Terminally Ill Adults (End of Life) Bill

Baroness Berridge Excerpts

Committee stage
Friday 12th December 2025 Lords Chamber

[Baroness O’Loan (CB)]

I thank the noble Baroness for that helpful intervention, but we do not know what the outcome of that meeting will be. I think I have the right to make my remarks.

[Baroness Berridge (Con)]

My Lords, I will speak to the amendments in this group. I did not table one in my name about a group of people who are also subject to deprivation of liberty safeguards. I am pleased to hear the noble and learned Lord repeat his offer of a meeting, which was made last Friday. I was disappointed not to receive an invitation to a group meeting to discuss the various groups of vulnerable people who may need additional conditions. Had there been such a meeting, I would not be taking up time today or on the later group, where I had offered to withdraw amendments had a meeting taken place.

There is another group of people under deprivation of liberty safeguards who are not under the Mental Capacity Act. These are young people who are under the High Court jurisdiction of deprivation of liberty safeguards—called High Court DoLS. I thank the President of the Family Division for ensuring that there is research available on this group and the Children’s Commissioner, who has visited very many of them. Those young people are so troubled that their liberty needs to be restricted, but they cannot currently be detained under Section 25 of the Children Act in a secure children’s home. That was for a variety of reasons. One was that we ran out of places, but another was that some of them were in such a situation that they could not even bear a communal secure environment like that.

I did not table an amendment also because under the Children’s Wellbeing and Schools Bill these young people will possibly be brought under the statutory jurisdiction of the Children Act, though it would not be all of them. There were 1,280 applications made last year, and around 90% of them were granted, so this is not, as was originally envisaged, a handful of young people. Are any of those young people also ill? Are noble Lords content that at 18 years and one day old they should have assisted suicide raised with them? Are they also happy that if a child has been under mental health treatment but is also physically ill, at 18 years and one day they come under the jurisdiction of this Bill? The same applies to those detained in a young offender institution. Sadly, due to the Private Member’s Bill process, I do not believe that there has been any consultation, a White Paper or pre-legislative scrutiny to flush out the details and data that we need to properly legislate.

I am grateful to the Children’s Commissioner for attending the Select Committee, but I was surprised that the Public Bill Committee in the House of Commons did not hear from her.

In addition to the issue of those who are 18 years old and one day, some of whom are still under the jurisdiction of the Children’s Commissioner until they are 25 and under the jurisdiction of the local authority, it is not wrong to say that there will be enormous societal change that affects children. I would be grateful to know, whether now or in the meeting that the noble and learned Lord has promised, whether he is aware of this group of children and what meetings he has had to establish how many would be affected at 18 years old, how many are in this group and how they can be protected by additional conditions and safeguards.

[Lord Harper (Con)]

My Lords, the noble and learned Lord, Lord Falconer, gave a very welcome response to the opening speech of the noble Baroness, Lady Finlay. He set out a range of protections that there may be. Once he has had those conversations, if he is persuaded that there need to be some protections, will he be prepared to table his own amendments on Report to put those protections and assurances in the legislation, or will he do what the Delegated Powers Committee referred to as disguise legislation, which is only putting it in codes of practice and guidance?

I think it would be widely agreed that if we are going to have those protections, it is better that they are in the Bill. They then cannot be watered down and can be properly enforced. Could he indicate that to all noble Lords after he has had those conversations with those who are interested? The disadvantage of having private meetings is that you are not able to tell other people. If the noble and learned Lord wants proceedings to go faster and to table his own amendments on Report and prevent the need for other people to do so, can he indicate that, once he has had those conversations, he would be willing bring forward those amendments and put those protections in the legislation. I am sure that would be most welcome. If he could indicate his thinking on that today, that would be of help to the House.

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[Baroness Merron (Lab)]

I hear the noble Lord, but my role today, as I am sure he understands, is to advise your Lordships on the risks as we see them and for noble Lords to decide how they wish to interpret them with regard to these amendments. But I am grateful for the point that the noble Lord makes.

Noble Lords may wish to note that these amendments would lead to different treatments for those detained under the Mental Health Act from those detained under the Mental Capacity Act. Only those detained under the Mental Capacity Act would be excluded from assisted dying. Noble Lords may wish to consider whether this is justifiable, given that the criteria for detention under both Acts are similar. The decision on which Act to use is largely a matter of professional discretion. Operationally, these amendments could also create confusion for practitioners, because they depart from the principle that capacity assessments are decision- and time-specific, so additional guidance and training would be needed.

Finally, as noble Lords will be aware, these amendments have not had technical drafting support from officials, which means that they may not be fully workable, effective or enforceable in the way that they are currently drafted. However, the issues raised are rightly a matter for noble Lords to consider and decide.

[Baroness Berridge (Con)]

I have heard this outline of the Government’s position. Am I correct in understanding that the Government have no position on ensuring that the Bill is safe for vulnerable groups of people?

[Baroness Merron (Lab)]

I would not make that assumption.

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[Lord Moore of Etchingham (Non-Afl)]

I am grateful to the noble Lord. As I said, I will come on to the amendment soon, but I want to emphasise this point because I think that it matters a lot in this debate and will matter in the coming weeks. A particularly virulent article in the Times, written by Nicholas Boles—he was, until recently, an informal adviser to the Prime Minister—put these arguments in a way that was quite inappropriate for the type of discussion on a conscience issue that we are having.

On prisoners, I want very much to pursue the point about autonomy, which is absolutely right. It goes to the heart of this Bill, because the Bill’s supporters are those who give precedence to autonomy over all other things. The people who are more questioning of the Bill do not necessarily do that—at least, they think that there are many qualifications to the right of autonomy.

As the noble Baroness, Lady Fox, pointed out so eloquently, this issue very much applies to prisoners, who have a double loss of autonomy in prisons. First, their autonomy has been taken away from them by the decision of the state, as expressed in the quaint phrase “at His Majesty’s pleasure”; it is not “at the prisoner’s pleasure” but “at His Majesty’s pleasure”, which is an expression of the power of the state and the prisoner’s loss of autonomy. Secondly, prisoners lose autonomy in another way because of their vulnerability and the situation they are in.

The point I wish to add to this argument is to do with the Government, rather than the movers of the Bill, although it affects them, of course. In evidence to the Select Committee, the relevant Minister at the Ministry of Justice, Sarah Sackman, said that, as far as the Government are concerned:

“The policy choice that the option of a voluntary assisted death be extended to those in prison is just that. It is a policy choice on which the Government are neutral”.


I do not understand how the Government can be neutral on a matter that is entirely within their purview, and I would like to hear what the Minister has to say about that.

[Baroness Berridge (Con)]

My Lords, I will speak to Amendments 30A and 119A in my name, which relate to children and young people who are under an EHCP. I offered to withdraw these two amendments in order to shorten proceedings; by putting that on the record, I will shorten the meeting offered by the noble and learned Lord, Lord Falconer, but not necessarily these proceedings.

I am grateful to my noble friend Lady Coffey for spotting a typo in Amendment 119A—ECHP instead of EHCP. Please may we not create any more quangos with that combination of letters?

The Select Committee heard from Dame Rachel de Souza, the Children’s Commissioner for England, about the basic policy reason behind some vulnerable adolescents and those with additional needs being under her jurisdiction until they are 25: they need the extra support to transition into adulthood. Amendment 30A would remove all young people under an EHCP from the Bill; Amendment 119A on this policy ground would mean them falling under the Act, but with additional conditions. Such an issue may be additional subject matter for the promised meeting. Would these be the right conditions, were we to accept Amendment 119A?

The Children’s Commissioner’s jurisdiction also covers anyone under the age of 25 who has ever been in care. She has a specific responsibility for children up to the age of 25 who have an EHCP. I note that, in law, it is not 18 for all purposes. You cannot adopt children until you are 21. So, at the moment, the Bill does not produce a cliff edge at the age of 18.

Some of the young people on EHCPs may lack capacity and are, therefore, outside the scope of the Bill. As the noble Baroness, Lady Hollins—she is no longer in her place—has often said, assessing the capacity of people with learning disabilities is a complex matter. However, many young people are on an EHCP because of other additional needs or considerable childhood traumas; they will have capacity and will, therefore, come under this Bill. It is again relevant to think of them at 18 years and one day old, and with a life-limiting condition. Sadly, due to the lack of the usual pre-legislative processes of consultation, a White Paper and scrutiny, we are without the data on these vulnerable groups showing how many in the EHCP or under High Court DoLS also have life-limiting conditions. That data would give us an idea as to the priority of conditions for different groups.

In the Select Committee, Ken Ross of the Down’s Syndrome Association stated that people with Down’s syndrome cannot always fully comprehend complex decisions and have very suggestible minds. This is why there are additional safeguards in the EHCP, but if they have capacity, they are under the Bill currently without any additional safeguards.

Again, due to the process of the Private Member’s Bill, it is not clear how this legislation sits with other legislation and safeguards. Has the Bill been considered by the Department for Education, which has responsibility for children under the 1989 Act? Has the noble and learned Lord met with those Ministers? For instance, just to give an array of possible problems, in many cases local authorities legally still have a role for those under an EHCP after the age of 18. How will that fit with the processes outlined for assisted dying? Will there be a clash of decision-making from the EHCP special educational needs panel and the TIA panel?

What legal authority does the local authority have on safeguarding grounds to intervene in the panel’s process for a young adult on an EHCP if it disagrees with the assessment by the panel that the young person is making the request for assisted dying due to peer pressure or, as Ken Ross suggested, an enhanced susceptibility to pressure from white coat syndrome for those with Down’s syndrome? Is it mandatory for the TIA panel to get information from the SEND panel? Can the SEND panel appeal the decision to grant assisted dying? It seems not, so the family and the local authority will be left with the expensive and difficult remedy of judicial review.

Has the noble and learned Lord considered the evidence from the British Association of Social Workers? It states that the panel needs the power to do its own safeguarding assessments, or the power to close a case a local authority is seized of under Section 42 of the Care Act 2014. Otherwise, assisted dying could be granted and there could still be an open safeguarding case at the local authority unless the panel has the power to investigate and close it. These issues would have been flagged on a government write-round or during proper pre-legislative scrutiny. I am disappointed at the lack of meetings so far, as we need a proper process to consider the position of many vulnerable 18 year-olds on the day after their 18th birthday.

Bearing in mind Amendment 22, which the noble Baroness, Lady Grey-Thompson, mentioned, I wonder whether she, the noble and learned Lord or the Minister are aware of whether the policy decisions made for pregnant women in other jurisdictions are based on policy alone or on clinical evidence. If there is clinical evidence that drugs can promote and induce labour, is that why other jurisdictions have taken pregnant women out? That is relevant, because I have amendments later in the Bill about warning relatives of complications, especially if there is going to be a person under 18 present while assisted dying is being given.

Finally, on the points raised at the start of the proceedings by the noble and learned Baroness, Lady Butler-Sloss, I did not have the benefit of listening to the “Today” programme, but we are dealing with so many groups of vulnerable people. That is because of the lack of pre-legislative steps that we usually have. Groups would have been consulted and there would have been a White Paper. I have been exchanging optimistic emails with the noble Lord, Lord Carlile, but for me personally it is an open question, bearing in mind the lack of pre-legislative scrutiny, whether the Private Member’s Bill process actually fix that.

I know that the noble and learned Baroness worked with the noble Baroness and that she is very fair-minded, but I have had cause to look at the evidence from the Jersey States Assembly, a small Parliament. It was drawn to our attention in the Select Committee by Alex Ruck Keene KC that some instructions went to 200 pages, so I asked the Library to do some research and the Jersey parliament’s process is gold-plated. Not only that, but its website is much easier to use than parliament.uk and one can look at the process and timetable from 2021. When the States Assembly approved what it was going to do, the Executive—the Minister for Health and Social Affairs—gave drafting instructions to parliamentary counsel. To write a piece of legislation fit for purpose, they ran to 201 pages. We say that we are the mother of Parliaments in the Commonwealth context, but that is the way to legislate. I keep open in my conscience whether this process can fix the problems with the Bill which are such that none of the royal colleges is currently supporting it.

[The Lord Bishop of Gloucester]

My Lords, I speak to Amendment 22 in the name of the noble Baroness, Lady Grey-Thompson, to which I have also added my name. I declare my interest as Anglican Bishop to prisons in England and Wales.

There are many reasons why I believe that assisted dying may not be a fair choice for the general population, as things stand, but today I am shining a spotlight, as has already been said, on the prison population. I do not think that there has been enough attention in the debate so far on how the Bill would function for those in prison. I do not apologise for having spoken about prisons in the previous group, because this Amendment 22 is about excluding prisoners from the Bill, but the previous group of amendments assumed that prisoners would still be in the Bill. Therefore, we still need to look through that lens when we are discussing issues about GPs and medical records.

The prison population is in worse health than the general population. We have heard that. However, the reports from both the Health and Social Care Select Committee in the other place and the Chief Medical Officer paint a more concerning picture than that. Age-related illnesses, dependency and frailty can begin at an earlier age than in the general population. The prison population is ageing faster, and when I am visiting prisons I never cease to be shocked by the number of extremely elderly and frail people in prison. In most places, the prison system is not able to meet their needs properly—and that is not to criticise the prison staff, who are doing their best.

Nacro reported that, in 2019-20, people in prison missed 42% of scheduled hospital appointments. The Health and Social Care Select Committee goes as far as to say that

“so-called natural cause deaths, the highest cause of mortality in prison, too often reflect serious lapses in care”.

As has been said by the noble Lord, Lord Farmer, there is a lack of palliative and end-of-life care in prisons and, although there are some examples of excellent practice, action to improve this is voluntary and not supported by the commissioning of services.

Noble Lords may well say that prisoners should have equal access to care under the law, including assisted dying but, as has already been said, they do not currently have equal access to care. For me, this is not simply about the prison system and healthcare; it is about the perspectives and sense of well-being among those in prison. I will not rehearse everything that has already been said, but will just reiterate that the prison population experience high levels of hopelessness. We have frequently and rightly spoken about IPP prisoners in this House.

Again and again as I visit prisons, I hear about and see evidence of the high levels of self-harm in our prisons; it is particularly high in the female estate. Self-inflicted deaths in prison are predicted to continue to rise disproportionately compared to the general growth of the prison population. We need to be cognisant of the fact that, during the special Select Committee on the Bill, the Royal College of Psychiatrists talked about how a person’s wish to hasten their death can be impacted by what their life is like.

Although compassionate release is an option, it is rarely taken up. Crucially, according to Macmillan Cancer Support’s A Guide for Prisoners at the End of Life, it also requires a three-month prognosis. How does that interact with the Bill?

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[Baroness Merron (Lab)]

It is important I reclarify that that is a policy decision. What I am doing with your Lordships’ Committee is advising on risks, to assist noble Lords to make their decision regarding this policy.

Amendments 30A and 119A, tabled by the noble Baroness, Lady Berridge, would exclude any person with an education, health and care plan from being eligible for an assisted death, except in cases provided for in regulations made by the Secretary of State. As drafted, these amendments could impose unclear and potentially undeliverable legal duties on the Secretary of State and are potentially not aligned with how EHCPs work in practice or in law. The amendments give rise to a number of unresolved operational questions that do not work with other provisions of the Bill and they are not drafted with sufficient specificity. That could lead to confusion for those interpreting the legislation and unintended outcomes.

[Baroness Berridge (Con)]

We are about to have a meeting to outline special additional conditions, so can I clarify that the Minister is not saying that that is not possible and just that the particular conditions outlined in Amendment 119A are not possible?

[Baroness Merron (Lab)]

First, I am referring to the amendments before us. Secondly, I am advising on risk and workability, again for the assistance of your Lordships’ Committee, which, as is correct and proper, will make the decision.

These amendments appear to treat people with EHCPs differently from those who do not have them. This could give rise to potential incompatibility with Article 14 of the ECHR, when read with Article 8, and would require reasonable justification for differential treatment.

Finally, as noble Lords will be aware, the amendments in this group have not had technical drafting support from officials, so the way they are drafted means that they may not be fully workable, effective or enforceable. However, as I have said, the issues raised are rightly a matter for noble Lords to consider and decide.

Terminally Ill Adults (End of Life) Bill

Baroness Berridge Excerpts

Committee stage
Friday 5th December 2025 Lords Chamber

[The Lord Bishop of Leicester]

My Lords, I too rise to support this amendment with some caution, noting that these are deep waters. I hope that noble Lords will forgive me for pointing out the blindingly obvious: as I look around your Lordships’ Committee, I do not see any 18 to 25 year-olds on these Benches, and the voices of children and young people are vital in such a debate.

The role of Children’s Commissioner was created to ensure that the voices of children and young people were heard within your Lordships’ House and the other place. Therefore, when the Children’s Commissioner, whom I know personally, who has visited my diocese and whom I have seen at work listening to children and young people—she and her staff are superbly skilled at that work—urges us to be cautious, I believe we should listen. I therefore urge consideration of that note of caution.

[Baroness Berridge (Con)]

My Lords, I will speak to Amendment 4, in the name of the noble Baroness, Lady Berger, to which I added my name.

As well as this Bill, the Private Member’s Bill in the name of the noble and learned Lord has, as a requirement, the safeguard of a six-month prognosis. When one looks at this in relation to those over 18, I am interested in what pre-legislative scrutiny or consultation the noble and learned Lord, or the other Bill’s sponsor in the other place, had on the science. I am not a scientist, but I have a researcher who is a scientist, so I took advice on how to treat the science when one speaks in a debate with those who have great eminence, such as the noble Lord, Lord Winston. Having looked at that, I believe it is relevant to the age limit in the Bill. There will be specific types of vulnerability for certain groups of young people—as the noble Baroness, Lady Fox, outlined—but those will be discussed in later groups.

According to peer-reviewed studies—which, I am told, are the best way to begin to treat the science—the brain reaches its full size physically at the age of 14, but the neural circuitry does not develop to enable enhanced decision-making and cognitive function until the age of 25. I am also informed—I am sorry to disagree with my noble friend Lord Sandhurst—that the study that was quoted by the BBC is viewed as an outlier from the peer-reviewed studies that we have in this regard.

When looking at terminally ill adolescents—I am grateful to the noble Lady, Lady Hayter, for reminding us of that—we also need to consider that there are psychological reports that they may have an unrealised concept of the finality of death, which I think is relevant to what the noble Lord, Lord Moore, said. As the Children’s Commissioner stated in her letter of evidence to the Select Committee:

“Compelling arguments have … been made about the additional difficulties present in diagnosing young people in this age group, and predicting with certainty the chance of living for six months”.


Of course, if that is wrong, it could lead to an earlier, untimely death, if assisted dying is made available to them.

I was really intrigued by that statement and sought to look at the scientific evidence. I have found peer-reviewed papers, in particular one from the University of Manchester reporting historical data that finds that, even with advanced diseases such as thyroid cancer, this group has a better rate of survival than adults over the age of 25. The report outlines that that may be because a more efficacious response to treatment, as a younger body may be better able to receive it; it may be due to an elevated sense of hope, which is often reported in young adults; or it might be because such a devastating diagnosis at that age is hard to fathom, as it is not a disease they think would ever happen to them. That sense of hope possibly contributes to a positive impact on the immune system, thus resulting in a better response to the administered medication.

The second reason I outline is that—as the noble Lady, Lady Hollins, briefly alluded to—there is a significantly increasing life expectancy in terminally ill young adults due to the incredible advances that we are beginning to see in treatments such as advanced immune therapies and personalised genotype-directed treatment. Both have seen increased survival rates of up to five years in up to 80% of patients with terminal cancers. Although we will come to the matter of young people and the EHCP in a later group, I think it is right to reiterate that we have policies that treat those between 18 and 25 differently in certain situations.

The Children’s Commissioner also brought to our attention that young people already often fall into a gap at the ages of 16 and 17. Some community palliative care services end at 16, and then others do not begin at 18. That makes me wonder whether we need to think more about their access to specialist palliative care in this Bill in later groups.

Can the noble and learned Lord outline what process there was, before both Bills were put together, to look into the scientific evidence? It seems to me that the assumption in both Bills is that a six-month prognosis affects or applies to all groups of the population in the same way. Is that indeed the case? We know from evidence from the European Society for Medical Oncology’s Professor Stone that a six-month prognosis is inaccurate in over half of cases. Is six months the right level to use—that might be a connected change—or is 18 too young an age? I would be grateful to know whether the noble and learned Lord has already engaged with this science. Perhaps with the assistance of the noble Lord, Lord Winston, this, I think, would be a valuable way of looking at the evidence behind Amendment 4.

[Lord Weir of Ballyholme (DUP)]

My Lords, this is an important group of amendments, particularly to those of us who have an interest in young people. It is very important that we have heard today a range of opinions on where age eligibility should lie. When dealing with age eligibility in this Bill, it seems that there are three critical questions. First, at the lower end of eligibility, should there be an age limit below which it is impossible to access assisted dying? Secondly, if it is agreed that there should be an age limit, is 18 the appropriate age? Thirdly, as has been posed by the two sets of amendments in this group, if we feel that 18 is too young an age, what is the appropriate age that we should set?

On the first issue, I am glad to say that at least the proponents of this Bill have not gone down the line—as has been argued, I think, by some lobbyists and has been the case, for example, in Belgium and the Netherlands—that there should be no lower age limit. I welcome the fact that this seems to be accepted by the proponents of this Bill. However, I reiterate the question that has been asked—I look forward to the noble and learned Lord, Lord Falconer, summing up in relation to this—about what assurances we could have if we ended up in the position where the eligibility is at 18. What confidence could we have that that will be stuck to?

On the second issue of whether 18 is the appropriate level, I cannot claim any particular knowledge or expertise on neuroscience, but I have a lot of experience having served twice as Education Minister in Northern Ireland. I am sure that, if you speak to anyone who has served in that sort of role in any of the jurisdictions, they will say that the greatest privilege you have in that ministerial capacity is meeting young people on a day-to-day basis and talking to them about their lived experiences. It is a great joy to meet the many very healthy, confident young people who can look forward to a lifetime ahead of them. However, it is also the case that you come across a number of young people who are very vulnerable, who have extremely life-limiting conditions and who have a terminal illness.

In my experience, the families of those young people reorientate themselves through their love, so that the focus of almost all family activity is on that young person. The by-product of that, at times, can be that some of those young people feel themselves to be a burden on their family: that they are disrupting everything that their family does and not allowing their family to lead a normal life. They sometimes feel a sense of guilt.

While I am sure that we will come on to this in later stages, I note the concern about what might be described as “self-imposed coercion”: people coming to the conclusion that they will be doing a service to their loved ones by going down the route of assisted suicide. We know that concerns have been raised in relation to the disabled and the elderly feeling under a particular level of pressure, but it would be naive to believe that young people in that position do not also feel themselves to be pressurised. I do not want us to create a situation where a young person, in the run-up to their 18th birthday, asks, “How can I facilitate my family by taking that ultimate step?” So, on the issue of maturity, I contend that 18 is perhaps not the right boundary point in this case.

Finally, there are competing amendments about whether it should be 21 or 25. While I came to this in a fairly agnostic manner, I have been persuaded much more towards the position of the noble Baroness, Lady Berger. I am also persuaded in many ways by the words of the Children’s Commissioner. I have considerable experience of dealing with both the Children’s Commissioner in England and her opposite number in Northern Ireland, and I believe that the commissioners tend to have a particular worldview: when they look towards young people, they want the world to be permissive towards them. They are progressive in their nature—and sometimes, I have to confess, they may be a little too progressive on certain subjects for my own liking. But they always look, where possible, to extend rights to children that are normally given to adults. So, when we see a situation such as this, where a Children’s Commissioner is, in effect, saying, “Be very careful in relation to the law. Do not extend this to younger people between 18 and 25”, we need to pay cognisance to that.

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[Lord Falconer of Thoroton (Lab)]

Just to clarify my position, I was responding to the debate which gave rise to real concerns about the age. I understood the noble Baronesses, Lady Cass and Lady Finlay, to say that perhaps a way forward would be to see whether there were additional safeguards from 18 to 25. That would involve me having a discussion with them and, if they were satisfied that there were additional safeguards and that they thought the age of 18 was right, that would obviously have an effect on me. If they put other arguments, I would obviously take them on board as well. My experience of the House is that, if one sees a way forward, before one continues making the same arguments as before, one sees whether a compromise that sensible Members of the House think would be enough works and whether it could attract support on Report. That was what I was thinking.

[Baroness Berridge (Con)]

May I draw the attention of the noble and learned Lord to the fact that the amendments I have laid in relation to EHCPs and additional assessment criteria are currently in group 7? If he has that meeting and that compromise might be available, that may enable me to withdraw some amendments.

[Lord Falconer of Thoroton (Lab)]

I very much welcome that suggestion. I also welcome the suggestion of the noble Lord, Lord Harper, who, as I understand it, is saying that we should also look at the clinical diagnosis of people. The noble Baroness, Lady Finlay, also raised that point. I am more than happy to include both those things, and if they both want to come, I would welcome them.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I have some questions for the noble and learned Lord, Lord Falconer, about his Amendment 6, because my concerns also relate to the amendment in the name of the noble Lord, Lord Moylan. It does not seem to reflect the way that seriously ill children behave.

I have looked after children dying of malignancies. They knew that they were dying and asked really straightforward questions. They would ask about how they would die and would want to have in-depth conversations. I recall one little boy who asked me if he could play football in heaven, after another little boy in an adjacent room had died a few weeks earlier. These children asked for explicit details and wanted to have lots of conversations. Another one said that he would die after his goldfish died. Sadly, that was prophetic and when he was close to death, he asked his divorced parents to come in and promise to look after his siblings together. These children know each other; they want to ask questions and need to have them answered.

I am not sure how, with Amendment 6, doctors are meant to respond to these children when they ask questions. At the moment, you respond gently and openly, and explore with them what they are really asking about in an age-appropriate way. I have a concern that this could make people feel risk-averse about having open communication with these children, and let children remain isolated with their fears. They hear about assisted dying on the news and in the media; the ethical aspects are part of the senior school curriculum in some areas. I am really concerned that Amendment 6, while well-intentioned, and the adjacent amendments, might actually make the day-to-day looking after of these children as they are dying more difficult.

Amendments 170 and 405 seem to lower the threshold for communication. I am grateful to the noble Baroness, Lady Coussins, for pointing out that whenever an interpreter is used they must be a registered public service interpreter, to avoid the poor communication scenario which I referred to last week. Speech and language therapists are essential, so can the noble and learned Lord, Lord Falconer, explain how with one would judge “effective”, as is listed in his amendment, and assess “reasonable steps”? These seem very subjective and I am not sure how they would be monitored. Others have spoken to the other amendments, so I look forward to hearing the comments from the noble and learned Lord.

[Baroness Berridge (Con)]

I will speak briefly to raise attention to Amendment 170, which has recently been added to the group. In an effort to short-circuit, we will come to the issues of interpreters much later on.

I have laid Amendment 174, which quite simply says that an interpreter must be over the age of 18. It will not surprise the noble Baroness, Lady Merron, that I have a whole cluster of amendments to deal with what may be inadvertent situations that are not covered off for under-18s. I invite the noble and learned Lord to look at that amendment to see whether it can swiftly be clarified and dealt with, along with the others that relate to children.

In this group, I will also speak to the noble and learned Lord’s Amendments 332, 417 to 419 and 425, which I believe are a genuine attempt to deal with the report from the Delegated Powers and Regulatory Reform Committee. It advised the sponsor of the Bill to remove the Clause 15 power and to align the other clauses, because there were inconsistent wordings. I want to reiterate that reassurance was given in the other place that there would be one second opinion by another doctor. This goes back to the noble and learned Lord’s opener: when we talk about “cannot”, we need to cover that off in the Bill. The Bill was covering death or illness—obvious situations where the function cannot be fulfilled—but “will not” is obviously a different scenario.

Unless the doctor is unable to perform that function, for whatever reason, if we do not stick to the word “cannot”, we will potentially get the opening up of the ability to choose a number of doctors and maybe having some kind of discussion. Then they may not want to act, which may be for the reasons outlined by the noble Baronesses, Lady O’Loan and Lady Goudie. Then we might have a number of assessments or discussions that do not become a formal refusal which is then documented. I do not think the noble and learned Lord intended, by changing Clauses 10 and 13, to broaden the scenarios where a further referral could be made to any situation in which the doctor is unable or unwilling to continue; I think this has happened inadvertently. I know that my noble friend Lord Harper has laid amendments regarding particular scenarios beyond “death” and “illness”, and I think that the Minister in the other place, Mr Kinnock, mentioned family circumstances or emergencies. Perhaps the way ahead here—I am trying to pre-empt a further group, when we get to it—is that we could have a clause that outlines more circumstances than the two that are in the Bill.

Obviously, as lawyers, we know we can never cover every circumstance that would justify a doctor saying, “I can’t do this function any more”, not “I won’t”. Perhaps there could be a system whereby a doctor who wants to withdraw, and his or her circumstances are not in the paragraphs, should have to go to the panel and say, “I’ve got a situation that isn’t within the framework of the legislation, but I can’t for these reasons perform that function”. So I hope the noble and learned Lord will not move those amendments, as he has promised, but we could come back to this in the group that deals substantively with exploring scenarios where the doctor cannot act.

[Lord Ashcombe (Con)]

My Lords, I wish to express my particular concern regarding Amendment 416. The question I must put to the noble and learned Lord is, why should an independent doctor tasked with providing a second opinion not have access to the notes of the first? Is the intention to prevent any influence on the second medical professional, even when the first has identified grounds for dissatisfaction and declined to proceed with the possibility of assisted death?

We have already engaged in lengthy debates on the crucial matters of decision-making capacity and the risks of coercion. What if the first independent doctor had uncovered evidence of precisely such concerns? This situation inevitably calls to mind the troubling prospect that a patient, or indeed another party exerting influence upon that patient, might seek out a doctor willing to endorse the view of the co-ordinating physician. Surely the medical notes generated throughout the process are of fundamental importance to all involved in the medical profession, and it cannot be right that they should be withheld from any participant in the decision-making claim. I therefore earnestly ask the noble and learned Lord to give me his thoughts on this, as I do not really consider this to be a straight drafting issue.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Consideration of Commons amendments and / or reasons
Monday 24th November 2025 Lords Chamber

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

My Lords, with the leave of the House, I will speak also to Amendments 2 to 21, including Amendments 19A and 19D. It is a pleasure to return this Bill to this House; I very much appreciate the support and engagement of noble Lords throughout its passage.

Let me turn first to the government amendments in the other place, other than the minor and technical amendments, which are there for clarification. We have clarified the duties on NHS bodies to make arrangements regarding advance choice documents, otherwise known as ACDs. NHS bodies must actively inform individuals about ACDs, rather than taking a minimal approach. The Bill requires that information and help are provided to people who wish to make an ACD through discussion with a suitably qualified person. NHS bodies should consider the advantages of making an ACD within 12 months after discharge and aim to provide support. Additional guidance on these duties will be in the revised code.

I thank my noble friend Lady Keeley and the noble Baroness, Lady Barker, for raising concerns about the unequal application of the Human Rights Act. The Government have now made it so that registered private providers delivering Section 117 aftercare or in-patient mental health services, funded by local authorities or the NHS, are treated as carrying out public functions under the Human Rights Act and act compatibly with the convention rights. This amendment will apply UK-wide.

I turn to the amendments made by this House on police powers. I thank the noble Baroness, Lady May, for her constructive engagement and for establishing the review of the Mental Health Act when she was Prime Minister, which has brought us to this place today. We have removed the amendments made to Clause 5 that would have added police and other authorised professionals to Sections 2, 3 and 5 of the Mental Health Act. Extending police and other authorised professionals to these sections would be inappropriate—a view that is shared by the police.

We have removed Clause 50 from the Bill, which would have extended emergency police powers under Sections 135 and 136 of the Act to other authorised persons. Health and care professionals lack the training, equipment and access to rapid back-up needed to use such powers safely, and stakeholders are concerned about staff having the authority to use reasonable force. A blanket extension of powers to multiple agencies would risk confusion and delay in emergencies due to a lack of clarity over who should respond.

There are strong views on either side of this issue, and there are situations where health professionals feel that they do not have the powers they need. That is why I am announcing longer-term plans to launch a consultation into emergency police powers of detention. We will consult on the powers available to different professionals in different situations and settings, in particular—but not limited to—the operation of the emergency powers in Sections 135 and 136. The consultation will seek views on powers and joint working approaches to ensure that health and social care professionals and police have the appropriate powers to act in order to prevent people harming themselves and others when in a mental health crisis. We firmly believe that this is the right approach to a complex issue that requires careful consideration and consultation.

I turn to community treatment orders. Clause 6(3) has been removed from the Bill, as CTOs already comply with the code and have an initial six-month period. The responsible clinician may renew a CTO if there is a risk of serious harm without it and a reasonable prospect of therapeutic benefit. Following positive engagement with the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, I can confirm that the Government will review the statutory forms that relate to CTOs, with the aim of strengthening them to ensure a clear audit trail of the reasons for applying a CTO and associated conditions.

Regulations will require that statutory care and treatment plans specify any CTO conditions and their justifications, which will also be clarified in the code. We will work with the Tribunals Service and the judiciary to ensure that the patient’s plan is considered alongside other evidence at tribunal hearings. We will clarify in the code that, where a tribunal recommends that the responsible clinician reconsider CTO conditions as it does not consider them necessary, the responsible clinician should review and, potentially, revise those conditions. The code will set out that the responsible clinician should inform the patient of their decision after considering the tribunal’s recommendation, which should be recorded in writing. We will engage on the code before publication and involve the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, in the process. As the tribunal is responsible for considering all relevant evidence, this may include recent recommendations made at past tribunal hearings regarding the conditions placed on the person, including the detail and rationale of any current conditions.

I can confirm that since September 2025 we have increased the quantity and frequency of reporting on racial disparities in key metrics, such as detention CTOs and length of stay by ethnicity. Much of this data was previously published annually but it is now published monthly, allowing for closer monitoring of progress. The data is publicly available on the Mental Health Act annual dashboard and, along with implementation of the patient and carer race equality framework, will be used by the Care Quality Commission as part of its inspection regime.

On the debriefing amendment, I thank the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, for their constructive engagement. We have removed Clause 35, which required independent mental health advocates to consult people about their in-patient experience after discharge. This removes policy duplication and additional strain on advocacy services, whose focus is on supporting detained patients’ rights. The code will clarify the processes of care planning. Supporting someone to make an advance choice document should include the opportunity to reflect on past experiences. The 10-year health plan commits to making patient feedback central to quality improvement.

The Government have tabled amendments in lieu regarding the appointment of a nominated person for a child under 16 who lacks competence, and I am most grateful to the noble Baroness, Lady Berridge, for her continued work on this. The Bill now states that an approved mental health professional, or AMHP, must appoint either

“a person who has parental responsibility … a person named in a child arrangements order as a person with whom the relevant patient is to live”

or

“a person who is a special guardian”.

If there is no suitable person willing to act, the AMHP must consider the child’s wishes and feelings when deciding who to appoint.

On the amendment tabled by the noble Baroness, Lady Berridge, to the Government’s Motion, I understand the intention to prevent a parent who has had parental responsibility limited from being appointed as a nominated person by an AMHP where a child lacks competence to make the appointment. The amendment tabled would mean that a special guardian or person named under a child arrangements order as someone with whom the child must live must be appointed. It is not appropriate for legislation to say that a particular individual must always be appointed nominated person. If they are not able, or even willing, to perform the role effectively, requiring them to take this role and ruling out other options risks harming the child’s interests.

As we know, legislation can be a blunt tool. It is far more appropriate to set out nuances such as this in the statutory code to ensure that the child’s individual needs are considered. That is why we previously agreed to set up an expert task force to consider these very complexities. Part of this role includes ensuring that clear guidance is given to AMHPs on who to appoint in a range of scenarios to avoid unintended consequences. At this late stage, in order to get this right, we should not be hurriedly working through these complexities as part of the legislation. We should develop detailed guidance, in consultation with professionals and patients, through drafting the code of practice. I therefore ask the noble Baroness not to move her amendment.

In conclusion, I hope that noble Lords will support our position and pass the legislation without amendment. I beg to move.

[Baroness Berridge (Con)]

My Lords, I will speak to Amendment 19D in my name. I thank the Minister and her officials for the frequency of their engagement on the Bill. I put on record my apology for not spotting possible issues with the Government’s Motion, to which I have tabled the amendment, much earlier. I thank the Minister and her officials for meeting with the approved mental health professionals, the professional group dealing—often late at night or at a weekend—with our sickest children, who do not have the competency to appoint a nominated person for themselves.

I specifically recognise the inconvenience to the Bill team, but this matter relates to the protection of mentally ill children and has been flagged at every stage since the Wessely review in 2018, when a consultation was suggested. In recent meetings with the Minister, I understood that what was to be achieved was that the appointment of nominated persons would reflect existing court orders made by the family court on child protection grounds. The mischief that the approved mental health professionals want to solve is that they do not want to have any discretion to appoint as a nominated person anybody not in accordance with an existing court order. They want to see this achieved through the mandatory appointment of the special guardian in priority to anybody else, the rationale being that special guardianship is usually used to avoid care orders, adoption or long-term fostering.

--- Later in debate ---

Tabled by

[Baroness Berridge]

In Amendment 19B in lieu, as closing words after subsection (3)(c), insert—

19E: “but where the patient is the subject of a child arrangements order or a special guardianship order, the nominated person must always be the person named in that order as the special guardian or the person who that child lives with.”

[Baroness Berridge (Con)]

My Lords, I am grateful to the Minister for her clear intention to continue the dialogue on this, but I believe that we all would be assisted by officials from the Department for Education who hold responsibility for the Children Act and the various experts in the UK on this very difficult area of the interconnection of the Mental Health Act and the Children Act. I have to say at this point that I believe that there still is a fundamental misunderstanding of the authority of a court order to allow a professional to go behind it and appoint someone to this role who could directly conflict with a special guardianship order.

I want to make it totally clear that His Majesty’s Government are giving discretion to a group of professionals who have clearly said that they do not want this, do not have the competency to do it and would need 24/7 legal advice to attempt it. Unfortunately, because of the lack of consultation on this area, at this late stage we are at a very difficult moment for those professionals, who do not want to do the job that the Minister is giving them. In the light of her promises to meet further on this, I will not move my amendment to the Motion.

Amendment to the Motion on Amendments 18 and 19 not moved.

Terminally Ill Adults (End of Life) Bill

Baroness Berridge Excerpts

Committee stage
Friday 21st November 2025 Lords Chamber

Moreover, doctors have reported how difficult it is to detect coercion, encouragement and undue influence. Just asking a person whether they are subject to undue influence or coercion is not enough—the noble Baroness, Lady Finlay, has dealt with this—as they may be afraid to say that they are. One of the greatest difficulties is identifying where there has been coercion. Doctors are generally not trained to do this, yet, under the Bill, they are the ones who have to decide, without any context or supplementary information, that a person is free from such pressures.

[Baroness Berridge (Con)]

My Lords, I will speak to Amendment 48, to which I have added my name, and to my Amendment 846. I added my name to Amendment 48 to explore whether pressure can emanate from a non-human and non-corporate source. As I mentioned at Second Reading, so much pressure nowadays, particularly for young people, comes from the internet, video games, social networking, TikTok and influencers. It is not only the use by people of online devices as a mechanism to pressure another person; it can also be pressure from algorithms themselves, without a human intervening.

In addition to the two prosecutions of OpenAI for ChatGPT allegedly encouraging children to take their own lives, those with chronic illnesses have testified to me that when, for instance, Facebook realises from conversations that you have a chronic illness, it changes your feed from the promotion of group chats and adverts that are positive to negative content about your treatments, whether you can live with it, and even suggesting going to Switzerland. Is it the Bill sponsors’ intention that, when the medical practitioner is verifying under the terms of Clause 10(2)(h), it is not this type of pressure? Are the internet service providers covered by Clause 1, as there is no definition of “person” in the Bill? As I said in Committee, the Bill is designed for an analogue age and not one on the cusp of AI.

Turning to statutory guidance and Amendment 846, the next question is not who applies pressure but what we mean by “pressure”. The former Chief Coroner, Thomas Teague, came to our Select Committee and we asked whether we need to define pressure. He said:

“If it forms part of the ingredients of a statutory offence, then it might be necessary. Frankly, I’m not sure that it would because, for such a common word in the English language, the fundamental principle that lawyers apply is to take the dictionary definition”.


So, last night, I looked in Collins English Dictionary, which defines “pressure” as

“someone … trying to persuade or force”

someone to do something. What a low bar that is that has to be detected. It is a good job that the law will not be retrospective and that there is parliamentary privilege; otherwise, the attempts by the noble and Learned Lord, Lord Falconer, to try to persuade us of the merits of the assisted dying Bill might actually be covered by his own Bill.

I asked the noble and learned Lord in Select Committee whether a consultation is necessary when a new concept is introduced into criminal law. His reply was, “Sometimes yes, sometimes no”. I think that catching mere persuasion means that this is a “sometimes yes” moment, particularly—as has been outlined by the noble Baroness, Lady O’Loan—as this creates the basis for a criminal offence in Clause 34 that can mean imprisonment for life. The noble and learned Lord will not be surprised to hear that later in Committee we will return to his evidence to the Select Committee in relation to Clause 34.

In the Select Committee we asked various professionals what they thought “pressure” meant. Dr Suzy Lishman of the Royal College of Pathologists, who is opposed to the Bill, said:

“I would understand pressure to mean encouragement to go down a particular route, and coercion to involve some force or threat. I have had no training whatsoever in either of these”.


The Royal College of Psychiatrists’ Dr Annabel Price said:

“It would need to be differentiated from coercion in terms of its definition. Coercion would be the application of force, threat”—

[Baroness Thornton (Lab)]

I would like to ask the noble Baroness whether the Select Committee asked anybody who is terminally ill what they thought “persuasion” or “coercion” might mean?

[Baroness Berridge (Con)]

We covered that matter on the first day in Committee.

[Baroness Thornton (Lab)]

The noble Baroness is not answering my question. The truth is, of course, that the committee did not ask anybody who is terminally ill what their view was about any of this.

[Baroness Berridge (Con)]

I will just reply to the noble Baroness, then, that within the Bill that is not necessary. I have outlined Clause 10. This applies to the people who are verifying in the process, not to the individual. It was not in the Motion your Lordships’ House approved that that evidence should be taken.

To continue, Dr Annabel Price said:

“Pressure has a broader definition of perhaps strong encouragement, expectation or the worry of letting somebody down”.


The noble Lord, Lord Patel, joined in this mini focus group and asked:

“If I were to use the word ‘pressure’ and if I were to use the word ‘coercion’, how would you interpret the two?”


Professor Mumtaz Patel from the Royal College of Physicians—again opposed to the Bill—said, “It is grey”.

Amendment 846 also reflects the view of the Law Society, which is neutral on assisted dying but opposed to the Bill. Kirsty Stuart said:

“I think it is really difficult because there is not a definition at the moment … in the Bill”.


That is why Amendment 846 is based on the statutory guidance principle from the offence of coercion under the Serious Crime Act. I note that the Home Office has recently had to issue 91 pages of statutory guidance on that offence. It seems the courts are struggling with it.

Even if Thomas Teague is right that you look at the dictionary, are we talking about economic pressure, emotional pressure, financial pressure, spiritual pressure, reputational pressure, internalised or externalised pressure, or pressure of circumstances—for instance, no one provides you with a hospice bed? As Dr Suzanne Kite, from the Association for Palliative Medicine, said:

“We know that there are pressures of, ‘Can we afford the electricity for the oxygen supply?’ … Yes, these are issues”


that people face “on a daily basis”. The Bill is silent as to what kind of pressure is meant.

To move from individual sources of pressure, there can also be group sources of pressure. Alasdair Henderson, from the Equality and Human Rights Commission, spoke to the Select Committee about

“this wider issue of coercion or pressure at a societal level or an attitudinal level”

and

“the broader trends or cultural issues”.

He said that

“pressure is not always applied directly by another individual, but can result from attitudinal barriers, particularly around disability, and lack of services and support in society as a whole”.

Could pressure come from NICE refusing you, on value-for-money grounds, the drug that you think will wipe out your metastasised cancer? Indeed, the pressure could emanate from the Chancellor of the Exchequer in her Budget, or from the Secretary of State for Health and Social Care, to encourage vulnerable people to take assisted dying, a matter I put to the Government Minister, Stephen Kinnock.

Caroline Abrahams of Age UK said:

“The context again for this is a system in which adult safeguarding is under acute pressure because local government is under such acute pressure”.


The British Association of Social Workers also said that unless these statutory services

“are adequately resourced, that may bend people’s decision a certain way … much of social care is self-funded now. If you are poor and you cannot have access to those personal resources, even more pressure is applied to you”.

I look to the noble Lord, Lord Pannick: how does a medical practitioner sign to say that this kind of pressure—from culture, society or attitudes, or lack of statutory services—is not being put on the individual?

There was unanimity in the Select Committee when we started asking the professionals about training. I said that pressure

“is not defined in the Bill, so I am afraid I cannot help you. We have no definition in the Bill. You are going to need training, though, in pressure. Has any of you received any training like that?”

Professor Nicola Ranger from the Royal College of Nursing, Professor Mumtaz Patel of the Royal College of Physicians and Dr Michael Mulholland from the Royal College of GPs all said no. So we now have additional costs added to the Bill, because we have to devise training in pressure and deliver it to a whole raft of professionals, care staff, et cetera, so that they understand it, in particular bearing in mind the vulnerability to criminal prosecution that exists in Clause 34.

I am going to give the noble and learned Lord, Lord Falconer, this opportunity to shorten Committee proceedings. Deleting “pressure” from the Bill, when it has not been consulted on and has not been subject to pre-legislative scrutiny, would aid the Committee in evaluating the Bill.

[Lord Carlile of Berriew (CB)]

My Lords, in a group such as this, which has so many conceptual, linguistic and semantic alternatives on offer, it is very difficult to see how a Committee stage such as this is going to help very much in determining a final solution to the matters under consideration. Therefore, it could become very tempting to enter into the nice and easy solution suggested by my noble friend Lord Pannick, to the effect that the Bill is quite enough and provides sufficient protection. It is right to say that the Bill certainly seeks to provide sufficient protection, and I do not in any way attribute anything other than good motives to those who sponsor the Bill, in particular the noble and learned Lord, Lord Falconer.

--- Later in debate ---

[Lord Dobbs (Con)]

I will just follow up my noble friend’s remarks. He is a noble friend; I campaigned for him several times in his constituency when he was an MP, and I will remain a friend of his, I hope. I want very quickly to follow up on his remarks about what we might call the “Pannick paradox” between the decision to ask for an assisted death and the decision to refuse any further medication or help that will continue your life for a short time. My noble friend is right. They are not the same: a decision to ask for a death when you know that death is inevitable, and one simply to deny any further help or sustenance, with starving yourself to death the only way of achieving that end, are very different. The difference is that if someone is able to ask for a calm, assisted death, they will die with dignity and not in squalor, having forced the system to cut off any hope of further life. My noble friend knows that I do not agree with him on this, but I absolutely believe he is right in saying that there is a fundamental distinction. That is one reason why I support the Bill.

[Baroness Berridge (Con)]

It might help noble Lords to know that we are being followed on Twitter. This issue—I am aiming to save time—of the Pannick dilemma has been commented on by Philip Murray, who is a law lecturer at Robinson College in Cambridge. He said the following, and we may wish to seek his advice:

“I find it astonishing that various Lords”—


forgive me for the embarrassment—

“including those who should know better (Lord Pannick …), keep conflating withdrawal of treatment and assisted suicide. The act/omission distinction has underpinned morality and law for millennia”.

I hope that either of the noble Lords, Lord Pannick or Lord Dobbs, will reach out to this gentleman to aid all noble Lords so we will not spend any further time on that dilemma.

[Lord Pannick (CB)]

My Lords, may I just say that other views are available in the legal community, including among many distinguished judges who I will not name. There are many law reports that question this distinction, not least for the reasons that have just been given.

--- Later in debate ---

On Amendment 49—

[Baroness Berridge (Con)]

My Lords, my name is on the amendment that the noble and learned Lord has just mentioned. This was also from Second Reading. There are loads of people signing forms saying that coercion or pressure has not happened. What is the situation with the internet? What is the situation for young people? We are failing young people if we do not make clear how that practitioner is going to know. Young people are pressured through non-human means nowadays.

[Lord Falconer of Thoroton (Lab)]

The Bill makes it absolutely clear that it must be your own decision. Let us suppose that your views of the world are affected by the internet and that you are ill and an organisation is urging you to commit suicide, that organisation should be liable if that happens.

In Amendment 49, the noble Baroness, Lady Coffey, wants “person” to include a body corporate or an organisation in relation to pressure. If an organisation or a body corporate is putting pressure on a group of people or on individuals and that makes them do it—this is putting it crudely, but if an organisation says, “Do have an assisted death; it is the right thing for everybody or for you”—that should be covered by the Bill. The noble Baroness adverted to how “person” can generally include both corporate person and human person, but I can talk to her separately about that to make sure that it is covered.

Terminally Ill Adults (End of Life) Bill

Baroness Berridge Excerpts

Committee stage
Friday 14th November 2025 Lords Chamber

[Lord Markham (Con)]

With due respect, I must say, as one of the committee members, that that point was put forward on a number of occasions. Unfortunately, there was a majority of people in the committee of seven to five against, by the way the nomination process worked, so it was the feeling of those members not to invite terminally ill people to speak. The minority of us who were in favour of the Bill tried on a number of occasions to hear them, but that was not allowed.

[Baroness Berridge (Con)]

My Lords, I do not think it is helpful to your Lordships’ House to be going into discussions that included private discussions. The Motion that the House passed did not suggest that. Noble Lords will also know that there are ethical concerns about calling people who are so vulnerable.

[Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)]

I remind your Lordships of the conventions of the House. An intervention on an intervention is not ideal. If we can follow normal conventions, that will be helpful.

--- Later in debate ---

[Baroness Blackstone (Lab)]

My Lords, I agree entirely with what the noble Lord, Lord Markham, just said. We have a tried and tested way of measuring people’s capacity, but we do not have a single tried and tested way of measuring people’s ability. That is a very broad concept, and anybody who has worked in education at any level will say with absolute certainty that it would be unwise to replace what is currently in this Bill with “ability”. There is no definition of it—it can cover a vast variety of different kinds of ability—and finding an adequate test could take years.

[Baroness Berridge (Con)]

My Lords, I declare my interest: I received a personal donation from Dr Etherton to fund research support. Normally, I would agree with the noble Lord, Lord Pannick, in relation both to legal terms that are not defined and to moving to something that is ill defined; he will find, in the later groups of amendments with which I am involved, that this is a key concern that I have had.

The amendment in the name of the noble Baroness, Lady Finlay, talks about “ability”. I have struggled with that, for the same reasons as the noble Lord, Lord Pannick, but I have been persuaded that there is something in this. I served on your Lordships’ Select Committee. One of the benefits of serving on those Select Committees is that you sometimes get to meet your hero. Professor Sir Chris Whitty sat in front of us as the highest expert in the land, but when he gave evidence to the Commons Select Committee he had to write afterwards because he had misunderstood something and had to clarify it. It was after the Third Reading vote, I think. His letter was put in our pack and made public; I thank the noble and learned Lord, Lord Falconer, for nodding. One has to consider the fact that even he got it wrong.

We also heard from Professor Alex Ruck Keene, who is an honorary KC, who trains practitioners in how to apply this test. We heard that, although it might be common and used up and down the land, there is a considerable body of evidence that practitioners are struggling to apply it in what he calls the 15% of cases that are complex. I think this is the kind of case outlined by the noble and learned Baroness, Lady Butler-Sloss.

The committee’s time constraints meant that I was not able to put that evidence to Professor Sir Chris Whitty, as Members’ questions are limited, but I put the following to him because it is sometimes helpful for us to think about the practical realities. The MCA would bring with it its other parts, not just the capacity test. There is a presumption if, for example, an 18 and a half year-old who has had a life-limiting condition all their life is being assessed and the doctor doubts whether that young person has capacity that they have capacity—as far as I understand Professor Ruck Keene. We have to take that evidence into account. There has been some discussion about the royal colleges, but as political parties we know that some people will peel off from the corporate view. We need to take seriously that the royal colleges are not supportive of the Bill. While Professor Sir Chris Whitty might—

[Baroness Blackstone (Lab)]

My Lords, I declare an interest as chair of the Royal College of Obstetricians and Gynaecologists. I have followed what the different royal colleges are saying and it is not true to say that they are opposed to the Bill in general. Most of them are neutral, one or two are in favour and one or two are against.

[Baroness Berridge (Con)]

As people around me are saying, I do not think I said that. They are neutral. The royal colleges have said that they have problems with the Bill, but they have been neutral on the principle, save for the Royal College of General Practitioners. I am sorry; I stand corrected on that. They are neutral, as is the Association for Palliative Medicine, which is not a royal college.

When one looks at the evidence that we took, of course individuals from within that group would come along whom we had to call. It was right that we did that, but one looks at a corporate view. I enormously respect Professor Sir Chris Whitty, but I heard his evidence on this and he was not the highest expert in the land. He was humble enough to write to correct himself, as he had misunderstood the Mental Capacity Act when he gave evidence in the Commons.

[Lord Blencathra (Con)]

My Lords, we should all be grateful to the noble Baroness, Lady Finlay of Llandaff, for bringing this matter before the Committee, but also to my noble friend Lord Harper, who has highlighted some of the deficiencies in in the Mental Capacity Act. Yes, it may be tried and tested in its current usage but, as we heard from many sides of the Committee, it may be inadequate for dealing with death issues.

I was going to speak in support of Amendment 2, but I might also be willing to support the potential oral amendment from my noble friend Lord Deben. When considering important decisions, particularly in the context of healthcare, it is crucial to understand the distinction between capacity and ability. This is especially relevant for terminally ill patients, as questions about decision-making may arise on treatment options, advance directives and legal matters.

I believe that we should change references from “capacity” to “ability” when discussing decision-making for terminally ill patients. The reason for this change is to ensure clarity and accuracy in describing a person’s actual situation. We should not be afraid to bring in a new word if it is more relevant than “capacity”. Although “capacity” is a legal and clinical term for specific criteria, “ability” is a broader term that may better reflect the practical realities and nuances of an individual’s situation. Using “ability” can help to avoid misunderstandings and ensure that patients are supported in ways that are appropriate to their unique circumstances.

Terminally Ill Adults (End of Life) Bill

Baroness Berridge Excerpts

2nd reading
Friday 19th September 2025 Lords Chamber

[Baroness Berridge (Con)]

My Lords, sadness and sympathy are palpable in our inboxes and in this Chamber. Your Lordships’ House is a sobering scene. I begin with what is missing from the Bill—the letter “S”, the plural. As the noble Baroness, Lady Berger, has outlined, there is no mention of family or relatives. Its premise is the western Enlightenment view of the self and individual autonomy, which is alien to parts of the UK, let alone to some of our ethnic minority communities. On the latter, I can put it no better than an article by Chine McDonald, director of Theos, in a post on 26 November last year:

“Many people will be familiar with the southern African term ‘Ubuntu’, which means ‘I am because you are’. In my own community—the Igbo ethnic group of south-eastern Nigeria—there is the concept of the Umunna: the fraternity, the clan or the community … there is a strong sense of existing not as an individual, but knitted into a family … The idea that someone who is facing death might not want to be a burden … is anathema to West African tradition. You can’t be a burden because you are not a separate entity. You’re part of a whole”.


Anyone who has visited the north-east of England might attest to a similar “thick” community.

I heard the compelling story of someone with PTSD after watching the huge syringes of drugs go into their father. There is no duty under the Bill to warn them. What about the effect on you of witnessing the failed process that the Bill outlines? Or are they just not allowed to be there?

Another “S” is “subtle”. Many noble Lords have spoken of subtle pressure, and pressure and coercion are used in the Bill, by relatives, which can be hard to detect. There is another wrong premise in the Bill: that pressure comes from a person. If you join a Facebook networking group, say, for fellow sufferers of the same disease, the algorithms can alter the content offered to you, or comments by others can cause you to idealise the thought of assisted dying, create a reward pathway in your brain and even, according to studies, change the network and structure of your brain. Thus, in fact, the coercion could come from an unquantifiable force, or even an algorithm, not a person. How can medical practitioners ever know if you have been pressurised like this? Although this research field is still in its infancy, could we, in 10 years, be reporting that deaths were actually through coercion on social networking? Even today, a family is suing OpenAI, saying that ChatGPT encouraged their son to take his life. Other studies are now reporting that people are more likely to turn to social media for medical health reports than to qualified physicians. This is the world in which we are legislating. We know that this can influence elections; how can it not influence these decisions?

The clause to prohibit advertising is insufficient. This Bill is for an analogue age, not one on the cusp of AI. Although I support the suggestion of the noble Baroness, Lady Berger, for a Select Committee—and I hope I am not throwing a spanner into the timetable—I do not think we can ignore these issues. I am an optimist, and I hope that the six-month timeline in the Bill—again, because we are on the cusp of medical breakthroughs—will in the future become impossible. Anyone who knows parents of children with cystic fibrosis knows that the new-gen drugs are transformative. How will clinicians advise when they do not know what breakthroughs we are on the cusp of?

My final “S” is single women, as the noble Lord, Lord Truscott, talked about. A meta-analysis of the best quality of Oregon between 1998 and 2018 says that it witnessed an increase of 50% in voluntary suicide of older women over the age of 65. We know that suicide can be contagious. Are we opening up that Pandora’s box again? I agree with the right reverend Prelate the Bishop of London about voting on the principle. This is leadership from the Church of England, and the feedback to me is very welcome. I do not view this as taking your own life; I view it as giving your life back to God. This is a sacred act, and not one the state should provide.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

The other amendment I want to refer to is Amendment 34, which puts into effect that which I have been asking for and is being put forward by the noble Baroness, Lady Berridge. I very much support her amendment. I beg to move.

[Baroness Berridge (Con)]

My Lords, I shall speak to Amendment 34; I thank the noble Baroness, Lady Tyler, for adding her name to it. I am grateful too to the Minister for beginning, by way of the government amendments, to ensure that the Mental Health Bill does not conflict with orders of the family court under the Children Act.

Amendment 34 would ensure that the AMHP—approved mental health professional—appointing the nominated person for a child who lacks competence must appoint either the special guardian, when the family court has ordered one, or the parent with whom the child lives under a child arrangements order. His Majesty’s Government’s amendment reflects the current position under Section 37 of the Mental Health Act, and this amendment merely reflects the current position under Section 38. Under the Bill, however, the nearest relative becomes the nominated person and moves from a “must” in the Mental Health Act to a “should” in a code of practice.

According to the Government’s policy paper, His Majesty’s Government wished to give the AMHP the discretion to appoint someone other than that special guardian or the parent with whom the court has ordered that the child resides. Both those court orders affect parental responsibility. A special guardian takes all effective day-to-day decisions for the child and, according to the Children Act 1989, parents are left only with consent to a change of name or if the child is to leave the jurisdiction.

A kinship carer or foster carer is given parental responsibility by way of a court order after a report that has to be produced by the local authority to the court. Under a child arrangements order, the matter of who the child lives with or sees is determined, again, by a court order. A matter that is usually part of parental responsibility decided between the parents is now the subject of a court order. Breaching that order is, in fact, contempt of court—or a breach of a court order, as is normally said.

Many of these admissions of sick children who have no capacity are in the evenings or at weekends. That is what I was informed last Thursday by Dominic Marley of the AMHP Leads Network, whose clear view is that it does not want to be foisted with the discretion that His Majesty’s Government offer them. Why? It is because, quite simply, AMHPs are not equipped, unlike the family courts, to assess that there is now no risk of harm to a child, or to appoint someone other than the special guardian or the parent with whom the child resides.

How can AMHPs assess, at 10 pm on a Saturday night, that the daily life of a child is no longer what was outlined in the special guardianship order, or if the child now lives with that parent without a problem, even though that parent may have a history of not being able to care for them due to illness, or a history of violence, but has now recovered or reformed sufficiently? How can AMHPs assess that the parent who was ordered not to have contact after a week-long trial of the evidence in the family court is, in fact, safe to have contact with the child as the nominated person? AMHPs are simply not equipped to delve into complex family issues that have already been determined by the family court—nor, when they are trying to do a mental health assessment of a sick child, do they want to be distracted by this.

The remedy, as the noble and learned Baroness, Lady Butler-Sloss, outlined, is to enable the reformed parent in either of those cases to go to the county court under the nominated persons process, which, indeed, often hears cases within 24 hours. There is, of course, also the remedy to go back to the family court, but that would take longer. It is for that court to assess, we hope with a family judge, what the position is and whether that parent is now safe to be involved in the child’s life as the nominated person. It is unfair to put that responsibility on AMHPs, who see only a small number of Children Act cases each year. Also, as these cases are not straightforward—by definition, they have been subject to an order in the family court—AMHPs would almost certainly need His Majesty’s Government to provide out-of-hours specialist legal advice across England and Wales to help them do this. That matter would, obviously, be open to litigation.

AMHPs and the staff of a unit should not have this responsibility or discretion. What if a father who has a no contact order is given access as the nominated person and harms the child? Even if that does not happen, I cannot help wondering, can the mother go to the family court and say that the dad is in breach of the no contact order or in contempt of court by seeing the child as the nominated person? And would the dad defend that breach and say, “I need to call the AMHP to the family court”? This seems to be getting rather expensive and complicated. Family court orders should be respected, so who the AMHP must appoint as the nominated person should again be on the face of the Bill. Most importantly, this would eradicate the risk of harm to a child from a parent, who has been found by a court to be a risk to their child, getting contact with them, or getting access as the nominated person until another court determines otherwise. Court orders are amended by court orders, not AMHPs.

After eight years of looking at the Mental Health Act to reform it, we are now at Report stage and there are still significant conflicts between this Bill and the Children Act. I am left wondering why. Sadly, despite the considerable engagement that other noble Lords have mentioned by the Minister, which I know is appreciated, as of last Thursday, His Majesty’s Government have not met with the lead AMHP network that I have outlined, which represents over 90% of local authorities in England and Wales and has been in existence for over 20 years. The network is not aware of any other professional network being in existence. It was promised by the last Government that, before a Bill was produced to Parliament, it would be met with. As of last Thursday, His Majesty’s Government have also not consulted with the British Association of Social Workers, which has a special interest group of AMHPs. Why not? Will the Minister please outline precisely whether any AMHPs have been met with and, if so, tell us who are they are and make them known? The network I have spoken to is very concerned about this discretion.

The Minister has immunity while being a servant of the Crown; AMHPs and the staff of a secure mental health unit do not. All the AMHPs are asking for is what is indeed reflected in Whitehall. The DHSE has responsibility for the Mental Health Act and DfE for the Children Act. This is not their expertise. I do hope I will not be attaching this Hansard to a letter to a coroner, a CQC inquiry or any other inquiry if, God forbid, a child is harmed or killed in a secure unit by a parent.

Governing is about deciding. Without Amendment 34, His Majesty’s Government have, in my view, decided to take an unnecessary risk with the safety of some of our sickest children. As noble Lords may be aware from how I have outlined this speech, I intend to divide the House if necessary—but I hope the Minister will concede the point.

[Lord Meston (CB)]

My Lords, I would like to support both the amendments of the noble and learned Baroness, Lady Butler-Sloss, and the amendment just spoken to by the noble Baroness, Lady Berridge. It seems to me that, in the potentially complex and fluctuating family situations with which mental health professionals may find themselves having to deal, it is absolutely fundamental that they identify and consult those who have parental responsibility. It would be quite wrong, even in a hasty or urgent situation, for such people to be marginalised.

So far as the amendment from the noble Baroness, Lady Berridge, is concerned, I likewise entirely agree that the practical realities of operative family court orders, which may or may not be relevant, will certainly need to be understood and properly looked at before any urgent decisions are made. They will also need to be fully considered later when more measured decisions have to be made. For that reason, I would certainly wish to support her amendment.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for their contributions in this important area, and I thank the noble and learned Baroness, Lady Butler-Sloss, for Amendment 2.

On that point, I can say that a copy of the report made following a care and treatment review must be sent to those who have a legal duty to have regard to the review recommendations, so that they are implemented appropriately. We agree that parents play an important role. However, it may not be appropriate for the report to be sent to parents in every case: for example, where safeguarding concerns have been raised. Inappropriate sharing of information could result in the patient withdrawing their consent to the review. So we will provide statutory guidance on the role of the parent to assist the responsible commissioner in considering who to involve in care and treatment reviews.

On Amendment 25, also tabled by the noble and learned Baroness, Lady Butler-Sloss, the Bill already allows anyone involved in the patient’s care or welfare, which includes parents, to apply to the county court to terminate the appointment of a nominated person. I can assure the noble and learned Baroness that we will make this clear in the code of practice and the Explanatory Notes for the Bill, as she has raised an important point.

To address Amendment 27, we are concerned that making it a requirement for parents always to be consulted when a nominated person is chosen could put undue pressure on a child to choose a parent. However, we agree that the witness should consider the views of parents and others who may have insight into the suitability of a nomination. I can tell the House that we will therefore set out in the statutory code of practice how the views of the family and others should be fed into the witnessing process.

I have also heard the concern of the noble Baroness, Lady Berridge, about the nominated person regarding children who lack competence. In response to this, as she acknowledged, I have tabled Amendments 29 to 33 to make it clear who an approved mental health professional must appoint in certain circumstances. For an over-18 lacking capacity, an approved mental health professional must appoint a competent lasting power of attorney or Court of Protection deputy, if they have one. For all under-18s lacking capacity or competence, where there is a care order, they must appoint a local authority which has parental responsibility for them or, if relevant, a competent Court of Protection deputy. Where there is no care order, the approved mental health professional can appoint a person who does not have parental responsibility for 16 and 17 year-olds. This allows for suitable alternative arrangements, for example, informal kinship arrangements for young people who live independently. I hope that this reassurance and commitment on my behalf provides the further clarity for which the noble Baroness has been advocating.

Finally, in response to Amendment 34, we agree that in the vast majority of cases we would expect a parent, or whoever has parental responsibility, to be appointed. This would include consideration of special guardians and child arrangement orders. As I have set out before, we do not agree that a person with residual parental responsibility should always be blocked from being a nominated person. A child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child. For example, the parent might struggle with their own health issues but could still be an effective nominated person.

The situation is different in the case of a care order because the local authority is being given lead parental responsibility. We have engaged with the Children’s Commissioner on this point. As I believe the noble Baroness may be aware, I recently met the Children’s Commissioner on a range of issues, including discussions about the Mental Health Act.

If there are no relevant people, approved mental health professionals must follow the patient’s past and present wishes and feelings when deciding who to appoint. We do not believe that the eldest person should be given preference, as this represents an outdated assignment of responsibility. I assure the noble Baroness, Lady Berridge, that I have been advised that my officials met the chair—but I understand that the term is lead—of the AMHP Leads Network last November.

I can make a further commitment, which I hope will be helpful to your Lordships’ House. I am committing to establishing an expert taskforce to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process for children and young people. Views will be very much welcomed on who should be part of this; I have already invited the noble Baroness, Lady Berridge, and the noble and learned Baroness, Lady Butler-Sloss, to make suggestions about that. With these reasons, I hope that noble Lords can support our amendments and will not press their amendments.

[Baroness Berridge (Con)]

Before the Minister sits down, the information I have is that Dominic Marley of the AMHP Leads Network had not seen a draft of the Bill that was to go before Parliament. Can the Minister confirm that? The Minister has outlined that there can be an assessment of ill-health already before the courts. Is she confident in legislating when a group of professionals are saying that they are not competent to assess the illness or otherwise of that parent and that the matter, already determined by a court, needs to go back to a court to be re-evaluated? They say that they are not competent to do what you are asking of them.

--- Later in debate ---

Moved by

[Baroness Berridge]

24: Schedule 2, page 72, line 24, leave out “county court” and insert “Mental Health Act tribunal”

[Baroness Berridge (Con)]

My Lords, I will be brief, bearing in mind the time. I have tabled these amendments again on Report, regarding the appropriate tribunal to hear the nominated person’s claims. I am very appreciative of the information given earlier to the noble and learned Baroness, Lady Butler-Sloss, that parents would be able to go to the tribunal. I am also very grateful for the letter that the Minister wrote to me.

The only point on which I wish to have clarification is that there is a difference between the Mental Health Act tribunal and the county court in relation to funding. A parent who goes to the county court will be subject to means testing for Legal Services Commission funding. That is not the case for the Mental Health Act tribunal. So, bearing in mind the importance of the county court to parents, will the Minister outline whether there are any proposals to enable parents to access Legal Services Commission funding?

[Lord Meston (CB)]

I am grateful to the noble Baroness for bringing this point up again. I mentioned it in Committee. The reference to the county court, currently in Schedule 2 to the Bill, is the only place in this jurisdiction where the county court is given anything to do. It seems to me now to be an anomaly and an anachronism. It is simply carrying forward the use of the county court from the 1959 Act and the 1983 Act, which provided for that court to deal with applications to displace nearest relatives.

I do not believe that, if the mental health legislation was now being started afresh, it would refer to the county courts. The county court is, in any event, now greatly overburdened, but that is not the only reason to replace it. A mental health tribunal, or indeed the Court of Protection, would be better equipped to deal with these cases, having specialist expertise and judiciary.

--- Later in debate ---

[Baroness Merron (Lab)]

I am most grateful to the noble Lord.

[Baroness Berridge (Con)]

I am grateful for the Minister’s comments, the reassurance she has given and the details she will provide me with, so I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

--- Later in debate ---

Moved by

[Baroness Berridge]

34: Leave out sub-paragraph (3) and insert—
“(3) Where sub-paragraph (2) does not apply, the approved mental health professional must appoint as a nominated person— (a) a guardian who has been appointed for the relevant patient,(b) a person who is named in a child arrangements order, as defined by section 8 of the Children Act 1989, as a person with whom the relevant patient is to live, or(c) a person who has parental responsibility for the relevant patient.(3A) In this paragraph “guardian” includes a special guardian within the meaning of the Children Act 1989 but does not include a guardian under section 7 of that Act.(3B) Where there is more than one person identified as a potential nominated person in sub-paragraph (3)(a), (b) or (c) then the approved mental health professional must in deciding who to appoint—(a) take into account the relevant patient’s past and present wishes and feelings so far as reasonably ascertainable, or(b) where it has not been possible to ascertain the relevant patient’s past and present wishes, preference must be given to the eldest person.”

[Baroness Berridge (Con)]

My Lords, I have listened carefully to the Minister’s reasoning, but I am sure it will not be a surprise to her that there is now a matter of disagreement, so I wish to test the opinion of the House.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, in moving Amendment 142, I will speak to Amendments 143 and 144 standing in my name and that of my noble friend Lord Kamall. These amendments are about one critical issue that has proved seemingly intractable despite best efforts for many years: the way the mental health system looks after child patients. I am not talking just about child patients who have been compulsorily detained under the Mental Health Act, although they are the subject of Amendment 143; I am referring also to children admitted to a mental health unit as in-patients for any reason at all. That is the subject of Amendment 144.

Noble Lords who are veterans of the last Mental Health Bill in 2007—I can see one or two—will remember that the late Lord Williamson of Horton, former Convener of the Cross Bench Peers, made this issue his crusade with, unfortunately, only limited success. We are still living with the problem. The current Mental Health Act code of practice says that it is government policy for under-16s not to be admitted to an adult ward, which is fine as far as it goes—although, in my book, when we talk about children, we should include young people aged 17 and 18.

The Government promised to eliminate the inappropriate use of beds in adult wards, but that has not happened. Last year, the CQC reported that 196 children were admitted to adult mental health units in 2022-23. This is not a trivial matter. The patient group Blooming Change, which I have mentioned before, has provided me with some first-hand accounts from children and young people who have been placed on adult mental health wards and who have been through some harrowing experiences. One has said:

“As a child I spent over 50 days in a mixed gender crisis unit … There was some very scary stuff that happened … During my first day on the unit, I witnessed a team of police dressed in riot gear with riot shields and dogs doing a drug search … At one point my bedroom was next door to a man who broke a student nurse’s nose and smeared his own bodily fluids over his bedroom wall … I was constantly scared and on edge and the ward was constantly unsettled. The staff on the ward were not trained on child restraint, so I often ended up really hurt … it would be, like, really big men who were used to going up to forensics to restrain people and then coming to restrain me, a little girl at the time, basically. It was horrific”.


That may be an extreme case, and one trusts that it is, but there are many cases that fall not far short of that level of emotional damage. It certainly is not that extreme as regards the complete absence for a child of any therapeutic benefit.

Another witness said:

“The worst thing about adult wards is you can’t access any intervention at all. No art therapy, no psychiatrist, because you’re under 18, so they say they don’t have the appropriate training to work with you. When I was on an adult ward, all my medication went unreviewed. I wasn’t allowed to ask for anything, not even allowed outside”.


What is the best way of solving this problem? The approach I have taken in these amendments is to say that, when a person aged under 18 is in desperate need of in-patient mental health treatment, the clinical decision-making around admitting that person to a mental health unit should be as rigorous as it can be to avoid, as far as humanly possible, admitting that patient into an adult ward. There surely to be a determination around best interests. There also need to be procedural safeguards so that, if it is decided that an adult ward is the only available option in a particular case, there is appropriate transparency around that decision, such that the local authority is informed of the fact and the hospital itself publishes statistics in its annual report recording the number of instances during the year when this has occurred.

I also suggest that a report to the local authority is equally appropriate in a situation where a child is accommodated in a hospital or mental health unit situated outside the local authority area in which the child is ordinarily resident. In one of our earlier debates, we talked about the particular vulnerability of children who are treated in a hospital far away from home. Alerting the child protection officer working nearby would go some way at least to mitigating the risk of the child self-harming.

There may be some Members of the Committee who think I have been far too lily-livered in tabling these amendments and who feel I should have tabled much stronger amendments proposing the outright abolition of placements involving children on adult wards. I quite deliberately have not done that for the reason we touched on in earlier debates: we have to work with the world as we find it, not as we would ideally like it to be. We have to recognise that, in a few cases—sometimes desperate cases—a temporary stay on an adult mental health ward could be the only way of saving a child from death or serious injury and, in those cases, I suggest that it is not for us in Parliament to prohibit the practice outright.

On Amendment 142, a child being treated in a mental health in-patient unit who also has a physical disability can sometimes get a very raw deal. If the unit they are on has areas that are, in practice, inaccessible to that child, that simple fact can have a huge impact on their access to treatment. One member of Blooming Change has said:

“I am physically disabled, and for me, the room to speak to the psychologist was upstairs in the unit, and there was no way for me to access that space. I kept being told she would come down to see me somewhere else during my stay, but it didn’t happen, so for me, my physical impairments meant that I didn’t get equal access to the support”.


This is not the sort of amendment I would choose, in the normal way, to bring back on Report, but the questions it raises are important enough for me to ask the Minister whether the department and NHS England are sufficiently aware of that kind of problem and what, if anything, is being done to address it. I beg to move.

[Baroness Berridge (Con)]

My Lords, I rise to speak to Amendments 159 and 160. Amendment 159 is similar to Amendment 143. It merely proposes a different notification procedure where a child has been present on an adult ward, but it also requires notification to the local authority and applies to out-of-area placements, which were mentioned by my noble friend Lord Howe. It is important that that information is given to the local authority, as it has the duties to safeguard—particularly children in need. I will speak to this on Amendment 160.

I join with my noble friend’s comments on how the Bill treats those who are 16 and 17. We have raised the issue in relation to other areas of the Bill that, in law, they are children, and they are treated as children by the professionals, as outlined in the example of the psychiatrist saying, “I don’t have the training to do this”. Under-18s are treated as vulnerable young people and children. One can also draw attention to the fact that under-18s are no longer allowed to marry in our country. We are increasingly coming into line with the fact that you are a child, and have the protection of the law as one, until you are 18.

Amendment 160 relates to “children in need” under Section 17 of the Children Act. Recommendation 117 of the Wessely review said:

“Section 17 of the Children Act 1989 should be amended to clarify that any child or young person admitted to a mental health facility is regarded as a ‘child in need’ so that parents can ask for services from their local authority”.


That will, obviously, be particularly important if the child has been placed out of area.

That recommendation was rejected by the Government in their published response to the review, but I note that the review also asked for this provision to be if the child is admitted—that means as a voluntary patient, of course, as well as just being admitted under the Act. I have laid this amendment to clarify the Government’s response to this. That response stated that, basically, it is not necessary to amend the Children Act because disabled children, which includes children suffering from a mental disorder, are already deemed to be “children in need”, so there is no need for this recommendation.

Valdo Calocane: NHS England Report

Baroness Berridge Excerpts

Thursday 6th February 2025 Lords Chamber

[Baroness Merron (Lab)]

I am grateful to the noble Baroness and for all her contributions to the Mental Health Bill. Perhaps I could use this opportunity to say, in answer to her question but also to a previous question, that improving patient rights is not in conflict with public safety. That is something that I know we are very mindful of about the Bill. As the noble Baroness is well aware, and as we have debated many times in this Chamber, there is a case, when to protect people from themselves and to protect the public, action must be taken, and that should not be shied away from.

[Baroness Berridge (Con)]

My Lords, as the terms of reference of the inquiry are developed, could the Minister outline whether they will cover the key questions that have been raised about the criminal justice system? Do we need to look, for instance, at renaming the offence “manslaughter on the grounds of diminished responsibility”, with the cry that he has got away with murder? Will it look at the sensitive issue of, when somebody is not culpable for getting as ill as he did, which is what the court found in the unduly lenient sentence judgment, whether we need to explain to the public why we do not send people to prison but only to hospital in those circumstances?

[Baroness Merron (Lab)]

As the noble Baroness is aware and as I have already confirmed, the report is totally focused on the care and treatment of Valdo Calocane. The questions about sentencing are of course a matter for the courts, but I am sure that my colleagues in the Ministry of Justice will be interested in the noble Baroness’s comments.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

I briefly mention Amendments 77 and 84 in the name of the noble Baroness, Lady Berridge, which propose the use of the mental health tribunal rather than the county court. My preference would still be the use of the Court of Protection as the correct venue; we certainly cannot have both. However, I do not want to anticipate what the noble Baroness is likely to say or, indeed, what the Minister will want to say in reply.

[Baroness Berridge (Con)]

My Lords, I shall speak to Amendments 77, 82 and 84 in this group. I am grateful to the noble Lord, Lord Meston, for mentioning my amendments in advance. I am adding the other choice for His Majesty’s Government, which is the mental health tribunal, on the basis that the Court of Protection deals with the Mental Capacity Act and, obviously, at the moment, the mental health tribunal deals with claims under the Mental Health Act.

However, there are one or two points of clarification on the process on which it would be useful to hear from the Minister. As I understand it, for the county court to take an application to displace the nearest relative involves means-tested legal aid, whereas the mental health tribunal, I believe, has Legal Services Commission funding—I am talking in old money here—so it is non-means-tested. I am not aware of what the situation is with the Court of Protection. However, an important concern of people making these applications is whether their legal representation is funded. I expect they are in a situation similar to that outlined by the noble Lord, Lord Meston, when he spoke of getting one of these applications for the first time; for many people making these applications, it will be their first time not only making such an application but being in front of any kind of court or tribunal, and at a time of great distress with a relative detained under the Mental Health Act.

Given that the policy document disclosed last week references this process as the solution to certain situations, could the Minister please outline, either today or in a letter, how many county court applications there are, how long people wait for such applications and what the rate of success is? How many of those who go to the county court currently get legal aid?

Is the Minister satisfied that the county court can act swiftly enough to remove a nominated person who is a risk to the patient? An example given, I think either in the review or in the response to the White Paper, is that, if you have a coercive, controlling boyfriend of a 17 year-old girl as the nominated person, or someone who is suspected of having trafficked that young person to the UK, then time is of the essence for practitioners to have that person removed—on evidence, obviously—from having such powers as, for instance, to apply to discharge the patient from hospital.

At this stage, it might also be appropriate to ask the Minister what is meant in the policy document by the concept of “temporary” nominated persons? We had interim nominated persons in the review, but there is no concept that I have seen in the Bill of temporary nominated persons.

Finally, Amendment 82, although it may be in the wrong group, talks about parental responsibility. We have had other discussions in Committee about this, and I think it was in the review; we must make sure, at the very least, that appropriate people with parental responsibility have the relevant information. That is a baseline. Whether we go on to consultation or being able to apply to remove a nominated person, I would submit—and Amendment 82 outlines this—that they should have all the relevant information. I have exempted the person with residual parental responsibility under a special guardianship order. This reveals some of the complications of the Children Act. In this type of situation, the child has been removed to live with someone else; it is similar to a care order, in that the people with parental responsibility remain there, unless there is an adoption order. One has to be careful even about the rights to information, and who with parental responsibility receives that.

[Baroness Butler-Sloss (CB)]

My Lords, if I may, I shall start with the amendment tabled by the noble Lord, Lord Meston. I agree with almost everything that the noble Baroness, Lady Berridge, has said. I will talk first about which court it should be in. I agree entirely with what the noble Lord, Lord Meston, had said. Oddly, the county court was one of the only courts in which I did not sit, but I have never heard a circuit judge who was very keen on dealing with these particular applications.

Judges of the Family Division sit in the Court of Protection. As I would hope noble Lords would agree, they are somewhat expert in family law, and they do a great deal of mental care and medical cases. As president of the Family Division, I spent probably 50% of my time doing one sort of medical case or other, quite a lot of them mental health cases. The Court of Protection is probably the best court to deal with this. I do not feel very strongly against the mental health tribunal—I just do not think it would be quite as good. Legal aid is an issue, and I assume that it probably would not be automatic in the Court of Protection.

I turn to my Amendment 70. I entirely share what the noble Baroness, Lady Berridge, has just said. The law is that, until the age of 18, one is a child, regardless of the Gillick case, regardless of being 17 and very nearly grown up. Until a person is 18 they remain, technically, in law, a child. I am very concerned about a child of any age, living at home with parents, who has a mental health problem sufficiently serious to require attention and a nominated person, who is at odds with the parents or guardian and chooses somebody who is totally unsuitable. The noble Baroness, Lady Berridge, pointed out that this could be someone who might be trafficking, or an unsuitable boyfriend.

The one group of people not included in new Section 30B(2) in Part 1 of Schedule 2 where it says that, to discharge a nominated person,

“An order under this section may be made on the application of…”

is anybody who has parental responsibility for the child. This means that when a child who is at odds with their parents goes into hospital, when those parents know the boyfriend and that he is unsuitable, those parents have no voice whatever in saying that he is not suitable to be a nominated person. Subject to the important points that the noble Baroness, Lady Berridge, has made, it seems that there are certain cases where, in what used to be called a custody order or a special guardianship, the parental responsibility of the natural parents is limited.

I would have hoped that the Government would see that, however much they want to empower children, including children under the age of 16, they cannot take away 100% the responsibilities of parents. Under Section 2 or 3 of the Children Act, parental responsibility is defined as having rights as well as responsibilities. I am really talking about the responsibility whereby parents may really want to be able to tell someone, “Look who my daughter is going out with”, but under the Bill they have no right do so, and as far as I am concerned that is utterly wrong.

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Moved by

[Baroness Berridge]

74: Schedule 2, page 73, line 21, at end insert—
“(3) Regardless of whether a person is appointed as a nominated person, if they have parental responsibility that person must be given appropriate and relevant information about care and treatment of a relevant patient.(4) Subsection (3) does not apply to persons with residual parental responsibility for the relevant patient when the patient is subject to a special guardianship order under section 14A of the Children Act 1989.”Member’s explanatory statement
This amendment, along with another amendment in the name of Baroness Berridge, seeks to ensure that regardless of whether persons with parental responsibility are appointed as the nominated person, they should have access to the appropriate and relevant information about care and treatment of the relevant patient (unless a Special Guardianship Order has been made).

[Baroness Berridge (Con)]

My Lords, Amendment 74 properly sits alongside Amendment 82 in the previous group, so I rise to speak predominantly to Amendments 75, 78 and 79A to 81. This group seeks to ensure that the expansion of choice and autonomy for children and young people under the Bill sits consistently with the child protection law of the Children Act, which I believe the noble and learned Baroness, Lady Butler-Sloss, was involved in creating.

This is not a new issue. The independent review way back in December 2018 stated:

“There needs to be careful consideration of how the powers and rights of the NP”—


the nominated person—

“will interact with other areas of the system, including care orders, guardianship and child arrangement orders, where the overlap with parental responsibility is particularly important”.

Parental responsibility has been dealt with in a series of amendments by the noble and learned Baroness, Lady Butler-Sloss, so I will not address that. It is regrettable that over six and a half years later, we still have not sorted this matter and there is no draft code of practice for noble Lords to refer to.

However, I am grateful for the meetings the Minister has had with colleagues, and for the policy document disclosed last week, which made small steps. I hope the Minister can confirm that she has met the Minister for Children and Families and DfE officials regarding this matter, as they hold responsibility for the Children Act. I am also grateful that the Children’s Commissioner has now stated her concerns in this aspect, as well as for the excellent work of the Children and Young People’s Mental Health Coalition.

To avoid this being dry law, I will give two quick examples that illustrate the conflict remaining between the proposed reforms and the protections under the Children Act.

First, a 15 year-old child is Gillick competent but still does not quite understand why she has not had any contact with dad. However, there are days of evidence in the family court showing that dad is violent, controlling and coercive; a child arrangements order was made, giving him only what is called letterbox contact. The child appoints dad as the nominated person, and dad of course now has contact. Cannily—these people are canny—on the Thursday before a bank holiday weekend, he applies to have the child discharged. The 72 hours to bar this application pass by the locum’s staff, et cetera—we can all imagine the inquiry—and dad has now taken the child and disappeared. I leave it to the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, to outline what mum, who has parental responsibility under this Bill, knows is going on. Children and young people should of course be given choice and autonomy—my amendments do not seek to undermine either that or Gillick competency—but surely we must consider circumscribing that when the family courts have, for child protection reasons, restricted the role of adults who should normally care for and love that child or young person.

I turn to the second scenario. A 17 year-old lacks the capacity to appoint so the AMHP is making the decision to appoint the nominated person. However, the 17 year-old is under a special guardship order—maybe they ran away from the special guardian—and was picked up by the police while trying to find dad, whose address they had on them. Dad still has parental responsibility, of course, so the AMHP contacts him and appoints him as the nominated person. Again, he applies for discharge. The child tries to return to the special guardian, who has no idea that the child is about to return home, so no one is there to receive them. The child leaves in distress and harms themselves.

The AMHP can be forgiven for thinking that child special guardianship orders end at 16 years old, as I cannot find them mentioned at all in the Bill. The same scenario would apply to a child in care as paragraph 9 of Schedule 2 to the Bill is blissfully unaware that 16 and 17 year-olds can be under a care order. The AMHP, according to the Bill, is under no duty to appoint the local authority for a 16 and 17 year-old under a care order or a special guardianship order in this scenario.

The solution to the second scenario is in Amendments 79A and 80A; I am grateful that the noble Baroness, Lady Tyler, has added her name to the latter. Where any person under the age of 18 is being detained—that is about one-third of young people—the AMHP is given a list of people who must be the nominated person, not just those with parental responsibility and the local authority in relation to care orders, as in the Bill and as outlined in the policy document.

Dominic Marley, the co-chair of the AMHP Leads Network, has written to me. He says that he

“fully supports the amendment … In its current form, the Bill conflicts with other legislation affecting children, such as the Children Act 1989. The Bill fails to consider the various orders relating to parental responsibility as outlined in the Children Act 1989”.

He goes on to say:

“This is a deeply concerning omission and is likely to give rise to confusion and uncertainty in practice. We believe the amendments you have tabled will provide clarity in this regard, clarity which should be provided by primary legislation”.


My final point on this second scenario is that the Minister’s policy document states that, for under-16s who lack competence, as in this scenario, the AMHP will appoint the special guardian as the temporary nominated person. Can the Minister explain why the Bill says that the AMHP must choose the local authority if there is a care order in place, but not if there is a special guardian? I repeat the point made in the previous day in Committee: the mental health code cannot create a “must” unless it is included in the Bill or secondary legislation.

The solution to my first scenario is more difficult, and I accept that it is less likely to occur in practice. Most of the one-third of young people who are detained under the Act will lack capacity by the time they are detained but, if we want to maintain as much of a child’s or young person’s choice and autonomy when they have capacity, we must act when they have capacity. Amendments 75, 78, 80 and 81 disqualify certain people, such as the no-contact parent under a child arrangements order or the residual person with parental responsibility when a special guardianship order has been made. The amendments also mandate certain people who have to be chosen, such as special guardians.

I accept that that is a very clunky way of doing it. Another option is for His Majesty’s Government to forbid certain people rather than mandating anyone. Another option would be to give the job of disqualifying people to the family court by amending the Children Act. Therefore, the court, on making a care order, a child arrangements order, or a special guardianship order—for which it often hears evidence—would name certain people as being disqualified from acting as a nominated person.

So I hope the Minister can clarify her policy document, as it includes the child-in-care scenario where the nominated person is a parent—usually where the child resides—who has their parental responsibility limited. It states that the witness—the person involved in the process—

“would assess the appointment of such an individual as unsuitable due to the potential risks to the child and therefore prevent this”.

Is that mandatory language? If it is, why not use “must” and put it in the Bill? Are the Government actually giving the AMHP, the young person or that witness the ability to go behind the care order of the family court? If the Mental Health Act code says that the witness just has to document that, if it is “should” rather than “must”, do we really want to enable that?

The policy document then immediately says:

“We will set out in the Code of Practice considerations for the witness to make beyond those set out in legislation”—


I am not sure that makes sense—

“including how to make these judgements”.

That now seems to be truly discretionary language. I again outline the three categories from the code: “must”, “should” and “may”. Which one is this? If this is “should” then, as I say, the child can go behind the family court order as long as the witness writes down the reasons. I expect the Minister to be very clear in her response, if we are undermining the authority of the family court.

Amendment 79 is a quick clarification of whether the child or AMHP can appoint more than one person as the nominated person. Amendment 85 adds the grounds of

“not acting in the best interests”

so that the AMHP can remove the nominated person—for instance, if they discover that they have trafficked the child to the UK. That is not just for children and young people but for all patients.

I return to the risks to children and young people in both the scenarios I have outlined. These are not triggered by the AMHPs, and they will not be triggered by poor training, a lack of resources or levels of staffing—nor triggered by those who the family court said could pose a risk to the child or young person. These would be triggered by how His Majesty’s Government currently propose to change the law. In the worst-case, but sadly foreseeable, scenario where a child dies at the hands of a nominated person who had already been known to be a risk, as outlined by the family court, I expect that the Chief Coroner would need informing of your Lordships’ debate. Otherwise, professional and other staff might take all the blame. Also, would the Secretary of State for Education in fact still be able to do a serious case review of the death of that child, or would she not be conflicted? A dangerous person got access to a child because the nominated person process was a backdoor to the Children Act. So can the Minister outline whether the nominated persons part of the Act will be enforced before the consultation on the code of practice she is so often relying on?

Finally, I quote from the policy document again:

“We appreciate that there are complications inherent in the complexity of modern family structures, (e.g. separated parents) in addition to the existing system around children’s legislation (e.g. special guardianships, child arrangement orders). These are not complications which have been created by the Nominated Person policy and they exist in the context of Nearest Relative as well”.


Yes, of course the current situation is complex, but this view in the policy document is not shared by the independent review, by the response to His Majesty’s Government’s White Paper—where these concerns were also raised—or by the Joint Committee, civil society or the Children’s Commissioner. The Minister is alone in this view. I know that, in your Lordships’ House, we are not entitled to see legal advice that His Majesty’s Government obtain, but I hope the Minister can assure the Committee that Treasury counsel with specialisms in the Children Act and mental health have been asked to give an opinion.

The child protections that the Children Act has upheld for decades are so vital. I hope we will come back to this on Report, when I hope the Secretary of State for Health and Social Care and the Secretary of State for Education will lay the necessary government amendments. I beg to move.

[Baroness Tyler of Enfield (LD)]

My Lords, I will speak briefly to Amendment 80A, to which my name has been added.

I did not intervene in the first group but I share the general view expressed, which is relevant to this group of amendments, that not enough thought has been given to the interaction between the Mental Health Bill and other key legislation, particularly the Children Act 1989. That concerns me, because that is where really key and important child protection sits. That is a general concern I have.

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[Baroness Merron (Lab)]

My Lords, like the noble Earl, Lord Howe, I am most grateful to the noble Baroness, Lady Berridge, for introducing an appropriately wide range of scenarios, questions and testing. That is important for the Committee but also for our ongoing work. As the noble Baroness, Lady Tyler, said, to describe this area as complex is to use too small a word, and I think we are all wrestling with that to get it in the right place. I know that noble Lords are aware that the work is ongoing, and I thank them for their engagement and interest in this issue. As I said previously, I very much understand the need for a robust process to keep children and young people safe and ensure that only appropriate individuals can take on the role of nominated person, while giving children and young people that right to choose.

I will respond collectively to the amendments put forward in this group. As I set out earlier, we agree that in the vast majority of cases there is an expectation that a parent or whoever has parental responsibility would take on this role, and that would include consideration of special guardians and child arrangement orders. We also agree that, where parental responsibility has been removed due to care proceedings, in the vast majority of cases it is unlikely to be appropriate for such a person to take up this role. My reference to this being a complicated area—

[Baroness Berridge (Con)]

My Lords—

[Baroness Merron (Lab)]

Perhaps the noble Baroness will let me make a bit of progress.

[Baroness Berridge (Con)]

I think I need to clarify a point of law—I am looking to the noble Lord, Lord Meston. In care proceedings, is parental responsibility removed? I do not believe it is; it remains with the parents. That is very important.

[Lord Meston (CB)]

It certainly is not removed.

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[Baroness Merron (Lab)]

We need to be considering that as one of the scenarios and I would certainly be very glad to give the noble Baroness and noble Lords a more considered response to the very important point that has just been raised.

Under this policy, an approved mental health professional would terminate their appointment if the nominated person is not acting in line with the patient’s interests. I really wish to emphasise this.

For all these reasons and the responses I have given, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Berridge (Con)]

My Lords, I am grateful to noble Lords who have spoken and for the considered nature of the response and the clarification regarding the special guardianship. However, as we have outlined, other people remain having parental responsibility and it seems that under the Bill, as it is only one person, it could be that the residual person still has parental responsibility. It could just be that person under the Bill and not, in that situation, who is appointed.

I am concerned, not only by the outline at the beginning in relation to parental responsibility being removed. I just feel that there is a lack of understanding—with all due respect to the Minister’s diligence, thoroughness and engagement with colleagues—about the depth of the issue that we have here. She mentioned “would” appoint. That seems something that can be under the Mental Health Act code—“would” seems to be that as long as you document your reasons for that, you can move. It seems that from the situation I have outlined, in which the 16 or 17 year-old has been removed from the dad’s care because he has been shown to be, and proven by the family court to be, a danger, he could be appointed as the nominated person. Then we are relying on a speedy process in the county court—which we are not sure we always get legal aid for—to remove him. I am concerned by phrases such as “more flexibility for 16 and 17 year-olds”. Does that include the 16 and 17 year-olds who are under special guardianship or where there is a care order?

It seems that there is a conflict, based on what the co-leader of the AMHPs is saying, what the review has said and what the response says. We have a conflict between two pieces of legislation that we must continue to grapple with. On phrases such as “working with the DfE”, I asked specifically whether there had been a meeting with the Minister for Children and Families. The responsibility for a serious case review sits with that department. If we are to some extent right, this risk to children will manifest itself in an imperfect system. Obviously, there are professionals and clinicians, but we all know of cases that have gone wrong and ended up in inquiries.

I remain concerned by the lack of clarification on legal advice. Legally, in some ways this is fascinating—but it is not fascinating because it involves child protection. I welcome the engagement and I am sure that we will meet again in regard to this, but the severity of the risks that we are exposing, and allowing young people and AMHPs to go behind findings of fact in the family courts made under the Children Act is an incredibly serious issue. I hope that the Minister will be furnished with that kind of geeky legal advice, because for the children’s sake we need that.

However, I am grateful for the manner of her engagement and of course beg leave to withdraw the amendment.

Amendment 74 withdrawn.