Mental Health Bill [HL]

Debate between Lord Meston and Baroness Bennett of Manor Castle

Committee stage
Monday 27th January 2025 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall also speak briefly to the other amendments in this group. I warn those who are planning to speak after me that I will be brief, because this amendment is self-evident and set out in our papers. I begin by reflecting on the fact that I think there is universal welcome for the creation of the nominated person situation. This is a good step forward and widely welcomed. What your Lordships’ Committee is trying to do is perhaps to fulfil its traditional role to make sure that it is set up in as watertight, practical, useful and effective way as possible.

This amendment did not originate with me; it originated with the Law Society. It provides for a mental health First-tier Tribunal to overrule the power of the nominated person. I note that the next amendment in the names of the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, suggests not the county court but the Court of Protection. I do not have any particular position on any of these things. It is useful for us in Committee to discuss this in detail. People far more expert than me will outline that, so I shall not go on at length.

I will note for the Committee’s understanding that my Amendment 71 was withdrawn, because it was doubled up with someone else’s but was put in a different place. It was just one of those technical juggles that happens. With that very brief introduction, I beg to move.

[Lord Meston (CB)]

My Lords, I shall speak to Amendment 69, which would replace the reference in the Bill to the county court with reference to use of the Court of Protection to deal with applications to terminate appointments of nominated persons. The single reference to the county court, currently in Schedule 2, is the only place where the county court is given jurisdiction to do anything in this legislation, which I suggest makes it something of an anomaly as well as an anachronism.

The reference to the county court simply carries forward the use of the county court from the 1959 and 1983 Acts, which provided for that court to deal with applications to displace nearest relatives. When I was first appointed a judge, I well remember being presented with an urgent application to displace the nearest relative, of which I then had no experience and in which I had never had any training. In the days before judicial computers, I had no access to anything but out-of-date and very limited books in the small court, no longer in existence, where I was then sitting for a few weeks and without help from any legal representatives. Few learning curves have been more rapid.

Since then, I would like to think I developed some expertise, but my later experience of those applications has led me to question whether the modern equivalent in this Bill concerning nominated persons would be better dealt with elsewhere. Such applications can involve detailed understanding of psychiatric reports and of the family dynamics for the patient concerned, particularly if the nominated person is unco-operative or disengaged. At the time when the earlier legislation stipulated the use of the county court, there was neither a separate family court nor the Court of Protection, which was created by the Mental Capacity Act 2005.

Of course, I do not suggest that county court judges could not deal with these applications—my life with my present and former judicial colleagues would probably not be worth living if I did so. A judge has to be prepared to turn his or her hand to whatever comes their way. However, I do suggest that the Court of Protection is now better equipped to deal with these applications with its specialist expertise and specifically nominated judiciary.