Mental Health Bill [HL]

Lord Meston Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Lord Meston (CB)]

My Lords, consideration of this Bill has been greatly assisted by the thorough scrutiny and analysis undertaken by the Joint Committee on the draft Bill and its compelling report, published in January 2023. Parliament will now need to look with care at its recommendations, including those not incorporated into the Bill as now presented, and the justifications for any omission.

The first question tackled in that report was whether what is now required is fundamental reforming legislation rather than another amending statute. If I may follow on from the noble Lord, Lord Scriven, the bus was not built in 1983; its chassis was built in 1959, and we are still dealing with it. The report states:

“The Mental Health Act 1983 is … forty years old. It has been amended multiple times over those years, making it hard to use even for experienced professionals. It is overly complex, especially where it interacts with the Mental Capacity Act 2005”.


For example, the committee noted:

“Attempts to both protect and empower children in these settings have resulted in a complex mixture of statute law and case law alongside the MHA that … makes assessing a child’s rights to access certain safeguards in this draft Bill complex and obscure”.


For essentially good and pragmatic reasons, as the noble Baroness, Lady Buscombe, explained, the Joint Committee did not wish to introduce further delay or uncertainty, so favoured the form of the Bill considered by it, which is now before Parliament. However, for the courts, tribunals, lawyers and all the other consumers of the legislation, the question will remain, as per the quote in the invaluable Mental Health Act Manual:

“If the Mental Health Act is to be modernised, is it appropriate to base the modernisation on a legislative structure that was established over 60 years ago by the Mental Health Act 1959? The process of bolting on multiple miscellaneous amendments to that structure over the years has resulted in an Act which is overly complex, confusing, and expensive to operate”.


Inevitably, those problems will be exacerbated when this Bill adds further amendments to the 1983 Act. It is therefore to be hoped that the Government will see the Bill, as the Joint Committee put it, not as

“the end—or even a pause—in the process of reform of mental health legislation”.

Meanwhile, the code of practice under the 1983 Act will need, and I understand will now receive, further revision and updating once the Bill is enacted to cover the stronger requirements of the new legislation and provide clear guidance to meet the needs of patients and for all those who operate the changes.

I turn to some of the Bill’s detail. It is certainly welcome that it recognises the real problem that too many autistic people and others with learning difficulties have been detained inappropriately and for far too long. It is also welcome that the Bill removes police stations from the definition of a place of safety in the 1983 Act. Inevitably, the police will continue to have to deal with disturbed and distressed people suffering a chronic or temporary mental health crisis, but these are people who should not be in police stations any longer than absolutely necessary, particularly if expert assessment or treatment are required.

It is to be hoped that the changes will relieve the police of some of the difficult decisions as to risk required under the existing code of practice, but, as others have said, these changes will not work without sufficient community alternatives. As the noble Earl said, it will not be helpful if they simply pass the problem on to an A&E department. I do not want to get anecdotal, but I had a brief admission to A&E. It was, happily, not long lasting, but it was extraordinary to watch the staff in that hospital cope with a very determined and disturbed man. Unfortunately, I did not see the end of that because, luckily, I was released. Nevertheless, it is a problem that needs to be thought about hard.

By contrast with the ethos when I started as a lawyer, all courts now strive to ensure that people are not defined by their mental health problems, even if it is not always possible to prevent those with mental health problems entering the criminal justice system or to divert them from it once they are in it. Professionals in that system need help to deal with these people and their problems. Therefore, the improved provisions for transfer of prisoners to hospital, including those detained under the Immigration Act, should be valuable, but will always depend on compliance with the code of practice, which requires the need for in-patient treatment for a prisoner to be identified and acted on quickly.

The same problems apply when the criminal courts consider sentencing options. The courts depend on the Probation Service and legal representatives to draw attention to the possible need for psychiatric reports and detention. Having sat as a judge in the Crown Court, I can convey the real exasperation of the judiciary when necessary reports are not available or when suitable hospital places cannot be found without further delay and hearings in an overloaded court system.

I turn to a different topic, which has been referred to. The Bill will implement recommendations about replacing the existing “nearest relative” with “the nominated person”, under the principle of patient choice and autonomy. I have some concerns about the selection and replacement of nominated persons, and the complicated provisions within the Bill. Now is perhaps not the time for that, and I will leave it to Committee, but it needs to be looked at again. In particular, there is a need to focus on the consultation, at the very least, and recognition of the legitimate interests of parents and others with parental responsibility.

On this topic, I question—although, again, I leave this to Committee—the continued use of the county court for applications to terminate appointments of nominated persons. The use of the county court is left over from the 1959 Act, at a time when there was neither a separate family court nor a Court of Protection. I suggest that these would now be better equipped to deal with these applications.

There are further points focusing on the needs of children, one of which has already been touched on. It was highlighted by Dr Camilla Parker in her evidence and will strike a chord with many practitioners. It concerns the overlapping factors governing capacity and competence, and the differing processes for assessment. Dr Parker observed that, even after 40 years, we do not have “clear and consistent criteria” for determining whether a child is competent to make a decision. It would be helpful to understand the Government’s current intention, particularly if formulating any statutory tests is not intended.

More fundamentally important is the location for the placement of children. This overlaps with the real problem, which has been highlighted repeatedly by the judiciary, the Nuffield Family Justice Observatory and the Children’s Commissioner, of the use of deprivation of liberty orders, or DoLS, and placing children in unregistered settings—not just adult wards but unsuitable, unregistered settings. Again, I will return to this in Committee.