Contribution
My Lords, I thank all noble Lords for their contributions in this important area, and I thank the noble and learned Baroness, Lady Butler-Sloss, for Amendment 2.
On that point, I can say that a copy of the report made following a care and treatment review must be sent to those who have a legal duty to have regard to the review recommendations, so that they are implemented appropriately. We agree that parents play an important role. However, it may not be appropriate for the report to be sent to parents in every case: for example, where safeguarding concerns have been raised. Inappropriate sharing of information could result in the patient withdrawing their consent to the review. So we will provide statutory guidance on the role of the parent to assist the responsible commissioner in considering who to involve in care and treatment reviews.
On Amendment 25, also tabled by the noble and learned Baroness, Lady Butler-Sloss, the Bill already allows anyone involved in the patient’s care or welfare, which includes parents, to apply to the county court to terminate the appointment of a nominated person. I can assure the noble and learned Baroness that we will make this clear in the code of practice and the Explanatory Notes for the Bill, as she has raised an important point.
To address Amendment 27, we are concerned that making it a requirement for parents always to be consulted when a nominated person is chosen could put undue pressure on a child to choose a parent. However, we agree that the witness should consider the views of parents and others who may have insight into the suitability of a nomination. I can tell the House that we will therefore set out in the statutory code of practice how the views of the family and others should be fed into the witnessing process.
I have also heard the concern of the noble Baroness, Lady Berridge, about the nominated person regarding children who lack competence. In response to this, as she acknowledged, I have tabled Amendments 29 to 33 to make it clear who an approved mental health professional must appoint in certain circumstances. For an over-18 lacking capacity, an approved mental health professional must appoint a competent lasting power of attorney or Court of Protection deputy, if they have one. For all under-18s lacking capacity or competence, where there is a care order, they must appoint a local authority which has parental responsibility for them or, if relevant, a competent Court of Protection deputy. Where there is no care order, the approved mental health professional can appoint a person who does not have parental responsibility for 16 and 17 year-olds. This allows for suitable alternative arrangements, for example, informal kinship arrangements for young people who live independently. I hope that this reassurance and commitment on my behalf provides the further clarity for which the noble Baroness has been advocating.
Finally, in response to Amendment 34, we agree that in the vast majority of cases we would expect a parent, or whoever has parental responsibility, to be appointed. This would include consideration of special guardians and child arrangement orders. As I have set out before, we do not agree that a person with residual parental responsibility should always be blocked from being a nominated person. A child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child. For example, the parent might struggle with their own health issues but could still be an effective nominated person.
The situation is different in the case of a care order because the local authority is being given lead parental responsibility. We have engaged with the Children’s Commissioner on this point. As I believe the noble Baroness may be aware, I recently met the Children’s Commissioner on a range of issues, including discussions about the Mental Health Act.
If there are no relevant people, approved mental health professionals must follow the patient’s past and present wishes and feelings when deciding who to appoint. We do not believe that the eldest person should be given preference, as this represents an outdated assignment of responsibility. I assure the noble Baroness, Lady Berridge, that I have been advised that my officials met the chair—but I understand that the term is lead—of the AMHP Leads Network last November.
I can make a further commitment, which I hope will be helpful to your Lordships’ House. I am committing to establishing an expert taskforce to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process for children and young people. Views will be very much welcomed on who should be part of this; I have already invited the noble Baroness, Lady Berridge, and the noble and learned Baroness, Lady Butler-Sloss, to make suggestions about that. With these reasons, I hope that noble Lords can support our amendments and will not press their amendments.