Official Report: Minutes of Evidence

The Chairperson (Mr McGuigan): I welcome Claire McNamee, conveyancing and non-contentious business lead in the Law Society; John O'Prey from Murlands Solicitors; Michael Graham from Cleaver Fulton Rankin; and Julie Ann Osborne from CMG Cunningham Dickey Solicitors. You are all very welcome.

Apologies; we had a lot of questions for the Fire and Rescue Service, and that session probably went on longer than you were expecting, so thanks for waiting. I will hand over to you for some brief introductory remarks and then go straight to questions from members.

Ms Claire McNamee (Law Society of Northern Ireland): Yes, no problem.

We welcome the opportunity to appear before the Committee today to talk about the Mental Capacity Act (Northern Ireland) 2016 from a legal practice perspective, particularly where non-contentious work is involved, although there are provisions concerning criminal justice. I am Claire McNamee, the conveyancing and non-contentious business lead. I am joined by John, Michael and Julie Ann, all of whom are partners in their respective law firms and members of the non-contentious business committee for the Law Society. We submitted a paper to the Committee beforehand, and, today, we want to stress just how important it is to implement the Mental Capacity Act as soon as possible, especially now that we are 10 years from Royal Assent.

The only provisions that are in place are those related to deprivations of liberty, but there is no comfort, even five years on from when they were enacted, that the safeguards are coming fairly soon. At present, if someone has a mental health condition that is termed a "mental disorder" under the current law, it is presumed that they have no capacity.

By contrast, the Mental Capacity Act requires capacity to be considered in every decision and requires that all practical help and support is given to help a person make their decisions. Those principles encourage personal autonomy, and that is key to empowering vulnerable people. It is especially important for people whose capacity can fluctuate. We note the correspondence from the Health Minister, following engagement with the Committee and with us directly, that states that those principles are actively considered, but that is done on a "should" basis rather than a "must" basis. Formal implementation is the only way to provide that. That would help not only the healthcare professionals but solicitors and the courts when they are looking at capacity issues.

In the remaining time, I will briefly consider the aspects of our letter. Independent advocates are seen by legislators as a key safeguard; that is clear from their inclusion in the ongoing Adult Protection Bill. That also plans for phased implementation despite the issues with the delay in implementing the Mental Capacity Act. The advocates are there to make sure that a vulnerable person has support and that any support reflects their wishes. There is no legal grounding for that in the revised code of practice, but, without enacting the advocates, the vulnerable person's voice is lost.

Lasting powers of attorney are envisaged for both property and care whereas, under the existing system, it is only for financial matters. There are no provisions to allow a person to appoint an attorney to deal with health matters. The advance directives that we have are only for medical treatment where death is imminent. With lasting powers of attorney, the difference is, again, the principles. When it comes to helping and supporting a person to make decisions, it talks about their finances and their care. We understand that they cannot be implemented because there is no budget to establish the Office of the Public Guardian.

In relation to the Office of the Public Guardian, Parts 6 and 7 of the Act talk not only about establishing the office but about the appointment of deputies. We understand that a lot of work and resources are needed even to consider the costs of implementing that, and that is not exactly encouraging when it comes to the likelihood of its happening fairly quickly.

Ten years on, the Act needs to be implemented. There can be no more delay. It is clear from the recent census that the population is ageing. A recent health survey found that 44% of people between 65 and 74 are not in good health, and statistics from the Alzheimer's Society indicate that one in three people born today will develop dementia in their lifetime. We want to make sure that the systems are in place to support the most vulnerable, especially where capacity is concerned, in order to provide safeguards and promote people's dignity and autonomy.

We have real concerns about the partial implementation, and, in particular, we are watching that coming across in the Adult Protection Bill. These laws are intended to protect the most vulnerable, but there are no guarantees of any funding to put those protections in place.

In our paper, we discuss the issues from a legal perspective: these principles, independent advocates, powers of attorney and the Office of the Public Guardian. We are just highlighting the risk: the delay means that the safeguards look as if they are being de-prioritised, and the measures that deal with depriving liberty should be implemented ahead of the safeguards. You have all probably heard about such situations from your constituents; you may know somebody or have a family member who does not have capacity. Therefore, from a human perspective, we need to prioritise the measures to support and uphold the dignity of those people. We would prefer that to happen sooner rather than later.

Thanks for your time. We are happy to answer any questions.

The Chairperson (Mr McGuigan): Thank you. That has been useful, particularly with regard to your last point about the importance of prioritising the issues that you have raised. What engagement have you had with the Department? Where is that sitting?

Ms McNamee: When we ask for updates — we recently sent correspondence to the Justice Minister and the Health Minister, and, before that, we had a contact in the Department of Justice — they more or less say, "We are still keeping it under review". We went back over the questions asked in the Assembly, and, basically, the stock answer is that, "It is a very long, complicated Act. There are lots of provisions. We do not have the funding to do the planning to see what resource is needed to do any implementation". The last one that we got from my contact in the Department of Justice said, "Yes, we did cost out lasting powers of attorney, but there is no money".

The Chairperson (Mr McGuigan): Right.

Ms McNamee: There was no timescale for implementation.

Mr Michael Graham (Cleaver Fulton Rankin Solicitors): Engagement has been limited. What is important is that — for the benefit of anybody on the Committee who has not come across the issue before — the system that we have is outdated. It basically regards people as being either capable or incapable. It is black and white. The new system that we hope to have allows for assisted decision-making, so it is about trying to support a person who lacks capacity to make a decision insofar as you can do that. It is only when someone is incapable that we then step in and effectively apply a best-interest test. Although the Minister had indicated that we still have the enduring power of attorney (EPA) in there, which is sort of the same as a financial lasting power of attorney, the systems are very different. We are now the only part of these islands that does not have an assisted decision-making regime. Our legislation is 40 years old and is just not fit for purpose.

The Chairperson (Mr McGuigan): You mentioned that we all have those constituents. It is always useful to hear a real-life example of the impact on an individual of the scenario that you have set out.

Mr Graham: There is a reported judgement — they are going to laugh at me for wanting to mention my case again — in the matter of JG, which came out in April. Basically, that was a case where I had a client who was subject to a controllership order. Controllership is the system whereby the court appoints somebody to manage your finances. I was appointed as a professional controller to deal with this chap. When I met him, I realised that he was capable of, at least, giving some level of instruction and intention on the management of his affairs. I then applied for him to be able to make an enduring power of attorney, whereby he would have the freedom to choose his attorneys, rather than be stuck with a court-appointed controller. That resulted in my having to go to the High Court to get the judgement from Mr Justice Humphreys to allow that to happen. In the first instance, the decision is made by the Master (Care and Protection). She said, "Well, Mr Graham, if the Mental Capacity Act were enforced, we would be having a very different conversation". That is simply because, if we were looking at assisted decision-making, the appellant would never have needed to go through that process at all.

Ms McNamee: On Tuesday morning, we were at a Dementia NI event where we heard a lot of stories from people with dementia. They said, "One of the first things that the doctor said to me was, 'Get your affairs in order'". That is really only half of your affairs. For many people, it is about peace of mind. If you are healthy, you will say, "Listen, I do not want to go into a care home"; "I do not want to do this", or, "If you have to do this, can you do —?". It just gives them certainty that they are in control.

It is the same with finances. In practical terms, there will not be too much difference with the lasting power of attorney from what we have at the minute, bar that you register it as soon as it is made. It is more about the health and welfare aspect. For us, it is also about principles that say, "Do not write off that person" unless it is proven, after you have given them all that you can, that they cannot make decisions for themselves. There might be some things that they can decide — a person might be able to decide what place they would like to go to or what shopping they would like to do — but they are just not able to manage complex technical matters. It is about trying to give somebody that dignity.

Ms Julie Ann Osborne (CMG Cunningham Dickey Solicitors): At the Dementia NI event on Tuesday morning, they were saying that, "Once you get the diagnosis, it is too late to get your enduring power of attorney". I was trying to say, "It's not; we can assess your capacity", but there is a perception that, if the capacity in Part 1 was enacted, it would allow us to help them, understand what they need and give them more autonomy. They would not have to hide a diagnosis, which is what we find. When people come in, they try almost to hide the fact that they have been given a diagnosis because they think that we will just write them off. Even Part 1 being enacted would be really helpful from our perspective on the front line, seeing clients who are at their lowest ebb, frankly. Family members have enough going on if somebody gets a dementia diagnosis or has other mental capacity issues without needing a barrier.

An Office of Care and Protection controllership order is extremely difficult and challenging for a normal person to understand. Some days, we find it difficult to deal with the court system in that regard, so, for Joe Public, who has a loved one going through a difficult time, it just makes it worse. If there was a presumption that you have capacity rather than an assumption that you do not as soon as you get a diagnosis, that would massively help older people.

The most concerning thing that I picked up from that dementia event was that so many young people, in their 50s and early 60s, now have dementia. That is not somebody who is 85 or 95 years old and knocking on the door of a care home. It affects so many people of all ages. As Claire said, most of you will have a family member who may have a capacity issue at some point. Sometimes, it is only when it lands at your own door that you appreciate the hurdles that you have to clear to deal with their finances and affairs, let alone their health and well-being.

The Chairperson (Mr McGuigan): This is Dementia Action Week, so most of us were probably at that event. It was stark in highlighting that there are 25,000 diagnoses of dementia in the North. That number shocked me. With an ageing population, that number will continue to rise, so they are important issues.

I want to explore the independent advocate issue. We undertook a lot of deliberation on the Adult Protection Bill and the issue of independent advocacy. The Committee thinks that that is a vital component of the Bill, and we highlighted it in our report and in our amendments. Regarding independent advocacy, have you any concerns about the sufficiency of the workforce?

Ms McNamee: When the Mental Capacity Act (Northern Ireland) 2016 was implemented, a financial assessment was undertaken. That is now 10 years out of date, but, at that point, it was said that it would cost about £8 million a year to administer. That was based on 5% of the population, however, and I am not sure whether those statistics are up to date and whether that would reflect the number of people who would need assistance. I would have concerns because, if the Adult Protection Bill now comes in alongside the Mental Capacity Act, the Mental Capacity Act will capture quite a few people who would probably overlap with the Adult Protection Bill, although there will be outliers for both.

We have not heard anything from the respective Departments about how they plan to provide training. The initial financial memorandum states that training will cost about £4 million, if we do it as part of what we already deliver, or it will cost £20 million. There was no in-between figure, so it is about determining the scope of the advocate's role and whether there are existing people — for example, adult social workers — who can administer it and then look at the workloads. However, we would not have oversight of that.

The Chairperson (Mr McGuigan): Your presentation highlighted the point that it is all well and good having legislation but it needs to be backed up with resource, and we laboured on that as well. I was going to ask which Part of the Act, you think, needed to be implemented next.

Mr Graham: We think Part 1 because, if Part 1 is implemented, the courts will have to start interpreting the rest of our capacity system in light of that. If we take it as an overriding objective that there is a statutory presumption of capacity and there is an attempt to assist people with their decision-making, that would help. It would not be the answer long-term, but it would help to give us some flexibility under the current system.

The other thing that we have thought about when it comes to the costs of the new system, including those for the Public Guardian and the staff for that office, etc, is whether there is any overlap with what the Office of Care and Protection currently does. A lot of its work will be hived off to the Office of the Public Guardian. I think that there will be a saving on that side of the house if the work is to be done on the other side. Perhaps the Office of Care and Protection could take on that work in the short term until a Public Guardian is appointed. I do not know whether that would require a change to the legislation, but you have a court office that is doing an awful lot of similar work. Maybe that could be expanded on.

Ms McNamee: Part 1 is the principles. Making that "must", rather than "should" , would be probably the most cost-effective way to make progress. Things have been at a standstill. The Office of Public Guardian really is essential. A lot of the work is being impeded by that. Our preference would be to get the Office of Public Guardian established, but, when it comes to what we could do right now, implementing Part 1 would probably be our priority.

Ms Osborne: An easy win, to a certain extent, would be to enact Part 1. That would at least lay the principles in legislation. Mr Justice Humphreys said recently that there is a "lacuna in the law" because the Mental Capacity Act has not been fully enacted. The judges are perhaps getting a bit more vocal about that as well. People are moving a lot more around the UK, so this is becoming a bigger issue. Lasting powers of attorney (LPAs) in England and Wales cannot be used in Northern Ireland. It is the same in Scotland. People moving about is a big issue.

Mr Graham: I presume that that could be implemented relatively easily. At the minute, the Northern Ireland system does not recognise a foreign instrument, but all the other jurisdictions recognise ours to a greater or lesser extent. If we could implement the Parts of the Act that allow our courts to recognise foreign instruments, that would be excellent. A lot of our clients have cross-border estates. Even if they have only a small number of assets in this jurisdiction and even if they have lasting powers of attorney in England, for example, they would still have to go through the process of getting a controllership order to deal with them. Mutual recognition is another key thing that could be implemented without, I hope, any great cost, although there are costs that are hidden in everything.

The Chairperson (Mr McGuigan): Yes. I love the phrase "easy wins". [Laughter.]

I have been about here for long enough to know that easy wins are never that easy to come by.

Ms Osborne: That is probably true.

Mr Donnelly: Thank you very much. This is about people's human rights, so it is really important. Human rights should not be optional. This is about putting serious restrictions on people's lives and liberties, so it is a very concerning issue.

You mentioned the Adult Protection Bill: we do not want to be here in 10 years' time, having not implemented the Adult Protection Bill in the way that the Mental Capacity Act has not been implemented. What lessons do we need to take away from the non-implementation of the Act?

Ms McNamee: The explanatory and financial memorandum was done at that point. Implementing the Mental Capacity Act has been hampered by the fact that the Assembly was not functioning for, effectively, five of the past 10 years and, when it came back, there was COVID. Quite a lot has happened in the intervening period.

There needs to be a constant examination of where we are when it comes to projections. It was said that the cost of establishing the Mental Capacity Act would be between £75 million and £130 million in year 1. Ten years later, those costs are probably significantly more. There is no oversight of where we are against the projections. I do not doubt that there are teams working on that, and nor do I doubt that there are lots of pressures all over Health, but, when the deprivation of liberties was introduced, it should have been a priority to introduce a corresponding safeguard. I do not have the answer, but people need to keep checking how much it will cost and ask what they can do, what is realistic, and whether there is anything that they can ring-fence. Again, however, I appreciate that there are financial pressures.

Mr Donnelly: OK. Thank you. Are there any legal risks associated with implementing the Adult Protection Bill without those safeguards?

Ms McNamee: The Adult Protection Bill is probably a conversation for another day, because there is a lot in it. We welcomed the Committee's suggestion that the "powers of investigation" in clauses 5 to 8 should not be implemented without the independent advocate, but all those things deal with vulnerable people. If you do not put the safeguards in place to ensure protections, there will always be a legal risk. The Mental Capacity Act (Northern Ireland) 2016 envisaged that because it had a set budget allocated for judicial reviews and legal challenges. The risks are inherent in everything.

Mr Donnelly: OK. Are there any elements of the Act that could expose the Department to legal risk, particularly human rights obligations?

Ms McNamee: It is hard to know. The principles of the Mental Capacity Act have a criminal justice aspect, and that is not our speciality. However, there is no legal risk because the Mental Health (Northern Ireland) Order 1986 is still in place, but it does not prioritise human rights. The problem that we discussed with our committee is that the people who are likely to be impacted either need to be very wealthy or have absolutely nothing. If they have nothing, they will have to apply for legal aid for any challenge they might take, and that might not be approved. Whereas the very wealthy might not want their lack of mental capacity to be publicised. We have no knowledge of any ongoing case law.

Mr Graham: One of the reasons why the legislation had to be updated was that Northern Ireland is in breach of the UK's obligations under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). We lag behind every other part of the UK and Ireland because we have a black-and-white on-off switch, which means that you are either capable or incapable. Arguably, even assisted decision-making is in breach of a disabled person's rights, but it is a lot better than saying, " As of today, you are incapable". I am not an expert on judicial reviews, but there is a risk if we leave the system indefinitely in its current broken state.

Mr Donnelly: There are cases where people's capabilities can fluctuate, and we do not recognise that. The UNCRPD is a huge step forward for people with disabilities, and the treaty should be implemented in Northern Ireland. I am working on a private Member’s Bill to effect that.

The meaning of "mental disorder" in the Act has not been enacted. The 1986 Order, which exists in Northern Ireland, is quite blunt. Is that definition currently being used?

Ms McNamee: Yes.

Mr Graham: I am pretty sure that is right.

Ms McNamee: Yes. Basically, the language is outdated.

Mr Donnelly: You have no capacity; it is gone.

Ms McNamee: That is the perception, whereas, with the Mental Capacity Act, every decision you make depends on every other decision. If you cannot understand or retain the information after you have been given the support and cannot make the decision, you are deemed not to have capacity for that decision.

Mr Donnelly: Thank you very much.

Miss McAllister: I will follow on directly from the last question. If the Bill is implemented, the mental capacity of the person would be subject to each question rather than the overall issue of competency. Can you give an example of a person who would be affected by that? We often deal with cases where people are looking after their adult children who have complex needs and may not have the capacity to make decisions about most aspects of their lives.

Can you give an example of where implementation would be different and of the kind of persons who would interact with that?

Mr Graham: I will point to the example that I gave. That individual was, essentially, given a controllership order because he had been deemed incapable of managing his financial affairs, but that did not take account of the fact that he had the capacity to choose somebody to manage his affairs for him. In that chap's case, it is fair to say that he has the capacity to manage some of his finances — for example, he runs his small business — but he could not manage a large personal injury award, which was the problem in that case.

Under the new regime, instead of having to go to court to battle for him to have that right, it is black and white in the legislation that he can choose his attorneys and be involved in the decisions. Under a lasting power of attorney, you are not handing over your decision-making to your attorney in the same way as you do with an EPA. They still have to work with you to reach whatever decision you are able to make, and they step in only if you cannot make the decision. That is why I said that, although they look a bit similar, they are, in fact, very different: the EPA is black and white, whereas a lasting power of attorney has shades of grey and is much more flexible.

Miss McAllister: Following on from that, we have been in contact with adults who have adult children with complex needs and who have been denied access to medical information about their adult child who does not have capacity, resulting in court proceedings to get that information. You may know which families I am speaking of. Would implementation of the lasting power of attorney change that and give those families an automatic right to that information?

Mr Graham: It would not be automatic. The big thing missing from the current system is the health and welfare element, so the court cannot appoint somebody to take decisions about a person's medical treatment or anything of that nature. The Mental Capacity Act will allow that to happen. If the person is capable, they can appoint an attorney for health and welfare issues, in which case that person would be entitled to access medical records etc. Alternatively, the court can appoint a deputy, who is like a controller but is involved purely in their health and welfare. Again, that process would be much simpler, but, at the minute, there is no process.

Ms McNamee: If the adult child had sufficient capacity to make a health and welfare LPA, they could say, "I authorise my parents to access this much of that information". However, at the minute, it does not exist.

Miss McAllister: Does the entire Act need to be implemented, or is there any way that it could be done in steps?

Ms McNamee: No, it does not require entire implementation of the Act, but Parts 6 and 7 would need to be implemented in order to implement Part 5 on lasting powers of attorney, because you need the office. That is why we asked whether there was any possibility of looking at the Office of Care and Protection to see what is there, what it is already doing and what capacity it has for other roles and how those might be enmeshed, but I do not think that that option has been considered.

Mr Graham: It is worth mentioning that the current master is retiring. There will be a brand-new master of the Office of Care and Protection in September, so now would be a great time to do that. If you were to expand the role of that office, the new master would, hopefully, be able to take that in her stride.

Miss McAllister: That is something for us as a Committee to follow up on. It gives us good direction on and insight into what we can do. We understand that budgets are stretched for everyone, but, given the Adult Protection Bill, we would like to see, as much as possible, full implementation of the Act, even if it is done in steps.

I have two more questions. The first is a supplementary to a question on the reference to "mental disorder" in the 1986 Order compared with that in the 2016 Act. Can you explain to someone who is not medically trained and does not have a medical background what the difference is?

Ms McNamee: The 1986 Order refers simply to having a mental disorder. However, it does not really define that; it is just any kind of impairment. The Mental Capacity Act does not have that. It states that you either have capacity or you do not. It states that if, after you give somebody all the support, they are unable — there is a test for it — to understand and retain the information in order to make a decision, they do not have capacity to make that decision. That means that someone might have the capacity, for example, to make a will or to make a power of attorney.

It is a sliding scale. Especially for people whose capacity can fluctuate, it means that a decision is not made straight away, "Oh, you have this condition. Therefore, you must not have capacity". That resonated with me when we were at that event. People said to me that, literally, as soon as the diagnosis of dementia is heard, they look to the family member. In our view, it is about not writing someone off the second you hear that there is an issue. That is what the 2016 Act aims to do.

Mr Graham: That applies even to something as simple as having a registered power of attorney, whereby you say, "This person is now incapable of managing their financial affairs". Normally, a bank will not let that person operate a small current account. Literally, it is over; whereas, with lasting power of attorney, you could say, "He or she can manage this on their own, but they need help with other bits". That, again, is a big gap and something that we lack.

Ms Osborne: I was attorney for a man who died last week. He was able to live at home on his own. He was able, with the help of his carers, to go to the shop every day to buy his paper and cigarettes. However, I could not get a bank account for him, even a restricted one. I had to set up a Monzo account in my name and give him the card so that he could tap it and buy his paper and cigarettes. That was the only available workaround. He had appointed me as his attorney because he had no family. That was a way to give him a bit of autonomy so that he could buy his paper and do what he liked. He had lots of cats, and he bought cat food every day — they were better fed than he was. That allowed him the chance to do that for himself. At the moment, once a bank finds out that somebody has lost capacity, the shutters are down, and they cannot get any money.

Ms McNamee: The banks are restricted in what they can do. We deal with the banks' vulnerability forms. They are conscious and aware of the issues, and they want to help people who want the interaction that happens when they nip down to the shop or whatever. We do not really know where we stand with all of that. As per our risk, that is what we have to do. We have to have that line in the sand. Were the principles to be enacted, that would give the banks the incentive to ask, "What can we do? What is possible?". There might be a prepay option or a daily limit.

Ms Osborne: It would give them more flexibility to work with people.

Miss McAllister: That is important for inclusion in life as well, especially for people with complex needs or special needs, to ensure that their capacity is not removed and they can enjoy life in the same way as everyone else. That has given the Committee something to go back to the Department with.

I have a final question. Often, when people are before the Committee, we ask questions that are not directly related to the questions that are in front of us. We have this opportunity to have your organisation in front of us, so I will ask a difficult question. It may be unfair to ask it, but I have to.

Over the past few weeks, our email inboxes have been flooded with messages expressing disgust at a character reference that was given by the chief executive of the Law Society during the trial of a convicted paedophile. That has disgusted a lot of people. Has the Law Society dealt appropriately with that issue? We have seen the email that was sent out, and it seems that an apology was made. Many of your members represent victims of violence, including sexual violence, every day in court and in your offices. That incident hurt a lot of people, and this is the first opportunity that we have had to ask questions. It has nothing to do with the people sitting in front of me, but would anyone like to say how they feel about the way that the Law Society has responded?

Ms McNamee: I genuinely do not know, to be honest. That is above my pay grade. I am in my conveyancing and non-contentious business box and happily so, and I am concerned just with that. I genuinely do not know.

Mr Graham: It is probably a question for the Law Society council specifically.

Mr John O'Prey (Murlands Solicitors): We cannot comment on that at the moment because a process is ongoing in relation to it.

The Chairperson (Mr McGuigan): We will move on from that, if you are happy enough, Nuala.

Mrs Dodds: For transparency, Chair, I declare an interest: my son is a solicitor who does private client business and is a member of the committee.

For me, this has brought a number of issues into focus. The first is probably nothing to do with you, but it is pertinent to the Committee. The Adult Protection Bill was brought before us, and the proviso at the front of it was that it could be implemented only in part as and when we had the funding to do so. You have brought before us the issues that arise when we do not implement legislation in full as it is meant to be. I understand the issues around funding and those other issues, but it is a conundrum for the Minister and the Department to grapple with. It is important that we state and air that. When we talk about this after you leave, we might consider whether to include that in the report on our deliberations to the Minister.

That brings forward a number of challenges. One thing that greatly gets to me is the issue of state overreach or the state being able to do things to you that you are not able to challenge. That is important. We have spoken, as the Committee knows, about that. You mentioned that the Mental Capacity Act 2016 has all of the restrictions on liberty but no advice on how to deal with that. I tabled a question to the Minister about the number of people who are subject to a deprivation of liberty (DOL) order, whatever shape that might take. There are differences. Around 3,600 people in Northern Ireland are subject to a deprivation of liberty order. That is more than the prison population of Northern Ireland. I looked at those figures too. It is a significant number of people.

Will you describe why someone is subject to a deprivation of liberty order and the difference that having an advocate might make for them in human terms? I am sure that you get cases to do with that issue, but it is really important that we understand the importance of advocates.

The Committee agreed to table an amendment to the Adult Protection Bill on how we should not implement the bits of the Bill that take away liberty or interfere with someone's financial situation until those advocates are in place. In the Mental Capacity Act, how has that impacted on people?

Ms McNamee: Deprivation of liberty orders happen when the trust or family members have stepped in because they think that it is in the person's best interests. Take, for example, a family member, however. They will not be unbiased. Their priority will be, "Please make sure that my loved one is safe. If they are in a care home and cannot leave or wander, I will know exactly where they are". It is not that they do not have their family member's best interests at heart, but they have a biased view, whereas the independent advocate will be able to go in, talk to the person, explain what is going on, find out what their wishes are and try to get to a solution for their liberty that reflects where that person is. Julie Ann may have had such cases.

Ms Osborne: I had a case where the trust placed a deprivation of liberty order on a wee man with dementia. A social worker was involved. The son and wife wanted to care for the man at home.

However, he ended up in a nursing home after a hospital visit. A DOL was put on him, and he was not allowed to come out. Completely distressed, they got in touch with me because they did not understand what that was; it had not been clearly explained to them. I spoke to the social worker to get the background information and then to the client to set up a meeting so that we could explain it to them. The lady was not well — she had cancer — and was not really able to look after her husband, but her cry was, "I have been married to this man for 60 years, and I've never had a night away from him. I don't want him to be in a nursing home; I want him at home with me — with a package in place". The trouble was that the trust felt that the man, because of his diagnosis and the fact that he was a bit of a wanderer, needed to be in the nursing home and in a locked elderly mentally infirm (EMI) unit . It was the right choice for the man, but it was not until I sat down with the family and explained it that they got that. An independent advocate would provide balance to a certain extent. Not everybody can afford to engage a solicitor to do that for them.

We are at risk of ending up with a two-tier system: only the very wealthy will be able to engage a solicitor. An independent advocate, however, should be there to help the person at, I understand, no cost to them. That also ensures that the nursing home is the right place for the person, who is, in essence, locked up in a hospital and probably has fewer rights than a prisoner. Holding the family's hand is important because they need to understand why a DOL has been put on somebody. As you said, Diane, there are all the deprivations but none of the rights and powers to deal with them and to help the person. Part 1 of the Mental Capacity Act was supposed to provide for that, and an independent advocate could, as far as possible, take on board the person's situation.

Mrs Dodds: The independent advocate is an important part of the process.

A couple of other questions occurred to me as you were talking. You say that Part 1 would allow you to interpret the law in a wider context than the Order does.

Mr Graham: Yes.

Mrs Dodds: That is important. I wrote to the Justice Minister and the Health Minister. I was told that guidelines were being developed. I spoke to a friend who is a psychiatrist and is involved in such cases. He said, "We assess people all the time, and we try to determine capacity". Is there a difference between the guidelines, which say, "This is what you should do", and the law, which says, "This is what you must do"?

Ms Osborne: Yes.

Mr Graham: Yes.

Mrs Dodds: What is the significance of that? It seems to me that, legislatively, we should be able to do something around Part 1. No one, I think, has said that there would be a cost to that. What is the difference between "should" and "must"?

Ms McNamee: Part 1 is all about the principles. The revised code of practice document in the consultation that closed in December said that an independent advocate should be considered where possible. From a healthcare worker's perspective, that just means, "If you can".

Mrs Dodds: You might not.

Ms McNamee: In the Health Minister's correspondence with us, he said that the Department was already trying to embody the principles in readiness for implementation, but, from a legal perspective, implementation would enable the judge in a case in which capacity is an issue to look definitively at Part 1 to ask, "Does this person have capacity?". The old power of attorney legislation is from 1987. Maybe words were being rationed when it was drafted, because it was not clear on the capacity that is required. When we looked at the judgement in Michael's case, we saw that there was a lot to untangle in getting to the bottom of things, whereas, if you have something in place that says, "These are the things that you need to think about", and if, after having thought about those things, you find that the person still does not have capacity to make the decision, you know where you stand. Michael's case took lot of untangling, even by the judge, to get to the bottom of it. That implementation would be a real help for the profession and for the judiciary — the courts.

From a healthcare perspective, we cannot really comment, other than to trust that healthcare workers are mindful of that. We talk to psychiatrists, who say that they are doing that, but they are trying to juggle so many things, such as codes of practice and whether to refer to the 1986 Order or to the Mental Capacity Act. It is —.

Mrs Dodds: What you are really saying is that clarity is needed.

Ms McNamee: Yes.

Mr Graham: Yes. Ultimately, it comes back to the point that I made about assisted decision-making. What we are trying to do with the legislation, in every case, is to help a person to make a decision if they can so that the state steps in only if they cannot. At the minute, the state, I think, steps in far too early.

Mrs Dodds: Or too rigorously.

Mr Graham: Yes, rigorously. I could register your enduring power of attorney if I, as your attorney, thought that you had become or were becoming incapable. That is how vague it is. You would have to demonstrate only some degree of cognitive impairment for me to be able to register power of attorney. As soon as I do that, your bank would no longer deal with you; it would deal only with me as the attorney. At the minute, it is like a light switch: someone is either capable or incapable. We need a system that allows us to ask, "What are you capable of?", because it is on those things that people will still make their own decisions, and, if they are incapable of something else, that is where someone else will have to step in to assist them.

Mrs Dodds: When I wrote to the Justice Minister, she said that a joint Health and Justice committee had been set up to untangle some of that in order to make progress. Have you been invited to appear before that committee? Do you know about it? One thing that Health is really good at is throwing everything into a process from which there is no outcome. It seems to me that this is important to an individual's life. Have you been invited to appear before that committee? Do you know about it?

Mr O'Prey: We wrote to the Minister of Justice and the Minister of Health. Only the Minister of Justice mentioned the Mental Capacity Act implementation plan. It has not been referred to by the Minister of Health, and this is the first that we have heard of the committee.

Ms McNamee: We have not received any invitation, but that is not to say that we would not be happy to throw ourselves into whatever is necessary to press for this or provide clarity.

Mr O'Prey: We would be happy to participate and would welcome an invitation.

Ms Osborne: Yes.

Mr Graham: Yes, absolutely.

Mrs Dodds: OK. That is another issue that we can deal with.

This has brought into stark relief the issues that individuals face. I was at the dementia event, and we all heard the wonderful Julie talk about her journey since diagnosis and how it impacts on her. She certainly has capacity. She could stand up and talk in front of a roomful of people. It was wonderful to hear her talk. She is at one end of the scale, but many families are at completely the other end of the scale and are crying out for some clarity and help along the way. Thank you very much.

Mrs Dillon: You will be glad to know that, because everybody else has already asked questions, a lot of my questions have been answered. I appreciate your coming to the Committee. For me, this has been a very informative session on the scale of what you face.

Michael, you mentioned that a lot of this ends up unnecessarily in front of the courts and that it would make a big difference if Part 1 were implemented. You may not know the answer to this, but where does the majority of the cost fall? Does it fall to our justice system, our health system or the individuals and families, or is there a fair spread?

Mr Graham: I imagine that it is spread across a number of areas. An application is made to the Office of Care and Protection on behalf of a patient — a person without capacity — and the office pays the costs of that, including the legal fees and the court fee. That comes out of its funds. There is a cost for the court time, the administration and all that, and there are things that end up in front of judges that probably — definitely — do not need to end up there.

Mrs Dillon: You have answered my question. There is definitely a resource cost to the justice system. That was fairly clear. We might want to get some kind of an understanding of that, because one of the biggest challenges to implementation is what it will cost us. More important, it costs individuals, yes, but also their families, who have the trauma of having to go through this and trying to navigate the process. You said that there was an inequality: families with money can engage solicitors; families without money cannot.

You have said that, as solicitors, with the best will in the world, you rely on the health professionals. You do not necessarily understand that end of it — no more than any of us, to be honest. However, an independent advocate might well be able to have some understanding of that and might be the best person to represent someone. If a solicitor is required, the independent advocate will be able to work with them and give them information that they do not necessarily have.

Julie Ann, you talked about a case where a gentleman wanted to be able to go out and get his paper and so on, and other cases were also mentioned. We rely on the health professionals, and an independent advocate just might be able to delve more deeply. I have seen that with the Muckamore cases. When we went into those meetings, independent advocates had information that nobody else had, and they were of such benefit to me as an MLA representing the family. We cannot overestimate the value of those independent advocates throughout the process.

We need to get an understanding from Health, certainly from this Committee's perspective. As far as Health dealing with Justice is concerned, what is the cost to our system of not implementing this? There definitely is a cost, and we need to understand that before we can move forward. We cannot keep having cost used as an excuse not to do things when we know that money is being spent that could be saved if we were to implement. We know that that is happening every day while we are on the Committee. We need to establish that as well.

Thank you very much. I appreciate it.

The Chairperson (Mr McGuigan): Thank you. Those are all the questions. This has been useful. We really appreciate your coming in and answering our questions.

Mr Graham: Thank you for letting us come. I hope that it has been useful.

Ms McNamee: We are happy to answer any follow-up queries or emails.

The Chairperson (Mr McGuigan): We will have a conversation. Some of the queries will involve writing to Ministers, and, when we get correspondence back, we will certainly look for your response to that.