Mental Health Bill [HL]

Debate between Lord Meston and Baroness Tyler of Enfield

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.

--- Later in debate ---

[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.

Mental Health Bill [HL]

Debate between Lord Meston and Baroness Tyler of Enfield

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Tyler of Enfield (LD)]

I shall make a few points in response to the amendments that we have been discussing in this group. The noble Baroness, Lady May, made, very powerfully, an incredibly compelling case. The point she made about police officers sitting in A&E for many hours is so important. Not only is that a waste of police resources, it is often completely inappropriate for the person suffering from acute mental health problems. It can also be incredibly alarming for others in A&E. We all know that, sadly, far too many people are waiting for far too long in A&E, in the sort of environment that is in no way conducive to their overall health, physical or mental. That is my first point.

My second point relates to something that the noble Lord, Lord Davies, said. There will still sometimes be a role for police officers. I know from personal experience how much a police presence can be required when a person suffering a very acute mental health crisis is likely to harm both themselves and others. Those others can often be family members who are trying to support the person suffering from the crisis but are also pretty scared for their own safety. It is important that we are talking about widening the range of people who can be that primary responder, but we are not saying that it should never be the police.

I agree that if we have a wider primary responder, that individual must be prepared to do it, happy to do it and appropriately trained. We heard a lot in earlier groups about the importance of good training. I was particularly taken with the statistic that the noble Baroness, Lady May, raised about the views of paramedics and how many of them support this, because they are the people right at the sharp end. I cannot quite remember the number who support it, but it was very large, and so I think it is something that we should take seriously.

Finally, I want to lend my support to Amendment 49A in the name of my noble friend Lady Barker. Speeding up access to appropriate services is important, as is making the best use of the workforce that we have. For those two reasons, the amendment that my noble friend put forward is important.

[Lord Meston (CB)]

My Lords, I hesitate to interrupt, but I want to make much the same point that the noble Baroness has made based on my experience of a trip to A&E last year. I mentioned it anecdotally at Second Reading. There was a very disturbed person in A&E when I was having to wait there for some three hours. The hospital staff were struggling to contain the person in one room, as he kept leaving. He was not violent, but he was obviously distracting the hospital staff and worrying the other people present, who included children. As soon as anybody asked the staff what they were going to do, they said that they had to wait for the police. I have no doubt that the whole episode that I witnessed was prolonged by the need to wait for the police. Clearly, if this amendment or something like it is approved, it will widen the range of those who could be called upon to deal with such a crisis.