Mental Health Bill [HL]

Debate between Baroness Butler-Sloss and Baroness Bennett of Manor Castle

Report stage
Monday 31st March 2025 Lords Chamber

[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”.

Mental Health Bill [HL]

Debate between Baroness Butler-Sloss and Baroness Bennett of Manor Castle

Committee stage
Tuesday 14th January 2025 Lords Chamber

[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.