Mental Health Bill [HL]

Committee (4th Day)

Schedule 2: Nominated Persons

Amendment 68

68: Schedule 2, page 71, line 22, at end insert— “30AA Overruling a nominated person(1) The appropriate tribunal may, on application made in accordance with this provision, make an order overruling a decision of a nominated person.(2) An order under this section may be made on the application of—(a) the patient,(b) an approved mental health professional,(c) any person engaged in caring for the patient or interested in the patient’s welfare, or(d) any person with parental responsibility for the patient.(3) An application for an order under this provision may only be made on the grounds that—(a) the nominated person unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient,(b) the nominated person has, without due regard to the welfare of the patient or the interests of the public, exercised the power to discharge the patient under this Act or is likely to do so, or(c) the nominated person unreasonably objects to the making of a community treatment order in respect of the patient.(4) In this section “patient” includes any person by or for whom a nominated person is appointed.”Member’s explanatory statement This amendment would give the Mental Health First-Tier Tribunal the power to overrule decisions of a nominated person.

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.

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.

I would like to reinforce that point by mentioning the new inquiry to be undertaken by the Justice Committee in another place, announced last week, because of the persistent concerns about the capacity and resources of the county court and the effects on those who rely on the functioning of that court, which has suffered from considerable delays.

I briefly mention Amendments 77 and 84 in the name of the noble Baroness, Lady Berridge, which propose the use of the mental health tribunal rather than the county court. My preference would still be the use of the Court of Protection as the correct venue; we certainly cannot have both. However, I do not want to anticipate what the noble Baroness is likely to say or, indeed, what the Minister will want to say in reply.

My Lords, I shall speak to Amendments 77, 82 and 84 in this group. I am grateful to the noble Lord, Lord Meston, for mentioning my amendments in advance. I am adding the other choice for His Majesty’s Government, which is the mental health tribunal, on the basis that the Court of Protection deals with the Mental Capacity Act and, obviously, at the moment, the mental health tribunal deals with claims under the Mental Health Act.

However, there are one or two points of clarification on the process on which it would be useful to hear from the Minister. As I understand it, for the county court to take an application to displace the nearest relative involves means-tested legal aid, whereas the mental health tribunal, I believe, has Legal Services Commission funding—I am talking in old money here—so it is non-means-tested. I am not aware of what the situation is with the Court of Protection. However, an important concern of people making these applications is whether their legal representation is funded. I expect they are in a situation similar to that outlined by the noble Lord, Lord Meston, when he spoke of getting one of these applications for the first time; for many people making these applications, it will be their first time not only making such an application but being in front of any kind of court or tribunal, and at a time of great distress with a relative detained under the Mental Health Act.

Given that the policy document disclosed last week references this process as the solution to certain situations, could the Minister please outline, either today or in a letter, how many county court applications there are, how long people wait for such applications and what the rate of success is? How many of those who go to the county court currently get legal aid?

Is the Minister satisfied that the county court can act swiftly enough to remove a nominated person who is a risk to the patient? An example given, I think either in the review or in the response to the White Paper, is that, if you have a coercive, controlling boyfriend of a 17 year-old girl as the nominated person, or someone who is suspected of having trafficked that young person to the UK, then time is of the essence for practitioners to have that person removed—on evidence, obviously—from having such powers as, for instance, to apply to discharge the patient from hospital.

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,

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.

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.

My Lords, with this group of amendments, the noble Baroness, Lady Bennett, my noble friend Lady Berridge, the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, have exposed a crucial set of issues: in my judgment, one of the two or three most important issues that we shall be dealing with during our debates on the Bill. At their heart, I suggest, is the conflict, or perhaps I should say the high risk of a conflict if nothing is done, between the arrangements that the Bill seeks to put in place for the creation of nominated persons on the one hand and, on the other, the law of the land as set out in the Children Act 1989.

Both this group of amendments and those in the next group in the name of my noble friend Lady Berridge focus on matters of the highest significance for child protection and child safety in all its aspects. The assumption inherent in the Bill’s provisions for nominated persons is that the process for appointing a nominated person is rigorous enough to ensure that someone unfit to be appointed to that role will not in practice be appointed, or that, if they are, the system will find them out. I believe that it is evident from what we have heard in this debate that that assumption is a highly dangerous one.

A nominated person will be someone in a position of considerable power. They will be able to exercise all the functions exercised currently by a nearest relative, as well as availing of additional powers as set out in the Bill. Children and young people under 18 will be able to appoint a nominated person. That person will be someone of their own choosing. It could be a parent or someone other than a parent, but the principal qualification for such a person is that they must have the child’s best interests at heart.