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.

Support for Infants and Parents etc (Information) Bill [HL]

Lord Meston Excerpts

2nd reading
Friday 6th September 2024 Lords Chamber

[Lord Meston (CB)]

My Lords, it is impossible to disagree with anything said in this debate so far. The motives and thinking behind the Bill cannot be questioned: seeking to support the physical and emotional development and security of any child’s crucial early years, and underpinning initiatives already in place. The Bill would require a local authority to make information available about existing support services in their area, but it should be recognised that the proposed duty would not make support available from local authorities which would not otherwise be provided.

Moreover, beyond the primary duty to publish the information about services on a local authority’s website, the duty to go further in bringing information more directly to the attention of parents and carers is qualified by the terminology used in Clause 1(4), which leaves a discretion with expressions such as

“by any other means it considers appropriate”

and

“such steps as it considers appropriate”.

In most normal situations, new parents will have only limited contact with those who might provide the information the Bill wishes them to have, so local authorities will have only limited opportunities to convey it to individual parents and carers. Presumably, this can and will be done through the NHS, involving midwifery and health visiting services, and, I suggest, on registration of birth, which still requires a face-to-face appointment. In addition, social media and messaging will play a part, but I suggest we resist the temptation to see that as a panacea and certainly not as a substitute for direct contact, where possible.

Clause 1(3) refers to services available to prospective carers, as well as to others. It is therefore to be hoped that the benefits of the Bill will extend to other family members who find themselves taking responsibilities of kinship care or are considering doing so, not necessarily just in respect of children under the age of two. Kinship carers may be called on at short notice and will need to be supported as soon as they are known to the local authority.

I do not wish to take more time on the mechanics of the provision of information, which no doubt will be covered by guidance. Rather, I wish to raise questions about the reach of the information and support on offer. I look at the Bill by reference to my experience as a family court judge, dealing mainly with public and private law cases relating to children, which inevitably have a short and long-term impact on those children, their parents and wider family. They also have severe financial impact on hard-pressed local authorities. It is estimated that the total cost of care proceedings to the state each year is £1.2 billion, with a single public law case costing a local authority on average £120,000. This total annual cost incurred by central and local government represents 10% of all direct annual expenditure on the children’s social care system.

Anything the Bill can do to prevent litigation and to mitigate those costs must be of value. However, it has to be recognised that there are limitations. Some of the most complex cases that come before the family courts concern newborn children with mothers who have unaddressed drug or alcohol addiction, or mental health difficulties. The baby’s early weeks in hospital may have to be spent withdrawing from the drugs ingested in pregnancy. The noble Baroness, Lady Finlay, referred to foetal alcohol syndrome, which of course causes even worse long-term problems.

Typically, the mother will not have had or kept prenatal appointments, even if her pregnancy was known to the health services, which is not always the case. There may be little or no reliable family support available to her; there may be a background of intergenerational problems. These are the parents who are likely to be resistant or indifferent to the provision of advice and information. It is not through any fault, but they can lack insight and tend to make things more difficult for themselves. They can be mistrustful of children’s services, and resentful and dismissive of advice and help, fearing stigma and outside involvement. Sadly, those parents and their wider families—who are difficult to identify and engage—can also be the people most in need of the support which might be on offer.

Accordingly, all those who receive and might benefit from the information to be provided in accordance with the Bill will need to be given the confidence to find and use the support services offered. Visible and accessible support services will depend on the further development of the network of local family hubs. In the area in which I was the designated family judge, there is an excellent and well-regarded family hub aiming to provide holistic support from pre-birth onwards. The guide for all such hubs, issued in August 2022, set a high bar when it stated:

“The workforce should proactively reach out to vulnerable and seldom-heard families”.


It is therefore to be hoped that the present Government will extend the distribution and reach of family hubs, particularly, but not exclusively, in areas of deprivation and confirm a commitment to those hubs.

I will make two further points. First, the saddest statistic relating to care proceedings is that at least one in four women will return to court having had a previous child removed. The struggle to prevent recurrent removals has been highlighted by research done by the Nuffield Family Justice Observatory. Too often, some mothers have reacted to the removal of a child or baby with an ill-considered decision to have another baby, with all too often the same consequences. These are often mothers who find it so difficult to seek or accept help. For the courts, they can be truly wretched cases to deal with. Therefore, I repeat the hope that this Government will endorse the intensive support from, and expert work by, the charity Pause in the prevention of the cycle of removals. Pause has pointed out that the point at which a child is removed is also the point at which the mothers lose access to support and information, leaving them more vulnerable to further removals. These may not be “prospective parents” within the meaning of the Bill as currently drafted, but they are clearly parents who may later have children again in their care and who clearly have a continuing need for information, support and advice. I therefore hope that consideration is given to the use of this Bill to address the predicament of these parents and to reduce the misery and expense of their cases.

Secondly, I ask that the Government indicate their response to the powerful recent report by the Centre for Justice Innovation about Family Drug and Alcohol Courts—FDACs. They are truly problem-solving courts which achieve considerable savings and better outcomes for children and their families.

This Bill is to be applauded, but I suggest that some modest amendments could be made. These should be seen as steps that will greatly add value and save the costs of later and more complicated interventions by local authorities when children are older and the family’s difficulties more entrenched. The provision in Clause 3 for an annual report is welcome; it will allow for monitoring of compliance and will provide an overview, as the clause itself states.

As to amendments, I agree with what the noble Baroness, Lady Finlay, said about trying to avoid overloading the Bill. However, I cannot help noting that the short title contains the abbreviation “etc”. I remember a legislative purist telling us to be wary of any Bill that contained that abbreviation in its short title; however, in this case, perhaps the use of that wording may give permissible scope for the sort of amendments suggested.

The Government have stated their wish to “fix the foundations”. If this Bill helps to reinforce the stability of children and future generations, it will indeed help to fix the foundations for children and underpin relationships within families.