Mental Health Bill [HL]

Lord Meston Excerpts

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I will note for the Committee’s understanding that my Amendment 71 was withdrawn, because it was doubled up with someone else’s but was put in a different place.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.

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In conclusion, this ambiguity, which is really unhelpful, will put approved mental health professionals in a difficult situation, particularly when appointing a nominated person for a care-experienced child or young person. There is just more work to do in this area.

[Lord Meston (CB)]

My Lords, I support the amendments in the name of the noble Baroness, Lady Berridge. Indeed, we should be grateful to her for exposing the complexity and variety of situations which may arise and of which mental health professionals must be made aware, so that the decisions they have to make are properly informed by knowledge of the operative orders and the terms of any orders made by the family court. That seems absolutely fundamental. It reinforces the point I wanted to make at the end of the last group before I was very properly curtailed. It applies not only to the county courts if they are to retain some jurisdiction in this area but to the family court. Some serious thought must now be given to judicial training.

Has the Minister considered an approach to the Judicial College with a view to ensuring that both county court and indeed family court judges will be properly trained with regard to the obligations that will arise under this new legislation?

[Baroness Butler-Sloss (CB)]

My Lords, for the reasons that have been given I also support the amendments of the noble Baroness, Lady Berridge. Just to add to what the noble Lord, Lord Meston, said, I respectfully point out to the Minister that if she does get in touch with the Judicial College, which I think would be a very sensible move, she should also let the President of the Family Division know.

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[Baroness Berridge (Con)]

I think I need to clarify a point of law—I am looking to the noble Lord, Lord Meston. In care proceedings, is parental responsibility removed? I do not believe it is; it remains with the parents. That is very important.

[Lord Meston (CB)]

It certainly is not removed.

[Baroness Butler-Sloss (CB)]

It is shared.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have spoken a lot about the dangers of medicalising ordinary life and giving it a mental health label. The contribution I made in the previous Committee day on ADHD managed to get picked up by newspapers and generally cited as, “Cruel Baroness hates everybody that says they have ADHD”, so I have become even more infamous.

I welcome the call by the noble Baroness, Lady Bennett, for a review, because the more information and data we have about what is available in the community, the better. My only word of caution is that we should also recognise that, although we need more data, sometimes that data can be used as part of an advocacy for more resources and that data can be unreliable. My only caveat is that whatever the review does, it should not just take superficial headlines or self-diagnosis and self-ID as the truth, and that we should have some scepticism in that regard. We are going to have to understand the implications of this Bill when it is enacted for community care and provision. Therefore, I would welcome any attempt at getting to grips with the reality of that.

[Lord Meston (CB)]

My Lords, I briefly want to support Amendment 151 in the context of the delays experienced by CAMHS—delays in obtaining appointments and assessments, and in getting treatment. When I last had to look at this, only recently, those delays were still very serious. They are distressing for the children concerned and for their parents. They are also frustrating for local authorities, social workers and the courts, which need to make informed decisions but are unable to do so because they are still waiting to understand what CAMHS have to say about a particular child’s problems.