Mental Health Bill [HL]

Debate between Baroness Barker and Earl Howe

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Barker (LD)]

My Lords, I make two specific points in response to what the noble and learned Baroness, Lady Butler-Sloss, said. The amendments refer to Section 24 of the Mental Capacity Act, but if one goes on to Section 25 of that Act, there are a number of conditions that have to be fulfilled in order for a record of an advanced decision to be deemed valid. I think it is worth pointing out subsection (5) to noble Lords, which states:

“An advance decision is not applicable to life-sustaining treatment unless … (a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and (b) the decision and statement comply with subsection (6).


Subsection (6) states that it must be,

“in writing … it is signed by P or by another person in P's presence and by P's direction … the signature is made or acknowledged by P in the presence of a witness, and … the witness signs it, or acknowledges”

it to be true.

I am trying to convey to the noble and learned Baroness that these are very formal procedures. They are not taken lightly. That applies to somebody who is 18 and one day, and I think it should be applied to somebody who is younger than that with as much seriousness.

Noble Lords and others have referred to these decisions as advance decisions to refuse treatment. Advance decisions can also be for treatment. People can say in an advance decision, “I know that when I am in an episode of illness, I may be saying that I do not want medication. At this moment in time, when I have capacity, I wish it to be put down in writing that if I do that, you are to ignore it”.

I would like us to have a fuller appreciation of what it is we are talking about, although I do not detract from any of the considerations that people want to bring in about young people.

[Earl Howe (Con)]

My Lords, I venture to say that all the amendments in this group approach similar issues in not dissimilar ways. The most compelling point that perhaps should be underlined in relation to them all is that implied by the amendments in the name of the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston: that there is no earthly reason why the law should prohibit a young person with sufficient decision-making competence recording a valid expression of their wishes and preferences around their own mental health care, and the logical consequence of that is the need for a competence test, or a capacity test for child patients.

My Amendment 56 seeks to address an issue allied to those addressed by the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston. As it stands, the Bill does not permit a 16 or 17 year-old to make a valid advance decision about their mental health care. An advance decision has the same effect in practice as a capacity decision to refuse a particular treatment. It is important to understand that under the Mental Health Act, making an advance decision does not give someone an unfettered right to refuse that treatment. Treatment can still be administered notwithstanding the advance decision, albeit only if certain strict conditions are met. Nevertheless, an advance decision made by an adult patient carries a huge amount of weight, and placed within or alongside an advance choice document, which enables a patient to outline their treatment preferences, it does a great deal to ensure that the patient is placed genuinely in the driving seat when it comes to their mental health care and treatment.

Under the terms of the Bill, young persons aged 16 and 17 will be able to execute an advance choice document, but what they cannot do is to make an advance decision to sit alongside it. That means that an advance choice document that purports to include an advance decision made by an under 18 year-old is likely to carry a good deal less weight than such a document executed by an adult. My amendment invites the Government to put this right.

An associated but distinct issue arises in relation to children under the age of 16. I will not repeat the excellent arguments for a competency test put forward by the noble Lord, Lord Meston, and the noble Baroness, Lady Tyler, but I agree entirely with what they have said. The point that resonates most with me in the context of a Bill that places great emphasis on patient empowerment is that in the absence of a statutory competence test to determine a child’s decision-making ability, it will, in practice, be impossible for someone under 16 to execute an advance choice document and then expect professionals to take due notice of it.

Amendment 147, tabled by the noble Lord, Lord Meston, seems to me to be as good as it gets in articulating the key requirements necessary to establish decision-making competence in a child. My only hesitation about his amendment is that it invites us to place the terms of a competency test in the Bill without further ado. For a measure of this significance, I tend to feel that any final formula for a competence test merits a prior consultation exercise, and then encapsulation in regulations approved by Parliament. I fully agree with my noble friend Lady Berridge that relying on a code of practice in this context would be wholly unsatisfactory. For what it is worth, I suspect that a consultation would be likely to throw up some further considerations that would need to be factored in to the formula. That aside, I very much hope that the Minister will be receptive to the arguments she has heard. If we can deliver this added empowerment to children and, as regards advance decisions, to 16 and 17 year-olds, the prize will be very great, and I hope she agrees that the challenge is one we must address.