Mental Health Bill [HL]

Baroness Butler-Sloss Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

[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.

[Baroness Buscombe (Con)]

My Lords, perhaps I may quote from our report on the draft Mental Health Bill on this point, while agreeing 100% with both previous speakers. During our evidence sessions, we heard from a number of people who had real concerns about the issue of nominated persons for young people. We heard

“that choosing a Nominated Person outside of the family can put pressure on family relationships. Respondents also noted the importance of ensuring that the families and carer are still given a voice in a patient’s treatment even if they are not chosen as the Nominated Person. This is particularly important for children and young people. Additionally, one respondent who identified as a carer of someone with a mental health condition expressed their concern that not all nominated people may know the patient well enough to assist in making decisions in their best interest … Another respondent noted that, for those under 18, there may be overlap between the rights of those with parental authority and those of the Nominated Person”.

Our belief during that whole process was that this all seriously needs to be clarified, either in law or in the code of practice. I remember that one respondent was very concerned that young people would assume that a nominated person could be a friend and that the friend would really understand their role, but in some cases that just was not happening.

[Baroness Butler-Sloss (CB)]

My Lords, I hope I may be forgiven for getting up again, because I completely forgot to refer to Amendment 76. It would come in under paragraph 3(2) in Part 1 of new Schedule A1, where the parents and any person with parental responsibility are not even consulted on the appointment. That is exactly the same point as I made earlier.

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[Lord Meston (CB)]

My Lords, I support the amendments in the name of the noble Baroness, Lady Berridge. Indeed, we should be grateful to her for exposing the complexity and variety of situations which may arise and of which mental health professionals must be made aware, so that the decisions they have to make are properly informed by knowledge of the operative orders and the terms of any orders made by the family court. That seems absolutely fundamental. It reinforces the point I wanted to make at the end of the last group before I was very properly curtailed. It applies not only to the county courts if they are to retain some jurisdiction in this area but to the family court. Some serious thought must now be given to judicial training.

Has the Minister considered an approach to the Judicial College with a view to ensuring that both county court and indeed family court judges will be properly trained with regard to the obligations that will arise under this new legislation?

[Baroness Butler-Sloss (CB)]

My Lords, for the reasons that have been given I also support the amendments of the noble Baroness, Lady Berridge. Just to add to what the noble Lord, Lord Meston, said, I respectfully point out to the Minister that if she does get in touch with the Judicial College, which I think would be a very sensible move, she should also let the President of the Family Division know.

[Earl Howe (Con)]

My Lords, in this group of amendments my noble friend Lady Berridge has raised an armada of issues which I think it is clear to all of us cannot be ducked. These issues, as she said, were examined at length both during the independent review and by the Joint Committee, but it has to be said that in both instances it proved too much of a challenge to identify a satisfactory resolution to them. For that reason, as we observed in our debate on the previous group, the weight of these matters now rests on the shoulders of this Committee and of the Government.

In summary, we need arrangements that are robust enough to ensure that a nominated person’s appointment can be effectively challenged, and that, in certain circumstances, where necessary, the exercise of their powers can be legally contested and blocked. Without those measures, we shall leave an unacceptable lacuna in the law and, more pertinently, run a high risk of exposing children to personal danger.

My noble friend is to be thanked for assisting this Committee’s deliberations with the clear way in which she has set out the challenge, and I hope and trust that the Minister will wish to grip the challenge with her usual vigour.

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[Lord Meston (CB)]

It certainly is not removed.

[Baroness Butler-Sloss (CB)]

It is shared.

[Baroness Merron (Lab)]

I thank noble Lords for that exchange, which brings me to my repeated point about the complicated area in which we are treading.

As was highlighted by the pre-legislative scrutiny committee, we will set out our expectations in the code of practice as to whom approved mental health professionals would appoint, or the witness would confirm suitability of, in a range of circumstances, including in the more and most complex cases. We will consult on this to ensure that we cover as many scenarios as we can.

I can confirm to the noble Baroness, Lady Berridge, that we are working with NHS England, the Department for Education, the Association of Directors of Children’s Services and others to ensure that our policy and guidance reflect what can be a very complex arrangement for some children under the Children Act.

The Bill is clear that where an approved mental health professional is appointing a nominated person for an under-16 they must appoint someone who has parental responsibility, and the amendments extend this approach to all under-18s. As I said previously, we are allowing more flexibility for 16 and 17 year-olds rather than prescribing in legislation who this must be.

While the amendments put forward a wide range of circumstances, we all know—and the noble Baroness, Lady Berridge, demonstrated this—that there will be nuanced and complex cases, especially for 16 and 17 year-olds. Someone outside the proposed list, such as a step-parent, may be the most appropriate person, or a kinship care arrangement may be in place. These amendments propose regulatory powers in recognition of this but we feel that updating statutory guidance will allow us to keep this up to date and in review as new policy is implemented.

The noble Baroness, Lady Berridge, asked about differences between special guardian orders and special care orders. The Bill says that the approved mental health professional must appoint the local authority or anyone else with parental responsibility as the nominated person. The special guardian, as someone with parental responsibility, would be appointed if a special guardianship order was in place. In relation to the proposal for two people to take on this role, as the nominated person exercises specific statutory functions under the Mental Health Act, we feel it is right that only one person has these limited powers, to avoid the potential for disagreement and confusion about who can exercise the relevant power.

We recognise that there will usually be more than one person with parental responsibility and that the approved mental health professional will need to determine who should be the nominated person. Under the current system, this would be the older parent, which we do not think is necessarily appropriate. We will provide guidance for approved mental health professionals in the code of practice. This may include which of the parents is recorded as the child’s next of kin, who the child lives with and who is accompanying the child.

The noble Baroness, Lady Tyler, helpfully inquired about the status of the nominated persons paper that was sent out in an attempt to be helpful. It was developed very much to support the debate, which it certainly has done, and we intend to develop it further. I very much welcome the further engagement from Peers and we will continue to formally consult as part of the code of practice so that it is an aid to the considerations of noble Lords. I hope it is doing that.

In the current nearest relative provision, only one parent will hold this role. As I mentioned in the previous debate, this will not exclude the other parent from being involved in their child’s care. Whether or not they are the nominated person, parents and carers should be given information about the care and treatment of their child, unless it is inappropriate. This is reflected in the Bill. We absolutely agree that someone should be removed as the nominated person if they are not acting in the interest of the patient. Criteria are included in the Bill for when an approved mental health professional may terminate an appointment, one of which is when the person is

“otherwise not a suitable person to act as a nominated person”.

On the points made by a number of noble Lords, suitability includes whether there is any risk to the patient. This may include if the person is behaving in a way that indicates they are unsuitable for the role; for example, if they are exercising their powers without due regard to the welfare of the person.

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[Lord Timpson (Lab)]

I will very happily meet as soon as possible and well before the next stage.

[Baroness Butler-Sloss (CB)]

I appreciate that this is this Minister’s first time, but I would like to speak to his team in the department through him. I find it very difficult to understand why the Minister’s team thinks it is necessary or, indeed, appropriate to invite my noble friend Lady Murphy for a “teach-in”. Does the Minister really mean that? It seems to me utterly inappropriate, and my noble friend could not say it.

[Lord Timpson (Lab)]

I thank the noble and learned Baroness for her comments. I hope the noble Baroness accepts my apology for the way it was phrased. As this is my first Committee, I have been getting a number of messages from officials, and I was trying to work out what I said at which point. I apologise. I will very happily meet the noble Baroness.

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[Baroness Tyler of Enfield (LD)]

My Lords, I will very briefly underline my very strong support for Amendment 121 in the name of the noble Lord, Lord Davies. I remind noble Lords of my relevant interests in the register.

The noble Lord set it out very clearly so I do not need to add to what he said, other than to say there is a great opportunity for us to ensure that, for the first time in legislation, finances are considered a key part of supporting recovery from a mental health crisis. I am aware of far too many stories of people suffering from severe mental health crises or who are detained whose finances go into complete and utter freefall. It is so difficult for them then to recover their finances. That often means, in turn, that they have further mental health problems. That is all I wanted to say. I support the noble Lord, Lord Davies, very strongly.

[Baroness Butler-Sloss (CB)]

In the absence of the noble Baroness, Lady Murphy, I will just say that I support all these amendments. I expressed concern about under-16s and those aged 16-18, but that does not stop me thinking that these advance choice documents are an excellent plan. However, I am concerned about the point that the noble Baroness makes with Amendment 120. An independent mental health advocate would be extremely helpful, because there may be quite a lot of people who really would not know how to make an advance choice document, would be very concerned about it and might write down some really not very sensible things, when they could have help as to what they really wanted. I strongly support the noble Baroness’s amendment.

[Baroness Merron (Lab)]

My Lords, I am grateful for all the contributions in this group. I will start with Amendment 115, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall. Under the Bill, services should not only offer individuals who are likely to benefit from making an ACD information and support to do so, they should proactively support such individuals. This is functionally equivalent to a right to request an advance choice document.

The amendment applies to large groups. We have concerns that, for example, it may be practically challenging or sometimes inappropriate to contact people who were detained some time ago. We intend to identify groups in the code of practice that services should target; it can then be updated in response to changing best practice and emerging research.

On the point raised by the noble Earl, Lord Howe, and referred to by the noble Lord, Lord Stevens, and the noble Baroness, Lady Browning, about how advance choice document information is made available to patients, we will set out in the code of practice detailed guidance on how services should discharge their duties under the Bill to inform and support individuals to make an ACD. Any failure to implement the duty in this aspect of the code could ultimately be challenged in the courts. I hope that gives some indication of the strength of that provision in the Bill.

The noble Lord, Lord Stevens, raised the implementation timeline, as outlined in the impact assessment. We want to ensure that there is appropriate resource in the system before ACDs can be brought in. I am sure noble Lords understand that this is critical, for ACDs to have the right level of impact. For example, the effect of ACDs is dependent on the expansion of the second opinion appointed doctor service. In the meantime, services can, of course, progress with putting ACDs that deal with patient needs and wishes overall should they become detained. That would very much build on the work that South London and Maudsley, and others, have done.

I turn to Amendments 117 and 125 in the name of the noble Baroness, Lady Barker. I confirm that we are committed to mitigating the barriers that get in the way of creating an advance choice document. The code will make it clear that commissioners should provide accessible information in response to individual needs, with flexibility around how individuals make their preferences known—the point that the noble Baroness raised. We plan to create a standard advance choice document template for people to complete, with supporting guidance. That should prompt thoughts about the things that an individual may wish to consider and decide before they become unwell. I can assure noble Lords that the template will be available digitally as well as in hard copy. Our intention is that a digital version of the document will be created for easy access by professionals as needed.

Amendment 120, tabled by the noble Baroness, Lady Murphy, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, has the stated intention that mental health in-patients create an ACD. While the Bill does not prevent this, in most cases it will not be the best time, as patients may be very unwell and lack capacity. Insights from the South London and Maudsley NHS Foundation Trust with King’s College London suggest that encouraging people to create an advance choice document after discharge—when their health has improved and the support network can help—can be useful. The person’s community mental health team is best placed to provide support, rather than an independent mental health advocate whose role is to support people who are detained. The duty on commissioners in the Bill is intended to focus on the community and other contexts outside of hospital. We feel that this is more likely to increase the uptake of advance choice documents.