Mental Health Bill [HL]

moved Amendment No. 33A: 33A: After Clause 25 , insert the following new Clause— ““Nominated person (1) Section 26 of the 1983 Act (definitions of ““relative”” and ““nearest relative””) is amended as follows. (2) In the cross-heading preceding section 26 after ““functions of relatives”” insert ““, persons acting as relatives””. (3) Before subsection (1) insert— ““(A1) In this Part of the Act ““named person”” means— (a) any person described in subsection (1) below; or (b) any person not described in subsection (1) below who is the patient’s carer, who has been nominated by the patient in accordance with subsection (1A) below. (B1) In this Part of the Act ““carer”” has the same meaning as in section 1(1)(a) of the Carers and Disabled Children Act 2000.”” (4) After subsection (1) insert— ““(1A) A person is a named person in accordance with this subsection if— (a) the nomination is signed by the nominator; (b) the nominator’s signature is witnessed by a prescribed person; (c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands that the effect of nominating a person to be the named person will give him the role of nearest relative; and (ii) has not been subjected to any undue influence in making the nomination. (1B) A nomination under subsection (1) above may be revoked by the nominator in accordance with subsection (3) below. (1C) The nomination of a named person is revoked in accordance with this subsection if— (a) the revocation is signed by the nominator; (b) the nominator’s signature is witnessed by a prescribed person; and (c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands the effect of revoking the appointment of a person as named person; and (ii) has not been subjected to any undue influence in making the revocation. (1D) The nomination of a named person shall be effective notwithstanding the nominator’s becoming, after making the nomination, incapable. (1E) A person nominated under subsection (1) above may decline to be the nominator’s named person by giving notice to that effect to— (a) the nominator; and (b) the local authority for the area in which the nominator resides.”” (5) For subsection (3) substitute— ““(3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the ““nearest relative”” means, in descending order— (a) the named person; (b) the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.”” (6) In section 26(4) after ““his nearest relative”” insert ““under subsection 3(b) above””. (7) In section 26(5) for ““(3)”” substitute ““(3)(b)””.”” The noble Baroness said: My Lords, the new amendment takes a much narrower approach than we took in Committee because we have listened so closely to the Government’s arguments. The Mental Health Alliance has come up with this amendment, providing the patient with a more restricted power to choose their nearest relative. The current list of eligible relatives who can take on the role of nearest relative will be retained. The patient would have the power to nominate their nearest relative, but only somebody from the current list plus their primary carer. The patient would have to fill out a legal form and a prescribed person would have to certify that the patient had the capacity to make this decision. It gives a restricted amount of choice to the patient, but gives some nevertheless. The Bill must be amended to allow a patient to nominate their representative to some extent. First, the nominated person is more likely to be someone in whom the patient has trust and confidence. Secondly, it would provide greater legal clarity on who the patient’s legal representative is, and avoid the need for some of the intrusive questioning which certainly goes on during the sectioning process. Thirdly, it would avoid the unnecessary legal costs of requiring a patient to go to court to displace a nearest relative they disagreed with. The Joint Committee on Human Rights also recently reaffirmed the implications of R(E) v Bristol City Council 2005, where the court held that the provision should be interpreted in accordance with the patient’s Article 8 ECHR rights, taking her wishes and/or health and well-being into account. The JCHR said that to ensure compatibility with Article 8, the approved social worker’s duty to consult the nearest relative about compulsory admission does not apply if the patient objects to that person being consulted. We also know that service users welcomed the 2004 Bill’s provision for a nominated person and are clear about the importance of the role for them. I could say a great deal more on the matter, but I hope that I have given your Lordships’ House a sufficient explanation of why we regard this as so important. I hope that I have also shown that we have listened closely to the Government’s own concerns about this. I beg to move.