Mental Health Bill [HL]

My Lords, I agree with the points raised by the noble Baroness, Lady Neuberger, and shall add a brief comment. As your Lordships are aware, the Joint Committee on Human Rights has warned that the Government’s proposals do not give adequate respect for the patient’s right to private and family life, saying that, "““the Government is laying themselves open to future embarrassing litigation””." I shall be surprised if the Minister does not, finally, grasp at the solution being offered through this amendment. The law as it is, and as it will remain under the Government's proposals, leaves too much that is uncertain and too much to the discretion of individual social workers for an adequate protection of Article 8 rights. For example, even after being displaced by a county court, a nearest relative is deemed by case law to continue to retain—I quote from the 1995 ruling in Surrey County Council SSD v McMurray—a ““legitimate interest”” in a patient’s welfare, which, "““should always be paid proper respect by the authorities in making decisions about and arrangements for the patient's care””." The law therefore suggests that, even after displacement, a nearest relative may continue to have some contact with professionals regarding a patient’s circumstances and decisions relating to his or her care. The only way in which an approved mental health practitioner could avoid a continuing breach of Article 8 in respect of a patient whose nearest relative has been displaced as unsuitable, would be to claim that such continued contact would be not ““practicable””, relying on the definition of practicability given in the more recent 2005 Bristol City Council case referred to by the noble Baroness. To my mind, that places a burden on the social worker that should not in fact arise in any sensible legal structure. Furthermore, a displaced nearest relative continues to retain the ability, under Section 29(6) of the Mental Health Act, to apply to the mental health review tribunal annually on a patient’s behalf. As such, the proper answer to the Article 8 problems highlighted in past legal challenges is not to widen the criteria for displacement, but to enable patient choice to determine who the nearest relative is in the first place.