Mental Health Bill [HL]

My Lords, I am grateful to the noble Baronesses, Lady Barker and Lady Neuberger, for their work on Amendment No. 33A, which is a considered attempt to address the concerns that my noble friend Lord Hunt raised on the earlier amendment in Committee. They have made significant changes. However, while it addresses the issue of patients nominating totally inappropriate strangers as their nearest relative, it still suffers from the difficulties associated with patients having nomination rights over the person who can block their admission to hospital or discharge them from compulsion. In Committee, noble Lords made reference to the role of the ““nominated person”” that we proposed in the 2004 draft Bill. As your Lordships are aware, that Bill would have abolished the nearest relative, while the role of the nominated person, which it instituted, was entirely different to that of the nearest relative. The role of the nominated person was that of a patient representative, so it was right and proper that the person was chosen by the patient. In the debate, a number of noble Lords did not accept our concern that a patient nominee would act at the behest of the patient even where that might not be in line with what they themselves saw as the best interests of that patient. The noble Baroness, Lady Barker, asked why there was any more reason to believe that a person nominated by the patient would be more likely to act against the best interests of the patient than one nominated under any other system. We are not concerned that a person named by the patient is more likely to act wilfully against the best interests of the patient, but that a named person is more likely to act at the behest of the patient. We feel that a person named by the patient is likely to feel an obligation to act in the very way the patient requests. While this amendment restricts whom the patient can nominate as their nearest relative, the same concerns apply. The role of the nearest relative is not one based on acting in the name of the patient, but one that provides for nearest relatives to act in the way that they consider is right. The process of nomination can introduce an unhelpful and damaging dynamic into the relationship between the patient and the person who is to exercise the rights of the nearest relative. SANE has told us that, "““because of the effects of their illness, some patients put considerable pressure on their nearest relative to stop them being taken to hospital or discharging them once they are there. The spouses, parents and caring relatives manage this as well as they can””." It goes on to say that it, "““would be concerned if widening the scope of those who might be able to perform the functions of the nearest relative could have the effect of alienating family members caring day in and day out for relatives living with severe and enduring mental health problems—making family relationships at these difficult times even more fraught and fractured and possibly compromising the help on which the patient might need to rely in the long term””." That is not to say that SANE opposes the principle of patient choice. However, it believes that, "““it is also important to protect the status of the nearest relative and distinguish it from that of other people and advocates””." We have made it clear that nearest relatives are not patient representatives, and their appointment should not be made in a way that can place further stress on family relationships at what may already be an extremely difficult time. Where detention is for the purposes of treatment, under Section 3 of the Act, the nearest relative is able to oppose the detention. Having decided to retain the general scheme of the current Act, rather than to replace it entirely, we do not wish to see an end to that important safeguard. Equally, we do not wish a nearest relative named by the patient to feel obliged to oppose detention because that is the wish of the patient who nominated him, and, should he fail to oppose that detention, to see the patient revoke his status as nearest relative only to choose another perhaps more compliant relative or carer who would order his discharge. Since we announced our changes we have had correspondence, some from a concerned nearest relative whose daughter has from time to time been detained. He reports that his daughter is often angry that he, as her nearest relative, does not use his powers to block her detention or to discharge her early. He was concerned that our amendments would mean that his daughter would be able to go to court to have him displaced as a nearest relative, because he would not act to discharge his daughter if he felt doing that was not in her best interests. We have reassured him on that point. Various points were made about the JCHR. In its fourth report of the 2006–07 Session it questioned whether the Government intended the word ““suitable”” to equate to abuse. That is not the case. The intention is that it will include, but not be so narrow as to be limited to, nearest relatives who have a history of abusing or potential to abuse the patient. Returning to the amendments, I believe that Amendment No. 33A would concern the father of the patient, to whom I referred, as well as many other conscientious and caring nearest relatives. We believe that the amendment may inadvertently undermine this safeguard, and has the potential to cause unwarranted problems in what are often, as your Lordships pointed out during Committee, complicated family dynamics. On Amendment No. 35, I recognise that the noble Baronesses, Lady Barker and Lady Neuberger, wish the nearest relative to have a say in vital decisions affecting the patient. That is understandable, and in principle we agree. However, Amendment No. 35 is not needed and could cause real practical problems. In Section 3 of the Mental Health Act 1983, there is a duty on what will be known as the AMHP to consult the nearest relative on application for admission for treatment, unless it is impracticable or would involve unreasonable delay. That enables the nearest relative to exercise his right to block the detention of the patient. The decision to place a patient on a CTO is quite different in nature to detention under Section 3; it is a treatment decision. The CTO is essentially an extension of compulsion and, importantly, lessens the restrictions imposed on the patient. The Act requires consultation with the nearest relative—and provides a power for the nearest relative to block detention—in decisions where the patient is facing greater restrictions to his liberty, not fewer. The requirement to consult the nearest relative when a CTO is made is not consistent with this. Paragraph 31 of Schedule 3 to the Bill amends Section 133 to ensure that the nearest relative is informed where a patient is placed on to a CTO, as must occur when a patient is discharged from detention. We therefore believe that no further requirement to consult the nearest relative is needed. Also, to impose a duty for the responsible clinician to consult is problematic without an associated power for the nearest relative to act should they disagree with the decision. What would happen if there were a disagreement between the nearest relative and the responsible clinician? This amendment gives no power for the nearest relative to act if such disagreement occurs. We are also concerned that it would not be right to involve a nearest relative in cases where the patient objects. To do so may give rise to a breach of the patient’s rights under Article 8 of the European Convention on Human Rights. Even if the nearest relative were a person named by the patient—as Amendment No. 33A proposes—it would not always be the case that the patient would want the nearest relative consulted when a community treatment order is being considered. This amendment does not provide for the patient to prevent this consultation. There is already a duty to inform the nearest relative when a CTO is made. We think the best way to address the question of consultation is via the code of practice, where it is possible to set out the circumstances where consultation should and should not take place. The draft illustrative code for England includes material to that effect; we can, of course, consider what else might be needed in due course and will listen to the views expressed by noble Lords. We consider that there is an important place for the proper representation of patients. There is a role for a person, or persons, of the patient’s choice to be able to put forward their views and advocate on the patient’s behalf, as I described in our last debate. We have provided guidance to practitioners in the draft illustrative code of practice on when carers and nearest relatives should be consulted, and the important role that they can play in a patient’s care and treatment. There will also be further opportunities for stakeholders’ views to be incorporated before the code is laid before Parliament. We do not believe that the amendments in question are the appropriate way of achieving effective patient representation, but that we already have the correct balance in the existing provisions for carers to be prioritised when determining the nearest relative. I therefore ask that the noble Baroness considers withdrawing her amendment.