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Mental Health Bill [HL]

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. They 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 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, which 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 abouthis 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 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 avalid 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.