Terminally Ill Adults (End of Life) Bill

Baroness Berridge Excerpts

Friday 14th November 2025 Lords Chamber

[Lord Markham (Con)]

With due respect, I must say, as one of the committee members, that that point was put forward on a number of occasions. Unfortunately, there was a majority of people in the committee of seven to five against, by the way the nomination process worked, so it was the feeling of those members not to invite terminally ill people to speak. The minority of us who were in favour of the Bill tried on a number of occasions to hear them, but that was not allowed.

[Baroness Berridge (Con)]

My Lords, I do not think it is helpful to your Lordships’ House to be going into discussions that included private discussions. The Motion that the House passed did not suggest that. Noble Lords will also know that there are ethical concerns about calling people who are so vulnerable.

[Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)]

I remind your Lordships of the conventions of the House. An intervention on an intervention is not ideal. If we can follow normal conventions, that will be helpful.

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[Baroness Blackstone (Lab)]

My Lords, I agree entirely with what the noble Lord, Lord Markham, just said. We have a tried and tested way of measuring people’s capacity, but we do not have a single tried and tested way of measuring people’s ability. That is a very broad concept, and anybody who has worked in education at any level will say with absolute certainty that it would be unwise to replace what is currently in this Bill with “ability”. There is no definition of it—it can cover a vast variety of different kinds of ability—and finding an adequate test could take years.

[Baroness Berridge (Con)]

My Lords, I declare my interest: I received a personal donation from Dr Etherton to fund research support. Normally, I would agree with the noble Lord, Lord Pannick, in relation both to legal terms that are not defined and to moving to something that is ill defined; he will find, in the later groups of amendments with which I am involved, that this is a key concern that I have had.

The amendment in the name of the noble Baroness, Lady Finlay, talks about “ability”. I have struggled with that, for the same reasons as the noble Lord, Lord Pannick, but I have been persuaded that there is something in this. I served on your Lordships’ Select Committee. One of the benefits of serving on those Select Committees is that you sometimes get to meet your hero. Professor Sir Chris Whitty sat in front of us as the highest expert in the land, but when he gave evidence to the Commons Select Committee he had to write afterwards because he had misunderstood something and had to clarify it. It was after the Third Reading vote, I think. His letter was put in our pack and made public; I thank the noble and learned Lord, Lord Falconer, for nodding. One has to consider the fact that even he got it wrong.

We also heard from Professor Alex Ruck Keene, who is an honorary KC, who trains practitioners in how to apply this test. We heard that, although it might be common and used up and down the land, there is a considerable body of evidence that practitioners are struggling to apply it in what he calls the 15% of cases that are complex. I think this is the kind of case outlined by the noble and learned Baroness, Lady Butler-Sloss.

The committee’s time constraints meant that I was not able to put that evidence to Professor Sir Chris Whitty, as Members’ questions are limited, but I put the following to him because it is sometimes helpful for us to think about the practical realities. The MCA would bring with it its other parts, not just the capacity test. There is a presumption if, for example, an 18 and a half year-old who has had a life-limiting condition all their life is being assessed and the doctor doubts whether that young person has capacity that they have capacity—as far as I understand Professor Ruck Keene. We have to take that evidence into account. There has been some discussion about the royal colleges, but as political parties we know that some people will peel off from the corporate view. We need to take seriously that the royal colleges are not supportive of the Bill. While Professor Sir Chris Whitty might—

[Baroness Blackstone (Lab)]

My Lords, I declare an interest as chair of the Royal College of Obstetricians and Gynaecologists. I have followed what the different royal colleges are saying and it is not true to say that they are opposed to the Bill in general. Most of them are neutral, one or two are in favour and one or two are against.

[Baroness Berridge (Con)]

As people around me are saying, I do not think I said that. They are neutral. The royal colleges have said that they have problems with the Bill, but they have been neutral on the principle, save for the Royal College of General Practitioners. I am sorry; I stand corrected on that. They are neutral, as is the Association for Palliative Medicine, which is not a royal college.

When one looks at the evidence that we took, of course individuals from within that group would come along whom we had to call. It was right that we did that, but one looks at a corporate view. I enormously respect Professor Sir Chris Whitty, but I heard his evidence on this and he was not the highest expert in the land. He was humble enough to write to correct himself, as he had misunderstood the Mental Capacity Act when he gave evidence in the Commons.

[Lord Blencathra (Con)]

My Lords, we should all be grateful to the noble Baroness, Lady Finlay of Llandaff, for bringing this matter before the Committee, but also to my noble friend Lord Harper, who has highlighted some of the deficiencies in in the Mental Capacity Act. Yes, it may be tried and tested in its current usage but, as we heard from many sides of the Committee, it may be inadequate for dealing with death issues.

I was going to speak in support of Amendment 2, but I might also be willing to support the potential oral amendment from my noble friend Lord Deben. When considering important decisions, particularly in the context of healthcare, it is crucial to understand the distinction between capacity and ability. This is especially relevant for terminally ill patients, as questions about decision-making may arise on treatment options, advance directives and legal matters.

I believe that we should change references from “capacity” to “ability” when discussing decision-making for terminally ill patients. The reason for this change is to ensure clarity and accuracy in describing a person’s actual situation. We should not be afraid to bring in a new word if it is more relevant than “capacity”. Although “capacity” is a legal and clinical term for specific criteria, “ability” is a broader term that may better reflect the practical realities and nuances of an individual’s situation. Using “ability” can help to avoid misunderstandings and ensure that patients are supported in ways that are appropriate to their unique circumstances.

Terminally Ill Adults (End of Life) Bill

Baroness Berridge Excerpts

2nd reading
Friday 19th September 2025 Lords Chamber

[Baroness Berridge (Con)]

My Lords, sadness and sympathy are palpable in our inboxes and in this Chamber. Your Lordships’ House is a sobering scene. I begin with what is missing from the Bill—the letter “S”, the plural. As the noble Baroness, Lady Berger, has outlined, there is no mention of family or relatives. Its premise is the western Enlightenment view of the self and individual autonomy, which is alien to parts of the UK, let alone to some of our ethnic minority communities. On the latter, I can put it no better than an article by Chine McDonald, director of Theos, in a post on 26 November last year:

“Many people will be familiar with the southern African term ‘Ubuntu’, which means ‘I am because you are’. In my own community—the Igbo ethnic group of south-eastern Nigeria—there is the concept of the Umunna: the fraternity, the clan or the community … there is a strong sense of existing not as an individual, but knitted into a family … The idea that someone who is facing death might not want to be a burden … is anathema to West African tradition. You can’t be a burden because you are not a separate entity. You’re part of a whole”.


Anyone who has visited the north-east of England might attest to a similar “thick” community.

I heard the compelling story of someone with PTSD after watching the huge syringes of drugs go into their father. There is no duty under the Bill to warn them. What about the effect on you of witnessing the failed process that the Bill outlines? Or are they just not allowed to be there?

Another “S” is “subtle”. Many noble Lords have spoken of subtle pressure, and pressure and coercion are used in the Bill, by relatives, which can be hard to detect. There is another wrong premise in the Bill: that pressure comes from a person. If you join a Facebook networking group, say, for fellow sufferers of the same disease, the algorithms can alter the content offered to you, or comments by others can cause you to idealise the thought of assisted dying, create a reward pathway in your brain and even, according to studies, change the network and structure of your brain. Thus, in fact, the coercion could come from an unquantifiable force, or even an algorithm, not a person. How can medical practitioners ever know if you have been pressurised like this? Although this research field is still in its infancy, could we, in 10 years, be reporting that deaths were actually through coercion on social networking? Even today, a family is suing OpenAI, saying that ChatGPT encouraged their son to take his life. Other studies are now reporting that people are more likely to turn to social media for medical health reports than to qualified physicians. This is the world in which we are legislating. We know that this can influence elections; how can it not influence these decisions?

The clause to prohibit advertising is insufficient. This Bill is for an analogue age, not one on the cusp of AI. Although I support the suggestion of the noble Baroness, Lady Berger, for a Select Committee—and I hope I am not throwing a spanner into the timetable—I do not think we can ignore these issues. I am an optimist, and I hope that the six-month timeline in the Bill—again, because we are on the cusp of medical breakthroughs—will in the future become impossible. Anyone who knows parents of children with cystic fibrosis knows that the new-gen drugs are transformative. How will clinicians advise when they do not know what breakthroughs we are on the cusp of?

My final “S” is single women, as the noble Lord, Lord Truscott, talked about. A meta-analysis of the best quality of Oregon between 1998 and 2018 says that it witnessed an increase of 50% in voluntary suicide of older women over the age of 65. We know that suicide can be contagious. Are we opening up that Pandora’s box again? I agree with the right reverend Prelate the Bishop of London about voting on the principle. This is leadership from the Church of England, and the feedback to me is very welcome. I do not view this as taking your own life; I view it as giving your life back to God. This is a sacred act, and not one the state should provide.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

The other amendment I want to refer to is Amendment 34, which puts into effect that which I have been asking for and is being put forward by the noble Baroness, Lady Berridge. I very much support her amendment. I beg to move.

[Baroness Berridge (Con)]

My Lords, I shall speak to Amendment 34; I thank the noble Baroness, Lady Tyler, for adding her name to it. I am grateful too to the Minister for beginning, by way of the government amendments, to ensure that the Mental Health Bill does not conflict with orders of the family court under the Children Act.

Amendment 34 would ensure that the AMHP—approved mental health professional—appointing the nominated person for a child who lacks competence must appoint either the special guardian, when the family court has ordered one, or the parent with whom the child lives under a child arrangements order. His Majesty’s Government’s amendment reflects the current position under Section 37 of the Mental Health Act, and this amendment merely reflects the current position under Section 38. Under the Bill, however, the nearest relative becomes the nominated person and moves from a “must” in the Mental Health Act to a “should” in a code of practice.

According to the Government’s policy paper, His Majesty’s Government wished to give the AMHP the discretion to appoint someone other than that special guardian or the parent with whom the court has ordered that the child resides. Both those court orders affect parental responsibility. A special guardian takes all effective day-to-day decisions for the child and, according to the Children Act 1989, parents are left only with consent to a change of name or if the child is to leave the jurisdiction.

A kinship carer or foster carer is given parental responsibility by way of a court order after a report that has to be produced by the local authority to the court. Under a child arrangements order, the matter of who the child lives with or sees is determined, again, by a court order. A matter that is usually part of parental responsibility decided between the parents is now the subject of a court order. Breaching that order is, in fact, contempt of court—or a breach of a court order, as is normally said.

Many of these admissions of sick children who have no capacity are in the evenings or at weekends. That is what I was informed last Thursday by Dominic Marley of the AMHP Leads Network, whose clear view is that it does not want to be foisted with the discretion that His Majesty’s Government offer them. Why? It is because, quite simply, AMHPs are not equipped, unlike the family courts, to assess that there is now no risk of harm to a child, or to appoint someone other than the special guardian or the parent with whom the child resides.

How can AMHPs assess, at 10 pm on a Saturday night, that the daily life of a child is no longer what was outlined in the special guardianship order, or if the child now lives with that parent without a problem, even though that parent may have a history of not being able to care for them due to illness, or a history of violence, but has now recovered or reformed sufficiently? How can AMHPs assess that the parent who was ordered not to have contact after a week-long trial of the evidence in the family court is, in fact, safe to have contact with the child as the nominated person? AMHPs are simply not equipped to delve into complex family issues that have already been determined by the family court—nor, when they are trying to do a mental health assessment of a sick child, do they want to be distracted by this.

The remedy, as the noble and learned Baroness, Lady Butler-Sloss, outlined, is to enable the reformed parent in either of those cases to go to the county court under the nominated persons process, which, indeed, often hears cases within 24 hours. There is, of course, also the remedy to go back to the family court, but that would take longer. It is for that court to assess, we hope with a family judge, what the position is and whether that parent is now safe to be involved in the child’s life as the nominated person. It is unfair to put that responsibility on AMHPs, who see only a small number of Children Act cases each year. Also, as these cases are not straightforward—by definition, they have been subject to an order in the family court—AMHPs would almost certainly need His Majesty’s Government to provide out-of-hours specialist legal advice across England and Wales to help them do this. That matter would, obviously, be open to litigation.

AMHPs and the staff of a unit should not have this responsibility or discretion. What if a father who has a no contact order is given access as the nominated person and harms the child? Even if that does not happen, I cannot help wondering, can the mother go to the family court and say that the dad is in breach of the no contact order or in contempt of court by seeing the child as the nominated person? And would the dad defend that breach and say, “I need to call the AMHP to the family court”? This seems to be getting rather expensive and complicated. Family court orders should be respected, so who the AMHP must appoint as the nominated person should again be on the face of the Bill. Most importantly, this would eradicate the risk of harm to a child from a parent, who has been found by a court to be a risk to their child, getting contact with them, or getting access as the nominated person until another court determines otherwise. Court orders are amended by court orders, not AMHPs.

After eight years of looking at the Mental Health Act to reform it, we are now at Report stage and there are still significant conflicts between this Bill and the Children Act. I am left wondering why. Sadly, despite the considerable engagement that other noble Lords have mentioned by the Minister, which I know is appreciated, as of last Thursday, His Majesty’s Government have not met with the lead AMHP network that I have outlined, which represents over 90% of local authorities in England and Wales and has been in existence for over 20 years. The network is not aware of any other professional network being in existence. It was promised by the last Government that, before a Bill was produced to Parliament, it would be met with. As of last Thursday, His Majesty’s Government have also not consulted with the British Association of Social Workers, which has a special interest group of AMHPs. Why not? Will the Minister please outline precisely whether any AMHPs have been met with and, if so, tell us who are they are and make them known? The network I have spoken to is very concerned about this discretion.

The Minister has immunity while being a servant of the Crown; AMHPs and the staff of a secure mental health unit do not. All the AMHPs are asking for is what is indeed reflected in Whitehall. The DHSE has responsibility for the Mental Health Act and DfE for the Children Act. This is not their expertise. I do hope I will not be attaching this Hansard to a letter to a coroner, a CQC inquiry or any other inquiry if, God forbid, a child is harmed or killed in a secure unit by a parent.

Governing is about deciding. Without Amendment 34, His Majesty’s Government have, in my view, decided to take an unnecessary risk with the safety of some of our sickest children. As noble Lords may be aware from how I have outlined this speech, I intend to divide the House if necessary—but I hope the Minister will concede the point.

[Lord Meston (CB)]

My Lords, I would like to support both the amendments of the noble and learned Baroness, Lady Butler-Sloss, and the amendment just spoken to by the noble Baroness, Lady Berridge. It seems to me that, in the potentially complex and fluctuating family situations with which mental health professionals may find themselves having to deal, it is absolutely fundamental that they identify and consult those who have parental responsibility. It would be quite wrong, even in a hasty or urgent situation, for such people to be marginalised.

So far as the amendment from the noble Baroness, Lady Berridge, is concerned, I likewise entirely agree that the practical realities of operative family court orders, which may or may not be relevant, will certainly need to be understood and properly looked at before any urgent decisions are made. They will also need to be fully considered later when more measured decisions have to be made. For that reason, I would certainly wish to support her amendment.

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[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for their contributions in this important area, and I thank the noble and learned Baroness, Lady Butler-Sloss, for Amendment 2.

On that point, I can say that a copy of the report made following a care and treatment review must be sent to those who have a legal duty to have regard to the review recommendations, so that they are implemented appropriately. We agree that parents play an important role. However, it may not be appropriate for the report to be sent to parents in every case: for example, where safeguarding concerns have been raised. Inappropriate sharing of information could result in the patient withdrawing their consent to the review. So we will provide statutory guidance on the role of the parent to assist the responsible commissioner in considering who to involve in care and treatment reviews.

On Amendment 25, also tabled by the noble and learned Baroness, Lady Butler-Sloss, the Bill already allows anyone involved in the patient’s care or welfare, which includes parents, to apply to the county court to terminate the appointment of a nominated person. I can assure the noble and learned Baroness that we will make this clear in the code of practice and the Explanatory Notes for the Bill, as she has raised an important point.

To address Amendment 27, we are concerned that making it a requirement for parents always to be consulted when a nominated person is chosen could put undue pressure on a child to choose a parent. However, we agree that the witness should consider the views of parents and others who may have insight into the suitability of a nomination. I can tell the House that we will therefore set out in the statutory code of practice how the views of the family and others should be fed into the witnessing process.

I have also heard the concern of the noble Baroness, Lady Berridge, about the nominated person regarding children who lack competence. In response to this, as she acknowledged, I have tabled Amendments 29 to 33 to make it clear who an approved mental health professional must appoint in certain circumstances. For an over-18 lacking capacity, an approved mental health professional must appoint a competent lasting power of attorney or Court of Protection deputy, if they have one. For all under-18s lacking capacity or competence, where there is a care order, they must appoint a local authority which has parental responsibility for them or, if relevant, a competent Court of Protection deputy. Where there is no care order, the approved mental health professional can appoint a person who does not have parental responsibility for 16 and 17 year-olds. This allows for suitable alternative arrangements, for example, informal kinship arrangements for young people who live independently. I hope that this reassurance and commitment on my behalf provides the further clarity for which the noble Baroness has been advocating.

Finally, in response to Amendment 34, we agree that in the vast majority of cases we would expect a parent, or whoever has parental responsibility, to be appointed. This would include consideration of special guardians and child arrangement orders. As I have set out before, we do not agree that a person with residual parental responsibility should always be blocked from being a nominated person. A child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child. For example, the parent might struggle with their own health issues but could still be an effective nominated person.

The situation is different in the case of a care order because the local authority is being given lead parental responsibility. We have engaged with the Children’s Commissioner on this point. As I believe the noble Baroness may be aware, I recently met the Children’s Commissioner on a range of issues, including discussions about the Mental Health Act.

If there are no relevant people, approved mental health professionals must follow the patient’s past and present wishes and feelings when deciding who to appoint. We do not believe that the eldest person should be given preference, as this represents an outdated assignment of responsibility. I assure the noble Baroness, Lady Berridge, that I have been advised that my officials met the chair—but I understand that the term is lead—of the AMHP Leads Network last November.

I can make a further commitment, which I hope will be helpful to your Lordships’ House. I am committing to establishing an expert taskforce to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process for children and young people. Views will be very much welcomed on who should be part of this; I have already invited the noble Baroness, Lady Berridge, and the noble and learned Baroness, Lady Butler-Sloss, to make suggestions about that. With these reasons, I hope that noble Lords can support our amendments and will not press their amendments.

[Baroness Berridge (Con)]

Before the Minister sits down, the information I have is that Dominic Marley of the AMHP Leads Network had not seen a draft of the Bill that was to go before Parliament. Can the Minister confirm that? The Minister has outlined that there can be an assessment of ill-health already before the courts. Is she confident in legislating when a group of professionals are saying that they are not competent to assess the illness or otherwise of that parent and that the matter, already determined by a court, needs to go back to a court to be re-evaluated? They say that they are not competent to do what you are asking of them.

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Moved by

[Baroness Berridge]

24: Schedule 2, page 72, line 24, leave out “county court” and insert “Mental Health Act tribunal”

[Baroness Berridge (Con)]

My Lords, I will be brief, bearing in mind the time. I have tabled these amendments again on Report, regarding the appropriate tribunal to hear the nominated person’s claims. I am very appreciative of the information given earlier to the noble and learned Baroness, Lady Butler-Sloss, that parents would be able to go to the tribunal. I am also very grateful for the letter that the Minister wrote to me.

The only point on which I wish to have clarification is that there is a difference between the Mental Health Act tribunal and the county court in relation to funding. A parent who goes to the county court will be subject to means testing for Legal Services Commission funding. That is not the case for the Mental Health Act tribunal. So, bearing in mind the importance of the county court to parents, will the Minister outline whether there are any proposals to enable parents to access Legal Services Commission funding?

[Lord Meston (CB)]

I am grateful to the noble Baroness for bringing this point up again. I mentioned it in Committee. The reference to the county court, currently in Schedule 2 to the Bill, is the only place in this jurisdiction where the county court is given anything to do. It seems to me now to be an anomaly and an anachronism. It is simply carrying forward the use of the county court from the 1959 Act and the 1983 Act, which provided for that court to deal with applications to displace nearest relatives.

I do not believe that, if the mental health legislation was now being started afresh, it would refer to the county courts. The county court is, in any event, now greatly overburdened, but that is not the only reason to replace it. A mental health tribunal, or indeed the Court of Protection, would be better equipped to deal with these cases, having specialist expertise and judiciary.

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[Baroness Merron (Lab)]

I am most grateful to the noble Lord.

[Baroness Berridge (Con)]

I am grateful for the Minister’s comments, the reassurance she has given and the details she will provide me with, so I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

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Moved by

[Baroness Berridge]

34: Leave out sub-paragraph (3) and insert—
“(3) Where sub-paragraph (2) does not apply, the approved mental health professional must appoint as a nominated person— (a) a guardian who has been appointed for the relevant patient,(b) a person who is named in a child arrangements order, as defined by section 8 of the Children Act 1989, as a person with whom the relevant patient is to live, or(c) a person who has parental responsibility for the relevant patient.(3A) In this paragraph “guardian” includes a special guardian within the meaning of the Children Act 1989 but does not include a guardian under section 7 of that Act.(3B) Where there is more than one person identified as a potential nominated person in sub-paragraph (3)(a), (b) or (c) then the approved mental health professional must in deciding who to appoint—(a) take into account the relevant patient’s past and present wishes and feelings so far as reasonably ascertainable, or(b) where it has not been possible to ascertain the relevant patient’s past and present wishes, preference must be given to the eldest person.”

[Baroness Berridge (Con)]

My Lords, I have listened carefully to the Minister’s reasoning, but I am sure it will not be a surprise to her that there is now a matter of disagreement, so I wish to test the opinion of the House.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, in moving Amendment 142, I will speak to Amendments 143 and 144 standing in my name and that of my noble friend Lord Kamall. These amendments are about one critical issue that has proved seemingly intractable despite best efforts for many years: the way the mental health system looks after child patients. I am not talking just about child patients who have been compulsorily detained under the Mental Health Act, although they are the subject of Amendment 143; I am referring also to children admitted to a mental health unit as in-patients for any reason at all. That is the subject of Amendment 144.

Noble Lords who are veterans of the last Mental Health Bill in 2007—I can see one or two—will remember that the late Lord Williamson of Horton, former Convener of the Cross Bench Peers, made this issue his crusade with, unfortunately, only limited success. We are still living with the problem. The current Mental Health Act code of practice says that it is government policy for under-16s not to be admitted to an adult ward, which is fine as far as it goes—although, in my book, when we talk about children, we should include young people aged 17 and 18.

The Government promised to eliminate the inappropriate use of beds in adult wards, but that has not happened. Last year, the CQC reported that 196 children were admitted to adult mental health units in 2022-23. This is not a trivial matter. The patient group Blooming Change, which I have mentioned before, has provided me with some first-hand accounts from children and young people who have been placed on adult mental health wards and who have been through some harrowing experiences. One has said:

“As a child I spent over 50 days in a mixed gender crisis unit … There was some very scary stuff that happened … During my first day on the unit, I witnessed a team of police dressed in riot gear with riot shields and dogs doing a drug search … At one point my bedroom was next door to a man who broke a student nurse’s nose and smeared his own bodily fluids over his bedroom wall … I was constantly scared and on edge and the ward was constantly unsettled. The staff on the ward were not trained on child restraint, so I often ended up really hurt … it would be, like, really big men who were used to going up to forensics to restrain people and then coming to restrain me, a little girl at the time, basically. It was horrific”.


That may be an extreme case, and one trusts that it is, but there are many cases that fall not far short of that level of emotional damage. It certainly is not that extreme as regards the complete absence for a child of any therapeutic benefit.

Another witness said:

“The worst thing about adult wards is you can’t access any intervention at all. No art therapy, no psychiatrist, because you’re under 18, so they say they don’t have the appropriate training to work with you. When I was on an adult ward, all my medication went unreviewed. I wasn’t allowed to ask for anything, not even allowed outside”.


What is the best way of solving this problem? The approach I have taken in these amendments is to say that, when a person aged under 18 is in desperate need of in-patient mental health treatment, the clinical decision-making around admitting that person to a mental health unit should be as rigorous as it can be to avoid, as far as humanly possible, admitting that patient into an adult ward. There surely to be a determination around best interests. There also need to be procedural safeguards so that, if it is decided that an adult ward is the only available option in a particular case, there is appropriate transparency around that decision, such that the local authority is informed of the fact and the hospital itself publishes statistics in its annual report recording the number of instances during the year when this has occurred.

I also suggest that a report to the local authority is equally appropriate in a situation where a child is accommodated in a hospital or mental health unit situated outside the local authority area in which the child is ordinarily resident. In one of our earlier debates, we talked about the particular vulnerability of children who are treated in a hospital far away from home. Alerting the child protection officer working nearby would go some way at least to mitigating the risk of the child self-harming.

There may be some Members of the Committee who think I have been far too lily-livered in tabling these amendments and who feel I should have tabled much stronger amendments proposing the outright abolition of placements involving children on adult wards. I quite deliberately have not done that for the reason we touched on in earlier debates: we have to work with the world as we find it, not as we would ideally like it to be. We have to recognise that, in a few cases—sometimes desperate cases—a temporary stay on an adult mental health ward could be the only way of saving a child from death or serious injury and, in those cases, I suggest that it is not for us in Parliament to prohibit the practice outright.

On Amendment 142, a child being treated in a mental health in-patient unit who also has a physical disability can sometimes get a very raw deal. If the unit they are on has areas that are, in practice, inaccessible to that child, that simple fact can have a huge impact on their access to treatment. One member of Blooming Change has said:

“I am physically disabled, and for me, the room to speak to the psychologist was upstairs in the unit, and there was no way for me to access that space. I kept being told she would come down to see me somewhere else during my stay, but it didn’t happen, so for me, my physical impairments meant that I didn’t get equal access to the support”.


This is not the sort of amendment I would choose, in the normal way, to bring back on Report, but the questions it raises are important enough for me to ask the Minister whether the department and NHS England are sufficiently aware of that kind of problem and what, if anything, is being done to address it. I beg to move.

[Baroness Berridge (Con)]

My Lords, I rise to speak to Amendments 159 and 160. Amendment 159 is similar to Amendment 143. It merely proposes a different notification procedure where a child has been present on an adult ward, but it also requires notification to the local authority and applies to out-of-area placements, which were mentioned by my noble friend Lord Howe. It is important that that information is given to the local authority, as it has the duties to safeguard—particularly children in need. I will speak to this on Amendment 160.

I join with my noble friend’s comments on how the Bill treats those who are 16 and 17. We have raised the issue in relation to other areas of the Bill that, in law, they are children, and they are treated as children by the professionals, as outlined in the example of the psychiatrist saying, “I don’t have the training to do this”. Under-18s are treated as vulnerable young people and children. One can also draw attention to the fact that under-18s are no longer allowed to marry in our country. We are increasingly coming into line with the fact that you are a child, and have the protection of the law as one, until you are 18.

Amendment 160 relates to “children in need” under Section 17 of the Children Act. Recommendation 117 of the Wessely review said:

“Section 17 of the Children Act 1989 should be amended to clarify that any child or young person admitted to a mental health facility is regarded as a ‘child in need’ so that parents can ask for services from their local authority”.


That will, obviously, be particularly important if the child has been placed out of area.

That recommendation was rejected by the Government in their published response to the review, but I note that the review also asked for this provision to be if the child is admitted—that means as a voluntary patient, of course, as well as just being admitted under the Act. I have laid this amendment to clarify the Government’s response to this. That response stated that, basically, it is not necessary to amend the Children Act because disabled children, which includes children suffering from a mental disorder, are already deemed to be “children in need”, so there is no need for this recommendation.

Valdo Calocane: NHS England Report

Baroness Berridge Excerpts

Thursday 6th February 2025 Lords Chamber

[Baroness Merron (Lab)]

I am grateful to the noble Baroness and for all her contributions to the Mental Health Bill. Perhaps I could use this opportunity to say, in answer to her question but also to a previous question, that improving patient rights is not in conflict with public safety. That is something that I know we are very mindful of about the Bill. As the noble Baroness is well aware, and as we have debated many times in this Chamber, there is a case, when to protect people from themselves and to protect the public, action must be taken, and that should not be shied away from.

[Baroness Berridge (Con)]

My Lords, as the terms of reference of the inquiry are developed, could the Minister outline whether they will cover the key questions that have been raised about the criminal justice system? Do we need to look, for instance, at renaming the offence “manslaughter on the grounds of diminished responsibility”, with the cry that he has got away with murder? Will it look at the sensitive issue of, when somebody is not culpable for getting as ill as he did, which is what the court found in the unduly lenient sentence judgment, whether we need to explain to the public why we do not send people to prison but only to hospital in those circumstances?

[Baroness Merron (Lab)]

As the noble Baroness is aware and as I have already confirmed, the report is totally focused on the care and treatment of Valdo Calocane. The questions about sentencing are of course a matter for the courts, but I am sure that my colleagues in the Ministry of Justice will be interested in the noble Baroness’s comments.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

I briefly mention Amendments 77 and 84 in the name of the noble Baroness, Lady Berridge, which propose the use of the mental health tribunal rather than the county court. My preference would still be the use of the Court of Protection as the correct venue; we certainly cannot have both. However, I do not want to anticipate what the noble Baroness is likely to say or, indeed, what the Minister will want to say in reply.

[Baroness Berridge (Con)]

My Lords, I shall speak to Amendments 77, 82 and 84 in this group. I am grateful to the noble Lord, Lord Meston, for mentioning my amendments in advance. I am adding the other choice for His Majesty’s Government, which is the mental health tribunal, on the basis that the Court of Protection deals with the Mental Capacity Act and, obviously, at the moment, the mental health tribunal deals with claims under the Mental Health Act.

However, there are one or two points of clarification on the process on which it would be useful to hear from the Minister. As I understand it, for the county court to take an application to displace the nearest relative involves means-tested legal aid, whereas the mental health tribunal, I believe, has Legal Services Commission funding—I am talking in old money here—so it is non-means-tested. I am not aware of what the situation is with the Court of Protection. However, an important concern of people making these applications is whether their legal representation is funded. I expect they are in a situation similar to that outlined by the noble Lord, Lord Meston, when he spoke of getting one of these applications for the first time; for many people making these applications, it will be their first time not only making such an application but being in front of any kind of court or tribunal, and at a time of great distress with a relative detained under the Mental Health Act.

Given that the policy document disclosed last week references this process as the solution to certain situations, could the Minister please outline, either today or in a letter, how many county court applications there are, how long people wait for such applications and what the rate of success is? How many of those who go to the county court currently get legal aid?

Is the Minister satisfied that the county court can act swiftly enough to remove a nominated person who is a risk to the patient? An example given, I think either in the review or in the response to the White Paper, is that, if you have a coercive, controlling boyfriend of a 17 year-old girl as the nominated person, or someone who is suspected of having trafficked that young person to the UK, then time is of the essence for practitioners to have that person removed—on evidence, obviously—from having such powers as, for instance, to apply to discharge the patient from hospital.

At this stage, it might also be appropriate to ask the Minister what is meant in the policy document by the concept of “temporary” nominated persons? We had interim nominated persons in the review, but there is no concept that I have seen in the Bill of temporary nominated persons.

Finally, Amendment 82, although it may be in the wrong group, talks about parental responsibility. We have had other discussions in Committee about this, and I think it was in the review; we must make sure, at the very least, that appropriate people with parental responsibility have the relevant information. That is a baseline. Whether we go on to consultation or being able to apply to remove a nominated person, I would submit—and Amendment 82 outlines this—that they should have all the relevant information. I have exempted the person with residual parental responsibility under a special guardianship order. This reveals some of the complications of the Children Act. In this type of situation, the child has been removed to live with someone else; it is similar to a care order, in that the people with parental responsibility remain there, unless there is an adoption order. One has to be careful even about the rights to information, and who with parental responsibility receives that.

[Baroness Butler-Sloss (CB)]

My Lords, if I may, I shall start with the amendment tabled by the noble Lord, Lord Meston. I agree with almost everything that the noble Baroness, Lady Berridge, has said. I will talk first about which court it should be in. I agree entirely with what the noble Lord, Lord Meston, had said. Oddly, the county court was one of the only courts in which I did not sit, but I have never heard a circuit judge who was very keen on dealing with these particular applications.

Judges of the Family Division sit in the Court of Protection. As I would hope noble Lords would agree, they are somewhat expert in family law, and they do a great deal of mental care and medical cases. As president of the Family Division, I spent probably 50% of my time doing one sort of medical case or other, quite a lot of them mental health cases. The Court of Protection is probably the best court to deal with this. I do not feel very strongly against the mental health tribunal—I just do not think it would be quite as good. Legal aid is an issue, and I assume that it probably would not be automatic in the Court of Protection.

I turn to my Amendment 70. I entirely share what the noble Baroness, Lady Berridge, has just said. The law is that, until the age of 18, one is a child, regardless of the Gillick case, regardless of being 17 and very nearly grown up. Until a person is 18 they remain, technically, in law, a child. I am very concerned about a child of any age, living at home with parents, who has a mental health problem sufficiently serious to require attention and a nominated person, who is at odds with the parents or guardian and chooses somebody who is totally unsuitable. The noble Baroness, Lady Berridge, pointed out that this could be someone who might be trafficking, or an unsuitable boyfriend.

The one group of people not included in new Section 30B(2) in Part 1 of Schedule 2 where it says that, to discharge a nominated person,

“An order under this section may be made on the application of…”

is anybody who has parental responsibility for the child. This means that when a child who is at odds with their parents goes into hospital, when those parents know the boyfriend and that he is unsuitable, those parents have no voice whatever in saying that he is not suitable to be a nominated person. Subject to the important points that the noble Baroness, Lady Berridge, has made, it seems that there are certain cases where, in what used to be called a custody order or a special guardianship, the parental responsibility of the natural parents is limited.

I would have hoped that the Government would see that, however much they want to empower children, including children under the age of 16, they cannot take away 100% the responsibilities of parents. Under Section 2 or 3 of the Children Act, parental responsibility is defined as having rights as well as responsibilities. I am really talking about the responsibility whereby parents may really want to be able to tell someone, “Look who my daughter is going out with”, but under the Bill they have no right do so, and as far as I am concerned that is utterly wrong.

--- Later in debate ---

Moved by

[Baroness Berridge]

74: Schedule 2, page 73, line 21, at end insert—
“(3) Regardless of whether a person is appointed as a nominated person, if they have parental responsibility that person must be given appropriate and relevant information about care and treatment of a relevant patient.(4) Subsection (3) does not apply to persons with residual parental responsibility for the relevant patient when the patient is subject to a special guardianship order under section 14A of the Children Act 1989.”Member’s explanatory statement
This amendment, along with another amendment in the name of Baroness Berridge, seeks to ensure that regardless of whether persons with parental responsibility are appointed as the nominated person, they should have access to the appropriate and relevant information about care and treatment of the relevant patient (unless a Special Guardianship Order has been made).

[Baroness Berridge (Con)]

My Lords, Amendment 74 properly sits alongside Amendment 82 in the previous group, so I rise to speak predominantly to Amendments 75, 78 and 79A to 81. This group seeks to ensure that the expansion of choice and autonomy for children and young people under the Bill sits consistently with the child protection law of the Children Act, which I believe the noble and learned Baroness, Lady Butler-Sloss, was involved in creating.

This is not a new issue. The independent review way back in December 2018 stated:

“There needs to be careful consideration of how the powers and rights of the NP”—


the nominated person—

“will interact with other areas of the system, including care orders, guardianship and child arrangement orders, where the overlap with parental responsibility is particularly important”.

Parental responsibility has been dealt with in a series of amendments by the noble and learned Baroness, Lady Butler-Sloss, so I will not address that. It is regrettable that over six and a half years later, we still have not sorted this matter and there is no draft code of practice for noble Lords to refer to.

However, I am grateful for the meetings the Minister has had with colleagues, and for the policy document disclosed last week, which made small steps. I hope the Minister can confirm that she has met the Minister for Children and Families and DfE officials regarding this matter, as they hold responsibility for the Children Act. I am also grateful that the Children’s Commissioner has now stated her concerns in this aspect, as well as for the excellent work of the Children and Young People’s Mental Health Coalition.

To avoid this being dry law, I will give two quick examples that illustrate the conflict remaining between the proposed reforms and the protections under the Children Act.

First, a 15 year-old child is Gillick competent but still does not quite understand why she has not had any contact with dad. However, there are days of evidence in the family court showing that dad is violent, controlling and coercive; a child arrangements order was made, giving him only what is called letterbox contact. The child appoints dad as the nominated person, and dad of course now has contact. Cannily—these people are canny—on the Thursday before a bank holiday weekend, he applies to have the child discharged. The 72 hours to bar this application pass by the locum’s staff, et cetera—we can all imagine the inquiry—and dad has now taken the child and disappeared. I leave it to the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, to outline what mum, who has parental responsibility under this Bill, knows is going on. Children and young people should of course be given choice and autonomy—my amendments do not seek to undermine either that or Gillick competency—but surely we must consider circumscribing that when the family courts have, for child protection reasons, restricted the role of adults who should normally care for and love that child or young person.

I turn to the second scenario. A 17 year-old lacks the capacity to appoint so the AMHP is making the decision to appoint the nominated person. However, the 17 year-old is under a special guardship order—maybe they ran away from the special guardian—and was picked up by the police while trying to find dad, whose address they had on them. Dad still has parental responsibility, of course, so the AMHP contacts him and appoints him as the nominated person. Again, he applies for discharge. The child tries to return to the special guardian, who has no idea that the child is about to return home, so no one is there to receive them. The child leaves in distress and harms themselves.

The AMHP can be forgiven for thinking that child special guardianship orders end at 16 years old, as I cannot find them mentioned at all in the Bill. The same scenario would apply to a child in care as paragraph 9 of Schedule 2 to the Bill is blissfully unaware that 16 and 17 year-olds can be under a care order. The AMHP, according to the Bill, is under no duty to appoint the local authority for a 16 and 17 year-old under a care order or a special guardianship order in this scenario.

The solution to the second scenario is in Amendments 79A and 80A; I am grateful that the noble Baroness, Lady Tyler, has added her name to the latter. Where any person under the age of 18 is being detained—that is about one-third of young people—the AMHP is given a list of people who must be the nominated person, not just those with parental responsibility and the local authority in relation to care orders, as in the Bill and as outlined in the policy document.

Dominic Marley, the co-chair of the AMHP Leads Network, has written to me. He says that he

“fully supports the amendment … In its current form, the Bill conflicts with other legislation affecting children, such as the Children Act 1989. The Bill fails to consider the various orders relating to parental responsibility as outlined in the Children Act 1989”.

He goes on to say:

“This is a deeply concerning omission and is likely to give rise to confusion and uncertainty in practice. We believe the amendments you have tabled will provide clarity in this regard, clarity which should be provided by primary legislation”.


My final point on this second scenario is that the Minister’s policy document states that, for under-16s who lack competence, as in this scenario, the AMHP will appoint the special guardian as the temporary nominated person. Can the Minister explain why the Bill says that the AMHP must choose the local authority if there is a care order in place, but not if there is a special guardian? I repeat the point made in the previous day in Committee: the mental health code cannot create a “must” unless it is included in the Bill or secondary legislation.

The solution to my first scenario is more difficult, and I accept that it is less likely to occur in practice. Most of the one-third of young people who are detained under the Act will lack capacity by the time they are detained but, if we want to maintain as much of a child’s or young person’s choice and autonomy when they have capacity, we must act when they have capacity. Amendments 75, 78, 80 and 81 disqualify certain people, such as the no-contact parent under a child arrangements order or the residual person with parental responsibility when a special guardianship order has been made. The amendments also mandate certain people who have to be chosen, such as special guardians.

I accept that that is a very clunky way of doing it. Another option is for His Majesty’s Government to forbid certain people rather than mandating anyone. Another option would be to give the job of disqualifying people to the family court by amending the Children Act. Therefore, the court, on making a care order, a child arrangements order, or a special guardianship order—for which it often hears evidence—would name certain people as being disqualified from acting as a nominated person.

So I hope the Minister can clarify her policy document, as it includes the child-in-care scenario where the nominated person is a parent—usually where the child resides—who has their parental responsibility limited. It states that the witness—the person involved in the process—

“would assess the appointment of such an individual as unsuitable due to the potential risks to the child and therefore prevent this”.

Is that mandatory language? If it is, why not use “must” and put it in the Bill? Are the Government actually giving the AMHP, the young person or that witness the ability to go behind the care order of the family court? If the Mental Health Act code says that the witness just has to document that, if it is “should” rather than “must”, do we really want to enable that?

The policy document then immediately says:

“We will set out in the Code of Practice considerations for the witness to make beyond those set out in legislation”—


I am not sure that makes sense—

“including how to make these judgements”.

That now seems to be truly discretionary language. I again outline the three categories from the code: “must”, “should” and “may”. Which one is this? If this is “should” then, as I say, the child can go behind the family court order as long as the witness writes down the reasons. I expect the Minister to be very clear in her response, if we are undermining the authority of the family court.

Amendment 79 is a quick clarification of whether the child or AMHP can appoint more than one person as the nominated person. Amendment 85 adds the grounds of

“not acting in the best interests”

so that the AMHP can remove the nominated person—for instance, if they discover that they have trafficked the child to the UK. That is not just for children and young people but for all patients.

I return to the risks to children and young people in both the scenarios I have outlined. These are not triggered by the AMHPs, and they will not be triggered by poor training, a lack of resources or levels of staffing—nor triggered by those who the family court said could pose a risk to the child or young person. These would be triggered by how His Majesty’s Government currently propose to change the law. In the worst-case, but sadly foreseeable, scenario where a child dies at the hands of a nominated person who had already been known to be a risk, as outlined by the family court, I expect that the Chief Coroner would need informing of your Lordships’ debate. Otherwise, professional and other staff might take all the blame. Also, would the Secretary of State for Education in fact still be able to do a serious case review of the death of that child, or would she not be conflicted? A dangerous person got access to a child because the nominated person process was a backdoor to the Children Act. So can the Minister outline whether the nominated persons part of the Act will be enforced before the consultation on the code of practice she is so often relying on?

Finally, I quote from the policy document again:

“We appreciate that there are complications inherent in the complexity of modern family structures, (e.g. separated parents) in addition to the existing system around children’s legislation (e.g. special guardianships, child arrangement orders). These are not complications which have been created by the Nominated Person policy and they exist in the context of Nearest Relative as well”.


Yes, of course the current situation is complex, but this view in the policy document is not shared by the independent review, by the response to His Majesty’s Government’s White Paper—where these concerns were also raised—or by the Joint Committee, civil society or the Children’s Commissioner. The Minister is alone in this view. I know that, in your Lordships’ House, we are not entitled to see legal advice that His Majesty’s Government obtain, but I hope the Minister can assure the Committee that Treasury counsel with specialisms in the Children Act and mental health have been asked to give an opinion.

The child protections that the Children Act has upheld for decades are so vital. I hope we will come back to this on Report, when I hope the Secretary of State for Health and Social Care and the Secretary of State for Education will lay the necessary government amendments. I beg to move.

[Baroness Tyler of Enfield (LD)]

My Lords, I will speak briefly to Amendment 80A, to which my name has been added.

I did not intervene in the first group but I share the general view expressed, which is relevant to this group of amendments, that not enough thought has been given to the interaction between the Mental Health Bill and other key legislation, particularly the Children Act 1989. That concerns me, because that is where really key and important child protection sits. That is a general concern I have.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, like the noble Earl, Lord Howe, I am most grateful to the noble Baroness, Lady Berridge, for introducing an appropriately wide range of scenarios, questions and testing. That is important for the Committee but also for our ongoing work. As the noble Baroness, Lady Tyler, said, to describe this area as complex is to use too small a word, and I think we are all wrestling with that to get it in the right place. I know that noble Lords are aware that the work is ongoing, and I thank them for their engagement and interest in this issue. As I said previously, I very much understand the need for a robust process to keep children and young people safe and ensure that only appropriate individuals can take on the role of nominated person, while giving children and young people that right to choose.

I will respond collectively to the amendments put forward in this group. As I set out earlier, we agree that in the vast majority of cases there is an expectation that a parent or whoever has parental responsibility would take on this role, and that would include consideration of special guardians and child arrangement orders. We also agree that, where parental responsibility has been removed due to care proceedings, in the vast majority of cases it is unlikely to be appropriate for such a person to take up this role. My reference to this being a complicated area—

[Baroness Berridge (Con)]

My Lords—

[Baroness Merron (Lab)]

Perhaps the noble Baroness will let me make a bit of progress.

[Baroness Berridge (Con)]

I think I need to clarify a point of law—I am looking to the noble Lord, Lord Meston. In care proceedings, is parental responsibility removed? I do not believe it is; it remains with the parents. That is very important.

[Lord Meston (CB)]

It certainly is not removed.

--- Later in debate ---

[Baroness Merron (Lab)]

We need to be considering that as one of the scenarios and I would certainly be very glad to give the noble Baroness and noble Lords a more considered response to the very important point that has just been raised.

Under this policy, an approved mental health professional would terminate their appointment if the nominated person is not acting in line with the patient’s interests. I really wish to emphasise this.

For all these reasons and the responses I have given, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Berridge (Con)]

My Lords, I am grateful to noble Lords who have spoken and for the considered nature of the response and the clarification regarding the special guardianship. However, as we have outlined, other people remain having parental responsibility and it seems that under the Bill, as it is only one person, it could be that the residual person still has parental responsibility. It could just be that person under the Bill and not, in that situation, who is appointed.

I am concerned, not only by the outline at the beginning in relation to parental responsibility being removed. I just feel that there is a lack of understanding—with all due respect to the Minister’s diligence, thoroughness and engagement with colleagues—about the depth of the issue that we have here. She mentioned “would” appoint. That seems something that can be under the Mental Health Act code—“would” seems to be that as long as you document your reasons for that, you can move. It seems that from the situation I have outlined, in which the 16 or 17 year-old has been removed from the dad’s care because he has been shown to be, and proven by the family court to be, a danger, he could be appointed as the nominated person. Then we are relying on a speedy process in the county court—which we are not sure we always get legal aid for—to remove him. I am concerned by phrases such as “more flexibility for 16 and 17 year-olds”. Does that include the 16 and 17 year-olds who are under special guardianship or where there is a care order?

It seems that there is a conflict, based on what the co-leader of the AMHPs is saying, what the review has said and what the response says. We have a conflict between two pieces of legislation that we must continue to grapple with. On phrases such as “working with the DfE”, I asked specifically whether there had been a meeting with the Minister for Children and Families. The responsibility for a serious case review sits with that department. If we are to some extent right, this risk to children will manifest itself in an imperfect system. Obviously, there are professionals and clinicians, but we all know of cases that have gone wrong and ended up in inquiries.

I remain concerned by the lack of clarification on legal advice. Legally, in some ways this is fascinating—but it is not fascinating because it involves child protection. I welcome the engagement and I am sure that we will meet again in regard to this, but the severity of the risks that we are exposing, and allowing young people and AMHPs to go behind findings of fact in the family courts made under the Children Act is an incredibly serious issue. I hope that the Minister will be furnished with that kind of geeky legal advice, because for the children’s sake we need that.

However, I am grateful for the manner of her engagement and of course beg leave to withdraw the amendment.

Amendment 74 withdrawn.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I entirely agree with what the noble Lord, Lord Meston, just said. The two interjections were very interesting but they do not really affect the guidance. That is crucial. The question asked by the noble Baroness, Lady Browning, as to whether you can understand it but cannot make a decision, may well affect how the person applying the guidance does so. That would be one of the issues for whoever has the uncomfortable task of making the decision.

I think the noble Baroness, Lady Tyler, is too cautious. If we go back to the Mental Capacity Act 2005, there is clear explanation and guidance in primary legislation as to how anyone who has to judge capacity is to do it. What we are talking about here—incompetence—is quite simply capacity. For some reason, which I find quite difficult, we seem to think that children under 16 have competence or do not, but over-16s have capacity or do not. It would have been far more sensible to use the same word for every person who will, in fact, be judged on whether they do or do not have capacity to make a decision of great importance, as it would be, in relation to mental health issues. I find it very odd.

However, and equally importantly, if it is in primary legislation for over-16s, why on earth would it be in guidance for under-16s? If it is good enough for over-16s, why is it not good enough for under-16s? The way the noble Lord, Lord Meston, has set this out seems admirable. It is very close to the Mental Capacity Act. I take and entirely agree with the point made by the noble Baroness, Lady Tyler, but the Government seem to have ignored children to a very large extent, although children are a very important part of this Bill. I do not blame the Minister, because she did not draft it, but she has to bring it to us. I tabled a lot of amendments about parents and people with parental responsibility because they are largely ignored; I will speak about that later. But where we are dealing with children aged under 16, it is essential that they are treated in the same way as everybody else and that has to be in the Bill—in primary legislation.

Young people have had to deal with these issues ever since Lord Denning was presiding in the Court of Appeal in Gillick, but he did not help us at that stage as to how actually to deal with it. Like the noble Lord, Lord Meston, I have also had to make decisions as to whether under-16s were giving me advice that I thought was really worthy of listening to. Children of five can give extraordinarily good explanations, though I do not expect them to give them on mental health issues. I urge the Minister: it is crucial that everyone whose capacity is a matter at issue has it treated in exactly the same way. Therefore, to put it into guidance really will not do.

I will also speak on Amendments 55 and 56. I am very concerned about children. Bear in mind, however much we treat children aged over 16 with respect and as having the capacity to make decisions, and however much we listen to them, as we should listen to all children, there are stroppy teenagers—we all know about them—who, for one reason or another, will not do what adults tell or advise them. I am very concerned, and I am not quite sure about this because I am no expert on mental health legislation, that if a 16 year-old has the right to make advance decisions and they just say, “I do not want any injections, I do not want any pills, I absolutely refuse to have any treatment”, then unless there is an ability to override them they will have capacity and cannot be ignored. One has to view advance decisions for 16 to 18 year-olds with some degree of care. I am not saying that they should not happen, but I am not happy about them being universal and without some ability for them to be overridden.

[Baroness Berridge (Con)]

My Lords, I have put my name to Amendment 147. I find myself in agreement with much that has been said. It has been a consistent recommendation to His Majesty’s Government since the independent review that there should be a statutory test of competence or capacity for those aged under 16. Of course, that means it should be in the Bill. This has been supported by the Children’s Commissioner of late and by the Children and Young People’s Mental Health Alliance.

Therefore, I was disappointed to see the code of practice solution outlined in the Minister’s policy paper that we received yesterday. As the noble and learned Baroness, Lady Butler-Sloss, outlined, in the Mental Capacity Act, which applies to over-16s, there is a functional capacity test followed by the secondary mental impairment test. I also agree with the noble Baroness, Lady Tyler, that under-16s are presumed to lack capacity, so you start from the opposite premise of the Mental Capacity Act for over-16s, who are presumed to have capacity. That puts them at an advantage: it has to be taken from them, rather than being given to under-16s.

I agree with the comments of the noble Lord, Lord Meston. Great work is being done by clinicians up and down the country to apply Gillick competence tests, but throughout my time on the Joint Committee we did not seem to know whether there was any review or assessment as to how and when it is applied in hospitals and healthcare settings up and down the country. I fail to understand the Government’s reluctance to put this test in the Bill. How is such a reluctance compatible with one of the four guiding principles—to treat the person as an individual? Perhaps the Minister could outline the reasoning for this omission.

I also want to point to the problem of relying on the code of practice made under Section 118 of the Mental Health Act. On page 13 of the code of practice, there is a very clear description of the code and its legislative function:

“Whilst the whole of the Code should be followed, please note that where ‘must’ is used, it reflects legal obligations in legislation, (including other legislation such as the Human Rights Act 1998) or case law, and must be followed. Where the Code uses the term ‘should’ then departures should be documented and recorded”.


It then refers to explanatory paragraphs and continues:

“Where the Code gives guidance using the terms ‘may’, ‘can’ or ‘could’ then the guidance in the Code is to be followed wherever possible”.


In the Minister’s policy statements, there is often the use of “will”, which, as far as I understand, is a “must”. Bearing in mind what I just read, unless something is in the Bill then even putting this test into the Bill will mean that it is only, at the very best, a “should” and can be departed from. Obviously, that applies across all of the places in which the Minister relies on the defence of, “We’re going to put it in a code”. I note that it is a code that we have not seen and will be consulted on only after the passing of the legislation.

Dealing again with the amendment, it is important to determine capacity and, as Mind has said in its excellent briefing, the question of whether a person has capacity or competence to make the relevant decision is fundamental to the operation of key rights and safeguards. To build on the point from the noble Lord, Lord Meston, as I understand it the Bill contains 13 references to competence. It deals with such important matters as the appointment of their nominated person and, if you are under the age of 16, your freedom to choose someone other than the person with parental responsibility depends on your having competence. There is also the ability to refuse medication. To deal with the point made, I think, by the noble Lord, Lord Stevens, who was concerned about leakage across, this is a very particular piece of legislation with such coercive power, as I am sure he is aware, that the case for putting the test in the Bill to open up those safeguards for young people is very important.

The Government’s response to the consultation stated:

“We are committed to ensuring that children and young people benefit from the reforms we plan to introduce”.


Will the Minister therefore explain again how the lack of a statutory test is consistent with maximising that choice and autonomy?

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise briefly having attached my name to Amendment 147, to which the noble Baroness, Lady Berridge, was just speaking so powerfully. I will not repeat anything that people far more expert legally than me have already said, but will just make a couple of small points.

--- Later in debate ---

[Baroness Merron (Lab)]

I appreciate the point that the noble and learned Baroness has made. As I said, I know there are competing views about its application. I reiterate the observation that it is the current established framework, but I hear what she is saying about what she believes are the implications of that.

[Baroness Berridge (Con)]

The Minister’s own policy document says that this test should be in the code of practice. How does that not also contribute to the undermining of Gillick that the Minister refers to?

[Baroness Merron (Lab)]

Actually, my feeling about the code of practice is something that I wanted to bring up, because it has come up quite a lot. The code of practice is statutory and aimed at practitioners, and it allows nuance and so on, but Gillick is in case law and it guides us throughout. The point I am trying to make is that if it is changed in respect of this Mental Health Bill then that has implications across the wider question of competency for younger people, and that is of great concern.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I add my support for Amendment 58, tabled by the noble Baroness, Lady Watkins, and to which I have added my name. Briefly, given the time, the care and treatment plan is a major plank, a pivotal safeguard of the Bill. The safeguard is not open to voluntary patients. As the noble Baroness outlined, we want to encourage many young people to voluntarily enter a hospital to get the treatment that they need. A 2021 UCL research project found that only 23.6% of young people were detained involuntarily. The large cohort would be those who have consented by parental consent and those who voluntarily entered the treatment. As such a high proportion of the under-18 population are entering voluntarily, it is imperative that they also have a care and treatment plan.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I thank noble Lords for the pertinent points that they have made.

I will start with Amendments 57 and 58. There is no doubt that all patients who are in a mental health hospital for care and treatment should have a care plan, whether or not they have been detained under the Act. This is already set out in guidance for commissioners and in the NHS England service specification and care standards for children’s and young people’s services. In line with the independent review’s findings and recommendations, care and treatment plans for involuntary or detained patients are statutory. This is because such patients are subject to restrictions and compulsory orders, including compulsory treatment, which places them in a uniquely vulnerable position.

Rather than bringing voluntary patients into the scope of this clause, we feel it is more appropriate to use the Mental Health Act’s code of practice to embed high standards of care planning for all patients—voluntary and involuntary. Specifically with regard to children and young people, any provisions that are relevant to voluntary patients are already met by existing specialist care planning standards and the NHS England national service specification for children’s and young people’s services, which providers are contractually obliged to follow. NHS England is already in the process of strengthening that current service specification.

Regarding points raised by the noble Lord, Lord Kamall, and my noble friend Lord Davies on the contents of the care and treatment plan and patient discharge plan, as my noble friend Lord Davies kindly set out for me, which I appreciate, the Government have consulted on the required contents of the care and treatment plan, as originally proposed by the independent review. The expected contents of the plan are described in the delegated powers memorandum, which has been published online. I understand the points that my noble friend made; we will return to them regarding what we intend to include in the patient discharge plan.

I turn to Amendment 59, tabled by my noble friend Lord Davies and supported by the noble Baronesses, Lady Tyler and Lady Neuberger. The plan needs to include details of interventions aimed at minimising financial harm to the patient where this is relevant to their mental health recovery. My noble friend asked for my agreement on this point. I hope that he will take that in this way. We intend to set out in regulations, rather than in primary legislation, what that plan must include. We will consider personal financial matters that are relevant to a number of the elements that we intend to require in regulations, such as the services that a patient might need post discharge. My noble friend’s point, and that of the noble Baronesses, is very well made and is taken on board.

Turning to Amendment 60A, tabled by the noble Baroness, Lady Barker, I confirm that the Bill sets out who is responsible for the statutory plan. For in-patients, this is the clinician who is responsible overall for the patient’s case. The quality of plans for detained patients is monitored by the CQC. Any housing, accommodation or wider social care needs that are relevant to the patient’s mental health recovery are already captured within the scope of the statutory care and treatment plan. We intend to require in regulations about the content of the plan that a discharge plan is a required element of the overall care and treatment plan—which noble Lords rightly have pressed the need for. Existing statutory guidance on discharge sets out that a discharge plan should cover how a patient’s housing needs will be met when they return to the community. Currently, where a mental health in-patient may benefit from support with housing issues, NHS England guidance sets out that this should be offered, making links with relevant local services as part of early and effective discharge planning.

Where a person is receiving housing benefit or their housing is paid for via universal credit, there are provisions already in place that allow them to be temporarily absent from their property for a limited duration. We know that the vast majority of people entering hospital will return home before the time limit expires, therefore avoiding a negative impact on their living situation.

We intend to use the code of practice to clearly set out expectations on mental health staff around care planning, including consideration of accommodation and housing needs, and also to highlight existing provisions that protect a person’s living arrangements while they are in hospital.

On Amendment 61, tabled by the noble and learned Baroness, Lady Butler-Sloss, we of course recognise the importance of involving parents, guardians and those with parental responsibility in decisions around care and treatment. We have already provided for this in the clause by stating

“any … person who cares for the relevant patient or is interested in the relevant patient’s welfare”.

The clause seeks to include also carers and other family. As I said last week, this is consistent with existing established terminology used in the Mental Capacity Act and the Care Act.

The amendment would also make this a requirement for all patients, not just children and young people. We do not think it is appropriate here to give an automatic right to parents to be involved in an adult patient’s care. However, we have made provisions to ensure that anyone named by an adult patient, including parents, are consulted where the patient wishes them to be.

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[Lord Davies of Brixton (Lab)]

I know the hour is late, but I want to note the irony that the issues covered by these amendments are central to the whole process of why we have arrived at this Bill. In a sense it is unfortunate that, because of the hour, there are so few of us present. I want to stress that we cannot assume it is job done. It is really important to keep this whole area under review, whether we do it precisely in the terms of the amendments before us or not. I urge my noble friend the Minister to give an assurance that this issue will not be left for another 17 years before we decide that we have got it right, and that the workings of the Bill in this central area will be kept under close and continued review.

[Baroness Berridge (Con)]

My Lords, I will speak briefly in support Amendment 133. I know the hour is late. As I asked the Minister, why is it that issues relating to this focus, which was the focus of the Bill, seem always to end up at the end of our debates? I am not sure why, but they are some of the most important issues. I reflected at Second Reading and earlier in Committee on the Joint Committee’s work and our concern about the strength of civil society and media focus on this issue. Although what we saw seemed expert, we then saw a comparison with what I would call Premier League—which was learning disabilities and autism in terms of that focus.

I turn to new Section 120H, which the noble Baroness, Lady Tyler, mentioned, and the statistics I cited before. The right reverend Prelate mentioned the importance of data. It is very concerning that, when we talk about the data on under-18s, we are not quite clear about what is going on in relation to it. The data on under-18s that I mentioned has three subgroups: those who are detained, those who are in the cohort because their parents have consented and those who have consented themselves. It is imperative that we know exactly which subgroup is which in the under-18s group—which, thankfully, is a small group of about 1,000.

Even in the data I cited from the UCL study, of the 23.6% of under-18s that were detained, three times as many black young people were detained as their counterparts. That issue is starting early. What is happening even at that early stage—the disproportionate number detained under the Act—was also reflected in the data on the lack of parents consenting to children going into hospital for the treatment that they need.

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[Baroness Merron (Lab)]

I understand the point the noble Lord makes. However, it does not lead me to accept the amendments. I understand the intent and I am sure noble Lords realise how sympathetic I am to it, but I repeat the point I made earlier: if one looks at what the amendment actually does, it will not serve that purpose. I take the point about transparency and accountability, and I hope the noble Lord has heard many times that that is very much the mode of direction. Perhaps it will be of some assistance to say that the PCREF will improve data collection on racial disparities over the coming year, and the CQC has existing duties to monitor and report on inequalities under the Act. We will continue to monitor racial disparities in the use of CTOs. That situation will be ongoing. If it is not doing the job that it is meant to do, we will not be complacent and will seek to act.

We agree there is a need to improve organisational leadership—

[Baroness Berridge (Con)]

Just before the Minister talks about that point, I understand her concern about the 12-month time limit, because it would be before the reforms are introduced. However, is she satisfied that there will be a robust baseline before the reforms are introduced so that we know what we are measuring against? Otherwise, in a few years’ time, we could be asking whether the reforms have worked, but we would not know because we did not have the baseline data. That is the starting point.

[Baroness Merron (Lab)]

The noble Baroness is quite right: one has to be able to compare, and that baseline will be in place. You could collect all the data you like, but it has to be meaningful. Her point is well made.

There is a need to improve organisational leadership to improve data collection and change culture across the mental health system. Again, this is exactly what the PCREF is designed to do and something we want to embed further through the revised code of practice.

The creation of a responsible person was an additional recommendation from the pre-legislative scrutiny committee, and it is one we have considered in some detail. However, ultimately, we think that the role is not necessary, because it would duplicate existing roles and duties. There are already duties on providers of mental health services to identify and address inequalities relating to protected characteristics under the Equality Act 2010 and specifically the public sector equality duty. CQC already has a duty under the Mental Health Act to monitor as health services exercise their powers and discharge their duties when patients are detained in hospital or are subject to CTOs or guardianship. It publishes an annual report, Monitoring the Mental Health Act, which includes detailed commentary on inequalities. The PCREF is now part of the NHS standard contract. It has created new contractual obligations on providers to ensure that they have a framework in place to record and address racial inequality in mental health systems and to look at training and other policies to address racial disparities. Ultimately, we do not think that a responsible person is necessary to achieve all the aims, which are understood, set out in the amendment.

Finally, I want to turn to Amendment 138 tabled by the noble Lord, Lord Kamall, and supported by the noble Earl, Lord Howe. We recognise, as I have said, that there are significant inequalities in the use of detention under the Mental Health Act and of CTOs between different minority-ethnic groups, and in particular the overrepresentation of black men. We monitor those inequalities through routinely published data and are improving this data through the PCREF. The CQC, as I have mentioned, reports on inequalities in its annual report under existing duties, but we agree that we lack robust evidence on what drives those inequalities, and that has been a matter of considerable debate in your Lordships’ House. We need to conduct research into this, and we are exploring with experts, including academic researchers, the best way to tackle it.

I am concerned that two years is not enough time to scope and commission the report, collect and analyse new data, and form meaningful recommendations. Additionally, we hope that through improved decision-making under the reforms we will see a reduction in the number and proportion of black men who are subject to the Act and a reduction in racial disparities more generally. It is a major driver of why we introduced the Mental Health Bill. A report after two years feels premature, because it would be likely to be based in reality on data from before the reforms were commenced.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I want to add to what the noble Baroness just said. Amendment 139 goes to the heart of the Bill in terms of changing the culture and the way that we treat people. The Bill will become a piece of law that is practical only if we can honestly put hand on heart and say that we will substantially increase community-based services. Without that, it will not deliver that which we all believe will be the minimum to improve people’s lives.

[Baroness Berridge (Con)]

My Lords, on the amendment outlining the definition of “serious harm”, two situations were raised with us on the Joint Committee. One was that the change in the criteria is the main tool that will help with racial inequalities; I would be grateful if the Minister could outline how she envisages that will work in practice. The second point was about the period during which such serious harm has to be exhibited. We heard numerous times about people with psychosis, many of whom—I think it was over 70%—do not realise that they are getting ill when they are presenting. How poorly do they have to get? Sometimes the intervention might need to be sooner than in the definition we understood of “serious harm”, which was slightly different from that which the independent review had, which I think was of “significant harm”. If the Minister could address those two points, that would be very helpful.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I thank noble Lords for their contributions to this important debate in which a number of key issues have been raised.

Amendment 23, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, relates to new Section 125D, regarding registers of people with a learning disability and autistic people who are at risk of detention. The amendment would remove new Section 125D(5), which defines

“specified risk factors for detention”.

I heard the noble Earl, Lord Howe, refer to this as an Aunt Sally amendment—I politely have “a probing amendment” here but I hope that we are in the same area—that is intended to clarify the definition of

“specified risk factors for detention under Part 2 of this Act”.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

I hope that, as we move forward, we can also tackle the problem of an overinflated sense of the mental health crisis leading to the danger of neglecting the real mental health crisis.

[Baroness Berridge (Con)]

My Lords, I support Amendments 44 and 66. The Joint Committee on which I serve recommended that community treatment orders be abolished for Part II patients. That recommendation is supported by organisations such as Mind. That is partly due to the awful racial disparity statistics—you are up to 11 times more likely to be under a CTO if you are from a black or Caribbean background—combined with a lack of evidence that CTOs reduce hospital admissions. It took a brave gulp, even as the Joint Committee, to recommend that. The independent review had not gone as far as that, but it was in the report of the Joint Committee.

I, too, like the noble Baroness, Lady Fox, recognise the powerful speech of the noble Baroness, Lady Parminter, at Second Reading. I remember that, because of the extremely tight timetable the Joint Committee was given, it did not have time to consider in detail eating disorders or personality disorders, which was regrettable.

I can see from the reasons the noble Baroness outlined that there may be a case for retaining CTOs, perhaps even just for eating disorders. To quote her words from Second Reading, a CTO

“puts a boundary around the eating disorder … that a voluntary agreement could not, in that it makes it clear what will be the result”.—[Official Report, 25/11/24; col. 555.]

The Bill outlines protocols for specific treatments, such as ECT, so it seems possible in principle to have the law apply to specific disorders.

Most reluctantly, I have not made an amendment in Committee in support of the Joint Committee’s recommendation. But the independent review stated that “action is required”. We must not lose sight of that urgency. There are significant problems with CTOs. The argument that is proffered—that they help and are the least restrictive measure for a very small number of patients—is not a good basis for retaining them, bearing in mind the enormous harm they are doing on the other side. I ask the Minister to look for another way, going forward, to help this small group, and not to ask racialised communities to, once again, pay such a high cost for such a small group of patients.

In the Joint Committee’s report, it seemed that the group of patients we were talking about were unrestricted patients under Part III of the Act. Bearing in mind that 79% of CTOs are under Part II, which is for civilian patients, can we look in detail at the evidence to find out which small group of patients we are talking about? There are particular issues, according to our report, if a restraint or restriction is being used on people when the small group of patients seems to be within the forensic context rather than under Part II.

I ask the Minister to put CTOs where they need to be, as a result of these amendments. The independent review said that they should be in the last chance saloon. We must be careful not to lose the urgency that the independent review gave to these issues. Although I support Amendment 66, tabled by my noble friends, it is the very least we can do. The restrictions outlined in Amendment 44 are about ending them after a certain period, because part of the problem is that they go on and on, rolling over for years and years. That coercive effect on certain communities seems to remain, as the path of least resistance.

[Baroness Parminter (LD)]

My Lords, I want to say a few things about a couple of the amendments. I thank noble Lords for listening and for recognising the situation. It was powerful to hear that, and I am sure that many in the eating disorder community will be delighted to hear it.

I will not repeat what I said at Second Reading, as there seems no need, but in mentioning that, I want to support the amendment tabled by the noble Baroness, Lady Browning, which picks out the focus on community care and the need for more psychiatrists. I and others have made the case for why CTOs can be valuable for people with eating disorders—and for forensic patients, I understand. The value of the CTO is that the individual is helped to engage in the community with their mental health team. It is a multidisciplinary team, but the anchor is the psychiatrist. The noble Baroness was not sure if this was the right place to put her amendment because it has wider ramifications, but it certainly has value in this debate. CTOs, which I believe should be retained, can work only if there are proper multi-disciplinary teams anchored by a psychiatrist in the community, so that those individuals can be kept out of detained settings and engaged in the community. I thank her for bringing that forward, and I support it.

With regard to Amendment 44, I do not support a maximum duration for a community treatment order, because this is about the individual and what they decide, with their multidisciplinary team. What I like about the amendment tabled by the noble Lord, Lord Scriven, is that it rightly says that we have to review community treatment orders. People’s mental health situations change, and it is important to have step points at which people know they will be reviewed. I do not support a maximum time limit but the break points, which his probing amendment talks about, are worthy of further debate and discussion. I am grateful to him for bringing that forward.

I say with regret that I do not agree so much with the support of the noble Baroness, Lady Bennett, for retaining the automatic referral to a tribunal of any CTO that is lifted. Again, that goes against my sense that CTOs are about what is right for the individual. With eating disorders, there will be cases of CTOs being lifted because the person is no longer able to engage with the community team because the eating order has gone beyond the bounds of the CTO and is compromising their health and putting them, bluntly, at risk of death. I do not see why, in those circumstances, there needs to be an automatic referral to a tribunal. Strengthening people’s rights to go to a tribunal where there is a case for that is right and proper, but, because of my view about personalised care—especially for eating disorders, but this has wider ramifications—I do not support the case for automatic referral.

I know that there are people around the Committee who understand the concerns far better than me, particularly about the high preponderance of people in the black community who are on CTOs. I understand and hear that concern. I tried to get to the bottom of the figures, like the noble Baroness, Lady Bennett, to find out how many forensic patients were on CTOs. Given that you are four times more likely to be in prison if you are a black person than a white person, I tried to work out what the figures were to get the correlation to say whether it is because there are more people in prison that CTOs are preponderantly in the black community. I could not work that out. Equally, I could not work out how many people with eating disorders were on CTOs. I got the Library to try to help me, and it said that the figures are not cut that way and do not work that way. It seems to me that there is an issue about the data that we, and the Minister, are working with to make informed decisions.

I am not sure about the exact terms and conditions of the review that has been proposed by the noble Lord, Lord Kamall, and which in a later group is proposed by the noble Baroness, Lady Tyler, but I think there is an issue about the data out there. It is not helping us, or anyone else, make CTOs work for those where they can work, are working and should work in the future, and is clearly causing a problem. We need to get to the bottom of that.

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[Baroness Tyler of Enfield (LD)]

My Lords, I rise to speak to Amendments 102, 105 and 106 in my name. These amendments all deal with extending the provision of advocacy services to informal patients below the age of 18. When I read the other amendments in this group, I thought, “Goodness me, this is going to be a bit tricky, isn’t it?”. It felt at one point as if we were diametrically opposed, and that is not a comfortable position to be in against someone with years of expertise who is as distinguished as the noble Baroness, Lady Murphy. However, I have listened carefully to what she has to say and the nub of it is her concern about resources. On that point, I fully get it, about the workforce generally and advocates in particular. I am going to press on with my amendments none the less, because I am trying to deal with the principle as opposed to the resources.

Both the Independent Review of the Mental Health Act and the Joint Committee on the draft Bill recommended that advocacy should be extended to informal patients. Currently, only those detained under the Mental Health Act 1983 have a legal right to advocacy services. The Mental Health Bill introduces a new opt-out scheme, meaning that all detained patients will get an automatic referral to advocacy services. The Bill also extends advocacy to informal patients, but they will not be captured by the new opt-out scheme, meaning that informal patients will still be required to ask for support via an advocate. This is at the very nub of the problem with which I am concerned.

It is crucial that children and young people aged under 18 admitted to mental health in-patient care informally should have an automatic referral to advocacy services, in line with those who are detained under the Act. There may not be very large numbers—that is relevant to the resource concerns—but it is worth remembering that a higher proportion of children and young people are admitted to mental health hospitals informally. Indeed, it is estimated that around 31% of under-18s are admitted to in-patient care this way—namely, on the basis of their own or parental consent. Having access to an advocate automatically will help young informal patients understand and exercise their rights and ensure they have a say in the decisions made about their care and treatment. This could also lead to improved outcomes and prevent young people being kept in hospital for any longer than they need to be—something I am sure we all agree on.

It is worth adding that the lack of access to advocacy for informal patients has been a long-standing concern. There is a real concern that children and young people admitted informally will continue to experience problems accessing an advocate under the new system proposed as part of the Bill. It has been noted that, often, young informal patients do not understand their rights and feel an underlying threat that, if they break the rules in some way, they will be sectioned. We have to take that into account. Despite the concerns about resources, which I fully understand, access to an advocate is crucial in helping children and young people who are informal patients navigate what is a very complex system.

[Baroness Berridge (Con)]

My Lords, I will speak briefly to support the amendment tabled by the noble Baroness, Lady Tyler. The extension of advocacy services to children and young people is important, because, as she outlined, there is a disproportionate number of children who are voluntary—I think there are just under 1,000 a year—in mental health institutions.

It is also important to recognise that there are other additional rights that children have when they are detained, or when they have agreed and consented to go into hospital. They need to continue their education while they are in there. It is important to advocate for what their entitlement is while they are in hospital—I think we are all used to walking past the hospital school that is within a normal physical illness hospital—thereby enabling them to continue their education and considering what their rights are in that regard. That is obviously so important for them and their recovery, so I support the amendment from the noble Baroness, Lady Tyler.

[Lord Kamall (Con)]

My Lords, I have a few brief comments on this group of amendments. In response to Amendment 43A, tabled by the noble Baroness, Lady Barker, given that anyone subject to a CTO already receives something in writing, it should not be too difficult for the Government to accept her amendment. Assuming that they have a right to access independent mental health advocates, it seems like a very reasonable amendment.

Like the noble Baroness, Lady Tyler, I must admit that, when I read the amendments tabled by the noble Baroness, Lady Murphy, I wondered—given that the amendments from the noble Baroness, Lady Tyler, and the noble Lord, Lord Scriven, seek to extend access to independent mental health advocates—why she would want to exclude informal patients from access to those advocates. However, as she explained, and as my noble friend Lady Berridge commented on day one in Committee, we have to deal with the world as it is, not the ideal world that does not exist. As the Minister has often reminded us, this will not all happen in one big bang; the Government’s plan is for it to take over 10 years, subject to spending reviews and resources.

In fact, the noble Baroness, Lady Murphy, made what appear to be two valid points. The first is that we need to be realistic about resourcing. As the impact assessment suggests that expanding access to independent mental health advocates to informal patients will cost £81 million every year, we have to ask: is that the best use of that money, if it were available, given all the other demands on it?

On the noble Baroness’s second observation, I thought that the research cited was interesting: that extending these independent mental health advocates from one environment or cohort of patients to another does not necessarily mean that it will work.

--- Later in debate ---

[Lord Kamall (Con)]

I thank the noble Lord, Lord Scriven, for that, as I would not want to be using inaccurate information. Maybe the Minister can check with her officials, thanks to the wonderful use of technology, to ensure that we have an accurate figure by the time that she gets up to respond to our points. Whichever number is accurate for the cost of extension, it does have an impact on how noble Lords may feel if these amendments come back on Report.

The study that the noble Baroness, Lady Murphy, shared with us contained two statements which I picked up on, and which I hope the noble Baroness will correct if I am wrong. First, patients found the process was a positive experience. But, secondly, the study found no evidence that it had any impact on the outcomes of the care and treatment. That is an important point to make. Once again, what is effective, and what works? Sometimes, feeling better and being more positive is part of a treatment, and we should not dismiss that.

I do not want to sound too negative, as I thought that the North Carolina study was very positive, and the noble Baroness and I corresponded about this over the weekend. It was interesting that it found that black mental health patients benefited from having an independent mental health advocate, especially if the advocate was also black, as patients felt better supported, and more confident that they would be listened to by someone. The crucial point was that it appeared to reduce the rate of repeat detentions. This is one of the crucial issues throughout the Bill. This is one of the reasons why my noble friend Lady May asked for the Wessely review.

[Baroness Berridge (Con)]

I do not wish to interrupt my noble friend’s flow, but this is one of the key things that is evidence-based, and that does reduce detention for those communities, so it is important.

[Lord Kamall (Con)]

I am grateful to my noble friend for that intervention, because this is something that we could learn from here. Given the point that the noble Baroness, Lady Murphy, made at the beginning, would taking that lesson from the black community in North Carolina work with black communities up and down the country here? I hope it is something that the Government could look into, or respond to, as one of the ways, once we have the relevant data, to reduce the rate of detention and CTOs for people from the black community.

I end by asking the Minister that question: is she aware of whether her department has looked at—was it North Carolina or South Carolina?