Baroness Butler-Sloss (CB)

My Lords, I agree with all three amendments that we are considering at this moment, but in particular I support Amendment 51 and agree respectfully with every word that the noble Lord, Lord Meston, said. He has set it out extremely carefully and clearly. Despite meeting the most helpful Minister to discuss this and other matters in the Bill, I absolutely cannot understand why the Government do not realise that the absence of any information to help medical professionals looking at a 14 or 15 year-old who has mental health issues, which are why they are in hospital, but who appears otherwise to be very bright, is an issue. How on earth are they to judge whether that child has the degree of competence necessary for the professionals to listen carefully to what the child has to say? If you are over 16, you are included in the Mental Capacity Act 2005, but under-16s have not been included. I emphasise the point made by the noble Lord, Lord Meston, that Gillick is very long-winded. It would be unreasonable for any medical professional looking at a child of 13, 14 or 15 to settle down and read the judgments of the then House of Lords to find out that they say that Gillick should be applied but absolutely do not say how. This is why we have this amendment. The Government might decide that they are not prepared to accept it. I did not see the letter that the Minister sent to the noble Lord, Lord Meston, but I cannot understand why there is any confusion. I cannot understand why a form of advice to mental health professionals on dealing with under-16 year-olds in mental health conditions might be applied in any other circumstance in any other litigation. It does not apply. I have spoken not only to the Minister but to the very helpful team who surround her, and I have been completely unable to understand what on earth they are really worried about. I would be—and I would like the Government to be—much more worried about anyone over 16. There is primary legislation telling anyone how to judge that someone over 16 has the ability to make decisions, but there is nothing to tell anybody about someone under 16. In my view, there will be a serious lacuna in the law that is very unhelpful, particularly to mental health professionals. What on earth are they going to do with a child who, as I say, is bright and cheerful despite what his or her mental health problems are? How on earth are they going to approach judging whether that child has the sort of competence that over-16s have? I find it difficult that what is contained in this excellent proposed new clause by the noble Lord, Lord Meston, is seen as somehow confusing or that it will be used in the wrong circumstances, or anything like that. If Amendment 51 is not going to be accepted, what on earth is the help that the Minister expects to give to mental health professionals dealing with under-16s?