Baroness Berridge (Con)

My Lords, it was a privilege to sit on the Joint Committee to scrutinise the Bill, but it was disturbing to see for how long the legislation has been failing patients, their families and clinicians. I thank my noble friend Lady May, who is not in her place, for instituting the process and for placing a clear focus on the disproportionality faced by racialised communities. There is much to commend the Bill, such as the change in detention criteria, and statutory care and treatment plans, but it could still be improved. The introduction of community treatment orders made a bad disproportionality situation even worse. The mental health factsheet accompanying the Bill says that black communities are seven times more likely to have a CTO than their white counterparts, although that is an improvement on the evidence to the committee, where we were told that it was up to 11 times, while Parliamentary Office of Science and Technology research states that it is up to 10 times. Whatever it is, it is too high. If CTOs are to remain, I hope the Minister will outline that proper research will be undertaken to understand what is causing that disproportionality. While I welcome the changes to CTOs, I stand by the Joint Committee recommendation that they should be abolished for Part II patients; I stand with Mind on that. There are differing opinions on this issue now, and it would be useful to return to it in Committee. Because of disproportionality, the CTO issue is of particular importance to certain communities. However, I agree with the noble Lord, Lord Adebowale; we also heard about the informed research showing that advance choice documents are known to reduce detentions and reduce medicalisation when someone is detained. So, while I am pleased to see the advance choice document in the Bill, I ask His Majesty’s Government to consider that there should be a right to request that. As the Bill goes through Parliament, I hope that the hard work of a smaller, often less-resourced group of activists for these communities will be appreciated. The work of the NAS and Mencap is exemplary, but sometimes those who are not able to shout the loudest are in the greatest need of our support. I am sad to notice that two of the provisions that are particularly important to racialised communities are being diluted. One of the most important changes is that the outdated use of nearest relatives is being replaced by nominated persons who represent the patient and exercise relevant statutory functions. It is important to note the power that the nominated person has. It includes the power to order the discharge of the patient, unless of course a barring order is made. Ideally, the nominated person is chosen by the patient, but if they do not have capacity, that function is done by the approved mental health practitioner—AMHP. Those are welcome changes for most adults—I note the comments from the noble Lord, Lord Alderdice—but the Joint Committee’s report highlights that all is not clear with regard to the nominated person and children and young people. The decision not to have a new piece of legislation is a particular problem. When the Mental Health Act 1983 was passed, it was envisaged that it would really apply only to children in the criminal justice system. To complicate matters, the Children Act 1989 was passed, with further amendments later on giving 16 and 17 year-olds the right to consent to medical treatment if they have capacity. Then came the Mental Capacity Act, which does not apply to under-16s but does if you are 17. Then Gillick competence was added to the mix. Yes, it is all rather fudgy, even before you add on the nominated person under the Act. I will give a couple of examples. For the under-16s, under new Schedule A1, the nominated person must be the person with parental responsibility, but what of the situation of a special guardianship arrangement where the parents keep some residuary parental responsibility? Does the AMHP have to appoint the parents and the special guardian? That would set up quite a difficult arrangement for clinicians. Also, why does this schedule refer to a local authority being “willing” to act as the nominated person? Under the Children Act when there is a care order, local authorities have a duty to act when they have parental responsibility. I turn to the 16 or 17 year-old who lacks capacity to appoint a nominated person. There is no mention at all of parents’ responsibility in paragraph 10 of that schedule, yet the young person might be living with them. So if the nominated person uses the powers of discharge, a process takes place for them to be discharged. You are relying on the mental health institution to remember that parental responsibility lasts until someone is 18 and to tell the parents that the patient is on their way home. That might not sound like a problem, but if you have got other, younger children in the household, it might be a risk to them to have that person back in the household. Also, a 16 or 17 year-old may be under a care order. Is the local authority going to be informed because it is going to be providing the accommodation? The schedule is silent on that. A common statutory mechanism is to mandate for particular circumstances like those of the under-16s but to have a presumption for other situations. So why not have some kind of presumption that a 17 year-old person with parental responsibility should be the nominated person if they are residing with them? The previous Government accepted that after the independent review on children and young people more thought needed to be given. So will the Minister agree to have a meeting about children and young people with officials, interested Peers, and the experts in this field who are practising in this niche area of the Mental Health Act and the Children Act? Children and young people are also in a vulnerable position if they have learning disabilities and autism and no co-occurring mental health illness. If they are in crisis and the parents need help, if there is no Mental Health Act provision, then what happens? We have heard about the use of DoLS under the Mental Capacity Act, but if you are 17 or 18 and lack capacity and are held under that, there is no Section 117 aftercare. However, if you are under 16, or 17 with capacity, you are not under the Act at all. Where does that leave you? That probably leaves you under the inherent jurisdiction of the High Court or, rarely, a care order. Only last week the Children’s Commissioner reported on around 1,000 children a year who are now under the jurisdiction of what is called a High Court DoLS order. Let us just say her report is not good news about that third provision to restrict a person’s liberty. While the situation for those with learning disabilities and autism is currently shocking—and I marvel at the work of the noble Baroness, Lady Hollins—the Act could make a bad situation worse. This is also important to cover at the meeting that I have suggested and as High Court DoLS are a relatively new creation, it would be good to have there former members of the judiciary who have had experience of imposing those orders on children and young people. I am disappointed not to see the recommendation from the Joint Committee of a mental health commissioner as part of the Bill. Since the Joint Committee reported, rare events have shown the danger to the public if mental health services fail. Often it is those who not medically trained but are friends and family who can see that someone is getting really unwell and needs help. Is it obvious to know where to go if you have tried the previous hospital and you have tried to use PALS? Do friends and relatives know that it is the CQC that they need to go to? The police have rightly stepped back in some respects in these situations. Not appointing a mental health commissioner is a missed opportunity as it is imperative that those people know somewhere to go to. While the Joint Committee’s report was not overt about this being a function of the mental health commissioner because it was before the events I have outlined, an emergency process such as this could well fit within their remit. It would be a one-stop shop. While there is a mental health homicide review under way, if there is the need to legislate, we could now be missing it. However, if His Majesty’s Government established a mental health commissioner whose functions could be by way of secondary legislation, the door to legislation remains open if that review suggests such measures. Finally, I hope the Minister will inform your Lordships’ House that the Law Commission is being requested to look at whether, in England and Wales, we should be doing what the noble Lord, Lord Alderdice, recommended, and which is happening in Northern Ireland: the fusing of our mental capacity and mental health laws. This is a sticking plaster only on an area of law that badly needs a restart.