Contribution
My Lords, I shall speak to Amendments 77, 82 and 84 in this group. I am grateful to the noble Lord, Lord Meston, for mentioning my amendments in advance. I am adding the other choice for His Majesty’s Government, which is the mental health tribunal, on the basis that the Court of Protection deals with the Mental Capacity Act and, obviously, at the moment, the mental health tribunal deals with claims under the Mental Health Act.
However, there are one or two points of clarification on the process on which it would be useful to hear from the Minister. As I understand it, for the county court to take an application to displace the nearest relative involves means-tested legal aid, whereas the mental health tribunal, I believe, has Legal Services Commission funding—I am talking in old money here—so it is non-means-tested. I am not aware of what the situation is with the Court of Protection. However, an important concern of people making these applications is whether their legal representation is funded. I expect they are in a situation similar to that outlined by the noble Lord, Lord Meston, when he spoke of getting one of these applications for the first time; for many people making these applications, it will be their first time not only making such an application but being in front of any kind of court or tribunal, and at a time of great distress with a relative detained under the Mental Health Act.
Given that the policy document disclosed last week references this process as the solution to certain situations, could the Minister please outline, either today or in a letter, how many county court applications there are, how long people wait for such applications and what the rate of success is? How many of those who go to the county court currently get legal aid?
Is the Minister satisfied that the county court can act swiftly enough to remove a nominated person who is a risk to the patient? An example given, I think either in the review or in the response to the White Paper, is that, if you have a coercive, controlling boyfriend of a 17 year-old girl as the nominated person, or someone who is suspected of having trafficked that young person to the UK, then time is of the essence for practitioners to have that person removed—on evidence, obviously—from having such powers as, for instance, to apply to discharge the patient from hospital.
At this stage, it might also be appropriate to ask the Minister what is meant in the policy document by the concept of “temporary” nominated persons? We had interim nominated persons in the review, but there is no concept that I have seen in the Bill of temporary nominated persons.
Finally, Amendment 82, although it may be in the wrong group, talks about parental responsibility. We have had other discussions in Committee about this, and I think it was in the review; we must make sure, at the very least, that appropriate people with parental responsibility have the relevant information. That is a baseline. Whether we go on to consultation or being able to apply to remove a nominated person, I would submit—and Amendment 82 outlines this��that they should have all the relevant information. I have exempted the person with residual parental responsibility under a special guardianship order. This reveals some of the complications of the Children Act. In this type of situation, the child has been removed to live with someone else; it is similar to a care order, in that the people with parental responsibility remain there, unless there is an adoption order. One has to be careful even about the rights to information, and who with parental responsibility receives that.