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Mental Health Bill [HL]

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 pose 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. Their 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 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.