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(i) understands the effect of revoking the appointment of a person as named person; and (ii) has not been subjected to any undue influence in making the revocation. (a) the nominator; and (b) the local authority for the area in which the nominator resides.” (a) the named person; (b) the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.”

The noble Baroness said: My Lords, the new amendment takes a much narrower approach than we took in Committee because we have listened so closely to the Government’s arguments. The Mental Health Alliance has come up with this amendment, providing the patient with a more restricted power to choose their nearest relative. The current list of eligible relatives who can take on the role of nearest relative will be retained. The patient would have the power to nominate their nearest relative, but only somebody from the current list plus their primary carer. The patient would have to fill out a legal form and a prescribed person would have to certify that the patient had the capacity to make this decision. It gives a restricted amount of choice to the patient, but gives some nevertheless.

The Bill must be amended to allow a patient to nominate their representative to some extent. First, the nominated person is more likely to be someone in whom the patient has trust and confidence. Secondly, it would provide greater legal clarity on who the patient’s legal representative is, and avoid the need for some of the intrusive questioning which certainly goes on during the sectioning process. Thirdly, it would avoid the unnecessary legal costs of requiring a patient to go to court to displace a nearest relative they disagreed with.

The Joint Committee on Human Rights also recently reaffirmed the implications of R(E) v Bristol City Council 2005, where the court held that the provision should be interpreted in accordance with the patient’s Article 8 ECHR rights, taking her wishes and/or health and well-being into account. The JCHR said that to ensure compatibility with Article 8, the approved social worker’s duty to consult the nearest relative about compulsory admission does not apply if the patient objects to that person being

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consulted. We also know that service users welcomed the 2004 Bill’s provision for a nominated person and are clear about the importance of the role for them.

I could say a great deal more on the matter, but I hope that I have given your Lordships’ House a sufficient explanation of why we regard this as so important. I hope that I have also shown that we have listened closely to the Government’s own concerns about this. I beg to move.

Lord Patel of Bradford: My Lords, I agree with the points raised by the noble Baroness, Lady Neuberger, and shall add a brief comment. As your Lordships are aware, the Joint Committee on Human Rights has warned that the Government’s proposals do not give adequate respect for the patient’s right to private and family life, saying that,

I shall be surprised if the Minister does not, finally, grasp at the solution being offered through this amendment. The law as it is, and as it will remain under the Government's proposals, leaves too much that is uncertain and too much to the discretion of individual social workers for an adequate protection of Article 8 rights.

For example, even after being displaced by a county court, a nearest relative is deemed by case law to continue to retain—I quote from the 1995 ruling in Surrey County Council SSD v McMurray—a “legitimate interest” in a patient’s welfare, which,

The law therefore suggests that, even after displacement, a nearest relative may continue to have some contact with professionals regarding a patient’s circumstances and decisions relating to his or her care. The only way in which an approved mental health practitioner could avoid a continuing breach of Article 8 in respect of a patient whose nearest relative has been displaced as unsuitable, would be to claim that such continued contact would be not “practicable”, relying on the definition of practicability given in the more recent 2005 Bristol City Council case referred to by the noble Baroness. To my mind, that places a burden on the social worker that should not in fact arise in any sensible legal structure. Furthermore, a displaced nearest relative continues to retain the ability, under Section 29(6) of the Mental Health Act, to apply to the mental health review tribunal annually on a patient’s behalf.

As such, the proper answer to the Article 8 problems highlighted in past legal challenges is not to widen the criteria for displacement, but to enable patient choice to determine who the nearest relative is in the first place.

5.30 pm

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Baronesses, Lady Barker and Lady Neuberger, for their work on Amendment No. 33A, which is a considered attempt to address the concerns that my noble friend Lord Hunt raised on the earlier amendment in Committee. They have made significant changes.

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However, while it addresses the issue of patients nominating totally inappropriate strangers as their nearest relative, it still suffers from the difficulties associated with patients having nomination rights over the person who can block their admission to hospital or discharge them from compulsion.

In Committee, noble Lords made reference to the role of the “nominated person” that we proposed in the 2004 draft Bill. As your Lordships are aware, that Bill would have abolished the nearest relative, while the role of the nominated person, which it instituted, was entirely different to that of the nearest relative. The role of the nominated person was that of a patient representative, so it was right and proper that the person was chosen by the patient. In the debate, a number of noble Lords did not accept our concern that a patient nominee would act at the behest of the patient even where that might not be in line with what they themselves saw as the best interests of that patient. The noble Baroness, Lady Barker, asked why there was any more reason to believe that a person nominated by the patient would be more likely to act against the best interests of the patient than one nominated under any other system.

We are not concerned that a person named by the patient is more likely to act wilfully against the best interests of the patient, but that a named person is more likely to act at the behest of the patient. We feel that a person named by the patient is likely to feel an obligation to act in the very way the patient requests. While this amendment restricts whom the patient can nominate as their nearest relative, the same concerns apply. The role of the nearest relative is not one based on acting in the name of the patient, but one that provides for nearest relatives to act in the way that they consider is right. The process of nomination can introduce an unhelpful and damaging dynamic into the relationship between the patient and the person who is to exercise the rights of the nearest relative.

SANE has told us that,

It goes on to say that it,

That is not to say that SANE opposes the principle of patient choice. However, it believes that,

We have made it clear that nearest relatives are not patient representatives, and their appointment should not be made in a way that can place further stress on family relationships at what may already be an extremely difficult time.

Where detention is for the purposes of treatment, under Section 3 of the Act, the nearest relative is able

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to oppose the detention. Having decided to retain the general scheme of the current Act, rather than to replace it entirely, we do not wish to see an end to that important safeguard. Equally, we do not wish a nearest relative named by the patient to feel obliged to oppose detention because that is the wish of the patient who nominated him, and, should he fail to oppose that detention, to see the patient revoke his status as nearest relative only to choose another perhaps more compliant relative or carer who would order his discharge.

Since we announced our changes we have had correspondence, some from a concerned nearest relative whose daughter has from time to time been detained. He reports that his daughter is often angry that he, as her nearest relative, does not use his powers to block her detention or to discharge her early. He was concerned that our amendments would mean that his daughter would be able to go to court to have him displaced as a nearest relative, because he would not act to discharge his daughter if he felt doing that was not in her best interests. We have reassured him on that point.

Various points were made about the JCHR. In its fourth report of the 2006—07 Session it questioned whether the Government intended the word “suitable” to equate to abuse. That is not the case. The intention is that it will include, but not be so narrow as to be limited to, nearest relatives who have a history of abusing or potential to abuse the patient.

Returning to the amendments, I believe that Amendment No. 33A would concern the father of the patient, to whom I referred, as well as many other conscientious and caring nearest relatives. We believe that the amendment may inadvertently undermine this safeguard, and has the potential to cause unwarranted problems in what are often, as your Lordships pointed out during Committee, complicated family dynamics.

On Amendment No. 35, I recognise that the noble Baronesses, Lady Barker and Lady Neuberger, wish the nearest relative to have a say in vital decisions affecting the patient. That is understandable, and in principle we agree. However, Amendment No. 35 is not needed and could cause real practical problems. In Section 3 of the Mental Health Act 1983, there is a duty on what will be known as the AMHP to consult the nearest relative on application for admission for treatment, unless it is impracticable or would involve unreasonable delay. That enables the nearest relative to exercise his right to block the detention of the patient.

The decision to place a patient on a CTO is quite different in nature to detention under Section 3; it is a treatment decision. The CTO is essentially an extension of compulsion and, importantly, lessens the restrictions imposed on the patient. The Act requires consultation with the nearest relative—and provides a power for the nearest relative to block detention—in decisions where the patient is facing greater restrictions to his liberty, not fewer. The requirement to consult the nearest relative when a CTO is made is not consistent with this. Paragraph 31 of Schedule 3 to the Bill amends Section 133 to ensure that the nearest relative is informed where a patient is placed

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on to a CTO, as must occur when a patient is discharged from detention. We therefore believe that no further requirement to consult the nearest relative is needed. Also, to impose a duty for the responsible clinician to consult is problematic without an associated power for the nearest relative to act should they disagree with the decision. What would happen if there were a disagreement between the nearest relative and the responsible clinician? This amendment gives no power for the nearest relative to act if such disagreement occurs.

We are also concerned that it would not be right to involve a nearest relative in cases where the patient objects. To do so may give rise to a breach of the patient’s rights under Article 8 of the European Convention on Human Rights. Even if the nearest relative were a person named by the patient—as Amendment No. 33A proposes—it would not always be the case that the patient would want the nearest relative consulted when a community treatment order is being considered. This amendment does not provide for the patient to prevent this consultation.

There is already a duty to inform the nearest relative when a CTO is made. We think the best way to address the question of consultation is via the code of practice, where it is possible to set out the circumstances where consultation should and should not take place. The draft illustrative code for England includes material to that effect; we can, of course, consider what else might be needed in due course and will listen to the views expressed by noble Lords. We consider that there is an important place for the proper representation of patients. There is a role for a person, or persons, of the patient’s choice to be able to put forward their views and advocate on the patient’s behalf, as I described in our last debate.

We have provided guidance to practitioners in the draft illustrative code of practice on when carers and nearest relatives should be consulted, and the important role that they can play in a patient’s care and treatment. There will also be further opportunities for stakeholders’ views to be incorporated before the code is laid before Parliament.

We do not believe that the amendments in question are the appropriate way of achieving effective patient representation, but that we already have the correct balance in the existing provisions for carers to be prioritised when determining the nearest relative. I therefore ask that the noble Baroness considers withdrawing her amendment.

Baroness Neuberger: My Lords, I thank the Minister for her response. She will hardly be surprised to hear that I am slightly disappointed. We accept part of what she said, particularly her fair point on Amendment No. 35 about the nearest relative not being able to act on the CTO, which is something that we will take back and look at. However, we are not convinced by the rest of the argument. This is a point that goes back to Committee. We are not convinced of the real difference between mental illness and physical illness or that one does not let a person make even limited choices about who can act as nearest relative

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on his behalf. We listened to what the Government had to say and limited the list concerned. We believe that there is enough differentiation in the system between people with physical and mental illnesses. We think that this is a difference too far, and that it is unnecessarily restrictive. We will take this away and look at it closely, and we will probably come back at Third Reading. Having made clear that we are not as yet content, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Community treatment orders, etc]:

Earl Howe moved Amendment No. 33B:

“(b) if the responsible clinician is not a medical practitioner, the responsible clinician has arranged for the patient to be examined by— (i) the registered medical practitioner who has been professionally concerned with the medical treatment of the patient; or (ii) if no such practitioner is available, a registered medical practitioner who is an approved clinician; and the medical practitioner has made a written recommendation in the prescribed form including a statement that in the opinion of the practitioner the relevant criteria set out in subsection (5) below are met; and”

The noble Earl said: My Lords, in speaking to Amendment No. 33B I shall raise an issue that has caused considerable and deep divisions between the Government and the mental health community, namely, the conditions which should determine the threshold of entry on to a community treatment order. I shall speak also to Amendments Nos. 36A, 47 and 59.

The Minister should note that, in moving this amendment, I do not oppose CTOs outright, even though there is a strong argument for doing exactly that. If there was one speech in Committee that summed up the intellectual case against CTOs, it was that of the noble Baroness, Lady Meacher. The supposed effectiveness of CTOs as proclaimed by the Government is not backed up by any convincing evidence. Even more serious than that, there is a real risk that the coercive element in CTOs will undermine the whole basis on which community mental health services are provided through assertive outreach teams and the rest. Those services depend for their success on positive engagement and trust. It is very difficult to have benevolent treatment and coercion operating side by side; indeed, some would say that it is impossible. At the very least, the combination sends a very mixed message to the patient.

The Minister seems to take it as self-evident that being on a CTO is better for a person than being detained as an in-patient because it is less restrictive, but he overlooks an important fact: although a patient may have been ill enough to be placed in hospital at the outset of the process, by the time the issue of discharge arises, that is no longer the case. At that stage, the issue is whether a person who is well enough to enter the community should remain under the enforceable and coercive power of an order. It is by no means self-evident that, for the generality of

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patients, continuing coercion represents an ethical or therapeutically effective way forward.

We have to be clear that these orders are likely to be exceedingly restrictive in some cases. Clinicians will need to think carefully before imposing them because there is no doubt that any CTO will interfere with a person’s family and private life, sometimes severely. Yet the Bill tends to encourage the opposite approach—the noble Baroness, Lady Meacher, made this point—because it is framed in such a way as to put pressure on professionals to impose CTOs, even when they may not really wish to, purely to cover their own backs. I do not think we should put professionals in that position, which is one of the main reasons why I feel we owe it to them and to patients to define as closely as we can the cohort of people whom we are prepared to accept could be made subject to an order.

5.45 pm

The amendments take as their starting point a premise that I am not sure the Minister has ever really accepted, which is that, leaving aside people who fall within Part 3, patients who retain full decision-making powers in relation to their own treatment should normally be allowed to take control over their own lives, just as anyone with any other health condition should be able to. Only where decision-making powers are impaired is there an ethical case for compulsion. Furthermore, I believe that those who are not a serious risk to others can be treated satisfactorily by the existing provisions of the Mental Health Act relating to leave of absence and supervised discharge.

Although supervised discharge is little used, it has been proven to be effective in most of the cases in which it has been used over a wide range of clinical and social problems. It is suited to patients who are in hospital under compulsion and whose condition has stabilised to the extent that they do not require close hospital supervision but who are not well enough to be fully discharged from medical care. It is a supportive regime that strengthens rather than weakens the therapeutic relationship. One of the interesting features of the research into the use of Section 25 supervised discharge is that it improves compliance with medication. The absence of a coercive element does not seem to matter. Apart from the fact that that finding calls into question the whole rationale for CTOs, it provides good grounds for leaving out Clause 30 and retaining the option of supervised discharge. If one accepts that—and the vast majority of mental health professionals do—it is clear that we need to exclude from the ambit of CTOs any patient who represents no serious risk to others and can take balanced decisions about his or her own treatment.

So what kind of patient is a CTO potentially suited to? The Government’s argument for the use of CTOs has focused on cases where a person poses a serious risk to others. The thought is that this group of people will benefit particularly from the blend of supervision, care and control and the possibility of recall that a coercive outpatient system provides. As far as hard evidence goes, the jury is still out on whether that assumption is valid in the sense of CTOs being able to prevent homicides. We simply do not know. However,

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in an effort to be fair to the Government, I am willing to take their belief at face value for the purposes of the Bill. Accordingly, the amendment states that those who pose a serious risk of harm to others should be liable to be placed under a CTO; furthermore, they should be people whose ability to make decisions about receiving medical treatment is significantly impaired. In a nutshell, we are dealing with patients who do not, at the relevant time, accept that they are a risk to others, despite being advised that they are, because of the nature of their mental disorder. In the accepted jargon, they lack insight.

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