Mental Health Bill [HL]

Baroness Butler-Sloss Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Murphy (CB)]

Yes, I would say that indeed it was. That year when they gave an extra £400,000 to spreading psychotherapy around was the same time when we were having incredible crises in acute hospital services, and I thought that it was not justified. But the mental health crisis that we have in this country is the same one that they were complaining about in 1860, 1870 and 1880; every generation believes that it is worse off than the generation before, but there is not much evidence that it is.

[Baroness Butler-Sloss (CB)]

My Lords, having just heard the noble Baroness, Lady Murphy, I shall be extremely cautious about what I look at on the internet. I want to say just two or three words. I have experience from my own family and from my friends of two sets of drugs—anti-depressants and Ritalin—and they really should be used a great deal more cautiously.

[Baroness Barker (LD)]

My Lords, now is not the time to have the extensive debate that the noble Baroness, Lady Murphy, has opened up. I said right at the outset that we are talking about legislation that comes into play when a person is going to be detained because they are very ill and at risk of harming themselves or somebody else. But I would say to the noble Baroness that the Wessely review looked at this issue at considerable length, and I was among the Peers who listened to Sir Simon Wessely when he came to present his findings. One thing that has stuck with me is the person who gave evidence to his review who said: “I was very ill. I had to have treatment. Why did it have to feel so awful?”—I am using parliamentary language there. Does the noble Baroness accept that mental health legislation debates such as this might be limited, but they do an important thing in sometimes challenging the prevailing orthodoxy among the professions, and they are an occasion where the experience of patients, which have built up over many years, gets a chance to change practice? That is why we should look at all the amendments in this group, and in particular those of the noble Earl, Lord Howe.

--- Later in debate ---

[Lord Meston (CB)]

I am tempted to say that I really do not know. That was a faster ball than I expected to receive. I think the answer is that the case law would be consistently applied, even as it stands now, but would undoubtedly be aided by a statutory test. Whether it would apply in cases such as that which the noble Lord just mentioned, I do not know. The purpose of the amendment is to provide a test for decisions that have to be made consequential upon this legislation, not other situations.

[Baroness Butler-Sloss (CB)]

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

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

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

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

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

[Baroness Berridge (Con)]

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

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

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

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

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


It then refers to explanatory paragraphs and continues:

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


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

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

The Government’s response to the consultation stated:

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


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

--- Later in debate ---

[Earl Howe (Con)]

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

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

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

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

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

[Baroness Butler-Sloss (CB)]

My Lords, if the noble Earl is suggesting that the provisions in the amendment of the noble Lord, Lord Meston, should go either to consultation or to further consideration, will we not end up in a situation where this Bill becomes law and nothing is done to advise anyone, on the face of the legislation, how to deal with those under 16, although it is there for those over 16? Why should, in this particular instance, those under 16 basically be discriminated against? Whether or not they have capacity is the point of the amendment.

[Earl Howe (Con)]

I am grateful to the noble and learned Baroness. I hope it was implicit in what I said that I would look to this Bill to include an order-making power that would enable regulations to be laid in due course that would cover not only 16 or 17 year-olds but also those under 16, and Parliament would then approve them. No doubt this is a matter that we can discuss further after this, but I hope that the point of principle is clear, which I fully support, that this issue needs to be sorted through this Bill.

--- Later in debate ---

[Baroness Merron (Lab)]

I will come back to the noble Lord on that, and I thank him for asking the question.

I was about to refer to the noble Baroness, Lady Tyler. I may not be doing so in quite the right place, so I hope she will forgive me, but I do not want to lose this point. She asked what engagement we have had with the Department for Education. Our officials have engaged with DfE officials on the development of the Bill, including on the interaction between the Bill and the Children Act, which I know is of quite a lot of interest to noble Lords. We have also discussed questions around the statutory test with both the DfE and the Ministry of Justice, given that competency tests apply in wider children’s settings than mental health. I hope that is helpful.

Amendment 136, tabled by the noble Baroness, Lady Tyler, would require the Government to hold a review of whether a statutory test of competence should be introduced into the Mental Health Act for under-16s within a year of the Bill being passed. While we recognise that there are competing views about Gillick competency, it is nevertheless the established framework for determining competency for children. To introduce a statutory test for under-16s only under the Mental Health Act is likely to risk undermining Gillick, which remains the accepted competence test for under-16s across all settings, including reproductive health and children’s social care, and the wider legislative framework on matters related to children.

[Baroness Butler-Sloss (CB)]

The trouble with Gillick is that it does not provide, for those who have to make the decision, how to do it.

[Baroness Merron (Lab)]

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

[Baroness Merron (Lab)]

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

[Baroness Butler-Sloss (CB)]

I apologise for interrupting the noble Baroness again, but the fact is—I speak as a former lawyer and judge who applied Gillick—it does not actually give guidance. All it says, as I understand it, is that under-16s have to be listened to. That is great, and I totally agree. What it does not do—but the amendment of the noble Lord, Lord Meston, would—is set out the guidance that those who make the decisions need to have.

[Baroness Merron (Lab)]

Obviously, I am listening closely to the noble and learned Baroness’s experience and feeling on the matter, and I will certainly be pleased to reflect on the points that she and the noble Baroness, Lady Berridge, have made.

If I continue, that may be of some assistance—we will see. It is of concern to me that the possible creation of two different tests will potentially cause further confusion and uncertainty on the ground. We are therefore not in a position to welcome a statutory test of competence in the Mental Health Act.

Before I continue to Amendment 147, I will come back to the good question raised by the noble Lord, Lord Scriven, about the legal status of clinical checklists. Because they are in the Bill, they are a statutory requirement for clinicians, to be followed in respect of all patients. I hope that will be useful.

--- Later in debate ---

[Baroness Browning (Con)]

My Lords, I have added my name to this amendment. I will not detain the Committee long, but I support the amendment and I want to flag the point my noble friend made about Wales and England. To my certain knowledge, when people living further north around the Shropshire border, for example, are admitted, they will almost certainly be offered placements in north Wales. It is important that there is some harmony in these regions; otherwise, it will cause additional problems. I hope my noble friend will press his amendment in due course to make sure that that harmony exists.

[Baroness Butler-Sloss (CB)]

My Lords, I will speak to Amendment 61. I recognise that the purpose of the Bill is to give children and those under 16 greater rights and opportunities to be heard. I entirely agree with that; it is absolutely sensible. But there is a danger of ignoring the fact that parents are basically not considered anywhere in the Bill. They are not in the contents of the Bill or any of the schedules.

Most parents are suitable; some parents are not. It may be that my amendment should perhaps be put in slightly different way, as the noble Baroness, Lady Berridge, has done. I recognise that there is a small percentage of parents who may not have total parental responsibility or, if they do have it, they are in the situation of one parent having what used to be called custody and the other having what used to be called access. For most parents, they care about their children. As far as I can see, they are completely ignored, but they do have something to contribute.

I am not suggesting for a moment that parents should make the decisions. What I am asking the Minister to do is to give them the chance to be heard; that is all I ask. They really should, throughout the Bill, be consulted where that is appropriate, but they are not put in for consultation, as far as I can see, in any part of the Bill. This is one place where that really will not do.

Speaking as a parent and grandparent, I would be extremely upset if my child was about to be detained and everybody was discussing what should happen to my child, but nobody asked me. At the moment, as far as I understand, the Government do not seem to think that parents, special guardians or anybody else who happens to have parental responsibility need to be consulted.

Mental Health Bill [HL]

Baroness Butler-Sloss Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Watkins of Tavistock (CB)]

To add to that, the key thing about paramedics is that they do not have long-term therapeutic relationships with the people we are talking about. Therefore, an intervention is totally appropriate.

[Baroness Butler-Sloss (CB)]

I too want to add, equally with great care, to this very interesting discussion. I am concerned about the police. I have not quite understood from the Minister her thoughts on a point that has been made twice now by the noble Lord, Lord Meston about everybody waiting for the police. Are the Government thinking of making it unnecessary for the police regularly to attend?

[Baroness Merron (Lab)]

I thank noble Lords for their interventions. To the noble and learned Baroness, Lady Butler-Sloss—how can I put this?—I say that the police should be there only when they are needed because they are the police. It is true—the point was made very well in the course of the debate introduced by the noble Baroness, Lady May—that it often goes beyond that. That is why “right care, right person” is something that colleagues are working on with police forces, as well as looking at the whole connection with health services. It is well understood.

I heard the comments of my noble friend, as well as those of the noble Baroness, Lady Watkins, following on from the noble Lord, Lord Scriven. When the noble Lord, Lord Scriven, was speaking, the words that came into my head were “chicken and egg”, about legislation and skills. We looked at skills, but—these are not quite the right words—not at the expense of addressing the question of whether the law is in the right place. They are connected, but I refer the noble Lord to the points made earlier, by me and the noble Baroness, Lady Watkins, about the response we have had from health and care professionals. It is about finding the right way. I take the point that there is a gap now. We do not want to make it worse, and we know that it is not acceptable.

Mental Health Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 14th January 2025 Lords Chamber

[Baroness Murphy (CB)]

I entirely agree with the noble Lord. However, the reality is that the responsible clinician, as mentioned in Amendment 49 to Clause 10, has a wide range of roles. It is very onerous and specific, so this is not likely to be a good idea for a speech and language therapist. I agree with the rest of what everybody has said.

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest as an honorary fellow of the Royal College of Psychiatrists, but without any qualifications, unlike the noble Baroness, Lady Murphy. For the reasons that have already been given, I entirely agree with the whole group of amendments, which have been proposed so much better than I could do—so I do not propose to say any more.

[Baroness Berridge (Con)]

In supporting Amendment 1, I am delighted that the noble Baroness, Lady Tyler, began Committee with this focus on the impact of the Mental Health Act on racialised communities, because that is where this whole journey began, with the noble Baroness, Lady May, when she was Prime Minister, announcing it in that context—and then, of course, it became a wider reform of the whole Act.

I served on your Lordships’ Joint Committee with the other place, scrutinising the Bill. In the course of that, I became aware of the relative strengths of civil society among some of the groups. There were excellent civil society groups speaking on behalf of people with learning disabilities and autism; they were highly professional and articulate. We had one evidence session on the effect of the Mental Health Act on racialised communities, but I saw that the strength of civil society and of media coverage in that area was less—so I am sympathetic to Amendment 1, which would give a profile to one of the main issues under the legislation.

On whether the table should be in the Bill to be in the code or in the Bill sitting as primary legislation, I have sympathy for that proposition. We have learned that the code of practice merely reflects primary legislation. I am aware, of course, that the independent review came up with those four principles, and this fifth one was not part of that. I expect to hear the Minister say that it is already in the Equality Act, so we do not need to put it in the Bill—but I am persuaded of the merits of the amendment. During the whole process of an independent review, a White Paper, a response to a White Paper, a draft Bill, a Joint Committee and now the Bill before your Lordships’ Committee, it has become clear to me that many of the changes that ethnic minority communities need to see are in practice. They are in resources and training—people would not look to the Bill and see their needs as the first or an important priority in it. I would be grateful if the Minister would take seriously this consideration of putting this equity principle in the table and putting it in the Bill, full stop, and not within the code.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

To add to what the noble Lord, Lord Scriven, has said, I am having a problem understanding why the code is not statutory.

[Baroness Merron (Lab)]

I thank noble Lords for their interventions, for which I am grateful. They give me the opportunity to say now what perhaps I should have said at the outset: I will of course reflect on all the points that are raised as we move forward. I will be honest and say that I am not sure that what I am about to say will do justice to the points that have been raised. Overall, the real concern is about making very complex legislation even more complex. We are wrestling with our attempt to update the Mental Health Act—we are not starting from scratch. That is the point I would like to like to move on to.

The noble Baroness, Lady Tyler, raised a comparative point about the Mental Capacity Act and asked why, if that could include principles, it is not possible for the Mental Health Bill to. To extend what I have just said, it is because the Mental Capacity Act was structured around principles from the outset when it was drafted and did not have to meet the challenge that we are trying to debate today. As I said, we are currently looking at amending the existing Mental Health Act, which has not been designed or structured around statutory principles. In my language, I would say that we are starting from an entirely different place.

--- Later in debate ---

[Baroness Merron (Lab)]

I am sure that the noble and learned Baroness’s yawn speaks for many.

[Baroness Butler-Sloss (CB)]

I apologise.

[Baroness Merron (Lab)]

There is no need to apologise.

I am pleased to provide the reassurance that the proposed changes to the Section 3 detention criteria mean that it would no longer be possible to detain someone with a learning disability or an autistic person under Section 3, unless they have a psychiatric disorder. Additionally, the Act already requires a statement of rationale for detention and statutory forms. The registered medical practitioner will have to confirm that the patient meets the criteria for detention, including that they are suffering from a psychiatric disorder requiring hospital treatment and not just that the patient has a learning disability or is autistic. I hope that will be of reassurance to the noble Baroness.

For the reasons I have set out in respect of all the amendments—I thank noble Lords for them—I ask the noble Baroness to withdraw hers.

--- Later in debate ---

[Lord Scriven (LD)]

My Lords, I shall speak my Amendments 8, 11, 15, 18, 19 and 20 in this group. They are to do what my noble friend Lady Barker said: to try to beef up the care (education) and treatment reviews, because something is amiss. As my noble friend said, too many of them are sitting on stuffy and dusty shelves, and not enough people get access to them to be able to advocate for and follow through on them.

Amendments 8 and 15 are important regarding the people who are legally entitled to receive a copy of the care (education) and treatment review. I support the amendment from the noble and learned Baroness, Lady Butler-Sloss, to add the parent and guardian, which was an omission. Currently, the Bill provides for a copy to be sent only to the responsible commissioner, the patient’s responsible clinician, the ICB and the local authority. To ensure that the patient and their family, carer and advocates are fully aware and informed of the decisions being made around their care, can hold services to account and can follow up on the care and treatment plan recommendations, it is essential that they too receive a copy of the report.

These amendments would ensure that the patient, the patient’s nominated person and the patient’s independent mental health advocate receive a copy of the care and treatment report. I note that the Minister has tabled an amendment setting out that a copy of the report “may” be given to other persons, but this does not place a strong enough duty to involve the patient and significant others to ensure that adequate oversight of the care and treatment review reports is available to them.

Amendments 11 and 18 reduce the maximum time between the reviews from 12 months to six months for adults and children. This is in line with the recommendation of the Joint Committee on the Draft Mental Health Bill. According to NHSE data, 24% of autistic people and people with learning disabilities detained in mental health hospitals have been waiting for more than one year for a CETR or have no CETR at all, and 31% have had the date of their next scheduled CETR pass or have no scheduled CETR at all.

We know that autistic people and people with learning disabilities face lengthy stays. There must be a drive to discharge these people. The idea that we would have a CETR only every 12 months to help prevent a lengthy stay shows how worryingly normalised long lengths of stays have become for these individuals. In many cases, a maximum interval of 12 months may be too long and mean that autistic people and people with learning disabilities face delays to their discharge planning. The current frequency of CETRs in the Bill is not in line with NHS England’s policy, which states that, for adults, CETRs should be held at a maximum frequency of six months.

Amendments 19 and 20 seek to ensure that the recommendations of CETRs are followed through. This is essential to ensuring that the needs of individuals are being met and that steps are being taken to prepare for their discharge. Often, the recommendations arising from CETRs are constructive, and those attending may leave with the impression that the right steps are being taken. However, the frequent failure to carry out the recommendations arising from these reports undermines faith in the process and can lead to unnecessary delays in an individual’s needs being met and in their discharge.

CETRs, which are essential to providing safeguards for autistic people and people with learning disabilities under the Bill, are important. Their being undermined cannot be allowed. The current language in the Bill for the responsible clinicians, commissioners, integrated care boards and local authorities says that they must “have regard” to the recommendations. I believe that this is too weak. Legally, the definition of “regard” is that a public body must consider something and, once it has been considered, has discretion to carry out or ignore it. A duty in law is an obligation and must be followed, and the reason why it has been followed must be given. These amendments would substitute “regard”—the weaker definition—for “a duty” to carry out these actions unless a compelling reason is provided for why this is not possible. This follows a similar recommendation from the Joint Committee on the Mental Health Bill, which stated that ICBs and local authorities should be required to “follow” recommendations in reports—that is, have a duty.

[Baroness Butler-Sloss (CB)]

My Lords, I should like to speak to Amendment 9, following on from the noble Lord, Lord Scriven, on Amendment 8.

We are dealing with the responsible commissioner making arrangements for the care (education) and treatment review meetings and the report. I do not know whether I am a lone voice speaking in this House but I am a mother and a grandmother, and there is not a single word in any part of this Bill about parents or guardians—not a word. I could find references to parental responsibility only in new Schedule A1 and Schedule 2, although I may be wrong.

Can I just suggest something to noble Lords? Where you have a child—here, I am dealing specifically with a child—with autism or physical or mental disabilities, it is quite probable, if not most likely, that that person will be living with their family and their parents. I must say, my experience as a family judge led me to believe that only about 5% to 10% of parents who came through the courts were not suitable to look after their children full time. But according to Clause 4—which inserts new Section 125A—the one group of people who will not be told what the future care (education) and treatment review given to their child will be includes the people with whom that child has been living for all their life. I cannot understand why this Bill seems to think that parents, guardians and other people with parental responsibility do not matter. That is why I have raised this issue. I feel intensely strongly about it, as a mother and a grandmother.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall speak very briefly, having attached my name to Amendments 19 and 20. I support all of the previous amendments, which are in essence about people knowing about care and treatment review plans. I particularly wanted to sign these two amendments because of the clause identified by the noble Lord, Lord Scriven, and the noble Baroness, Lady Hollins. It states that integrated care boards and local authorities “must have regard to” the plan—as the noble Lord outlined, that is a very weak, weaselly form of words—rather than having a duty to deliver the plan that has been established for the well-being and health of a person. The phrase in the Bill now really is not adequate.

I want to share something with noble Lords. On Friday night, I was in Chorley, in Greater Manchester, at a meeting with the local Green Party and NHS campaigners. One of the things I heard there was a huge amount of distrust and concern about integrated care boards and the restructuring arrangements that have happened with the NHS. I am not going to get into those issues now but, with the words “must have regard to”, we are leaving an open door and a door to distrust. Surely the right thing is for this Bill to say that the ICB has a duty to deliver a care plan.

On Amendment 20, we will undoubtedly talk endlessly about resources, but that there must be a compelling reason is the right terminology to have in the Bill; it really has to be justified. I believe that both of these amendments should be in the Bill.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

I entirely understand what the Minister has just said, although I do not agree with her, but the point she made about other persons is not contained in the clause that I was complaining about.

[Baroness Merron (Lab)]

I am grateful to the noble and learned Baroness for making that point, and I will gladly review this in the light of it.

To return to the specific amendments, they would ensure that the patient, the patient’s nominated person, the independent mental health advocate and the parent, guardian or other person with parental responsibility receive in all cases a copy of the report following a care and treatment review meeting—or a care (education) and treatment review meeting for children and young people. The current drafting of the Bill is intended to make clear that a copy of the review report must be provided to those who have a legal duty to have regard to the review recommendations, so that any recommendations are implemented as appropriate.

We recognise that there may be individual circumstances that mean it is appropriate for the report to be provided to other people, including the patient themselves. For children and young people, this report is most likely to be shared with a parent, guardian or other person with parental responsibility, but it is important that the legislation does not inadvertently create a legal requirement that must be complied with, which would not be appropriate for every person.

A longer list of people with whom the report must be shared, in every case, may increase the chance of an individual withdrawing the consent for a review to be held if they do not wish for some or all the people to see the report. There may also be circumstances in which the report should reasonably be shared with other people in addition to those set out in the amendments—for example, a family member who has been part of the review process with the patient’s consent but is not the patient’s nominated person or someone with parental responsibility.

We have tabled a government amendment to make it clear that the arrangements may include provision authorising or requiring a copy of the report to be given to other persons, so that the patient may also ask that a copy be provided to others or decide to provide it to others. Statutory guidance will help assist the responsible commissioner when exercising its functions, including when considering other persons who are to receive the report. We wish to allow flexibility for this, so that individual circumstances can be taken into account based on the needs of the patient and their wishes, rather than by providing a prescriptive list of people to whom the report is to be sent in every circumstance.

--- Later in debate ---

[Baroness Barker (LD)]

My Lords, I thank everybody who has taken part in the debate on this group of amendments. We were, in essence, trying to get answers to the following questions. Who is responsible for drawing up the care plans and for reviewing the care (education) and treatment reviews? Who is responsible for ensuring that what is in those plans is compliant with the law? Who is responsible for making sure that it actually happens? Who is responsible for finding out whether it has not happened? Who carries the can if it has not happened?

At various points in the Minister’s answer, I was quite hopeful, then, towards the end, we went down the slope quite badly, because it turns out that, apparently, duties will not be put on people, and that is highly regrettable. The Minister does not need to explain to the Committee the difference between a statutory code of practice and a statutory instrument; the issue my noble friend was trying to get to is the extent to which Members of this House will see that these plans reflect what was intended in the law and what scope they will have to call it out if they do not.

I am pleased that it will be a statutory code of practice. That is one step up from nothing—it is not great, but it is better. I am also glad that the Minister said that care and treatment plans will be put in regulations. Will those regulations be done under the affirmative or the negative procedure? That is quite important. In light of all our discussions, we in this House should have the chance to examine that at considerable length and, if it is not right, to have a second go at it.

It is always salutary to sit and listen to the noble and learned Baroness, Lady Butler-Sloss, on the subject on which she is quite rightly famous, not just in the House but outside it. I listened to her strong statement. She will know from other discussions that we have had on the wider subject of health that I have said many times, and I believe it to be true, that we have a health and social care system that is openly predicated on people’s families doing much of the work, and that is never more so than when it comes to discharge. She will have heard me bang on about this before, but I have a considerable degree of concern about what happens to people who do not have families or children. We have never done research on hospital discharge, but I suspect that, if people do not have a relative standing by the bed saying, “No. You are not discharging this person because they are not fit to go home”, they end up being discharged far too early, and I suspect they then go back into hospital as acute admissions a result of that.

That said, I understand what the noble and learned Baroness says about the involvement of parents. However, in 10% of cases, the parent is not the right person. We have heard that in evidence before, which she may recall, where young people who have been subject to mental health treatment have talked about problems within their families. Similarly, people under the Mental Capacity Act have sometimes been the subject of overbearing, overprotective parenting that they have found to be detrimental to them. I am not being anti-parent or asking that parents be excluded. Nobody knows better than the noble and learned Baroness that families are complex, and, as the Minister said, we must make sure that there is the scope to do the right thing for a child.

[Baroness Butler-Sloss (CB)]

The noble Baroness, Lady Barker, is absolutely right. Any amendment I might put forward in future would have to allow for that, as there must be some parents who would not be suitable.