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The reason for this amendment is that nearest relatives are rarely aware of their important rights under the Mental Health Act 1983, which are one of the safeguards in relation to compulsory treatment. I am sure that the Minister shares my view that it is important that the duty to inform nearest relatives should work well and should always be respected. At present, no statutory body has responsibility for providing information to nearest relatives, so this amendment puts a specific duty on the approved mental health professional to take all practical steps to provide the information within seven days. I should perhaps declare that, last year, I was a nearest relative for quite a number of months, so I have a little personal experience of it.

It may be thought that the list of points in the amendment is rather fulsome, but I wish to give the Minister the opportunity to comment on whether he views it as reasonable to cover them all and, if so, how best to achieve that. I beg to move.

Baroness Neuberger: I support what the noble Lord, Lord Williamson, has said, but I will speak to Amendment No. 40. In the 2004 Bill, the Government were going to allow patients to nominate someone to act as their nearest relative. One reason for that was that the nearest-relative provisions in the 1983 Act are quite complex—this is one of the commonest areas for mistakes around the Act. Also, the person who is the nearest relative is not necessarily the person who has been nominated by the patient. Given that the 2004 Bill was going to deal with this by allowing patients to nominate someone, it is rather a surprise to see now that the only change from the 1983 Act is to add the patient to the list of people who can apply to displace the nearest relative. That really is not good enough.

First, what if the patient and the nearest relative do not get on? That has been known. In the Bill as drafted, the patient has to prove that the nearest relative is unsuitable. Suitability is rather a strange test to use, particularly where what might be going on

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is to do not with suitability but simply with an inability to get on—the two just do not like or possibly even trust each other. Secondly, in order to change the nearest relative, the patient has to go to court at a point where they are ill and, possibly, vulnerable, and may well be rather dependent on the nearest relative concerned. Thirdly, I am also considerably worried that the cost of applying to the court for this could be something like £500, which, for many of these patients, might well have to be found from their incapacity benefit, as they are largely living on that. So there are rather a lot of questions to be answered by the Minister on why the provisions in the 2004 Bill are not in this Bill.

Another point worth making is that, in all the time that we have looked at the legislation before us, we on the Liberal Democrat Benches have been at pains to say that we think that public safety is important. If we want patients to really trust the system, we have to allow them to nominate the person whom they want to act as their nearest relative. We would argue that if they trust the system—and can make that nomination—they will feel more at ease within the system, which will be safer for all of us.

4.45 pm

Lord Patel of Bradford: I add my support to Amendments Nos. 32 and 40, but I will speak mainly to the latter, as the noble Baroness did.

Since 1997, the Mental Health Act Commission has highlighted distressing stories concerning patients and their families. The rigidity of the 1983 Act regarding the nearest relative has often meant that, in addition to the interference, however necessary, with their private lives, patients have also had to put up with professionals blundering, however reluctantly, into difficult or painful family dynamics. In some cases, this has placed people at risk. For example, in the case of JT, the European Court of Human Rights finally told the Government in 2003 that enough was enough. The rigidity of the Act has meant that adult patients who were estranged from their parents and alleged past abuse by one or other parental figure have had that estrangement curtailed by mental health professionals, because it was perceived to be a requirement of the law that the parents were automatically seen as the nearest relative.

The identification of a patient’s nearest relative through a hierarchical list without reference to the wishes of the patient, and without giving any choice to a patient who is mentally competent to exercise a choice, is both discriminatory and plain wrong. There is no compelling reason why patients who are detained or subject to any other coercion under the Mental Health Act powers should be subject to such blanket discrimination. The effect of this is to deprive them of choice in identifying a relative or friend with whom they want to be recognised as having a special relationship. All other patients in hospitals may nominate their next of kin; it is not imposed on them according to who the oldest and closest surviving relative is, or according to any other criteria, as long as they have the capacity to make a choice.

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I am pleased to note the amendments to the Mental Capacity Act that seek to provide safeguards for people who are incapable of giving consent. These affect any patient who retains the mental capacity to exercise a choice over the identification of their representative, whose powers and role reflect those of the nearest relative in many respects. Yet, in this Bill, the Government propose that patients will continue to have a nearest relative imposed on them, with the result that patients will be put in the invidious position of having to explain why that person is not suitable to act as the nearest relative. The draft code of practice states that,

That sits uncomfortably with the intent to address the unwarranted interference with patients’ private lives, as identified in current law by the European Court of Human Rights.

I am also concerned that the failure to recognise choice in the selection of the nearest relative may be even more exacerbated in the case of people from different ethnic and cultural backgrounds. In such situations, the risk to the patient can be further compounded if they do not speak English.

Whatever the circumstances, this surely will not do. We have waited six years since the Government settled a legal challenge out of court by promising action on this matter. After all that time, it is debatable whether the Government’s current proposals even address the outstanding incompatibility of the law on this with Article 8 of the European Convention on Human Rights. This law is discriminatory and the Government’s proposal to loosen it is discriminatory. Frankly, it astounds me that here, again, is an example where better provisions are proposed under the Mental Capacity Act for Bournewood patients than will exist for people affected by the Mental Health Act.

The amendment would do what the Government should have done a long time ago, by giving priority to a competent patient’s wishes over the inappropriate and outdated hierarchical list currently used to identify nearest relatives. I do not know why the Government have resisted for so long this apparently straightforward solution to the problem. If the Minister is minded to reject the amendment, I would be very interested to hear how he will explain what the difficulty is.

Baroness Murphy: I support the amendment proposed by the noble Lord, Lord Williamson of Horton. All he is really asking for is that the nearest relative or carer, who is often ignored until the patient is to be discharged, should have a serious conversation about what has happened and what their rights are. That seems to be entirely practical and gives patients’ relatives, who have serious responsibilities under the legislation, some statutory involvement.

The business of the nearest relative is a complete nightmare. If you section someone in London who is looked after by their brother next door but has an older brother in Edinburgh, the brother in Edinburgh is classified as the nearest relative. It is as simple and as stupid as that. You have a long list that you carry

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around in your pocket, which you tick off to identify the nearest relative. Social workers have found that a nightmare and it is about time that it was changed.

I know that there has always been anxiety over those patients who nominate the next eccentric person on the ward as their nearest relative. That happens in special hospitals all the time; they say, “I will have that one”, or they choose the next person through the door who offers the next set of drugs that they would like. We have included in the amendment a clear way around this, so that it cannot happen. The nearest relative has to be someone who is seriously involved in the patient’s care. We now have a flexible approach to recognising what is a family and who is the next of kin. That is the case when you go into hospital for anything else, so why not for our patients?

Lord Hunt of Kings Heath: It has been a very interesting debate. The noble Lord, Lord Williamson—who I am delighted to hear is not frustrated so far today; we will see what we can do—and the noble Baroness, Lady Neuberger, have asked for detail on this matter, and I am glad to respond. The noble Baroness, Lady Murphy, put her finger on it when she asked why the Government are continuing with the concept of the nearest relative. I shall talk about that shortly.

The role of nearest relative is an important one, enshrined in legislation. It has important rights and powers which provide significant patient safeguards. It is my responsibility to explain why the Government have decided, in the context of this legislation rather than the 2004 draft Bill, to retain the concept. The concept of the nearest relative provides an independent counterbalance to the authority and powers of the approved mental health professional to detain a patient and compel him or her to stay in hospital. Where the AMHP is considering the admission of a patient, the nearest relative must be involved where it is practical to do so. If the patient is to be admitted for an assessment, the nearest relative is to be advised of this. If the admission to hospital is for the treatment of a patient under Section 3, they are given the opportunity to object. When they object, the admission cannot proceed. The nearest relative can also object to an application for guardianship.

As the code of practice makes clear, the AMHP must provide the nearest relative, before he or she exercises what on any count is an important power, with any information about the patient that the nearest relative needs to make an informed decision about whether they wish to object. Guidance in the code states that where a local authority is asked by the nearest relative to apply for admission of the patient but the local authority, based on the AMHP’s consideration of the case, does not do so, the local authority will inform the nearest relative of that fact. It will also advise him that he can make his own application. There can be no doubt whatever that the nearest relative should be informed of his right to apply for admission of the patient at this early point. The Act already provides that nearest relatives are consulted, notified and advised of their right to object

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to an admission for treatment, even before any application for admission is made—not after the admission, as in the amendment.

The duty to provide information to the nearest relative after the patient has been admitted currently falls on hospital managers. We think that that is the right thing to do. The individual AMHP, who provides the assessment and applies for admission of the patient, may not necessarily have a future role in the care and treatment of that patient. Requiring the AMHP to perform this function might often be inappropriate. Except where the patient objects, the nearest relative is to receive a copy of the information provided to the patient, and this will include that the patient can be discharged by his nearest relative. My department has produced a template leaflet that hospital managers can use or adapt which is specifically addressed to the nearest relative about his rights.

I also refer noble Lords to paragraph 30 of Schedule 3 to the Bill. This introduces a new Section 132A to the Act providing for hospital managers to inform patients of the effect of a community treatment order whenever a patient is placed on to supervised community treatment. We will discuss such treatment in a moment. This information will be shared with the nearest relative—again, subject to the consent of the patient. We believe that that is consistent with the existing provisions for sharing information with the nearest relative at the time of admission and at the time of discharge.

One problem that we have with the amendment of the noble Lord, Lord Williamson, is that it shows no such caveat allowing a patient to object to personal information being shared with the nearest relative. We consider that to be a problem in relation to confidentiality and privacy. Obviously, there will be times when impracticability provides that an unsuitable nearest relative who has not been displaced need not be consulted. In addition, the patient can currently prevent his nearest relative being given information at the time of his admission. However, the noble Lord’s amendment would provide no such privacy or protection to the patient in those circumstances. We think that the Act provides sufficient and appropriate provisions for the nearest relative to receive information about his powers when it is needed.

Clearly, there is an issue of practice, and that is what we think the code of practice exists to do. The code is still in draft, so we are welcoming suggestions and clearly the debate in your Lordships’ House will also heavily influence the wording of the draft code. We think that that is the best way to deal with that problem.

I turn to Amendment No. 40, to which the noble Baroness, Lady Neuberger, spoke. In the majority of cases, her amendment would place the powers of the nearest relative in the hands of a patient-nominated representative. However, we think that it is inappropriate for a patient nominee to exercise the powers of the nearest relative under the Act. As I have just explained, the powers of nearest relatives mean that they are not just patient representatives, although

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most nearest relatives very effectively represent their patient relatives. I know that the noble Baroness referred to the intention of the 2004 Bill, but of course that Bill did not replicate the nearest relative at all. Introducing an independent legal body which authorised compulsion changed the whole business of compulsion. We considered then that there was no longer a need for an independent counterbalancing role, as exercised by the nearest relative. Given that we have constructed this Bill to be incorporated within the essential framework of the 1983 Act, we think that the independent relative continues to have a valid role.

We also think that, in order to exercise his power, the nearest relative must be free to act in a way that represents his understanding of the best interests of the patient. Sometimes that might mean that the nearest relative will use, or not use, his powers in ways that do not concur with the wishes of the patient. Of course, many people chosen by the patient would feel duty-bound to act in the way that the patient wished, but the powers of the nearest relative have not been designed to work in that way.

The noble Baroness, Lady Murphy, raised a point about the safeguard. I think she said that the person chosen must know about the patient; it cannot be a frivolous choice. None the less, someone might be chosen who will simply carry out the wishes of the patient. Given the role, the nearest relative needs to be able to act, as I said, in a way that represents their understanding of the patient’s best interests and not simply to carry out the patient’s wishes. That is the problem with the second amendment.

5 pm

Baroness Barker: Will the Minister explain why that should be the case in mental health treatment any more than it is in any other form of health treatment? Like many others, I have been involved with the care decisions of people on life-sustaining and life-threatening treatment. Why is there any more reason to believe that a person nominated by someone subject to mental health legislation would be any more likely not to act in the best interests of the patient? I do not follow the Minister’s argument.

Lord Hunt of Kings Heath: This has been a consistent part of mental health legislation usage, and the circumstances particularly relate to people with severe mental health issues. It is an appropriate safeguard for both the public and the patient.

Baroness Neuberger: Why has the Minister not taken on board the extent to which family dynamics can affect the issue? As my noble friend Lady Barker said, there is an important point of principle regarding why patients with mental illness should be treated differently. But there is also a point about families and family dynamics, which often come to the fore in cases of mental illness. The noble Lord is assuming that different circumstances apply here, but I fail to see how he has made that argument. There is a further point. We have occasionally been quoting the Scottish legislation with approbation. The right of choice is in that legislation.

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Lord Hunt of Kings Heath: The context in which both the Scottish legislation and the 2004 Bill operate is entirely different from the framework that is set out in the 1983 legislation. We have decided to stick with the essential framework of the 1983 legislation in the amendments that we have now put in place.

I turn to the Bill’s provisions allowing patients to apply to the courts for the displacement of the nearest relative. It is worth making clear that they will be able to make such applications on all the existing grounds as well as on the new grounds that the nearest relative is not a suitable person to act as such. This is an important balance to the debate that we have just had. It will be for the court to determine whether a nearest relative is otherwise not a suitable person to act as such.

It would be helpful if I outlined what the Government have in mind in establishing this ground for displacement. We do not believe that a person is unsuitable to be the patient’s nearest relative simply because the patient may be upset with the nearest relative over a trivial matter. We know that suffering with mental disorder is often a distressing and difficult time for the patient and that it is no less so for those who love and care for the patient. In that environment there can be potential for disagreement between a patient who may not wish to go to hospital, for example, and the nearest relative who reluctantly accepts that that is the best course of action. Such a disagreement should not in itself be grounds for removing important powers from the nearest relative.

We have in mind situations where a nearest relative’s occupation of that role and its powers under the Act poses a real and present danger to the health or well-being of the patient. Where a nearest relative has abused the patient, for instance, he should not be allowed to exercise the rights of the nearest relative. It is not important how recently the abuse took place. If the patient or others who know or are close to the patient have a genuine fear that the abuse may be repeated—or even that a relationship with a formerly abusive nearest relative may cause the patient distress—we intend that such a person should be considered unsuitable to act as the nearest relative of the patient. These applications will be heard, as they now are, in the county court. The court will not be asked to sit in judgment of any of the past actions or deeds of the nearest relative. Its role will be to determine whether the nearest relative is otherwise unsuitable to act as such.

The opinions and views of the patient will be very important and we fully expect that they will form part of the court’s deliberations. However, we do not wish the court to feel that it is prevented from displacing a nearest relative it deems unsuitable, even where the patient would wish that person to remain as their nearest relative. I would instance cases where the victim of an abuser actually acts to protect the abuser, either out of fear of the abuser or through a form of identification with him. We do not wish the court to feel constrained in such circumstances in displacing a nearest relative it finds unsuitable.

The noble Baroness, Lady Neuberger, mentioned the issue of cost. The regulatory impact assessment

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sets out the cost, and legal aid would be available. I hope that meets some of her concerns.

I have covered a lot of the ground on patients’ relatives. I hope noble Lords will understand that the Government’s position is that the nearest relative continues to form an important role. It is clearly important that they are informed in the way described. The legislation, backed by the code, will allow that to happen. But there is a distinctive role for the nearest relative.

Baroness Masham of Ilton: To clarify, does “nearest relative” include a husband, wife or partner?

Lord Hunt of Kings Heath: I refer the noble Baroness to Section 26 of the 1983 Act, which says:

(b) son or daughter;(c) father or mother;(d) brother or sister;(e) grandparent;(f) grandchild;(g) uncle or aunt;(h) nephew or niece”.

It goes on to give other examples.

Lord Williamson of Horton: I am grateful to the Minister for his reply. Although the two amendments are different, he covered the points quite clearly. My amendment was headed “Duty to inform”, which is the point that I was raising. I recognise that, as he said, some of the points listed in the amendment may not be appropriate for the approved mental health professional—the reference to local authorities, for example. I also accept that it would be possible to achieve what I want by the strict operation of a code of practice. My objective is to make sure that that happens. On Amendment No. 40, I am sure—given the strong views expressed—that the noble Baronesses, Lady Barker and Lady Neuberger, will reflect on what has been said. That is a matter for them. In the mean time, I beg leave to withdraw the amendment.

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