Mental Health Bill [HL]

Debate between Baroness Berridge and Baroness Tyler of Enfield

Committee stage
Monday 27th January 2025 Lords Chamber

[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.

Mental Health Bill [HL]

Debate between Baroness Berridge and Baroness Tyler of Enfield

Committee stage
Monday 20th January 2025 Lords Chamber

[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.