Terminally Ill Adults (End of Life) Bill

Baroness Butler-Sloss Excerpts

Committee stage
Friday 5th December 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I understand very much the points made by the noble Lord, Lord Winston, and the noble Baroness, Lady Fox. I come to this issue from a rather different position. I used to try a lot of cases, some of terminally ill young people, generally from the ages of 15 up to 25 or more. There were a number of cases of those with terminal illness, undoubtedly with capacity, who were also suffering from depression, not very surprisingly, or were confused as to what they really wanted. They came before me for all sorts of reasons unconnected with whether they should live or die from their perspective. What I was looking at was the medical evidence as to the sort of support that they ought to have.

Despite the neuroscience issue, which is important, and despite 18—or down to 16 under the present Government—being the age at which you are able to vote, I just raise whether you are looking at how much you care about the future of this country and what you care about for yourself. Do you want to die because you are going to die in the next few months? The doctors may be right or wrong about six months; we know that many diagnoses are inaccurate. This may be the most important decision of all to make: life or death? Consequently, I am concerned about the age of 18 from my own experience. Whether it should be 21 or 25 is arguable, but I am worried if it sticks at 18.

[Lord Moore of Etchingham (Non-Afl)]

My Lords, I support the amendment from the noble Baroness, Lady Berger. It is reasonable to have these considerations about the different ways people think and feel at different times in their life. One of the big discussions we have more broadly about the Bill is about the cognitive capacities of old people, which are very important in their freedom of decision.

In a similar way, it is reasonable to talk about the cognitive capacities of very young people. In particular, one of the things that makes very young people different from older people is that they naturally have very little encounter with death; they are much less likely to have come across situations in which people die and people they know have died. They simply do not know what it involves. If it were banned throughout the world that anybody under the age of 25 would fight in a war, we would hardly have any wars. One reason why soldiers are prepared to fight in wars is that they do not understand death when they are very young. They are ready for anything.

There is often a very strong culture of suicide in young people, because it is a romantic idea. The poet Keats expressed it absolutely beautifully in his “Ode to a Nightingale” when he speaks about being

“half in love with easeful Death”,

and the joy of ceasing on the midnight with no pain. He knew of what he spoke, in a sense, because he was suffering from a terminal illness, and he died before he was 25.

As the noble Baroness, Lady Berger, and others have brought out, we need to think about the influences on young people who may go in that direction. If they suffer from a terminal illness, that becomes even more acute. Because of their lack of experience in these matters, they will be under greater pressure, quite possibly, to feel that suicide is the way out and is somehow a noble thing to do.

I remember, at school, there was a very brilliant boy who was 18 and wrote a very short poem that just said, “If I should die, think only this of me: ennui”. It was a very clever thing to write, and he subsequently committed suicide aged 19. I ask noble Lords to think about what it might be like in such a situation at such an age.

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[Baroness Lawlor (Con)]

My Lords, I thank the noble and learned Lord for his intervention, for which I am very grateful. I point out first that I think that many noble Lords feel there is a very great difference between a decision to refuse treatment or withdraw treatment, which may or may not end one’s life, and to ask for something which will definitely end one’s life. That point is brought up by supporters of the Bill.

I will speak to my Amendment 5 and to the related Amendments 250, 258, 305 and 338.

[Baroness Butler-Sloss (CB)]

I wonder whether the noble Baroness might think it wise for us all to find out, after the discussions with the noble Baronesses, Lady Cass and Lady Finlay, what the noble and learned Lord, Lord Falconer, is proposing to do before we discuss this any further.

[Baroness Lawlor (Con)]

I thank the noble and learned Baroness, but I have a few points to add to the discussion.

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[Baroness Finlay of Llandaff (CB)]

I am grateful for that clarification and we will come back to the noble and learned Lord’s comments on these issues afterwards.

[Baroness Butler-Sloss (CB)]

If one reads Clause 1(1)(c), it not only says that the person has to be ordinarily resident but that they have to have been

“so resident for at least 12 months”.

Consequently, unless being in an embassy is still seen as being resident for the previous 12 months, the point that the noble Baroness made is entirely right.

[Baroness Finlay of Llandaff (CB)]

I am most grateful for that intervention, because many people who work in the embassies abroad do not live in the embassy; they live in apartments, houses or whatever in its vicinity.

The wording of the Bill prompted my probing amendment, so I ask the noble and learned Lord, in the light of this, whether he is comfortable with the vagueness of the term “ordinarily” or whether he sees merit in reconsidering this wording carefully to clarify the residency requirement to avoid death tourism and ensure that others are not discriminated against. I beg to move.

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[Lord Carlile of Berriew (CB)]

My Lords, I agree with my noble friend Lord Pannick. The concept of residence is clearly understood. I recommend to the noble Lord, Lord Moylan, that he might need a criminal lawyer just in case he was prosecuted for doing something wrong. I would be very happy to act for him, of course.

I recommend that all of us who are considering this matter should have a good look, as I have, at the National Health Service ordinary residence tool, which was revised in March this year. It gives a very clear outline of all the possibilities and where they fall in the ordinary residence judgment. What concerns me about the example that the noble Lord, Lord Moylan, gave, which we will come to on another group, possibly even today, is that if somebody has been living in Spain and wants to come back to their former country of ordinary residence for an assisted dying, if this Bill becomes law, it will prove extremely difficult to detect where there has been undue influence, particularly within a family. It would be extraordinarily difficult to investigate that evidence, whether it was done by a court or by a panel. I would be opposed to it on those grounds.

[Baroness Butler-Sloss (CB)]

I also entirely support, including the word “disastrous”, the points that the noble Lord, Lord Pannick, made. As he said, domicile is complex. You would end up in court dealing with the issue of domicile. It really is not a good idea.

Under Clause 1(1)(c), there are two requirements. One is “ordinarily resident”. I say to the noble Lord, Lord Moylan, that if I was trying the case I would have no problem at all. If it says “ordinarily resident”, that is what I would accept, so long as there was the evidence to support it. I do not think we need to be caught up in the Human Rights Act in dealing with such an issue. What worry me are the two requirements,

“ordinarily resident … and has been so resident for at least 12 months ending with the date of the first declaration”.

That seems to be a complete bar for someone who is in an embassy. It is very difficult if they are not ordinarily resident. It looks as though the noble Lord, Lord Carlile, does not agree.

[Lord Carlile of Berriew (CB)]

I hesitate to interrupt my noble and learned friend, whom I regard as being of almost biblical correctness in almost everything. If she were to take a look at the NHS tool that I referred to, which sets out all the requirements to prove ordinary residence, she would find that people who work in embassies, for example, are excluded because they are given fixed-term contracts for a certain time, even though that contract may be extended at some time. It also specifically refers to people who work for charities and who go to work abroad for a temporary period fixed by a contract. I do not think the issue that she has raised is very worrying.

[Baroness Butler-Sloss (CB)]

I am delighted to hear it in relation to embassies and charities, but the other example given was the person living in Spain who wants to come back to die here. It seems to me that needing to be resident in this country for the last 12 months would not allow that person to do so. The noble and learned Lord might just look again at that particular element of residence.

[Baroness Andrews (Lab)]

My Lords, I hesitate to interrupt this fascinating debate between our lawyers. I have no legal experience, but I have investigated the notion of domiciliary status at some length for different reasons. I absolutely agree with anyone who has tried to work their way through the 93 pages of conditionalities and various different criteria.

I come back to the central point in the excellent contribution by the noble Lord, Lord Lansley, about the need for consistency with the NHS and the implications of not being consistent. The terminology is not just about domiciliary status. What is the notion of permanence? We could have an equally long and problematic debate over that other element of the terminology. I completely respect that this is a probing amendment, but just as we had the beginnings of a debate on mental capacity and the necessity for consistency and trusting that what we already know works, because we see it every day in practice, so the notion of ordinary residence should simply, as far as I am concerned, end the conversation. I think there is a welcome consensus around the Committee that this is the only definition that is going to be practicable, workable, known and acceptable. I hope we can move on with the debate in that context.

Terminally Ill Adults (End of Life) Bill

Baroness Butler-Sloss Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I support the amendments to Clause 1 in this group. I speak in particular to Amendment 48 in my name. This seeks to strengthen the safeguards against someone being coerced into an assisted death by removing the words “by any other person” from Clause 1(2)(b). This would extend the notion of coercion by recognising that coercion or pressure can come from a multitude of places—an institution, a circumstance or another individual. I am sure there is agreement across your Lordships’ Committee that nobody should feel obliged to opt for an assisted death. This amendment aims to strengthen and clarify the eligibility criteria in the Bill in recognition that they are perhaps its most important safeguard.

I have deep concerns, as many of us do, about how we protect vulnerable people from unnecessary, unwanted death. I am especially anxious that we should be aware of the risk of coercion in all its forms, which is an issue that I raised during Second Reading. This includes somebody who feels coerced through a lack of real choice.

The National Audit Office’s recent report into the state of the palliative and end-of-life care sector is stark. As we know, funding is stretched and provision is disparate. As things stand, there is a lack of real choice for many people about the end of life. The knowledge of this could easily be internalised by people, leaving terminally ill patients in certain regions or who are part of particularly vulnerable marginalised populations feeling that they have no choice but assisted dying, whether or not another person is explicitly pushing this.

Therefore, my Amendment 48 seeks to ensure that such cases are not left out of the Bill’s definition of coercion. I ask my noble and learned friend Lord Falconer, in his summing up, to give consideration to this, so that it remains possible to detect and prevent any death that the person has not freely chosen.

[Baroness Butler-Sloss (CB)]

My Lords, I do not like this Bill, but I am here, like many other Members of this House, to agree on amendments that will make this a better Bill, and I hope it will be effective.

When my father died, the family nanny, who had also been his housekeeper, needed somewhere to live, and my brothers and I paid for her to live in a very nice care home, where she was entirely happy, until I went to see her. On each occasion, she said to me, “I shouldn’t be alive. I ought to die. It is not right that you and your brothers are having to pay for me”. I have this direct knowledge. She was perfectly happy when I was not there and, of course, we continued to look after her until she died.

But the Bill, once it is passed, is absolutely certain to be enlarged in all sorts of ways, as happened with other Bills in other countries once they became law. There are various reasons why it would be a good thing to enlarge it. For example, it seems to me bitterly unfair that those with locked-in syndromes such as motor neurone disease would be extremely unlikely to benefit from the Bill in the last six months, because many—those I have known—have been unable to do anything themselves in the last six months. The word “encouragement” is absolutely crucial. It does not have to be coercion. It does not have to be abuse. It could be nice people listening to a loved one and realising that they are saying, “I ought to die”, and consequently saying, “Yes, why not?” That would be extremely unjust.

[Lord Pannick (CB)]

My Lords, there is a profound irony in this group of amendments, because the Bill introduces far greater protection for vulnerable patients than exists under current law. Terminally ill people are currently vulnerable to all sorts of pressures from family members and others who may have their own agendas in seeking to persuade the patient not to continue with their treatment, to die or just to give up on life. The Bill introduces in statutory form a whole range of new statutory protections that simply do not exist in the standard cases of vulnerable people being encouraged not to continue with their treatment.

We see that in Clause 1(2), which summarises what the Act provides in some detail. Steps are to be taken, and they are taken under the Bill, to establish that the person concerned

“has a clear, settled and informed wish to end their own life, and … has made the decision that they wish to end their own life voluntarily and has not been coerced or pressured by any other person into making it”.

Those seem to me to be very strong and very appropriate protections. The idea that we should proscribe encouragement will inevitably lead to the family members and friends of the person concerned, the person in the terminally ill condition, being worried that, if they discuss this difficult, important subject with their loved one or friend, they will be vulnerable to all sorts of sanctions under the law. That, I would have thought, is the last thing that we want. The application of these principles—and they are the right principles in Clauses 1 and 2—will inevitably depend on the facts and the circumstances of the individual case, so I, for my part, do not see the need for any of these amendments.

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[Baroness Hayter of Kentish Town (Lab)]

I was talking to the debate on coercion, because there is no check on it for the existing way of ending one’s life early, which is to go to Dignitas. I was asking whether, if the Bill is changed in the way that, for example, the noble Lady, Lady Hollins, would like, she would then support it.

[Baroness Butler-Sloss (CB)]

My Lords, before the noble Baroness sits down, there are two separate situations here, and I wonder whether she agrees. One is that there are many of us who do not like the Bill, but there is a real probability that the Bill will pass, and if it passes, we want it better than it is at the moment. Consequently, we are not wasting time.

[Baroness Hayter of Kentish Town (Lab)]

I was not suggesting wasting time. I was asking whether, if these changes were agreed, people would then allow the Bill to proceed.

Terminally Ill Adults (End of Life) Bill

Baroness Butler-Sloss Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I shall be brief. I oppose the amendment. As the noble Lord, Lord Markham, said, this is a decision for the people of Wales to make—not for the people of England, who dominate this Parliament, both in the other place and here.

The problem arises because of the complexity of the devolution arrangements for Wales, and we could spend quite a lot of time—which I am sure no one wants to spend—going through it to try to understand why it has happened. In essence, it has arisen because the enabling of the Senedd to do anything is determined by criminal law; that is how the legislation has been drafted. That is not the case in Scotland: they have the freedom. That is denied to Wales because of the way that the devolution arrangements work. It cannot be right and fair for this position to remain. The noble Lord, Lord Markham, put his finger on what the solution ought to be.

We cannot adopt what has been suggested by the noble Baroness, Lady Coffey. If we did so, the Senedd would have no power to do anything because of those constitutional arrangements. Therefore, the solution that has been put forward, to delete Wales from the Bill, is a non-starter; we have to do something.

This is particularly important because, as has been said, although this is partly a great moral issue and partly an issue about the NHS, it is only in incidental effects a criminal law issue. The settlement makes it a criminal law issue, but we ought to allow the moral issue and the issue in relation to the NHS to be determined in Wales. If the Bill were to be passed in its current form, and then the Welsh Government decided that they did not want to implement it, the only people who would be able to obtain assisted dying in Wales would be those who were prepared to pay for it. That cannot conceivably be right.

The noble Baroness, Lady Smith of Llanfaes, and I have put down an amendment to try and resolve this. We have had it degrouped. I do not think any noble Lords have had much experience of reading the Government of Wales Act. The only experience noble Lords ought to have of doing that is if one suffers from insomnia.

In the coming period, we ought to settle down with the sponsors of the Bill and with the Government to try and work out a just solution to this problem; otherwise, I regret to say, the debate on the Floor of the House on the way in which we solve these problems will be time-consuming. It is not really the best way of dealing with such an important issue, which can be solved technically. I am sure everyone would agree with the noble Lord, Lord Markham, that it is a decision for the people of Wales and not for the people of England, who dominate this legislature. Wales should not be regarded as inferior to Scotland.

[Baroness Butler-Sloss (CB)]

My Lords, bearing in mind that this is a Private Member’s Bill, it seems to me, as an Englishwoman, that whatever efforts are required, we should be, at the end of the day, removing Wales from it.

[Lord Rooker (Lab)]

My Lords, in my modest experience of six departments in both Houses of Parliament, I have always come to the conclusion and repeated that Whitehall does not do devolution. By the way, I declare an interest: I live in England but within 10 miles of the border of Wales. Therefore, I commend the noble Lord, Lord Harper, on raising this in a practical fashion that probably nobody else in the House is able to do. I doubt that Members of Parliament in the other place had the opportunity to raise it in detail, because there will be MPs running on both sides of the border. I commend him on raising it, and I resent the fact that he was interrupted at the end.

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[Baroness Browning (Con)]

My Lords, many years ago, in another place, I served on the pre-legislative scrutiny committee and was present taking what became the Mental Capacity Act through the House of Commons. When I came to your Lordships’ House in 2010, I was fortunate enough to secure a House of Lords inquiry to look post-legislatively at how the Mental Capacity Act was working. From the evidence we took at the time, we found that the ability of the medical profession—by which I mean not just doctors but all those across the piece, including social care workers—was not as ideal as it perhaps sounds in today’s Committee. Whatever is built into the Bill to assess either capacity or ability, there will need to be a heck of a lot of training for us all to feel comfortable that the professionals involved know how to go about their task.

I draw the Committee’s attention to the report last month of the National Audit Office, whose press release stated:

“The Department for Health and Social Care (DHSC) and NHS England (NHSE) do not clearly understand what proportion of palliative and end-of-life care is delivered by independent adult hospices, and therefore, how much they are reliant on the sector, or what the real impact of government funding is”.


We have heard that palliative care is patchy. I know from my own recent experience with a close relative that, had I not been somebody capable of organising it myself, it would not have taken place. We are not dealing with finite disciplines in the debate on this group, and I caution the Committee that it is not as perfect out there as it sounds today.

[Baroness Butler-Sloss (CB)]

My Lords, I declare that I was a vice-president of Hospiscare in Exeter. I am probably the only person in this Committee who has tried cases of capacity, again and again, both as a High Court judge and in the Court of Appeal. One case was so difficult that the Court of Appeal, where I was presiding, sat until 1 am. Noble Lords may not have thought that the Court of Appeal did that very often. It is important for your Lordships to realise that some cases that I tried were extremely easy to try—one in particular involved a Miss B, who was obviously competent—but other cases were extraordinarily difficult. One case—the one that we did until 1 am—concerned somebody with a needle phobia who was expected to need a caesarean, and she objected because she could not bear the idea of a needle. At one in the morning, we took the view that she did not have the mental capacity to decide on her caesarean. She was hugely relieved and had the operation without any trouble. But that was not a unique case—the time was, but not the problem.

[Baroness Jay of Paddington (Lab)]

My Lords, I of course enormously respect the experience of the noble and learned Baroness and her ability to make these judgments. I am sorry that she had to sit until 1 am. But does she feel that those decisions would have been more or less complex and difficult if she had been judging them on the basis of ability?

[Baroness Butler-Sloss (CB)]

I have not the remotest idea. It is such an important point that I would have to go away and reflect. I am not commenting on ability or capacity; the point I am making to the Committee is about the difficulty of this for a doctor, or several doctors—probably GPs. The Royal College of Psychiatrists, of which I am an honorary fellow, has said firmly that it wants nothing whatever to do with the panel or with this, so doctors who are not psychiatrists will decide, with other people, whether somebody has or does not have capacity. That is what is currently in the Bill.

I warn your Lordships that this can be difficult, particularly when it involves depression. I had a friend, a solicitor, who suffered from depression. She said that she used to fall into a black pit and try to crawl up the sides, which were slippery. It was clear to me that, when she was in that depression, she certainly did not have the ability to make serious decisions. So I warn your Lordships about the potential problems of assessing capacity.

[Baroness Lawlor (Con)]

My Lords, I support the amendment in the name of the noble Baroness, Lady Finlay, to substitute “ability” for “capacity” in Clause 1(1)(a). As Clause 3 explains—we have already spoken about this at length—capacity is to be understood as defined in the Mental Capacity Act 2005. But, in my view, capacity so defined is the wrong measure to use to discern whether someone is in a position to make a proper judgment about ending their own life.

The Mental Capacity Act sets a very low threshold for having mental capacity. The Act requires—it could hardly do otherwise—that the person concerned must be able to understand the information relevant to a decision, but it dictates that this requirement should be understood in the laxest way, because Section 3(2) states:

“A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)”.


We have heard from the noble Baroness, Lady Finlay, about the problems of information, facts, evidence and understanding that she has encountered in her very distinguished specialism. In effect, then, someone who can grasp only a diluted, simplified version of the information needed for a decision is still thought to have capacity to take it.

In Section 3(3) the Act adds that, although the person concerned may be able to retain the information, as per Section 3(1)(b):

“The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision”.


The Act therefore allows that someone who cannot retain information in the normal sense of the word “retain”, which means that something is kept, in this case in the memory, none the less has capacity.

Although the Act makes the threshold for mental capacity as low as it can, arguably that is good for the purpose of the Act, because very strong reasons are required before we take an individual’s power of agency over important decisions about the conduct of their life, which is the result of declaring that they lack capacity. If there are any grounds, however slight, we should accept that they have capacity.

But, in the case of the Bill, this position is reversed. We are dealing here with a decision that, in its gravity and irrevocable nature, is completely unlike most—or all—of those important decisions that the Mental Capacity Act was designed to regulate. Where the decision is to end one’s own life, what matters above all is that the agent is able to understand its meaning and consequences. It is not enough in this case that the information relevant to the decision is grasped in a simplified or pre-conceptual form, as the Mental Capacity Act definition would allow, nor that the information is retained only for a moment, then to be forgotten, as again is allowed by the Mental Capacity Act definition. The threshold for being allowed to take the decision must be much higher. Even though making it higher would take away the power of agency from more people than a lower threshold would, it is wholly justified when, as here, it concerns a decision that, if made, will entirely and irrevocably remove an individual’s power of agency.

I agree that “ability” lacks the precise legal definition— I am very grateful to the noble and learned Baroness, who was very candid about what that could mean—that “capacity” has. It is better to have an imprecise phrasing that points in the right direction than one that points the wrong way. Moreover, the phrasing of the amended clause indicates how we should understand ability. It is an ability to make the brave and difficult decision to end one’s own life. Clearly, an ability commensurate with the gravity of that difficult and brave decision is an appropriate way. I support the aim, and, indeed, the wording, of the noble Baroness’s amendment, because of the gravity of the decision that is being taken.

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[Baroness Murphy (CB)]

It is very important that we understand where these reports come from. This one is issued by the Royal College of Psychiatrists, but it has not been subjected to scrutiny by the members. Although they have many good points, and we can look carefully at their recommendations and assess them properly, we need to make a decision ourselves.

[Baroness Butler-Sloss (CB)]

I am very grateful to the noble Baroness for giving way. I have a practical question to ask. Do other doctors get training on what is meant by “capacity”?

[Baroness Murphy (CB)]

There is never enough training—let us assess that.

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[Lord Kennedy of Southwark (Lab Co-op)]

I do not think I can add much more to what I have already said. We are debating the Bill. The House will adjourn fairly shortly, and I will have a discussion in the usual channels. There is no government time that can be made available for the Bill.

[Baroness Butler-Sloss (CB)]

Is it not time that the Government look to give some government time to the Bill? As has already been said, this is one of the most important Bills ever to come before this House. For the Government not to give us government time, as the noble Baroness, Lady O’Loan, has just said, is unfair to the Bill.

[Lord Kennedy of Southwark (Lab Co-op)]

All I can do is repeat myself: this is a Private Member’s Bill, and the Government do not have any government time to give it at the moment.

Terminally Ill Adults (End of Life) Bill

Baroness Butler-Sloss Excerpts

2nd reading
Friday 19th September 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, while I oppose the Bill, I recognise we have heard arguments that people support it, so I am particularly relieved at the Motion of the noble Baroness, Lady Berger, to get some proper scrutiny of the Bill.

My main concern is that it is a badly flawed Bill, it needs radical improvement and, as many have already said, it is probably one of the most important Bills that this House will ever have to consider. However, this Bill is not the right way to go into law.

We start with 42 delegated powers, which will be dealt with by the Secretary of State, but more likely by the civil servants in the Department of Health. We are not asked to consider nearly all the crucial details of this enormously important Bill. We have already heard of the very real concerns of the Delegated Powers and Regulatory Reform Select Committee and the Constitution Committee. I do not remember ever before reading in such a report words like

“the power… is inappropriate and should be removed”,

and, among others,

“the highly inappropriate nature of Clause 37(7)”.

Is the panel intended to meet in public and hear evidence? Will it meet at all, or will it be a tick-box ceremony? Why is there no coroner check? Surely that is an obvious safeguard.

Assisted dying will be paid for by the NHS but, as so many have pointed out already, only 30% of palliative care is paid for, so this is an obvious inequality. I declare an interest as a former vice-president of the Exeter and Devon Hospiscare—a wonderful institution that helped a dying friend of mine to stay at home.

The process will require the preliminary assessment of the co-ordinating doctor, the independent doctor, the panel psychiatrist and the doctor at the death. Is the NHS ready to cope with this?

We should not ignore the very real concerns of several medical colleges, including the psychiatrists, who are very concerned about the flaws in the Bill. They are, of course, expected to provide panel members. I declare an interest as an honorary fellow of the Royal College of Psychiatrists.

It is not easy to assess when a patient will die within six months. The Lockerbie bomber lived for three years, as has already been said. Six months may also be very unfair to those with motor neurone disease or other similar diseases, who may not have the physical ability to take the final step they need to take.

Is this Bill intended to be the start? Is it to be amended shortly to increase the ability to help assisted dying to one year, two years or three years? Clearly, as others have said, this is a slippery slope. The possibility of coercion, or even more likely, the feeling of being a burden on others—especially a financial burden—is obvious.

As I have already said, this is a seriously flawed Bill. It is a Private Member’s Bill, and it is time the Government took it over and put it properly into order.

Adult Social Care

Baroness Butler-Sloss Excerpts

Monday 16th June 2025 Lords Chamber

[Baroness Merron (Lab)]

In general terms, of course, the independent commission into adult social care will be part of our critical first steps towards delivering a national care service. The commission, as the right reverend Prelate is well aware, will be chaired by the noble Baroness, Lady Casey. I agree with the right reverend Prelate that there are particular demands in certain local areas, and the strategy will take account of that, including the fact that, based on the growth of the population aged 65 and above, the sector may need 540,000 extra new posts by 2040. That is a big challenge, but by setting up the professionalisation, the training, the skilling and the fair pay for people, it is one that we will be in a much better place, across the country, to be able to deliver on.

[Baroness Butler-Sloss (CB)]

In supporting the noble Lord, Lord Laming, I ask the Minister whether anything can be done officially to raise the status of care workers. Status is often very important for people wondering what sort of job to have.

[Baroness Merron (Lab)]

The noble and learned Baroness is absolutely right about status, which assists retention as well as recruitment. Clearly, the first ever fair pay agreements will make that possible. The need to work with various partners across the sector was raised in an earlier question. The way in which those negotiating bodies will work will absolutely bring together all the partners in the sector to get to the right place. That will certainly include fairer pay, which we will see through the Employment Rights Bill, but also training and skills and the care workforce pathway, the care certificate and having a skills record. These represent a comprehensive package to raise the status in the way that the noble and learned Baroness asks for.

Mental Health Bill [HL]

Baroness Butler-Sloss Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

Moved by

[Baroness Butler-Sloss]

2: Clause 4, page 7, line 32, at end insert—
“(v) a person or persons with parental responsibility who have not received a court order restricting the exercise of their parental responsibility.”

[Baroness Butler-Sloss (CB)]

My Lords, I have three amendments in this group—Amendments 2, 25 and 27. They all relate to the relationship between parents, special guardians and others with parental responsibility, and the Bill.

I must first say that I am extremely grateful to the Minister and her team for having been allowed to try these points out on her on several occasions. I am afraid that I did not make a great deal of progress, but I hope that I made just a little. I do not propose to ask for the view of the House on any of these three amendments, but I hope that they will go into the code of conduct.

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[Baroness Merron (Lab)]

I am grateful to the noble Baroness, not least because she has also given me a bit of time to add to my earlier answer to the noble Baroness, Lady Berridge, about the meeting with the lead of the AMHP Leads Network last November. That meeting took place after the Bill was published.

On the point the noble Baroness raised, whether the House will be divided will be a matter for the noble Baroness, Lady Berridge, and others to decide, but I am always happy to have discussions. If the noble Baroness wishes to do that, I will be very pleased to, as always.

[Baroness Butler-Sloss (CB)]

I do not think I need to say anything else. I am relieved to hear from the Minister that it will be expressly in the code of practice. I am also grateful for the idea that I can put forward some suggestions, which would be very helpful. I do not propose to take any further steps on my three amendments, and I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

--- Later in debate ---

[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.

[Baroness Butler-Sloss (CB)]

My Lords, I support this amendment and, in particular, what the noble Lord, Lord Meston, has said. He has considerable experience of the county court, which I do not have, excepting when I used to appear before it.

What concerns me is that, if a case is sent to the county court, to a judge who is not a family judge, there will be considerable difficulties for that judge. I support the idea that it should be either the mental health tribunal or—as I would prefer, and as the noble Lord, Lord Meston, has suggested—the Court of Protection. The judges of the Court of Protection are judges of the High Court, Family Division, of which I was president. That would be the right court. If it is said by the Government that they are not prepared to move on this issue, and I suspect they might not be, could they at least put in the court code of practice that, if it is sent to the county court, it will be dealt with by a family judge in the county court? The county court sits also as a family court. That would at least ameliorate the situation.

[Earl Howe (Con)]

My Lords, I will speak briefly to the amendments in this group tabled by my noble friend Lady Berridge, supported by the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, whose last suggestion I hope will be listened to by the Minister.

I must commend my noble friend for her tenacity with this issue. As she has outlined, there is a significant concern that the use of the county courts to decide on matters pertaining to the termination of nominated persons is not the most appropriate process. I do hope that the Minister will give my noble friend words to her comfort.

[Baroness Merron (Lab)]

My Lords, I thank the noble Baroness, Lady Berridge, for her Amendments 24, 28 and 35. They would mean that the mental health tribunal, rather than the county court, handled the termination of appointment of the nominated person. The county court already has a role in displacing the nearest relative. It has the expertise, procedural tools and legal framework to handle sensitive disputes involving external parties, such as conflicts of interest or allegations of abuse. The First-tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales are focused on reviewing detention under the Mental Health Act. This would add an additional burden on the tribunal, risking undermining its core function and delaying detention reviews.

The noble Baroness, Lady Berridge, raised the issue of legal aid. County court mental health cases are largely limited to applications for the displacement of a nearest relative. Legal aid is currently available to a person seeking the displacement of the nearest relative, except where the person bringing that application is doing so in a professional capacity and to the nearest relative themselves. That would also apply for the nominated person, which will replace the nearest relative.

Legal representation is available where the applicant meets the means test, unless they are under 18, and the relevant merits criteria. If there are any further points of clarification, I will be pleased to make them to any noble Lords who have raised points today, including the noble Baroness.

As we do not feel that the mental health tribunal is the right place for what I was referring to before I went on to legal aid, I ask the noble Baroness to withdraw the amendment.

[Baroness Butler-Sloss (CB)]

Does the Minister know which judge deals with these issues in the county court? The point that I made as a possibility was that it should be one of the family judges. She will know that circuit judges do both family and civil, but generally there is a designated family judge and a designated civil judge. I am just hoping something can be said so that it gets at least to a judge like the noble Lord, Lord Meston, who would understand what was going on.

[Baroness Merron (Lab)]

The noble Lord, Lord Meston, does indeed know what is going on—I agree. I cannot answer the noble and learned Baroness’s question directly, but I would be pleased to look into that point in order to do so. Maybe the noble Lord could help me.

Mental Health Bill [HL]

Baroness Butler-Sloss Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

[Lord Meston (CB)]

My Lords, in those circumstances, if I may, I shall now speak to Amendment 51, which is also in this group. This is the same amendment that I put forward in Committee to provide a statutory basis for determining the competence of a child under 16 to make decisions for the purposes of this Bill and the Mental Health Act 1983. I should emphasise that it is concerned not with the consequences of such decisions but with the determination of competence for the purposes of those decisions.

I will not repeat at any length the arguments from Committee but remind the House that this amendment was prompted by the report of the Joint Committee on the draft Bill, which referred to the complexity of the law in this area concerning those under 18 years of age and referred to the absence of consistent criteria to establish capacity or competence. Sixteen and17 year-olds are subject to the Mental Capacity Act and have the benefit of a statutory presumption of capacity applicable to adults. Children under 16 covered by this Bill do not have the benefit of that presumption and the existing Mental Capacity Act does not apply to them.

The competence or otherwise of those under 16 to make decisions is considered by reference to the principles decided judicially by the House of Lords in the case of Gillick, to which the Minister referred when rejecting my amendment. However, Gillick did not actually set out any test for assessment of competence or any method for such assessment. It simply provided that a child under 16 could consent to medical treatment if considered by professionals to have the maturity and intelligence to understand what is involved. There was no indication of how the broad notions of maturity and intelligence were to be assessed.

This has left professionals, legal and medical, with what has been called inherent uncertainty. The Bill will create a range of situations in which professionals will have to assess a child’s competence, but it is silent as to how that is to be done. In rejecting this amendment, the Minister suggested that it could cause confusion if it was seen to be a different test to that established by Gillick.

The more that I and others have thought about that and analysed the argument, the harder it has been to accept it. First, as I have said, Gillick does not establish any methodical test. The House of Lords in that case did not have to set out how competence was to be assessed. Secondly, this amendment does not conflict with or undermine Gillick. On the contrary, it is intended to build upon it and to provide a workable approach to problematic assessments which professionals sometimes have to undertake.

The amendment provides a clear, structured test for determination of a child’s competence to fill the gap in the Bill and to address the uncertainty to which the Joint Committee referred. I therefore suggest that, rather than create uncertainty or confusion, as was suggested by the Government, it will actually reduce or remove it, and it will provide a clear statement of parliamentary intention as to relevant considerations to be brought to bear.

The Minister has been kind enough to write to me recently, explaining further the Government’s reasons for not supporting my amendment. She stated concern that it could have unintended consequences. However, unintended consequences are by their nature unknown, unforeseeable and may never happen. I have therefore found it difficult to understand the Government’s concerns, particularly as my amendment is expressly limited, referring only to decisions under this Bill and under the existing statute.

The Government also suggested that it might have the effect of restricting the ability of children to exercise choice and autonomy. I have to say I do not understand how that could be suggested. On the contrary, I think it would facilitate the exercise of choice and ensure respect for Article 12 rights, which are expressly referred to in the amendment. The exact terms of Article 12 of the UN convention require that a child who is capable of forming his or her own views is assured of the right to express those views freely, and that those views are given due weight according to age and maturity. In short, I do not see the problems suggested by the Government, and accordingly I commend this amendment.

[Baroness Butler-Sloss (CB)]

My Lords, I agree with all three amendments that we are considering at this moment, but in particular I support Amendment 51 and agree respectfully with every word that the noble Lord, Lord Meston, said. He has set it out extremely carefully and clearly.

Despite meeting the most helpful Minister to discuss this and other matters in the Bill, I absolutely cannot understand why the Government do not realise that the absence of any information to help medical professionals looking at a 14 or 15 year-old who has mental health issues, which are why they are in hospital, but who appears otherwise to be very bright, is an issue. How on earth are they to judge whether that child has the degree of competence necessary for the professionals to listen carefully to what the child has to say? If you are over 16, you are included in the Mental Capacity Act 2005, but under-16s have not been included.

I emphasise the point made by the noble Lord, Lord Meston, that Gillick is very long-winded. It would be unreasonable for any medical professional looking at a child of 13, 14 or 15 to settle down and read the judgments of the then House of Lords to find out that they say that Gillick should be applied but absolutely do not say how.

This is why we have this amendment. The Government might decide that they are not prepared to accept it. I did not see the letter that the Minister sent to the noble Lord, Lord Meston, but I cannot understand why there is any confusion. I cannot understand why a form of advice to mental health professionals on dealing with under-16 year-olds in mental health conditions might be applied in any other circumstance in any other litigation. It does not apply.

I have spoken not only to the Minister but to the very helpful team who surround her, and I have been completely unable to understand what on earth they are really worried about. I would be—and I would like the Government to be—much more worried about anyone over 16. There is primary legislation telling anyone how to judge that someone over 16 has the ability to make decisions, but there is nothing to tell anybody about someone under 16.

In my view, there will be a serious lacuna in the law that is very unhelpful, particularly to mental health professionals. What on earth are they going to do with a child who, as I say, is bright and cheerful despite what his or her mental health problems are? How on earth are they going to approach judging whether that child has the sort of competence that over-16s have?

I find it difficult that what is contained in this excellent proposed new clause by the noble Lord, Lord Meston, is seen as somehow confusing or that it will be used in the wrong circumstances, or anything like that. If Amendment 51 is not going to be accepted, what on earth is the help that the Minister expects to give to mental health professionals dealing with under-16s?

[Baroness Bennett of Manor Castle (GP)]

My Lords, I say humbly and briefly, following that expert explanation of Amendment 51 from the noble Lord, Lord Meston, and its powerful reinforcement by the noble and learned Baroness, Lady Butler-Sloss, that I attached my name to this amendment simply because I thought it was such an important one, following our debate in Committee. I felt that it should have a full slate of signatures from as broadly around the House as possible. I do not claim any particular expertise here, but my intention to do this was strengthened by the joint briefing from the Law Society, Mind and the Children and Young People’s Mental Health Coalition. It is quite notable and I am sure many noble Lords will have received it. That briefing is explicitly on Amendment 51, which just shows the level of concern on this issue among NGOs.

It is worth saying—it is kind of stating the obvious—that, as the briefing notes:

“We consider that the test should be on the face of the Bill, not in a Code of Practice as the Government suggests. This is because the courts have made clear that codes of practice should reflect the law and cannot create law”.


That sets out clearly to me, as a legal lay person, where we are. As the joint briefing then says,

“a clear and consistent approach to assessing a child’s competence can only be achieved by including a test in the Bill. The Code is not the right place”.

NHS England Update

Baroness Butler-Sloss Excerpts

Wednesday 19th March 2025 Lords Chamber

[Baroness Merron (Lab)]

I understand that point and the noble Lord’s wish for dates, which I am not able to give him, as I am sure he will appreciate. These reforms are not about front-line staff losing their jobs; we are talking about people employed directly by the department and the NHS. The noble Lord referred to the Secretary of State, and I would add that other arm’s-length bodies also need to be leaner than they are today.

I understand the problem, and we are going to work very closely with staff organisations, but it is not a neutral situation. Staff are suffering from box-ticking, duplication and red tape, which prevents them doing their job properly. Their morale is not good in this case—in any case. We do not want to add to that, but we do want to give them hope for the future.

[Baroness Butler-Sloss (CB)]

After the transformation team has completed its work, who will take over the duties that the noble Lord, Lord Kakkar, referred to in his question?

[Baroness Merron (Lab)]

That will be declared in due course, once the work has been completed.

Mental Health Bill [HL]

Baroness Butler-Sloss Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Baroness Browning (Con)]

My Lords, I support the noble Baroness, Lady Parminter, on the particular point that she raises about eating disorders in her amendment and on a more general point.

In an earlier debate, I tried to make the case that people being diagnosed with autism by clinicians should be seen by clinicians who specialise in autism. I was reminded of this very much when the Minister, responding to an earlier amendment this afternoon, talked about parity of esteem in the health service between the physical health support provided and that for mental health. In the world of physical health, if you were to see an orthopaedic consultant, you would not necessarily see the same consultant, depending on the condition that you had. The same applies today with cardiology, whereby cardiologists now have more specialisms within that and you would therefore see the appropriate person. As raised by the noble Baroness, Lady Parminter, the facilities that go along with such specialised treatment and assessment are very important.

I put it to the Minister, prompted by the noble Baroness, Lady Parminter, and by the Minister’s own words, that it really is about time that, with regard to mental health as a generic term, whatever the condition, we stop—as they did even within my lifetime—locking people up in some old Victorian institution where they all get the same treatment, facilities and so on. Today, with our increased knowledge of mental health and of medication for mental health, and with the increased number of specialisms that we are now aware of, particularly around eating disorders, it is really about time, if there is truly to be parity of esteem, that mental health is treated as physical health is treated, and that the specialisms that occur and the specialists there to work within those specialisms are given weight within legislation so that facilities and specialists can be provided—because we know that they are not.

At the heart of the Bill before us is the fact that we are taking autism and learning disabilities out of the Mental Health Act 1983, in which they were all treated the same—lumped in together and treated by the same clinicians, whether they had a specialism in that area or not. This is a real opportunity for the Minister and the Government to make sure that there is true parity of esteem and that conditions such as eating disorders are respected and treated in the way in which they should be.

[Baroness Butler-Sloss (CB)]

My Lords, I remember a specific case of a friend’s 17 year-old daughter who was suffering from an eating disorder. She had to go into hospital, where she was not treated at all well; she was criticised for not eating—the very thing she had gone into hospital to get help for. She did not for quite some time get any specialised help on how to deal with her eating disorder. This amendment would deal with that issue.

[Lord Kamall (Con)]

My Lords, I thank the noble Baroness, Lady Parminter, for moving this amendment. Unlike in the last group of amendments, where there was limited support, we fully support her on this one. We know that the noble Baroness has tirelessly campaigned for better support for those with eating disorders. At Second Reading, she shared the experience of living with such disorders, and we all became much more familiar with some of the concerns. I also agree with my noble friend Lady Browning that it is about time we stopped treating all people with mental ill-health the same; we know that we have to look at it in far more granular detail.

The amendment speaks to the problems around the adequacy of provision of care for patients suffering with eating disorders. As the noble Baroness said, Section 140 of the Mental Health Act provides for reception of patients in cases of special emergency and the provision of accommodation and facilities suitable for under-18s, but it applies only to hospitals. I agree that there is a reasonable case to extend this to specialist eating disorder units. With that in mind, I hope the Minister will be receptive to this amendment.

--- Later in debate ---

[Baroness Tyler of Enfield (LD)]

My Lords, I rise very briefly to add my support to Amendments 143 and 144, in the name of the noble Earl, Lord Howe. I added my name to these amendments. I am also very sympathetic to the other amendments in this group, both Amendment 142 and the two amendments that the noble Baroness, Lady Berridge, has just spoken to.

The noble Earl, Lord Howe, introduced these amendments in an incredibly compelling, moving and, indeed, comprehensive way. In a way, I do not feel that there is very much for me to add. I did have to think quite hard—there was part of me that wanted an outright prohibition, but I recognise the state of the mental health services we have at the moment. Unfortunately, there are times—hopefully, in only a few desperate cases, as the noble Earl said, and for a very short time—when these measures have to be taken. As undesirable as I think it is, we need to recognise the world in which we live.

I would also like to underline—because most of the debate so far has been about children in adult wards, which is clearly hugely undesirable—the importance of considering children placed out of area. That is, so often, when there is no suitable or available bed. It goes back to the issues raised by my noble friend Lady Parminter about eating disorder beds. It is hugely detrimental for children and young people to be placed out of area, away from their support networks—their family and friends who they so desperately need as part of their recovery at a time of real crisis—so I want to underline the importance of that, as well as the importance of real transparency and rigour when a child is, very unfortunately, placed in an adult ward, hopefully for a very short period of time.

[Baroness Butler-Sloss (CB)]

My Lords, I come to this totally uneducated, so what I have heard this afternoon I have found very shocking. I agree with what has been said already, and I was particularly shocked by the comments from the noble Earl, Lord Howe. I would like to underline what the noble Baroness, Lady Berridge, has said about the fact that these are children. They may be 17 and a half but, under the Children Act 1989, they remain children and, across all legislation dealing with children, “best interests” comes in.

From what I have heard, it sounds as though adult wards do not understand that these are genuinely children and have to be treated separately but, much more importantly, that their best interests are not necessarily, or almost certainly not, the same as those of adults. I wonder whether it should not be permeating all establishments, private and public, that, if they have to take into an adult setting those under 18, they have to deal with them in a special way. I remain horrified by what was said and I hope that the Minister, who is a particularly sympathetic person, will pick this up and take it across the board.

[Lord Berkeley of Knighton (CB)]

My Lords, I am only marginally less shocked than the noble and learned Baroness. The reason for that is that I regularly visited a friend in an adult ward, suffering, funnily enough, from eating disorders, among other things. So I support Amendment 144 most strongly. What shocked me was that, over several years, there were two children I saw. They were witnessing not only acts of violence but sexual acts too that were quite clear—I will not go into the details, but it was completely inappropriate for a child to be witnessing this.

The final point I want to make hinges on what we have also heard: that there is only so much we can do. Of course, the reason for that, and it is another reason why these experiences are seared into my mind, is the state of funding for mental health. No one can turn that switch on immediately, but the root problem here is that this is a sector that is somehow pushed to the side. Therein lies a fundamental reason why we have to take a completely different attitude to mental health, and I am sure that the Minister feels quite strongly about that herself.

--- Later in debate ---

[Baroness Barker (LD)]

My Lords, it is usual in your Lordships’ House for the people with their names on the amendment to speak first; noble Lords will understand why I stood back, given the previous two speeches. I understand how the noble Lord, Lord Pannick, felt, having the noble and learned Baroness, Lady Hale, in his corner. I do not want to repeat anything that the noble Baroness, Lady Keeley, has said, because she summed it up extremely well.

We are very lucky; we get to talk to lawyers of calibre and fame. But I want to stand up for the solicitors, lawyers and independent mental health professionals who, day in and day out, go and see the people who are in real distress or are forgotten about, who nobody else is terribly interested in. They make it their business to make sure they are treated like human beings, wherever they are. I simply take the occasion to say this, because right now, we have to take every opportunity we have to defend the Human Rights Act and the application of universal human rights. It is no good having human rights that you pick and choose and apply to the people you like. It is why I picked the noble Earl, Lord Howe, up on his previous amendment.

We are very bad at explaining the importance of the Human Rights Act to people in the community; it is fair game for every newspaper hack or whoever wants to take a go at it, but it is about making sure that vulnerable people are treated as full human beings in our society. Therefore, I hope that even if we have not managed to fashion the exact perfect amendment, the noble Baroness will agree that this deserves to be in the legislation.

[Baroness Butler-Sloss (CB)]

My Lords, I came in today particularly to support Amendment 149, as others, including the noble Lord, Lord Pannick, have clearly done. What we are asking for is either for the loophole to be closed or for clarification. I share with the noble Baroness, Lady Keeley, the view that the judges produced a somewhat narrow definition of the situation. I agree with everything that has been said, and I do not want to repeat it, but with a narrow interpretation by the courts and with some lawyers here in Parliament and others who have put things so beautifully, Parliament can put right what is happening. That is what I am here to support: Parliament putting right what at the moment is not clear, is a loophole and needs to be put right.

[Earl Howe (Con)]

My Lords, I should like first to speak to Amendment 160BC standing in my name. Although it may not look like it, this is a probing amendment. I have tabled it because I have been made aware of concerns that there is a serious lack of clarity around one aspect of the Mental Health Act 1983 that would greatly benefit from a clarifying statement from the Minister.

Let us imagine a patient who is detained in a mental health hospital under the Act and who requires urgent treatment in another NHS setting, such as a general hospital. The treatment, let us further imagine, is kidney dialysis—that is just a random example. Unfortunately, in this case, the patient is deemed to lack decision-making capacity for his own health and well-being, and the doctors therefore agree that if he is transferred to the other hospital, he will need to be restrained during the time that he is receiving the treatment, because if he is not, there is a likelihood that the treatment will not be deliverable.

The question then arises: in that particular situation, does the Mental Health Act 1983 allow for the patient to be deprived of his liberty in a setting other than a mental health hospital in order for necessary life-saving treatment to be administered? I am aware that there are contrary opinions among lawyers and clinicians as to the answer to that question. Some believe that, in that example, it would be necessary for the managers of the mental health hospital to apply to the court for a deprivation of liberty order under the Mental Capacity Act, which the court could grant under its inherent jurisdiction. I understand that this is standard procedure in a number of mental health hospitals. By contrast, other experts are clear that Section 17(3) of the Act already provides authority to place the mental health patient into the custody of the managers of the acute hospital and that there is therefore no need to apply for a DoL order under the Mental Capacity Act in order to achieve this.

Section 17(3) of the Mental Health Act says:

“Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital”.


Those words appear to confirm the opinion that I have just set out—that the responsible clinician can authorise “leave of absence” in another hospital, with the patient being kept in custody so long as this is seen to be in the patient’s best interests.

Unfortunately, it also appears that there is more than one way of interpreting Section 17(3). There are those who maintain that what one might call the carte-blanche interpretation is too broad a reading of Section 17(3), which they insist needs to be read with Section 63 of the Act. Section 63 says:

“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment”.


Taken together, those two sections say that the Mental Health Act authorises treatment only for mental disorders and physical disorders that are part and parcel of the treatment for the mental disorder; in other words, for treatment of physical disorders that are not directly connected to the mental disorder, a court would need to make the appropriate order under the Mental Capacity Act. Who is right? I should be very grateful if the Minister would use this opportunity to bring some clarity to bear on this area of the law, around which there appears to be a veil of fog. Whatever the answer, will she ask NHS England to examine the guidance contained in the relevant part of the code of practice to ensure that it is as clear as possible about what the current law permits?

Finally, I shall comment briefly on Amendment 149, which the noble Baroness, Lady Keeley, has tabled jointly with the noble Baroness, Lady Barker. I fully support this amendment. At the same time, I regret that it appears to be necessary, and I say that with some personal feeling. The issue addressed by this amendment is precisely the same as the one which in 2014, as a Health Minister, I endeavoured to close down by means of a government amendment to the Care Bill, which now forms Section 73 of that Act.

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.