Complications from Abortions (Annual Report) Bill [HL]

Baroness Barker Excerpts

Committee stage
Friday 6th June 2025 Lords Chamber

The facts in this case are that all medical opinion, from the BMA and the Royal College of Midwives to obstetricians, gynaecologists, nurses and GPs, is behind the decriminalisation of abortion and none sees the data issue as critical, whereas decriminalisation is critical because it is a healthcare matter adversely affecting women. The general population agree. Numerous polls since 2020 show that, whether it is 76% or 82%, the vast majority of people agree that abortion is a woman’s right to choose. By debating this in in your Lordships’ House even further, I fear we are getting more and more out of touch when we talk about data and not about the fundamental issues that the other place has been debating. I am very pleased to support the clause not standing part today, and I hope that the noble Lord, Lord Moylan, may, on reflection, decide not to continue with this Bill.

[Baroness Barker (LD)]

My Lords, I, too, spoke at Second Reading and I welcome the opportunity to speak again to set in context what the Bill is part of and is all about. I, too, have to disagree fundamentally with the noble Lord, Lord Weir of Ballyholme, though not on the necessity for accurate data and statistics. You cannot separate the Bill from the wider context of what is going on in the politics of reproduction, reproductive health and gender identity.

I spoke last time about the international campaign being organised largely by religious nationalists across the USA, Europe and Russia, which has a specific aim to destroy human rights, reproductive rights and the international organisations responsible for upholding them. If people wish to doubt me, I suggest they read any number of reports, but the one that sets out the fundamental basis of the campaign is from 2018 by the European Parliamentary Forum on Population and Development, Restoring the Natural Order, which sets out how a small group of people have set out to overturn the human rights framework that we developed following the horrors of World War Two and over the past 50 years in order to “restore the national order”. They have a number of specific objectives within that. Key among them are making sure that the definition of marriage and family pertains only to heterosexual people, and definitely overturning access to abortion and contraception. Overturning divorce laws is part of what they want to do as well as rejecting compulsory sex, reproductive and health education and, perhaps most interestingly of all, making sure that the first and primary educators of children must always be the family, even if that is to the exclusion of public education. It is a clear agenda.

The noble Baroness, Lady Bennett, was right. If you want to see how it is unfolding, just look at what is happening in states in America and in Hungary and Poland, because what is happening in the USA is not stopping there. It is funded by billions upon billions of dollars in Europe, mostly emanating from America but also from Russia, and in Africa. This is part of that.

It is important and relevant that we look at that today because the data you get relies entirely on the questions you ask, and the questions you ask are determined by the outcomes you want to achieve. As some of us watch this campaign unfolding in its different manifestations, one thing we have noticed is that it is moving on. The people behind it—the Alliance Defending Freedom, the Heritage Foundation and all those massive Christian nationalist organisations and Catholic and other religious institutions in Europe—have realised that, to make to make their campaign more widely palatable, they have to move away from being largely a bunch of male-led organisations. They have removed themselves through a number of different front organisations and changed the language they use to talk about rights and so on.

From those of us who have fought for human rights for 50 years, they have learned the importance of having your messages framed in terms of rights—the rights of people to resist a liberal elite that argues for things such as equality and equality laws, which are inevitably disproportionately affecting some people, particularly poorer people. They say, “Rather than relying on what we’ve done so far, we actually need to go further. We need to create the information that will back up our campaign”. Interestingly, in some cases they have set up private universities which produce research that appears to be proper academic research but is in fact grey research, always leading inevitably to the conclusions that support their back-up. They produce books and reports. This is not new. Noble Lords in this House have for years seen the dodgy dossiers that come from the Christian Institute—all that kind of stuff. That is what is happening and that is why it is important that we make sure that the statistics that we get on abortion—and, incidentally, access to contraception—are timely and accurate.

Noble Lords have mentioned this, and they are absolutely right: the politicisation of data in this area is really important. The increase in the number of women being prosecuted because they have had a miscarriage comes as a direct result of this campaign. I do not think that those of us on our side of the argument have anything to fear. We kept statistics when we introduced telemedicine and medical abortion. In advance of it, those on the other side of the argument were full of dire warnings that all sorts of crimes would be committed. They were not; the statistics and the data have shown that.

I have nothing against the improvement of the collection of data in the health service, but my plea to the noble Baroness, Lady Merron, is that, when the Government look at this issue—and I believe that we should—I ask her to ensure that the statisticians are able to resist the political pressure being exercised across all the different parts of government and organisations because of this campaign, which is being waged on a number of different fronts. Ultimately, it is a pernicious campaign that will damage all sorts of people, including minorities, but will be particularly harmful to women and girls.

[Baroness Boycott (CB)]

My Lords, I join this debate to follow up the powerful speech by the noble Baroness, Lady Barker. I have been involved in women’s rights for a very long time; I started a magazine called Spare Rib in 1972 and within that we campaigned all our lives for things such as abortions. I can honestly say that I think the life facing a young woman today is more frightening than the life that faced me as a young woman.

I look at what is happening online, where you can download a very simple app. I had a lunch for Laura Bates the other day, which many noble Lords came to. She explained that I could download an app, take a photograph of the noble Baroness, Lady Freeman, right beside me, press a button and have a photograph of the noble Baroness naked—not with Kate Moss’s body, but with the noble Baroness’s body. You can do this at 11 or 12. It is really threatening being a young woman today. There are many things that are out of our control. We, as older women who have had successful lives, have to fight fantastically hard to protect this next generation from a lot of the stuff that is coming down the pipe.

I very much listen to and know about the conspiracies and the power happening in America to try to alter fundamental rights such as abortion. I find it extremely distressing that measures such as this should come to the House of Lords and even be debated seriously, and that there should be a politicisation of women who face abortion. Frankly, nobody wants an abortion; I cannot think why people ever thought that. Nobody wants one. There are several things you do not say when you ask yourself, “What do I want to do in my life?” No one says, “I want to be an alcoholic”, or, “I want to have an abortion”, or, “I want to be a druggie”. You do not put those on your wish list. They happen and we should protect women and support them all the way through, as the noble Lord, Lord Patel, spoke about in his fantastic debate earlier. These are people who need our protection and our love. I really support the noble Baroness, Lady Thornton, in bringing this forward. I will take part in any further debate because this is vital, and we are vital to this. Our voices really matter here.

Healthy Life Expectancy

Baroness Barker Excerpts

Tuesday 20th May 2025 Lords Chamber

[Baroness Merron (Lab)]

The right reverend Prelate is quite right to draw attention to mental health impacts and the inequality of their incidence. As I mentioned, there has to be a cross-government approach because if we address it through health alone, we will not succeed. Factors such as poor housing, low income, worklessness and disability, as well as ill health and many other factors, affect healthy life expectancy. That is why we are approaching it not by a separate strategy, but by a mission-led approach.

[Baroness Barker (LD)]

Through the work of people such as Professor Michael Marmot, the Government know about the different incidences of ill health across the country. Retailers, particularly food retailers and high street pharmacies, know about the incidence of ill health way in advance of that because they have the data on consumption and purchasing behaviours. Will the Government work with them, particularly the large supermarkets, to increase the availability of data in advance, so that we can prevent some of the incidence of ill health rather than getting the NHS to pay for it when it has happened?

Mental Health Bill [HL]

Baroness Barker Excerpts

Report stage
Wednesday 2nd April 2025 Lords Chamber

I am grateful to my noble friend the Minister for meeting me and the noble Baroness, Lady Barker, before Report and discussing these issues of the gaps in human rights protection after the Sammut case and how those gaps are to be dealt with. As I mentioned in our meetings with the Minister, there are other areas of outsourced health and social care affected by the Sammut ruling, including children’s social care. I have written to my noble friend Lady Smith of Malvern about the possibility of incorporating an amendment similar to Amendment 54 for outsourced social care and education in the Children’s Wellbeing and Schools Bill. There is also a gap for other areas of outsourced health and social care funded from the NHS, including NHS continuing healthcare and any healthcare for physical illnesses commissioned by the NHS. If there is to be—and I think it is likely—an NHS Bill in this Parliament, that could provide a vehicle to close any remaining gaps in human rights protection for outsourced health and social care. For now, I commend what is a simple but important amendment, and I hope it can be supported.

[Baroness Barker (LD)]

My Lords, at this late hour I do not intend to speak at great length, but I do not want anybody to misinterpret that as in any way diminishing the support for the amendment of the noble Baroness, Lady Keeley. I believe that this is very important.

It is important for two main reasons. The first is that we all know that the Human Rights Act is under attack on many different fronts for many different reasons. I happen to be—it is perhaps fair to say or apt to describe as—a human rights absolutist: I do not believe that human rights can be picked or that you can pick and choose whose human rights you support. Human rights are universal. You cannot call yourself a human rights supporter unless you are prepared to stand up for the human rights of people you do not like and you do not care for. I suggest that among the people whose human rights are most at risk are those who are stuck away in care homes without anybody paying any attention to them—perhaps without relatives —and about whom, frankly, nobody cares. They are the people who are at the mercy of, particularly, providers who have a commercial interest in maintaining them in the positions where they are rather than seeking to address their care in more fundamental ways. If nothing else, I want us to acknowledge that.

Secondly, I want to pay tribute to all those health professionals and to people such as solicitors who choose to work in this most unglamorous part of the legal system. There is no great financial reward in putting yourself out to stand up for these people, but they do. It is their dedication that has brought this back to the attention of people in this House.

The noble Baroness, Lady Keeley, and I were to a certain extent, as we all have been throughout the passage of the Bill, assuaged by the noble Baroness, Lady Merron, and the very personable way in which she has listened to all of our concerns, but we were not yet convinced that the Government, who are uniquely placed to stick up for the rights of these people, are doing so to the extent that they should. That is why we have taken the time and troubled your Lordships this evening. I hope that all of the provisions of this amendment are taken up by the Government.

[Baroness Chakrabarti (Lab)]

My Lords, I declare an interest as a member of that persecuted minority of activist human rights lawyers. Crucially, it is a privilege to follow the noble Baroness, Lady Barker, and my noble friend Lady Keeley, who have done so much wonderful work on this. I also commend the brains trust of mental health professionals and lawyers who sat behind them.

On 24 February, we had a lengthy discussion on this in Committee, and it was one of the best debates in which I have had the privilege of participating in your Lordships’ House, and not just because everybody agreed. But they did. I do not remember a single person speaking against my noble friend’s amendment in Committee. We disagree well in your Lordships’ House, but it says something that not a single person disagreed. In particular, I commend the eloquent speeches on that day by the noble and learned Baroness, Lady Butler- Sloss, and by the noble Earl, Lord Howe, on the Opposition Front Bench.

I have been very excited to hear that my noble friend the Minister has been in such constructive meetings with my noble friend Lady Keeley. Whatever debates there are about contracting out vital public services, nobody on any side of this House wants people to be treated less decently and with fewer human rights because of a service being provided directly by the state or a decent contractor. With that, I look forward expectantly, with hope in my heart, to the response of my noble friend, who is very experienced, decent and wily.

Mental Health Bill [HL]

Baroness Barker Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

[Lord Davies of Brixton (Lab)]

I am extremely pleased that the noble Lord, Lord Kamall, has moved his amendment for the Opposition. I will not be voting for it, but I am pleased that it has been moved because in Committee I moved amendments along the same lines.

I know that my noble friend the Minister agrees with the suggestion that there is a challenge here for the Government—she told me so. This issue is not going to go away, and it would be a constructive way forward for there to be a meeting—I would ask to be included in any such meeting. We are clear about where we want to get to, and that the appropriate phrase is “right care, right person”. I do not think that that is currently being delivered, so something needs to be done. I hope that we can move to a better system, in a constructive way.

[Baroness Barker (LD)]

My Lords, like the noble Lord, Lord Davies of Brixton, I find myself in exactly the same place. We all know why the police have said that they are not the appropriate people to be first responders when somebody is having a mental health crisis and presenting a danger either to other people or to themselves. We also know that not putting anything in place, or not putting the right people in place, means that somebody having a crisis will not necessarily be seen by an appropriate person.

A number of us have looked at this and talked to people in the field, and we think that what will happen is that there will be a response from somebody on the front line in the National Health Service, either in an A&E department—because that is where a lot of people will go—or, more likely, from an ambulance. That will put the ambulance service under even greater strain and pressure than it is under now.

It is the hope of those of us who have been involved in the discussions so far—and the intent, I think, of the noble Baroness, Lady May, who is the prime mover behind this—that we do not do that. We should not wait until there is a terrible incident in which somebody is badly harmed; we must try to foresee that situation.

I suspect that, around the country, since the police have taken the decision that they have, front-line health services have had to come up with new ways of responding. The issue has not gone away; people are still going to have mental health crises in which they are a danger to themselves or seem to present a danger to others.

I propose that we follow the suggestion from the noble Lord, Lord Kamall, that there be further discussion on this—preferably with people from mental health organisations and from different parts of the NHS, as well as the police force—to see whether we can come up with something that will plug a very obvious gap.

As I have said before during the passage of this Bill, this is the last chance for the next 10 to 15 years to pass legislation on this subject. We need to behave diligently, take appropriate action now and not wait to rue the day in the future.

[Baroness Merron (Lab)]

I thank the noble Lord, Lord Kamall, for tabling these amendments. They seek to amend Section 2 of the Mental Health Act, which relates to admission for assessment, and Section 3, which relates to admission for treatment, as well as Section 5(4), which relates to detention for six hours pending application admission.

I emphasise that the police do not currently have the ability to detain under Sections 2, 3 and 5 of the Act. These amendments, as the noble Lord has referred to and as we discussed earlier, would give police additional powers, where they currently do not have powers to intervene. The noble Lord will be aware, and he mentioned the fact, that we do not support extending police powers in this way, and we understand that the police do not support an extension either.

I am very happy to continue discussion with the office of the noble Baroness, Lady May, as I have done previously. I know that my noble friend Lord Davies would also welcome a discussion, which I am very happy to commit to.

The noble Lord asked for amendments on Third Reading, but such amendments are to clarify any remaining uncertainties, to improve drafting and to enable the Government to fulfil undertakings given at earlier stages of the Bill. I am sure the noble Lord will understand that amendments are therefore restricted to technical points. For all those reasons, I cannot give the agreement that he sought on an amendment at Third Reading, as it is not within scope to do so.

With regards to the ambition to reduce police attendance at mental health incidents, we recognise the pressures that police are facing, which noble Lords have highlighted, and agree that, in many cases, it is far preferable for those in mental health crisis to be responded to by health and care professionals. However, action is already under way to address this. Almost all police forces in England and Wales are implementing the “right care, right person” approach—a police-led initiative to reduce inappropriate police involvement in cases where people have health or social care needs. There has already been a 10% decrease in Section 136 detentions last year. We are taking steps to improve mental health services to avoid people reaching a crisis where police involvement may be required in the first place, which is a far more preferable position to be in. That includes through the Government’s commitment of £26 million of capital investment to open new mental health crisis centres, which are far more suitable environments for those in mental health crisis to receive care and treatment.

Therefore, extending these legal powers currently held by the police to other professionals would represent a major shift in roles and responsibilities for health and care professionals. It would place significant additional pressures on the NHS and potentially lead to staff, patient and public safety issues which mental health and urgent and emergency care leads have already raised significant concerns about. It is for all these reasons that I ask the noble Lord, Lord Kamall, to withdraw his amendment.

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[Baroness Barker (LD)]

My Lords, at this stage I do not wish to detain the House for very long. I will simply reflect on the fact that, when we debate mental health legislation, we are always trying to do three things: one is to update current thinking in legislative circles on what patients want and need; the second is to try to gently confront the sometimes conservative disposition of practitioners, by pushing for progress; and the third is that we try to avoid the situation where the biggest imperative for legal change is scandal and crisis when something goes wrong.

The amendments put forward by the noble Baroness, Lady Watkins, along with others proposed by noble Lords in this group, do that. They have reflected on what has been seen over the last 10 to 15 years in the patient experience and the most progressive aspects of professional development, in particular the growing acceptance that patients can have informed insight into their condition, even if they are at times very ill.

That is why a number of practitioners—admittedly in the face of some professional resistance in other quarters—have gone down the route of advance choice documents. The key thing I will say to the Minister is this: it is always difficult in mental health practice to come across evidence which is up to the same standards that we have in physical health—namely, randomised controlled trials. However, there have been randomised controlled trials of advance choice documents in a number of different places around the world, and in the United Kingdom. They may not always have been called advance choice documents—they may have had other names—but the findings from those trials say that these are cost-effective interventions.

However, we know that there will not be widespread uptake, that attention will not be paid to what people have put in those documents, and that they will not become standard practice unless they are in law. That is why the noble Baroness, Lady Watkins, was right to come back to try to put this in the Bill.

[Baroness Merron (Lab)]

My Lords, I thank noble Lords for their contributions. I will take each amendment in turn.

The points on trauma were made extremely well and sensitively. Amendments 12 and 13 recognise the impact that childhood trauma can have on psychological well-being. This is indeed so. However, it does not apply to all patients, and that is why we do not wish to restrict decision-making by giving particular reference to this in legislation. I can point to Clause 8, which already requires decision-makers to consider the nature and degree of the disorder and all other circumstances, which could include childhood trauma. The definition of medical treatment under the Act is broad, as noble Lords have seen. Therefore, we expect it to cover interventions aimed at minimising distress and promoting psychological well-being. Additionally, NHS England’s care standards require that in-patient care be trauma informed.

Apricity Fertility Closure

Baroness Barker Excerpts

Wednesday 12th March 2025 Lords Chamber

[Baroness Merron (Lab)]

My noble friend raises an extremely important point, which I will of course cover in my meeting tomorrow. It may be of interest to know that the Advertising Standards Authority and the HFEA issued a joint enforcement notice in 2021 to ensure that fertility clinics and others were aware of the advertising rules and were treating consumers fairly. That remains in place. The ASA periodically reviews compliance with its rules. Its recent review in the fertility sector found far fewer absolute claims than it had found previously and that the level of compliance is good. That is not to say that it is good in all cases, and I agree with my noble friend’s point.

[Baroness Barker (LD)]

My Lords, the law governing human fertilisation and embryology in this country built on the outstanding work of Baroness Warnock. It was carefully crafted so that it rests on principles that endure, but it was designed in such a way that it could be regularly updated to deal with advances in scientific knowledge and changes in society. Does the Minister agree that this is an indication that we have come to a point where that legislation needs to be reviewed? In order to do that, will the Government commit to beginning the process of consultation that must take place before any legislative review comes to this Chamber?

[Baroness Merron (Lab)]

I agree with the noble Baroness’s observations. The legislation goes back to 1990. We are in 2025, and there has been an advent of many new technologies, techniques and business models—for example, the noble Baroness, Lady Owen, referred to Apricity—that were never imagined just a few years ago, let alone in 1990.

The majority of clinics are privately owned. Many are part of large groups with external finance. Elements of fertility care and associated treatments are increasingly offered online or outside HFEA regulation. There is a huge challenge here. That is why we are in discussion with the HFEA, and we will be in discussion tomorrow.

Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Baroness Barker (LD)]

My Lords, I will try to draw together some of the strands that we have been discussing in this debate. When the Minister responds, please will she share with the Committee the department’s and the Government’s thoughts on workforce planning and the modelling they use for the prediction of demand?

As I listened to my noble friend Lady Parminter eloquently introduce her amendment, it brought to mind friends of mine. They have been in the position where their child was diagnosed with a very severe eating disorder, but they were told, “You are not sufficiently ill for anything to happen”. From that stage, nothing happened. If it were a physical illness, there would be some kind of process—although maybe not a care pathway. I am sorry, but I am one of those people who is very cynical about the use of the phrase “care pathway”; it is very overused throughout the whole of health, and particularly in mental health. People are diagnosed and then are just left, until they become so ill that they are in crisis and it is impossible to ignore them. We have seen the trends in the number of young people with eating disorders, which my noble friend Lady Parminter mentioned. What is the department doing to forecast the demand for specialists of that nature in future?

I want also to return to some of the conversations and debates that were sparked by the noble Lord, Lord Davies of Brixton. We know that the police are going to withdraw from being the first responders when people are in crisis. What modelling are the Government doing in terms of the community provision that is needed to deal with those people—who will still be in crisis? They are not going to stop having crises; in fact, they are probably more likely to show up in in hospitals than ever before, because that is where people go in the middle of the night when they have a crisis.

This is the sort of argument that the noble Baroness, Lady Tyler of Enfield, was trying to get to in her discussion of having a mental health commissioner. Who will be the person who is in a position to take the Government to task for their planning and preparation for demands on the health service in the future? That is the kind of thing that we are trying to get to, and which all of us, in various different ways, have been trying to get to all afternoon.

[Baroness Hollins (CB)]

Can I just say that I did not talk about a “care pathway”? Perhaps I should have said the “patient journey”, but I was talking about the patient pathway—the actual experience of the person—which is not separated in their life.

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[Baroness Watkins of Tavistock (CB)]

My Lords, I support all three amendments in this group but make the point that a lot of NHS care is now commissioned into the independent and charitable sectors. It is vital that records are kept in any care setting that is paid for by the NHS, not just by NHS facilities. I also believe that recording will reduce these kinds of behaviours because it will make people think much more carefully, particularly in long-term segregation. As you get to 10 days, people will be thinking, “How can we change the care we are delivering to avoid that 15-day reporting sanction?”. It really is imperative that we do this. We are treating some of the people who have the greatest needs in our society really badly.

[Baroness Barker (LD)]

My Lords, we on these Benches offer our support to the noble Baroness, Lady Hollins, for her two very thoughtful amendments and the way in which she introduced them. However, I want to turn our attention to Amendment 146, in the name of the noble Earl, Lord Howe.

I was a colleague of Norman Lamb, who was formerly a Minister in the department. He was one of the people who was, as a Minister, most active in addressing the issue of the overuse of force in mental health. This is a campaign that he has continued to develop in his chairmanship of South London and Maudsley NHS Foundation Trust. It is a subject that I am very glad we are focusing on again.

Anybody who has visited a mental health facility in which there are people who are having acute episodes will know that there are times when, for the safety of the person and the safety of others, it is necessary sometimes to use restraint. However, as I think the noble Earl was alluding to in his introduction, the overuse and frequent use of force is often an indicator of substandard care. Therefore, it is very important that incidences of use of force and the reasons for it, as in his carefully crafted amendment, are recorded.

There are two things that I want to pick up with the noble Earl. His amendment is very carefully crafted. In his introduction to it, he referred throughout to children, but his amendment relates not just to children but to all mental health patients. For that reason, I wish to concentrate on proposed new subsection (9). It says:

“In subsection (4)(k) the ‘relevant characteristics’ in relation to a patient mean—”,

and then lists all of the protected characteristics within the Equality Act, with one omission: gender reassignment. I therefore wish to ask him simply why people undergoing gender reassignment do not merit the same protection as everybody else.

[Baroness Merron (Lab)]

I thank noble Lords for their contributions. Let me first turn to Amendment 146, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall.

The amendment largely replicate duties under Section 6 of the Mental Health Units (Use of Force) Act 2018 for all patients in NHS mental health units. We recognise that the data suggests that the use of force for children and young people is still far too high, and we are working with NHS England to address this. Although the section I have referred to has not yet been commenced, the guidance is published and the data is already being recorded and reported, and we plan to commence the duty formally later this year. The amendment as drafted would capture a much broader range of patients than the use of force Act does—for example, all patients who are being treated for dementia or delirium in an acute hospital. Furthermore, it is not clear what use will be made of that data. Therefore, the volume of new data collection processes could be significant, but the benefits that would result from this are somewhat unclear.

I turn to Amendments 155 and 156, which have been put forward by the noble Baroness, Lady Hollins, regarding long-term segregation. The amendments are supported by the noble Lord, Lord Crisp, the noble Baroness, Lady Browning, and my noble friend Lady Ramsey, both of whom made important contributions to the debate.

Like other noble Lords, I thank the noble Baroness, Lady Hollins, for her work on this issue over many years, including her significant report, My Heart Breaks, which the noble Baroness, Lady Browning, rightly referenced. We are here today, I believe, in no small part due to the tenacity of the noble Baroness, Lady Hollins, and others who have fought for better outcomes for people under the Mental Health Act. I thank them all.

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[Lord Pannick (CB)]

My Lords, I too support the amendment from the noble Baroness, Lady Keeley, and I agree with every word spoken by the noble Baroness, Lady Chakrabarti. I am here today because I have an interest to declare, which is that I acted—unsuccessfully—in the case that caused the problem. In YL v Birmingham City Council, I was the unsuccessful counsel for YL, although I take comfort from the fact that of the five members of the Appellate Committee who sat on that case, the two who dissented were Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale—a formidable combination indeed. The noble and learned Baroness summed up the point in her dissenting speech in the Appellate Committee. She said that it is a function of a public nature for the purposes of the Human Rights Act when it is performed pursuant to statutory arrangements, when it is performed at public expense, and when it is performed in the public interest. It is as simple as that. I agree with her, I agree with the noble Baroness, Lady Keeley, and I very much hope the Minister will accept this amendment.

[Baroness Barker (LD)]

My Lords, it is usual in your Lordships’ House for the people with their names on the amendment to speak first; noble Lords will understand why I stood back, given the previous two speeches. I understand how the noble Lord, Lord Pannick, felt, having the noble and learned Baroness, Lady Hale, in his corner. I do not want to repeat anything that the noble Baroness, Lady Keeley, has said, because she summed it up extremely well.

We are very lucky; we get to talk to lawyers of calibre and fame. But I want to stand up for the solicitors, lawyers and independent mental health professionals who, day in and day out, go and see the people who are in real distress or are forgotten about, who nobody else is terribly interested in. They make it their business to make sure they are treated like human beings, wherever they are. I simply take the occasion to say this, because right now, we have to take every opportunity we have to defend the Human Rights Act and the application of universal human rights. It is no good having human rights that you pick and choose and apply to the people you like. It is why I picked the noble Earl, Lord Howe, up on his previous amendment.

We are very bad at explaining the importance of the Human Rights Act to people in the community; it is fair game for every newspaper hack or whoever wants to take a go at it, but it is about making sure that vulnerable people are treated as full human beings in our society. Therefore, I hope that even if we have not managed to fashion the exact perfect amendment, the noble Baroness will agree that this deserves to be in the legislation.

[Baroness Butler-Sloss (CB)]

My Lords, I came in today particularly to support Amendment 149, as others, including the noble Lord, Lord Pannick, have clearly done. What we are asking for is either for the loophole to be closed or for clarification. I share with the noble Baroness, Lady Keeley, the view that the judges produced a somewhat narrow definition of the situation. I agree with everything that has been said, and I do not want to repeat it, but with a narrow interpretation by the courts and with some lawyers here in Parliament and others who have put things so beautifully, Parliament can put right what is happening. That is what I am here to support: Parliament putting right what at the moment is not clear, is a loophole and needs to be put right.

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[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Earl, Lord Howe, for his reflection on both the Almighty and our legal friends, and I thank noble Lords for their contributions to the debate on these amendments.

I turn first to Amendment 149 and thank my noble friend Lady Keeley, supported by the noble Baroness, Lady Barker, not just for tabling the amendment but for the time and attention they and their expert advisers have given to this. It has been much appreciated. I take this opportunity to express my condolences to the family of Paul Sammut for the tragic loss of their loved one.

We recognise the concern around unequal coverage and rights to redress under the Human Rights Act. The Sammut judgment highlighted the need to clarify the position of private health and care providers under the Human Rights Act when providing care arranged and paid for by the NHS or local authorities, something that has come up a number of times in our debates. I am grateful to my noble friend Lady Chakrabarti, the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for their good humour and their expert contributions on this matter. We are actively considering this matter and I look forward to engaging further with my noble friend Lady Keeley and the noble Baroness, Lady Barker, ahead of Report.

On Amendment 160BC in the name of the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall, deprivation of liberty for the treatment of a physical health disorder is always an important decision. We are concerned that this amendment would, in effect, remove the need for a separate authorisation where physical health treatment is needed. We do not think it is right to undermine the protections available under the Mental Health Act to patients who are already, as we have heard, in a vulnerable position.

Furthermore, the situation this amendment applies to is rare and, where it does arise, there are already frameworks in place to authorise a deprivation of liberty. These include: Section 17 leave under the Mental Health Act; deprivation of liberty safeguards under the Mental Capacity Act; and, in certain circumstances, the High Court. The safeguards provided by these frameworks are different, and decision-makers must use their professional judgment to decide which is most appropriate for the individual. We feel that retaining this flexibility is important.

While we recognise that there is, at times, confusion among clinical professionals around which legal framework to apply—it is a point well made—we do not believe that this amendment would bring the necessary clarity. We feel this is best clarified using the Mental Health Act code of practice. I say to the noble Earl, Lord Howe, that I will reflect on the detailed points that he raised and will be happy to write to him further on them. For all these reasons, I urge noble Lords not to press their amendments.

[Baroness Barker (LD)]

Before the Minister sits down, I thank her very much, but I wonder whether she could include some of the rest of us in her correspondence with the noble Earl? We are back to the same issue of the interface between the Mental Health Act and the Mental Capacity Act. We need to keep coming back to this to get more clarity on it, because nobody understands it now. Whatever the Minister comes up with will be only a sticking plaster until the point at which we recognise that these two pieces of legislation continue to rub up against each other and cause confusion. They need to be addressed together.

So, would the Minister please include more of us in the correspondence, including the noble Baroness, Lady Browning? A number of speeches she has made throughout our deliberations have indicated that this is exactly the sort of issue that she is concerned about, too.

[Baroness Merron (Lab)]

Yes indeed, I will be pleased to include the noble Lords referred to.

Women’s Health Strategy

Baroness Barker Excerpts

Tuesday 4th February 2025 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

I would be glad to give information to the noble Baroness, whom I thank for reminding your Lordships’ House of the situation that we inherited—600,000 women on gynaecological waiting lists—and the challenge before us. My honourable friend in the other place was quite right about the planning guidance, but I commend the effort of the noble Baroness’s Government for pump-priming the introduction of women’s health hubs to the point where there are some 80 across the country—in nine out of 10 areas, there is at least one. It was never a long-term planning situation. The noble Baroness will also be aware of the informed observation from the noble Lord, Lord Darzi, that planning guidance has too many specifics. We therefore needed a new approach, which is what we have done. The planning guidance is not the catalogue of all the levers, nor of all that happens, in the NHS.

[Baroness Barker (LD)]

My Lords, women’s health hubs have proved enormously popular with practitioners, who are able to give multiple treatments in one session, and with women, who no longer have to take time off on different days to go to different clinics for different procedures. Given this, why are the Government not backing this cost-effective strategy, not least because it prevents women showing up at A&E, which is far more expensive?

[Baroness Merron (Lab)]

We are not closing women’s health hubs—it is important to put that on record. I have already said how successful the pilot has been; it therefore does not require a further target. I hope that noble Lords have seen that the changes to the planning guidance move away from the old centralised operating model to give more control and direction locally. As I said, the decision not to mandate women’s health hubs reflects a new approach to the guidance: fewer national directives and more empowerment of local leaders. Women’s health hubs are also described in the elective reform plan, which is one example of another area where their importance is recognised and boosted.

Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

We need these services in the community, across so many areas and in so many aspects. If we are going to deliver this Bill, those services have to be there. Surely, Parliament should be able to make a regular assessment of what provision there is, and the Government should have to account for that.

[Baroness Barker (LD)]

My Lords, this is an interesting collection of amendments. I suggest that they are all slightly flawed but with good intent behind them.

In relation to Amendment 99 in the name of the noble Lord, Lord Kamall, as members of the scrutiny committee will know, we spent a long time talking about what happens in A&E departments. Our committee was very lucky to have Rosena Allin-Khan as a member; she is not just the MP for Tooting but a practising A&E doctor at St George’s Hospital. When we were wandering off into theoreticals, she managed to drag us right back to what actually happens.

The key issue that we returned to, as a committee, was that no matter what the police’s formal position is about their involvement in mental health crisis treatment, they will be there. First, people will go to A&E because the lights are on and, secondly, some of them will be very distressed, so members of the public and members of staff will expect the engagement of police officers. A lot has been said about the particular legal status of somebody who is detained in hospital. They are not technically detained, because they are not in a mental health facility. Yet we know that there is a need for spaces within A&E that are properly built and staffed as safe havens for a time, so that somebody who arrives in a state of distress can be in an appropriate place where they can become calm and, therefore, not be taken off inappropriately into the criminal justice system.

I can see what the noble Lord’s amendment is getting at. It deals with it in a very partial way. Following our discussions, and the discussion we had the other day with the noble Baroness, Lady May, on her amendment about police involvement in crisis moments for people with mental health problems, I hope that we might be able to come up with an amendment which is a bit fuller than the one which the noble Lord has put forward.

Amendment 137, the second in the name of the noble Lord, Lord Kamall, is about monitoring what is being done about the use of illegal drugs and substances in mental health services. I listened carefully to what he said. Does he think that this does not happen already? I have been to a number of acute mental health services in London. It is clear that staff have to deal with very difficult situations. This cannot be an issue that does not happen; it must be part of the daily risk assessment of anybody working there. Does the noble Lord think that it is extensive enough to warrant this kind of reporting and is this another legal duty that we want to put on staff? Is it the best use of their time, compared to other things? I am in no way against getting good data out to solve problems, if that is the best way to do it, but I am not entirely sure that his amendment does that.

The noble Baroness, Lady Bennett of Manor Castle, is absolutely right to focus us again on a question that we have never had answered since 1983, about which resources go into acute services and which into community services. When we have a legal change, as we did in 2006 with the move to community treatment orders, what happens to the flow of resources? Crucially, what is the impact? We just do not have the answer. We have a health system which is very good at delivering itemised care. I suggest that it does not actually deliver that many care pathways. Even when it does, I have never seen any clear evidence that patient information and money flows are sufficiently sophisticated to explain to us whether any of the policy intents that we want to see—that all noble Lords who have ever spoken on mental health in this place have wanted to see—will come about. Her amendment may not be perfect either, but I certainly support the noble Baroness and her intent.

[Lord Stevens of Birmingham (CB)]

My Lords, I also support Amendment 151 from the noble Baroness, Lady Bennett. Whether such reporting should be specifically confined to community mental health services or be more expansive than that is obviously for debate. Whether it should be bi-annual or more frequently, or once a Parliament, does not really matter. The point is to try to continue to put a spotlight on the gap between need and availability in mental health when, for all the reasons that we have talked about, there is sometimes a tendency to downplay that aspect of health and what the health service does.

As the noble Baroness said, if we cast our minds back to last Wednesday when we had that debate about whether the apparent increase in demand for children and young people’s mental health services was real or not, it was paradoxical that, later that evening, the embargo dropped on the Lancet Child & Adolescent Health paper on mental health. It showed that there had been a genuine and unparalleled increase, particularly in younger women’s needs for specialist eating disorder services. Having young people who are severely ill is not an artefact of culture.

Having those kinds of data brought together in one place and published with the imprimatur of the Government would be helpful, rather than as a sort of periodic post-election exercise of the sort that the noble Lord, Lord Darzi, provided. He, of course, also drew attention to the gap that exists between need and the availability of mental health services. I think he used a figure from April 2024 to point out there were more than a million people waiting for mental health, learning disability and/or autism services, of whom 345,000 referrals had waited longer than a year and 109,000 of those were for children and young people under the age of 18. There is a real gap here and a need to continue to put the spotlight on it, to mobilise attention and resource. I welcome the spirit behind Amendment 151.

--- Later in debate ---

As the Minister knows, we have spoken about this issue privately and I am grateful for the conversation we had. Will she agree to consider making a change to Clause 42 along the lines I have proposed? I beg to move.

[Baroness Barker (LD)]

My Lords, Amendments 117 and 125 in this group are in my name. I tabled them in part to reflect what happened during the work of the scrutiny committee. We had long discussions about the benefits of ACDs, which were originally brought in under the Mental Capacity Act. I speak as the person who spent an awful long time trying to get them into that Act. They were brought in in the face of some resistance from practitioners. In fact, they have worked extremely well. It has been helpful to both patients and practitioners to know in advance, particularly for people who may have fluctuating illnesses, what it is that they want to do.

I point out yet again to the Committee that often, these are referred to as a decision to refuse treatment, but they are not always that. In the case of some advance choice decisions, people may say to their healthcare providers, “At the moment I am well. I know that, when I am ill, I may try to refuse treatment, but I want you to override that; I want you to carry on the continuity of my care”.

My amendment reflects something we were told. It will be no surprise to people that the noble Baroness, Lady Finlay, drew attention to the work that has been done in palliative care not only to make sure that people are aware of their right to make an advance choice decision about what they may wish to happen to them as their care continues, but to make it electronically. That was found to be one of the biggest barriers for practitioners, who would say, “We were in a crisis, and we couldn’t see it”. A lot of work has been done within the palliative care world to bring in new standard ways of doing things electronically. There is a pilot going on with the assistance of a private company, Thalamos—I think King’s has been trialling it—and it has so far been found to be extremely successful.

On a very prosaic level, the noble Earl, Lord Howe, is absolutely right that the more that patients feel empowered, particularly in mental health care, the better they do. There are also rather simple things: it takes a lot less time on the part of staff to read the stuff and not to be for ever filling in endless bits of paper. There are time and money efficiencies that can be put into front-line care.

All I ask is that, in addition to what the noble Earl, Lord Howe, said, we go one stage forward. Let us be honest: some mental health patients can have quite chaotic lives and they might not be the most tech savvy, but they need the same opportunities as anybody else to get on to a system that we know works and which needs to become the default position for all practitioners, rather than, as it is at the moment, an aspiration.

[Lord Stevens of Birmingham (CB)]

I strongly support the amendments in this group, particularly that in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall. I share the concern, as I think I mentioned at Second Reading, that as currently drafted this proposition could amount to an unenforceable, verging on vacuous, set of requirements, be it noticeboards or helplines. I very much hope that, between now and Report, Ministers will look to adopt the alternative proposition that the noble Earl, Lord Howe, has put forward. If, for whatever reason, that is not the case, I hope that collectively we might return to the question.

I have two small further points. I think I am right in interpreting the Bill as saying that guidance will be issued as part of a Section 118 code of practice which will give clarity on the duties of ICBs and NHS England in relation to the ACD part of the new Bill. I hope that that will, among other things, specify in more detail the categories of people who must be offered an ACD in accordance with the new statutory right which we will, I hope, have created; by whom the offer may be made; the fact that it should be recorded digitally, for the reasons that the noble Baroness, Lady Barker, has set out; and a number of other elements. Expecting individual ICBs to figure it out is a recipe for a subtherapeutic dose, shall we say.

My third and final point is that early evidence suggests that if the benefits described in the impact assessment come to fruition in the real world then there will be a positive impact, including on reduced compulsory admissions. Admittedly these are small and non-UK studies, as the material makes clear, but there is nevertheless a case for getting on with ACDs at scale, if the benefits that are hypothesised might actually be obtainable. It is therefore surprising to see in Annex C III of the impact assessment the suggestion that ACDs will not actually come online until 2029-30. It will take relatively marginal additional staff costs and time to do this, for a relatively small number of people. The suggestion is that it will be a surprisingly precise 55,071 people who might get a new ACD in 2029-30 and about 8,000 people who will get an updated one. These are not huge volumes, and we may be under-egging the pudding, but if the benefits are potentially there to be had, why on earth should we assume that we do not get going on this until 2029-30?

For all those reasons, I support the amendments in this group, particularly that from the noble Earl, Lord Howe, and the noble Lord, Lord Kamall.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I am grateful for all the contributions in this group. I will start with Amendment 115, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall. Under the Bill, services should not only offer individuals who are likely to benefit from making an ACD information and support to do so, they should proactively support such individuals. This is functionally equivalent to a right to request an advance choice document.

The amendment applies to large groups. We have concerns that, for example, it may be practically challenging or sometimes inappropriate to contact people who were detained some time ago. We intend to identify groups in the code of practice that services should target; it can then be updated in response to changing best practice and emerging research.

On the point raised by the noble Earl, Lord Howe, and referred to by the noble Lord, Lord Stevens, and the noble Baroness, Lady Browning, about how advance choice document information is made available to patients, we will set out in the code of practice detailed guidance on how services should discharge their duties under the Bill to inform and support individuals to make an ACD. Any failure to implement the duty in this aspect of the code could ultimately be challenged in the courts. I hope that gives some indication of the strength of that provision in the Bill.

The noble Lord, Lord Stevens, raised the implementation timeline, as outlined in the impact assessment. We want to ensure that there is appropriate resource in the system before ACDs can be brought in. I am sure noble Lords understand that this is critical, for ACDs to have the right level of impact. For example, the effect of ACDs is dependent on the expansion of the second opinion appointed doctor service. In the meantime, services can, of course, progress with putting ACDs that deal with patient needs and wishes overall should they become detained. That would very much build on the work that South London and Maudsley, and others, have done.

I turn to Amendments 117 and 125 in the name of the noble Baroness, Lady Barker. I confirm that we are committed to mitigating the barriers that get in the way of creating an advance choice document. The code will make it clear that commissioners should provide accessible information in response to individual needs, with flexibility around how individuals make their preferences known—the point that the noble Baroness raised. We plan to create a standard advance choice document template for people to complete, with supporting guidance. That should prompt thoughts about the things that an individual may wish to consider and decide before they become unwell. I can assure noble Lords that the template will be available digitally as well as in hard copy. Our intention is that a digital version of the document will be created for easy access by professionals as needed.

Amendment 120, tabled by the noble Baroness, Lady Murphy, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, has the stated intention that mental health in-patients create an ACD. While the Bill does not prevent this, in most cases it will not be the best time, as patients may be very unwell and lack capacity. Insights from the South London and Maudsley NHS Foundation Trust with King’s College London suggest that encouraging people to create an advance choice document after discharge—when their health has improved and the support network can help—can be useful. The person’s community mental health team is best placed to provide support, rather than an independent mental health advocate whose role is to support people who are detained. The duty on commissioners in the Bill is intended to focus on the community and other contexts outside of hospital. We feel that this is more likely to increase the uptake of advance choice documents.

[Baroness Barker (LD)]

The crucial question that the noble Baroness is asking is around which staff can access this information and where. That means that the information in the ACD has to be always available to whoever is seeing the patient, wherever they happen to be. Does that mean that, as in palliative care, the ACD will become part of an electronic patient record, and that there will be an expectation that all practitioners, wherever they are, will refer to it all the time?

[Baroness Merron (Lab)]

The noble Baroness makes a good point. I am sure she is aware that one of the main pillars of change as we move towards the 10-year plan is shifting from analogue to digital. I am sure that this will be part of those considerations.

I now turn to Amendment 121, tabled by my noble friend Lord Davies of Brixton and supported by the noble Baronesses, Lady Tyler and Lady Neuberger. The noble Baroness, Lady Tyler, spoke to this very amendment. We know that financial problems can worsen or trigger mental illness. We agree that individuals should be encouraged to include in their ACD any care and support to help them manage their financial circumstances when unwell. The code of practice will include guidance from professionals on this point, while the template will prompt people to consider financial matters.

On Amendment 122, tabled by the noble Baroness, Lady Browning, and supported by the noble Lord, Lord Patel, it is important for practitioners to be aware of, and, where applicable, to consult with, the person’s attorney. However, we do not agree with requiring people to include all of the information contained in the lasting power of attorney in their ACD. The document is owned by the individual, who should be free to include what matters to them. Some of the information in a person’s lasting power of attorney may not be relevant, and copying over its contents may introduce inaccuracies due to human error. We intend to encourage service users to include the existence of an LPA where applicable in their advance choice documents, and practitioners can then be made aware and take the relevant steps.

On Amendment 123, tabled by the noble Baroness, Lady Browning, we agree with the aim that is stated here. The code of practice will set out all of the groups which services should proactively target to make an advance choice document, including people on the dynamic support register. The code can be updated in line with emerging research and best practice, as I have said a number of times before, and can include detail and nuance that is not possible in primary legislation.

With those remarks from me in mind, I hope that noble Lords will feel able not to press their amendments.

Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

Debate on Amendment 57 resumed.

[Baroness Barker (LD)]

My Lords, I will speak briefly to Amendment 60A. At this time of night, I do not intend to make a very long or detailed speech; I simply wish to make two points. Previous speakers, such as the noble Lord, Lord Davies of Brixton, talked about factors that should be included in care and treatment plans and often are not, for a variety of reasons. But they are crucially and directly important to the health and well-being of an individual.

I wish to talk about the inclusion of housing, for two reasons. First, housing is a source of anguish and mental strain, full stop. It does not matter whether people have mental health problems, but if they have and they find themselves in an acute hospital, either detained or as a voluntary patient, I am sure that, when they come back, there will be a very high incidence of them losing their tenancy and then being unable to find suitable accommodation, particularly if they are young.

Members of your Lordships’ House have already spoken about the fact that there are very few treatment centres dotted around the country for young people with eating disorders—here in the Bill we are talking about England. That therefore means that young people are having to go very long distances for treatment, which can have a significant disruptive effect on their living circumstances.

The other reason I thought it was worthwhile to table this amendment and have the debate was that the other day, we had a wider debate about care and treatment plans. The one question many of us were trying to ascertain the answer to was: who is responsible for them? Who is responsible for drawing them up and implementing them? Crucially, who is responsible if they are not implemented and there is a consequence to that for an individual? If we cannot focus our minds on that now, given what has been going on in the country, we never will. The only thing I could take away from our discussion the other day was that nobody is responsible for it at all; nobody is going to carry the can.

When we are talking about people who have been in acute care, very little attention is paid to their housing needs, because that is not the duty of that service provider, whose focus is on acute care. We know that local authorities are already required to provide aftercare and advice to individuals, but advice in the face of a bailiff turfing you out of your house is frankly of limited use. So, I would like the Minister to please consider this amendment and give assurances that, when we ever get to the bottom of who is responsible for these care and treatment plans, this is on the list of things for which they can be held accountable.

Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, having just heard the noble Baroness, Lady Murphy, I shall be extremely cautious about what I look at on the internet. I want to say just two or three words. I have experience from my own family and from my friends of two sets of drugs—anti-depressants and Ritalin—and they really should be used a great deal more cautiously.

[Baroness Barker (LD)]

My Lords, now is not the time to have the extensive debate that the noble Baroness, Lady Murphy, has opened up. I said right at the outset that we are talking about legislation that comes into play when a person is going to be detained because they are very ill and at risk of harming themselves or somebody else. But I would say to the noble Baroness that the Wessely review looked at this issue at considerable length, and I was among the Peers who listened to Sir Simon Wessely when he came to present his findings. One thing that has stuck with me is the person who gave evidence to his review who said: “I was very ill. I had to have treatment. Why did it have to feel so awful?”—I am using parliamentary language there. Does the noble Baroness accept that mental health legislation debates such as this might be limited, but they do an important thing in sometimes challenging the prevailing orthodoxy among the professions, and they are an occasion where the experience of patients, which have built up over many years, gets a chance to change practice? That is why we should look at all the amendments in this group, and in particular those of the noble Earl, Lord Howe.

[Baroness Murphy (CB)]

I agree with everything that the noble Baroness, Lady Barker, has said. She is absolutely right that professions should be challenged, and that is partly what legislation can do, particularly in debates such as this. But we are losing the very important amendments from the noble Earl, Lord Howe, about young people and what we can do to improve circumstances through the Bill, and I want not to lose them, because they are very important.

--- Later in debate ---

Stressing that I am not a legal expert, I was really attracted by the way in which this amendment is drafted, particularly subsection (3), which rightly puts an onus on professionals to make sure that they explain this in ways that are accessible to the child. We all know that medical and legal terminology may not be accessible to adults, let alone children, but the suggestion of simple language, visual aids or other means is a real direction to professionals to say that they have to facilitate, by any practical means possible, the chance for that child to have agency. That should be at the core of the Bill, particularly for the children who were drawn to our attention on the other group, who are some of the most vulnerable people in our society and who face potentially being locked up against their will. We have to give them as much voice as possible, which is what this amendment would do.

[Baroness Barker (LD)]

My Lords, I make two specific points in response to what the noble and learned Baroness, Lady Butler-Sloss, said. The amendments refer to Section 24 of the Mental Capacity Act, but if one goes on to Section 25 of that Act, there are a number of conditions that have to be fulfilled in order for a record of an advanced decision to be deemed valid. I think it is worth pointing out subsection (5) to noble Lords, which states:

“An advance decision is not applicable to life-sustaining treatment unless … (a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and (b) the decision and statement comply with subsection (6).


Subsection (6) states that it must be,

“in writing … it is signed by P or by another person in P's presence and by P's direction … the signature is made or acknowledged by P in the presence of a witness, and … the witness signs it, or acknowledges”

it to be true.

I am trying to convey to the noble and learned Baroness that these are very formal procedures. They are not taken lightly. That applies to somebody who is 18 and one day, and I think it should be applied to somebody who is younger than that with as much seriousness.

Noble Lords and others have referred to these decisions as advance decisions to refuse treatment. Advance decisions can also be for treatment. People can say in an advance decision, “I know that when I am in an episode of illness, I may be saying that I do not want medication. At this moment in time, when I have capacity, I wish it to be put down in writing that if I do that, you are to ignore it”.

I would like us to have a fuller appreciation of what it is we are talking about, although I do not detract from any of the considerations that people want to bring in about young people.

[Earl Howe (Con)]

My Lords, I venture to say that all the amendments in this group approach similar issues in not dissimilar ways. The most compelling point that perhaps should be underlined in relation to them all is that implied by the amendments in the name of the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston: that there is no earthly reason why the law should prohibit a young person with sufficient decision-making competence recording a valid expression of their wishes and preferences around their own mental health care, and the logical consequence of that is the need for a competence test, or a capacity test for child patients.

My Amendment 56 seeks to address an issue allied to those addressed by the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston. As it stands, the Bill does not permit a 16 or 17 year-old to make a valid advance decision about their mental health care. An advance decision has the same effect in practice as a capacity decision to refuse a particular treatment. It is important to understand that under the Mental Health Act, making an advance decision does not give someone an unfettered right to refuse that treatment. Treatment can still be administered notwithstanding the advance decision, albeit only if certain strict conditions are met. Nevertheless, an advance decision made by an adult patient carries a huge amount of weight, and placed within or alongside an advance choice document, which enables a patient to outline their treatment preferences, it does a great deal to ensure that the patient is placed genuinely in the driving seat when it comes to their mental health care and treatment.

Under the terms of the Bill, young persons aged 16 and 17 will be able to execute an advance choice document, but what they cannot do is to make an advance decision to sit alongside it. That means that an advance choice document that purports to include an advance decision made by an under 18 year-old is likely to carry a good deal less weight than such a document executed by an adult. My amendment invites the Government to put this right.

An associated but distinct issue arises in relation to children under the age of 16. I will not repeat the excellent arguments for a competency test put forward by the noble Lord, Lord Meston, and the noble Baroness, Lady Tyler, but I agree entirely with what they have said. The point that resonates most with me in the context of a Bill that places great emphasis on patient empowerment is that in the absence of a statutory competence test to determine a child’s decision-making ability, it will, in practice, be impossible for someone under 16 to execute an advance choice document and then expect professionals to take due notice of it.

Amendment 147, tabled by the noble Lord, Lord Meston, seems to me to be as good as it gets in articulating the key requirements necessary to establish decision-making competence in a child. My only hesitation about his amendment is that it invites us to place the terms of a competency test in the Bill without further ado. For a measure of this significance, I tend to feel that any final formula for a competence test merits a prior consultation exercise, and then encapsulation in regulations approved by Parliament. I fully agree with my noble friend Lady Berridge that relying on a code of practice in this context would be wholly unsatisfactory. For what it is worth, I suspect that a consultation would be likely to throw up some further considerations that would need to be factored in to the formula. That aside, I very much hope that the Minister will be receptive to the arguments she has heard. If we can deliver this added empowerment to children and, as regards advance decisions, to 16 and 17 year-olds, the prize will be very great, and I hope she agrees that the challenge is one we must address.