the code.

We are not saying that there is an absolute requirement for people to report, and, again, very much like colleagues in the NMC, we believe that it is about context and about supporting nurses, midwives and nursing associates in England to understand the balance of legal and ethical requirements and to think about the context within which it is happening. Colleagues have mentioned the circumstance in which broken trust is preventing people coming back for further healthcare. It is a balanced and nuanced decision and is about always having the patient at the centre of the best interests. Whilst it is a requirement to consider and safeguard right throughout our proficiencies and standards, it is context-specific and is balanced on the professional judgement of the individual professional.

Ms Flynn: We had an evidence session with the GP stakeholders before Christmas. The issue of capacity came up, and they were very clear that, when it comes to the rules and regulations that they abide by as clinicians, people with capacity should have the right to make their own decisions. Have you had any conversations with GP colleagues? You are giving us different feedback.

Professor Mangat: No, but they are our registrants. The other thing to say about individuals is that I think that the question is about accountability. My only concern is that, in an endeavour to make sure that accountability happens, you might lose something. I also think that the accountability is already there as long as we have an organisational responsibility, and I would expect that organisation to do a thorough investigation of anything that came to be. That means all healthcare practitioners, including doctors and our other registrants. That is our view on that, and it is also consistent with the other devolved nations in that respect.

Ms Finnegan: On the point about the potential differences between our position and that of our colleagues at the British Medical Association and the Royal College of General Practitioners, we have the same concern about this being about centring the patient and making sure that their wishes are taken into account. We differ a little bit in what we think the solution is. Colleagues from those organisations have argued that, if we remove patients with capacity from the legislation completely, that would resolve that concern. There are a couple of reasons why we think that making it clearer that there is still professional judgement for patients with and without capacity is a preferable option. One of those is about coercion and the point that somebody may have capacity but there may be really high risk to them. Push mentioned this: for patients who do not have capacity at that point, there still needs to be a balancing of the different factors and a decision made about whether referring is in their best interests or not. Yes, in most cases, it probably will be, but there may be circumstances where, for all sorts of different reasons, it is not. Therefore, if the legislation is interpreted in a binary way — if somebody meets the definitions, you refer, and if somebody does not meet the definitions, you do not refer — that takes away the professional judgement element for those without capacity. That is why we have come to the conclusion that professional judgement for patients with and without capacity is a preferable way to go.

Ms Flynn: That is how it works in Scotland and Wales.

Ms Finnegan: Yes, my understanding is that Scotland and Wales have a very similar approach. I think that the codes of practice or statutory guidance are slightly different, but the accompanying information for professionals makes it really clear that that decision —. The legislation in Scotland and Wales is not the only factor that is being considered. It is in the basket of all the different things that they are considering, including legal duties around confidentiality, common law duties around confidentiality, our professional guidance and article 8 rights. All those different things are coming together when making a decision.

Professor Mangat: I will just add that, even if you do not refer, it does not mean you do not do anything. You still have a load of activities that you can do for those who have capacity. You can point them in the direction of supportive help, third-sector support and information that might lead them to change their mind. For those without capacity, even if you do not refer, it does not mean that you are not going to consider that patient and not have safeguarding meetings about how to protect and support them. I want to get away from the idea that it is one or the other, and that is the end of it. It is not; there are lots of things still going on with those individual patients.

Ms Flynn: OK. Thank you.

Mrs Dillon: I just want to make a quick point. I am not sure if it is something across the board, and maybe we need to find out, but I have had experience where the assessment of capacity has been severely delayed. There have been real delays in the assessment process, so you could have a number of people waiting. It is another issue that we need to consider if we are going to bring the definition to capacity — I do not think that we should — and being assessed is actually not having capacity. If there are delays with that, there could be people who do not have capacity because they have not been assessed yet, and we are putting them in danger and at risk. It is something for the Committee to look at, rather than a question. It is our issue, not yours.

Mr Robinson: I have a couple of quick-fire questions. One of the concerns that I have, which I think we all share, is that there is a very high likelihood that this legislation will not be fully funded. At best, it will be a slow, phased implementation, and potentially, at worst, it will be a partial implementation. What challenges would you see in a slow, phased implementation, or worse, a partial implementation?

Professor Mangat: Literally, speaking off the top of my head, I think it would create uncertainty. If you have uncertainty, then, at every decision, you will have a patient at the end of it, about whom you have to make a decision. If you are making one decision based on one set of rules and another decision on another set of rules, you will end up in a real mess.

Mr Robinson: Reference was made to adult protection. I think Danny raised it, and I have raised it with other organisations that have attended. Given the important role that you play as independent regulators, do you feel that you should sit at the table?

Professor Mangat: A seat at which table, sorry?

Mr Robinson: With the Adult Protection Board, or do you feel that it would compromise your independence?

Professor Mangat: I do not know.

Professor O'Boyle: I think possibly the latter, and again, that is off the top of my head, not having had a chance to really consider it. I think we would have a clear separation in our duties and, obviously, then, maybe have a conflict of interest with regard to the hearing for those practice cases if we had been party to information that might muddy those waters. Even if the timescale for implementation of the Bill were to be elongated, that would give time to develop the guidance, to test it, train for it and bring hearts and minds along with you, rather than a clear implementation timetable that brings all the elements of the Bill into place in one time frame. Legislation is often implemented in parts, with learning from each part of the implementation process. An example that comes to mind from Scotland was the Human Trafficking and Exploitation (Scotland) Act 2015. It has been implemented in parts and learned from. Again, it relates to people who have been forced into areas of work that they, on the face of it, are capacitous, but the pressure that is brought to bear on them clearly officiates their capacity. In Scotland, we learned from the stepwise introduction of that Act, and it really helped us to get it right. There are advantages and disadvantages to implementation in a delayed or stepwise fashion.

The Chairperson (Mr McGuigan): OK. Thank you very much. That has been extremely useful, both your oral evidence and your submission. I appreciate you coming, giving us your time and answering our questions. Thank you very much.