Mental Health Bill [HL]

Lord Meston Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, in moving Amendment 55 I will speak to Amendment 136; both are in my name. This is another very important group, about children and young people’s competence and decision-making. Amendment 55 is about extending advanced decisions to those who are aged 16 and over. I recognise that there is also an important amendment from the noble Earl, Lord Howe, about advanced decisions—a similar issue, but perhaps taking a different approach.

The Bill will give legal weight to advance decisions within the Mental Health Act, which I very much welcome. Adults will be able to record their advance refusal of a particular treatment if they lose capacity. An advance decision will have the same effect as a refusal of treatment made with capacity and will ensure that the individual can access enhanced safeguards before the treatment can be given. Although advance choice documents, where advance decisions will be recorded, will be available to adults of all ages, the Bill as drafted does not permit under-18s to make advance decisions. As such, someone aged under 18 could say in an advance choice document that they refuse a particular treatment if they would not want it, but that would have limited weight. Specifically, it would mean that, if the child or young person lacked capacity or competence to consent to treatment when it was offered, their advance refusal would not give them access to the enhanced treatment safeguards that are available to adults, including tribunal appeal.

This means that, rather than being on an equal footing, children and young people would be disadvantaged compared with adults. Therefore, I see this very much as part of parity of treatment between children and adults. I am strongly of the view that the safeguards that flow from advance refusals of treatment should also be made available to young people. This is what my Amendment 55 is designed to do.

I add one more general point. We still have work to do in Committee to strengthen safeguards and protections for children and young people in mental health in-patient care. There should be a general principle of parity of treatment between children and young people and adults. Of course I recognise that some distinctions have to be made due to the legal status of under-18s, but I said at Second Reading, and it remains my view, that this Bill was never really designed with children and young people in mind, yet it can affect them greatly. In responding, can the Minister set out how much input DfE Ministers and officials have had on the drafting of the Bill?

It will probably help if I explain that Amendment 136 is closely related to Amendment 147, tabled by the noble Lord, Lord Meston, whom I have had the opportunity of corresponding with. I do not want, in speaking first, to pre-empt what the noble Lord will say, but I need to reference his amendment to explain mine. I share the concern that the Bill does not include a test to determine the ability of children under the age of 16 to make decisions—in other words, whether they are competent. Without such a test, this age group will not be able to benefit fully from the rights and safeguards included in the Bill; the question is how we best get there.

Under-16s are currently at a disadvantage. Whereas all those aged 16 and over are presumed to have capacity to make decisions for themselves unless evidence shows otherwise—in which case the Mental Capacity Act kicks in—under-16s are presumed to be unable to make decisions for themselves unless they demonstrate that they are competent to do so. There is also no clear and consistent approach for determining whether a child is competent. Although the concept of competence is generally understood, how to assess a child’s competence is not.

That is why I have a lot of sympathy with the amendment tabled by the noble Lord, Lord Meston, which would insert a test for determining the ability of someone aged under 16 to make decisions under this legislation. His amendment explicitly limits this test to decisions made under the mental health legislation and is explicitly focused on the criteria with which to determine whether a child is competent. No doubt he will explain his amendment far more eloquently than I could ever do. My amendment would require the Secretary of State to review whether a statutory test for under-16s would be expedient for the purpose of this Act and for mental health legislation more generally. It is very much a stepping stone towards that position and, I hope, supports change in this area.

Such a review is important because it could address some of the concerns that have been expressed in this area. It could include whether such a test should be in the Bill or in a code, how best to make it clear that a test will be specific to the scope of legislation rather than having wider application, and how such a test would help with the successful implementation of the Bill. It could help to establish that the test is specific to whether a particular child can make a particular decision at a particular time, and set out what information is required.

I am aware that, in some of our broader discussions, concerns have been raised about the possible unintended consequences of such a test in relation both to parental responsibility and to a child being seen as Gillick competent—that is, they have the ability to understand the decision. I feel that a review would be helpful in looking at these issues and addressing those concerns head-on. In that way, we would make important steps in ensuring that the whole of the mental health reforms work properly and fairly for all children and young people. I beg to move.

[Lord Meston (CB)]

My Lords, as the noble Baroness has just said, my Amendment 147, which deals with competence and decision-making, would provide what I suggest is a necessary statutory test to determine the decision-making competence of children under 16 years of age in all matters under this legislation for which such a determination is required. The Joint Committee on the draft Bill pointed out, echoing what was said in the independent review of the 1983 Act, that attempts both to protect and to empower children have produced a complex mixture of statute and case law with no single method of assessment and no consistent criteria to establish either capacity or competence. This is a particular disadvantage for children and young people, who do not have the benefit of any statutory presumption of competence such as that which applies to adults.

Importantly, the amendment, although offering a test, does not create any presumption of capacity in a child. Moreover, the reason for the child’s inability to decide is irrelevant. It would, however, require that those determining whether a child is competent must give reasonable grounds for reaching that conclusion. It is important to emphasise that this amendment is concerned only with how to assess whether a child is competent and not with the consequences of any determination that a child is competent.

This Bill has been produced with numerous references to capacity and/or competence in various contexts, including consent to CETR meetings, “disclosure of information”, “consent to treatment”, making advance choice decisions,

“terminating the appointment of a nominated person”

and involving “mental health advocates”. However, the Bill is currently silent on what is meant by “competence” and how it should be determined.

The existing statutory test in the Mental Capacity Act does not apply to those under 16. The separate concept of Gillick competence—it is derived from the pivotal case of that name, decided in 1986—requires inherently subjective assessments of the child’s understanding and maturity. I speak with some experience of having to decide whether or not a child is competent to participate independently in court proceedings concerning them. That exercise sometimes feels rather paternalistic and is, as has been pointed out, really subjective, with the test in Gillick offering no guidance on the extent to which adjustment should be made for factors such as peer pressure, drug and substance abuse, family stress, emotional disturbance or illness.

More recent case law shows that the Mental Capacity Act can be used to inform an assessment of child competence, but it is not mandatory to do so. The factors set out in this amendment to indicate a child’s ability to decide are the features carefully identified by Mr Justice Cobb, as he then was, in a case decided in 2017 concerning the difficult question of whether or not a girl under 16 had the capacity to consent to her child being adopted.

I therefore suggest that there is now a need for clearer and more rigorous guidelines—structured guidelines that are not just mechanistic checklists—for mental health and legal professionals to work with. The assessments that have to be made of a child’s ability to understand and weigh relevant information need to be decision-specific, child-specific and time-specific, and they have to recognise that competence can fluctuate as well as evolve. These are not straightforward assessments and are certainly not a mere formality.

A statutory test would be welcomed by practitioners and the courts. This is too important to be left to the code of practice; such codes are intended to reflect and supplement the law, not to create law. A clear test in the statute would only be of assistance to practitioners and would allow children to benefit from the safeguards within the Bill.

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[Lord Meston (CB)]

My Lords, I understand the dilemma. The point I emphasise is that, in deciding this, one has to be clear that the child has a proper explanation of the ultimate decision that has to be made. It is to that end that the competence has to be assessed.

[Lord Stevens of Birmingham (CB)]

For those of us who are not anywhere near as legally expert as the noble Lord whose wise deliberations we have just heard, could he clarify the amendment that talks specifically about ring-fencing this new test for the Mental Health Bill? To what extent would that be consistent or not with, for example, the ruling of the Court of Appeal in Bell v Tavistock—the NHS trust—in the case of puberty blockers, which concerned the interpretation that the High Court had given to the Gillick test?

[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.

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[Baroness Tyler of Enfield (LD)]

Probing, absolutely. Thank you. And again, on this issue I sense that we will be returning on Report. But, having said those things, I thank all noble Lords who participated in this debate and thank the Minister for her responses. I beg leave to withdraw the amendment.

[Lord Meston (CB)]

My Lords, I do not want to prolong this, but I have to say that, although I am disappointed and a little surprised by the response from the Government, the intention is to align the Mental Capacity Act and Gillick. It is frankly not correct, if I understand the situation, to say that it is not based on case law. I referred to a specific case in which the judge formulated, essentially, the test that appears in my amendment. As I say, I do not want to prolong this but, if necessary, I can refer the Government to that case.

[Baroness Merron (Lab)]

Perhaps I can just say to the noble Lord that, when I reflect on the discussions on this group, as well as all the others, it may be helpful to discuss this further.