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Mental Health Bill [HL]

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. 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, "““a nearest relative cannot be rendered unsuitable on the basis that another person is deemed to be more suitable””." 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.