Official Report: Minutes of Evidence

The Chairperson (Mr McGuigan): I welcome, from the Patient and Client Council (PCC), Meadhbha Monaghan, chief executive officer; and Peter Hutchinson, senior policy impact and influence manager. We have your written submission. I will hand over to you for some brief opening remarks, and we will then go straight to questions from Committee members.

Ms Meadhbha Monaghan (Patient and Client Council): Thank you, Chair and Committee members, for the opportunity to provide evidence on the Adult Protection Bill. The PCC welcomes the introduction of the Adult Protection Bill. We consider it to be a significant step and a clear opportunity to enhance adult protection practices and outcomes for individuals and families. In order to assist Committee members in understanding why we are making certain comments on the Bill and certain proposals, I will briefly outline the relevant aspects of the PCC's role, functions and work.

The PCC is the second smallest arm's-length body (ALB) in the Department of Health in budgetary terms, but it has a significant mandate from the Northern Ireland Assembly through the Health and Social Care (Reform) Act (Northern Ireland) 2009. That mandate is to independently represent the interests of the public in Health and Social Care (HSC) and to seek to influence the system from within.

We have a wide brief, but we have a budget of only £2·1 million to undertake that task. Within our budget, we operate at individual and system level, seeking to provide advocacy services for people who have issues across the breadth of services in Health and Social Care, to engage with the public at a regional level and to influence policy and systems change.

Under the 2009 Act, we have five statutory functions. We also play an important independent assurance role, as set out in the Health and Social Care framework document. We are one of only two organisations that have that role, the other being the Regulation and Quality Improvement Authority (RQIA). We take our independence seriously in order to promote and support public trust and confidence in the health service. There is an explicit, constructive tension in how the PCC is set up. It represents the interests of the public while working with HSC bodies in the system to influence change on behalf of the public. That brings opportunities and challenges. We understand our role in the system of governance and assurance as being to provide health and social care trusts and other service providers, the Department and the wider public with information, insights and evidence that we gather in discharging our statutory functions and from our direct engagement with the public.

In responding to the consultation on the Bill, we considered the Bill in the broader context of what influences and impacts on adult protection and public safety across the system, including other departmental initiatives and consultations. As you acknowledged, Chair, we provided the Committee with a written submission that, we hope, has been of assistance. By the nature of our work and the statutory functions that we hold, we are generalists; we are not experts in the field. We recognise and acknowledge the evidence that others have presented to the Committee. To best add value to that, we will focus our oral evidence on elements of the Bill that relate to the voice of the public and independent advocacy.

Fundamental to our role and thinking on the issue is ensuring that the voice of the public is heard and that it is woven into the fabric of the Bill. That is rooted in the clear message that we have heard from the public through our practice, most clearly during our engagement with patients and families on the development of the terms of reference for the Muckamore Abbey Hospital inquiry. We heard them say:

We note the powerful testimony that the Committee heard on that last week and the contributions from our PCC adult protection engagement plan, which have shaped our approach to the Bill and our work in general.

We welcome the proposal to create an Adult Protection Board, but we have engaged with the Department to seek agreement that the PCC be removed from that board. We understand that the Department accepts that position and will propose an amendment to that effect. We hope that the Committee will agree with our approach. The basis for that is that we do not believe that the PCC's membership of the board, given what it is tasked with, is compatible with the PCC maintaining its independent challenge and assurance function for adult protection on behalf of the public.

Whilst it is not appropriate for the PCC to be a member of the Adult Protection Board, the PCC should be a designated consultee of the board. That would ensure that the PCC could make appropriate representations to the board in line with its statutory function and challenge role. We could also play an important role in ensuring that the broader experiences of the public are reflected in the board's thinking. Listening to and hearing the experiences of people and families should be the first line of defence in safeguarding vulnerable people. To truly listen to understand, it is critical that organisations, systems and structures are able to demonstrate how listening to those experiences contributes to institutional and systemic change, thereby improving the quality and safety of services for others.

A key element of adult protection and of quality and safety in general is ensuring that governance and assurance structures are appropriate and robust. As we outlined in our written evidence, there is an element of circular accountability to the proposed Adult Protection Board in that the majority of the proposed board members would come from the trusts and other organisations that the board is tasked with holding to account. Ensuring that the voice of those with lived experience of adult protection is heard, listened to and appropriately considered by the Adult Protection Board therefore becomes all the more important in the context of the board's constitution. The PCC considers that the Bill can and should be strengthened to ensure that the board is expressly required to engage with and consider the voice of those with lived experience. Equally, the skills composition of the board and the training that board members receive will be vital to its success. Our proposals on both of those things, if implemented, would go some way towards strengthening the governance of the Adult Protection Board and, potentially, boosting public confidence in its role and work.

We note and agree on the importance of the statutory guidance under Part 1 of the Bill. For the reasons that we have outlined, we have proposed to the Department that the PCC be included in the list of bodies that the Department must consult on the development and subsequent review of that guidance.

We welcome the Bill's inclusion of and reference to independent advocacy. However, we have concerns about the way in which aspects of the Bill articulate and deal with independent advocacy, which speaks to a much broader issue about the provision of independent advocacy in Northern Ireland. Independent advocacy is a critical component of safeguarding. The availability and accessibility of independent advocacy assist in creating a culture of openness and transparency and play a fundamental role in governance and assurance and in addressing inequality across Northern Ireland. The PCC believes that supporting advocacy services appropriately provides a level of assurance that the HSC system as a whole and the bodies that operate within it are committed to being learning organisations and meeting the statutory duty of quality; that they are appropriately invested in the duty of candour; and, most important, that they are committed to protecting vulnerable people. We therefore believe that independent advocacy should be made available and offered to any person identified as being a potential adult at risk. Independent advocacy should also be offered to family members and other relevant persons and should extend to Part 2 of the Bill to include serious case reviews carried out by the board. Designated independent advocates should also be considered as "relevant persons" under clause 28.

The PCC expects — we believe that the public expect it — organisations that provide advocacy services to be structurally, financially and psychologically independent of service providers. To ensure the integrity of independence, contractual and accountability arrangements for independent advocates should be wholly independent of the trusts. Clause 26 requires HSC trusts to make arrangements to secure independent advocacy, including arrangements to pay for those services. That fails in a key component of independence, as it is understood in structural, financial and psychological terms, and that failure is illustrated in broader issues. At present, each health and social care trust can and does commission its own advocacy services. Whilst the trusts are to be commended for that investment, the unintended consequence is fragmented provision and a postcode lottery across Northern Ireland. Advocacy services are not commissioned regionally to an agreed or required standard that includes related training, support and governance mechanisms. That not only compounds the disjointed nature of provision but means, fundamentally, that the public do not know what to expect from advocacy services or how to engage to achieve the best outcomes.

The PCC notes that independent advocacy has been referenced in historical health legislation and public inquiry recommendations ranging from the Mental Health (Northern Ireland) Order 1986, the Bamford review, the Mental Capacity Act (Northern Ireland) 2016 and the inquiry into hyponatraemia-related deaths (IHRD) to the revised code of practice 2025 for the Mental Health (NI) Order, which was recently consulted on, and the learning disability service model. Throughout those references, there is clear acknowledgement of the importance of independent advocacy to individuals and families but also, critically, its importance as an assurance mechanism for the whole Health and Social Care system. Despite that, the right to advocacy is not enacted in legislation, and "independent advocacy" is not defined, funded or commissioned on a regional basis. The Bill could be future-proofed to accommodate the possible introduction of an independent regional advocacy model. We recognise that the evolution of advocacy in Northern Ireland, specifically the introduction of a regional advocacy model, is a policy decision and is beyond the scope of the Bill, but we believe that the Bill could be future-proofed to allow for any potential developments in that area, including those that might result from any forthcoming public inquiry reports, whilst avoiding the need for future legislative change. That could be achieved by making the Department responsible in the Bill for defining "independent advocacy" and prescribing the arrangements for independent advocacy, including payment.

The PCC has given evidence to a number of public inquiries, including the Muckamore inquiry and the urology services inquiry, at which we have articulated and expanded on many of the points we are making today. We are happy to direct the Committee to that evidence, if that would be of assistance. Similarly, we are happy to expand on any aspect of our written or oral evidence on the Bill.

The Chairperson (Mr McGuigan): Thank you very much. For transparency, Committee members received an email from an individual about the PCC. I have not read it properly, and I do not intend to refer to it. When the Committee deals with correspondence, I will propose that we forward that email to the PCC for a response. Other members may choose to ask about it, but that is entirely up to them.

You said that the Department is agreeable to the PCC being removed from the Adult Protection Board. How will being a consultee, rather than sitting on the board, improve the value of the work that you do?

Ms Monaghan: The challenge for the PCC is that membership of the board, which, given what it is tasked with doing, is instrumental in the oversight and delivery of the adult protection system in Northern Ireland, could be incompatible with its independent challenge and assurance functions. I will spell that out: if we were to sit on the board to oversee and develop the system, while providing advocacy support to individuals who are challenged by and have issues with the system, there would be fundamental conflict of interests, both actual and perceived, between our role on the board and our statutory functions.

That deals with the issues with the board. The PCC has, however, a significant role to play in ensuring that the voice of the public is instrumental in the board's work by being a consultee on the board's work and commenting on the guidance that it produces. The position, currently, is that it is considered that the PCC's statutory functions would support that element, but we believe that engagement with the public and the assurance of such engagement would be strengthened if the PCC were designated as a consultee to the board. That would mean, effectively, that the board would be required to consult the PCC on its functions and guidance.

Peter, is there anything that you want to add to that?

Mr Peter Hutchinson (Patient and Client Council): That covered it. Being a member of the Adult Protection Board would not be incompatible with or override any of our statutory functions as they stand, but it would cause problems for our independence and challenge function.

The Chairperson (Mr McGuigan): Meadhbha, you suggested that, to future-proof the Bill, the door should be left open for independent advocates to be paid.

Ms Monaghan: We recommend that the Bill accommodate independent advocacy by making provision for any future developments in the independent advocacy space. We are mindful of ongoing developments in how independent advocacy is commissioned and funded in Northern Ireland, the regionality of independent advocacy models and how we deal with issues of parity. The Bill could be future-proofed to accommodate evolutions in that space, including any that are based on inquiry recommendations that might come down the line.

The Chairperson (Mr McGuigan): Fair enough. Thank you.

Miss McAllister: I think that everyone was going to ask Philip's first question. Other organisations have questioned the independence of the board. Were it to be constituted not in the form currently set out in the Bill but in a way that makes it wholly independent and not managed by one particular body, would your view on the PCC's role on the board be the same?

Mr Hutchinson: For us, a critical aspect is that the board is being tasked with producing guidance and overseeing the delivery of adult protection across the HSC system. Being accountable for something that people would have to implement would cause an issue for us from an independence point of view, if we had to challenge that thing at a later date. Our issue is as much to do with the functions that the board is tasked with as it is to do with how it is constituted at its core.

Miss McAllister: Thank you. That is helpful. I am just thinking about what might happen if that position changed.

We have heard from other bodies that the resourcing and implementation of the Bill is important. If you were to play that role as a consultee, would you have sufficient resources? Do you feel confident that you could carry out your duties as a consultee?

Ms Monaghan: You will not be surprised to hear me say that the PCC, as an organisation, is under-resourced. We struggle to fulfil our current statutory functions with the budget that we have. We have been clear, with regard to any amendments, that the funding situation for the PCC is challenging.

Miss McAllister: That is the same across the board, but we have to make sure that we ask about it anyway.

You mentioned that you gave evidence to the Muckamore inquiry. You said that you could pass that evidence to us, but will you briefly share anything from your evidence to the inquiry that might be beneficial for us to hear for our consideration of the Bill?

Ms Monaghan: I will pull out two things that are particularly relevant. One is about independent advocacy. The challenges at Muckamore, which we heard about from the families throughout the process of developing the terms of reference and during the inquiry itself, are with access to and availability of advocacy and with parity across the region when it comes to individuals or families being signposted to advocacy services and having confidence in the independence of those services. We heard that through the evidence that Ms Marley, from Bryson Care, gave to the inquiry about the challenges that Bryson had experienced when providing advocacy services, saying that there were issues with advocates feeling able to challenge truly independently, given that they were in a contractual and accountability arrangement with the trust. That is why, with regard to independent advocacy across the Bill, we strongly made the point that there is evidence for the challenge in Northern Ireland with how independent advocacy is commissioned. The second element of that is the patchwork provision across Northern Ireland, which also presents a challenge. At Muckamore, there were three different advocacy services providing services across five trusts. There was a lack of a network or a mechanism to ensure that safeguarding issues were repeatedly escalated and that there was oversight — monitoring of trends. Unless it is addressed in the Bill, that issue will persist. We heard clearly from families about the challenge involved in getting clear information about adult protection and escalating safeguarding issues, separate to a complaints process.

The second thing to pull out from our experience with the Muckamore inquiry relates to the central importance to the system as a whole of listening to and integrating individuals' experiences. The Bill deals with the sharp end of protection, but the entry point for that is listening to people about the experiences that they have had, those people being believed and, fundamentally, that being addressed. Critically, there was a really strong body of evidence in the Muckamore inquiry for the vulnerability of individuals, many of whom are now dispersed across our communities and living in situations that may, arguably, be less open to scrutiny and have less oversight than there might have been in a particular setting. It is even more critical, therefore, that we have support in place whereby families feel confident and supported in raising and addressing issues and that they are listened to and believed.

Miss McAllister: Your point about advocacy being separate from complaints will be helpful for the Committee to take into its considerations. Whilst this may be not a complaints process but a referrals process, we could take back that question of at what stage beforehand the advocacy process kicks in. That has not been explored by the Committee yet.

I have a question about the comments about new offences in your written submission. If I have read it correctly, your view is that no new offences are created by the Bill but that there is a question as to whether there should be. Would that be covered by a duty of candour or by the current Public Office (Accountability) Bill — the Hillsborough law — that is going through Westminster and that, hopefully, will come here? Is it your view that those offences will be covered by that Hillsborough law, or were you thinking of something separate?

Mr Hutchinson: The aspect that we were exploring in our written submission was the duty to cooperate with inquiries. The duty to cooperate falls primarily on trusts and other organisations, apart from in the case of the police, where individuals are referred to. We thought that that was an interesting aspect to look at. It falls into the realm of a parallel between an organisational duty of candour and an individual duty of candour. Professional codes of regulation and employment exist, but those would be strengthened and backed up by an individual duty of candour, which, through our previous work with the public, is something that, we have heard people express, would be required. The point we were making about offences in the submission is that there is no specific offence of not cooperating with an inquiry. There is, however, a clause on obstruction that would probably capture that.

Miss McAllister: It is interesting that you say that. We hear from organisations related to either trusts or professional bodies that have a point of view that conflicts with that, but here is an organisation that has a relationship and is engaging with the public that holds that opposing view. That is a very important point to raise.

Ms Monaghan: We undertook significant engagement on the duty of candour, during which we heard strongly from members of the public that they would strongly support that because of their experiences when things go wrong. It is important that we reflect that feedback.

Miss McAllister: We hear that strongly from the public as well.

Mr Hutchinson: The only thing that I will add is that it is not a simple picture. There are complexities when it comes to the commissioning and the degrees of separation in relation to that individual aspect, but it is worth exploring that more.

Miss McAllister: Thank you very much. I have no further questions.

Mr Donnelly: I will dig in to the Chair's first question a bit. That was the question about you being on the board as well. Prior to the Bill's introduction, was there any consultation with you from the Department on what was going to be in the Bill and how you would be mentioned in it?

Ms Monaghan: No. As we said in our written statement, it is regrettable that, unfortunately, the Department did not consult the PCC as a body corporate on the development of the Bill. That would have presented us with an opportunity to raise a number of the issues that we have raised since. That said, we have had constructive engagement with the Department since then on a number of the proposed amendments, and that engagement is ongoing. Throughout the process, we had engagement through our adult protection engagement platform. It is fair to say that the decision to include the PCC as a member of the board was, perhaps, a result of its inclusion on the interim shadow board that was convened at the development stage, on which it had a clear role in ensuring that the public were appropriately engaged throughout the process.

I recognise that as a missed opportunity. It somewhat strengthens the point that we have made about the PCC being designated as a consultee in the Bill, because, whilst the argument has been put forward that the PCC's statutory functions in respect of the 2009 Act place an obligation on much of the health system to engage with the PCC, we find that, in practice, that engagement is not always carried out and that, at times — this is not necessarily intentional but happens purely because we are a small body — people do not appropriately meet those expectations and fulfil those statutory functions. That is why we make the point that being a designated consultee would strengthen the Bill and address some of the challenges that we have experienced to date.

Mr Donnelly: If I have understood you correctly, you want it to be written in the Bill that you are a designated consultee, but the Department differs on that. Could you explain the difference? What would that mean?

Mr Hutchinson: In our ongoing engagement with the Department, there is a discussion about whether our existing powers would guarantee us to be a required consultee. The issue is, as it is with any legislative process, that we do not want to duplicate or override anything. At this point, we do not fully hold that that would be a duplication; it would probably provide clarity for the public and the board and potentially boost public confidence, if we were written into the Bill as a consultee. There would still need to be a process to make sure that, if that were the case, it would be competent, but our policy position is that it would be of benefit, given our statutory functions of having a challenge role and ensuring that the board regularly considers the voice of the public.

Mr Donnelly: How do you see the independent advocates interacting with the PCC as a group?

Ms Monaghan: We point to some of that in other commentary that we have made on the Muckamore and urology inquiries. Whilst the PCC is not looking to take a space in independent advocacy as a whole, we think that, given our statutory functions, any independent advocacy services should reasonably be commissioned to agreed standards and that, if the PCC is not the commissioner or the provider of the service, there should be clarity for the public about how the roles of independent advocates, in whatever space they operate, are articulated when it comes to how they engage with the PCC. That will need to be worked out, but it is incredibly important that those aspects are retained.

Mr Donnelly: You mentioned that you should be "structurally, financially and psychologically independent" from the board. I understand what you mean by structurally and financially, but what does "psychologically independent" mean?

Ms Monaghan: "Psychologically" speaks to the culture and nature of advocacy, and how a culture of advocacy is implemented, carried out, overseen and encouraged in organisations and teams. There are lots of things that feed into that, such as the training of advocates, the ethos, their understanding of rights-based approaches and the different models of advocacy. I understand the concept of psychological independence in very dynamic terms. It needs to be imbued in the culture of advocacy and in how advocates understand and live that independence on a daily basis in the space in which they operate.

It is slightly more challenging to articulate when it comes to the financial and structural elements of independence, but that is how I would explain it.

Mr Hutchinson: The flip side is the need for psychological understanding of the role of independent advocates and the people in the system who work with them. Respecting that independence is another aspect of it. It is about the culture within the system.

Mr Donnelly: It is about everybody knowing that they are independent.

Mr Hutchinson: Yes.

Ms Monaghan: That speaks to the value of advocacy in the system. To follow up Peter's point, understanding is especially important in adult protection, which often operates in the borderlands of other areas such as mental capacity and rights. It is about respecting and valuing the different roles that individuals play in the system. Psychological independence is critical to that.

Mr Donnelly: Thank you.

Mrs Dodds: Forgive me if I have picked this up wrong, but you seem to indicate that the membership of the board might be a case of gamekeeper and poacher being in the one space and that the board, as envisaged, might not be as independent as it should be. Am I right?

Ms Monaghan: We point out that there is potential for circular accountability on the board, given that, as described, its membership would be drawn from the trusts and other organisations that the board is tasked with overseeing. That having been said, the Bill does not prescribe, for example, whether a board member representing a trust should be a chief executive, director or non-executive director. Doing so could go some way towards assisting with some of the challenges.

There is, similarly, provision for lay membership of the board. Another aspect for reflection is this: if lay members are to be drawn from the voluntary and community sector, a situation might arise in which representatives of that sector on the adult protection board provide advocacy or services that they are then tasked with overseeing. We are drawing attention to that. Our point is that it is critical to ensure that there is a robust mechanism for the voice of the public to be heard and for those with lived experience to regularly feed into the board, to hold it to account in some respects, and to have influence on it. There is scope to make the provisions more robust.

Mrs Dodds: One of the problems in healthcare is the lack of accountability, so that is a really valuable point. I would be interested in any further ideas about the independence of the board that you want to present, because you are one of the few people who have pointed that issue out. When we look at the composition of the board again, we see that it could be a case of the trusts marking their own homework, depending on the additional members, as you say.

It is not just about that board. If you look at what has happened on some of the trust boards over the past number of years, you see that lay members do not have the same authority — is that the appropriate word? — as those who come at it from a more powerful position. It is a valuable point, because we have had enough of people marking their own homework. For years, the trust told Muckamore parents, "There's nothing to see here: it's fine". That point is a relevant one, and the Committee would welcome any further ideas that you have about the independence of the board.

Ms Monaghan: Thank you. We will take that into consideration.

Other aspects to it that we have recognised — we made similar comments about trust boards in the Muckamore inquiry — include access to information and the triangulation of information at board level. It matters where you draw your independent assurance from. It is not about just having the information that is fed through existing systems; it is about the information that comes from outside the board that allows the lay members to triangulate it all and enables them to scrutinise it in a particular way.

The training, the composition and the diversity of experience in representation on that board of members are critical to ensure the success of that. Those all need to be in the mix.

Mrs Dodds: That might be worth looking at because it is all very vague, and it seems to be the same people exercising the same power over what they have done. It is an interesting point, so thank you for that. It is really valuable.

Mr Robinson: You used a term when referring to people with "lived experience", feeding into the board. We had family members here last week. I am sure that you saw the session. They were very powerful individuals and spoke at a very human level. I said that I would dearly wish to see people like that on the adult protection board if there were a means to do so. Would you support people with lived experience sitting on the adult protection board?

Ms Monaghan: We would definitely support ensuring that the voice of lived experience is included. The mechanism through which that is done would be interesting to consider. I say that because we have been working with the Department and seeking to influence for some time a more strategic approach to public participation and how the system becomes more mature and strategic in how we ensure that lived experience and the testimony of family members, such as those you heard from last week, are integrated right throughout the system — at board level, service design and commissioning level.

That can sometimes be a challenge if you think about it solely in terms of an individual sitting on a particular board because, of course, each individual's experience is unique. What we have found most valuable is building structures where people can draw on a network of experience from other spaces, and we have had good experience of that in, for example, the engagement platform mechanisms that we have used for bringing together a cohort of people who can reflect a multiplicity and diversity of views and then reflect those into the board.

Structures that operate to draw that experience and feed it directly in is a mechanism by which you could do that. It would give you a richness of information in a way that, perhaps, nominating a single individual to a board would not. I think there is a certain scope in Northern Ireland to explore that and to think about a more strategic way for public participation.

It also challenges the fundamental power dynamic with regard to family members having parity of voice, that Diane referred to. We have heard both in the serious adverse incident (SAI) and patient safety space, but also from families in Muckamore and other spaces, is the feeling of your voice not being as valued as others'. Considering a mechanism that would address that to allow parity of voice to come through is really important. It is about giving people more agency in their care for the betterment of outcomes across the board.

The Chairperson (Mr McGuigan): OK. Thank you very much. That was very helpful. A number of members asked if there was potential for additional information, so if you want to send us anything at a later date, please feel free to do so. Thank you.