Mental Health Bill [HL]

Baroness Buscombe Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, if I may, I shall start with the amendment tabled by the noble Lord, Lord Meston. I agree with almost everything that the noble Baroness, Lady Berridge, has said. I will talk first about which court it should be in. I agree entirely with what the noble Lord, Lord Meston, had said. Oddly, the county court was one of the only courts in which I did not sit, but I have never heard a circuit judge who was very keen on dealing with these particular applications.

Judges of the Family Division sit in the Court of Protection. As I would hope noble Lords would agree, they are somewhat expert in family law, and they do a great deal of mental care and medical cases. As president of the Family Division, I spent probably 50% of my time doing one sort of medical case or other, quite a lot of them mental health cases. The Court of Protection is probably the best court to deal with this. I do not feel very strongly against the mental health tribunal—I just do not think it would be quite as good. Legal aid is an issue, and I assume that it probably would not be automatic in the Court of Protection.

I turn to my Amendment 70. I entirely share what the noble Baroness, Lady Berridge, has just said. The law is that, until the age of 18, one is a child, regardless of the Gillick case, regardless of being 17 and very nearly grown up. Until a person is 18 they remain, technically, in law, a child. I am very concerned about a child of any age, living at home with parents, who has a mental health problem sufficiently serious to require attention and a nominated person, who is at odds with the parents or guardian and chooses somebody who is totally unsuitable. The noble Baroness, Lady Berridge, pointed out that this could be someone who might be trafficking, or an unsuitable boyfriend.

The one group of people not included in new Section 30B(2) in Part 1 of Schedule 2 where it says that, to discharge a nominated person,

“An order under this section may be made on the application of…”

is anybody who has parental responsibility for the child. This means that when a child who is at odds with their parents goes into hospital, when those parents know the boyfriend and that he is unsuitable, those parents have no voice whatever in saying that he is not suitable to be a nominated person. Subject to the important points that the noble Baroness, Lady Berridge, has made, it seems that there are certain cases where, in what used to be called a custody order or a special guardianship, the parental responsibility of the natural parents is limited.

I would have hoped that the Government would see that, however much they want to empower children, including children under the age of 16, they cannot take away 100% the responsibilities of parents. Under Section 2 or 3 of the Children Act, parental responsibility is defined as having rights as well as responsibilities. I am really talking about the responsibility whereby parents may really want to be able to tell someone, “Look who my daughter is going out with”, but under the Bill they have no right do so, and as far as I am concerned that is utterly wrong.

[Baroness Buscombe (Con)]

My Lords, perhaps I may quote from our report on the draft Mental Health Bill on this point, while agreeing 100% with both previous speakers. During our evidence sessions, we heard from a number of people who had real concerns about the issue of nominated persons for young people. We heard

“that choosing a Nominated Person outside of the family can put pressure on family relationships. Respondents also noted the importance of ensuring that the families and carer are still given a voice in a patient’s treatment even if they are not chosen as the Nominated Person. This is particularly important for children and young people. Additionally, one respondent who identified as a carer of someone with a mental health condition expressed their concern that not all nominated people may know the patient well enough to assist in making decisions in their best interest … Another respondent noted that, for those under 18, there may be overlap between the rights of those with parental authority and those of the Nominated Person”.

Our belief during that whole process was that this all seriously needs to be clarified, either in law or in the code of practice. I remember that one respondent was very concerned that young people would assume that a nominated person could be a friend and that the friend would really understand their role, but in some cases that just was not happening.

[Baroness Butler-Sloss (CB)]

My Lords, I hope I may be forgiven for getting up again, because I completely forgot to refer to Amendment 76. It would come in under paragraph 3(2) in Part 1 of new Schedule A1, where the parents and any person with parental responsibility are not even consulted on the appointment. That is exactly the same point as I made earlier.

--- Later in debate ---

[Lord Timpson (Lab)]

I thank the noble and learned Baroness for her comments. I hope the noble Baroness accepts my apology for the way it was phrased. As this is my first Committee, I have been getting a number of messages from officials, and I was trying to work out what I said at which point. I apologise. I will very happily meet the noble Baroness.

[Baroness Buscombe (Con)]

At the risk of giving the Minister a rather hard time on his first outing in Committee, on the point made by the noble Baroness, Lady Fox, about people saying that it will not happen, is he not fearful, as I am, that, given the way life is, if we do not rid ourselves of words such as “as soon as practicable” and “seek to”, as suggested in Amendments 96A and 96B, in practice it really will not happen?

[Lord Timpson (Lab)]

I thank the noble Baroness for the question. One of the questions that I have been asking colleagues is on exactly this point around whether this will happen. I have been reassured by asking policy colleagues many probing questions that the points in the Bill make it as tight as possible without conflicting professionals in the way they are going about their role.