Clause 29
Mental Health Bill [Lords]
4:45 pm
Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)
I shall move on, as my remarks might deal with where the hon. Lady is coming from. In the 2004 draft Bill, we removed the nearest relative because detention was to be authorised not by an authorised medical health professional supported by two medical recommendations, but by an independent mental health tribunal after 28 days. In the light of that fundamental change in the legislation, the powers of the nearest relative were no longer appropriate.
We did create the role of nominated person. As hon. Members might be aware, the pre-legislative scrutiny Committee recommended that the nominated person be given similar powers over the patient’s discharge to those of the nearest relative. In our response, we rejected that recommendation because the safeguards in the 2004 draft were constructed differently from those in the 1983 Act, and we did not agree that the nominated person should be given the powers of the nearest relative in order to provide the patient with the necessary safeguards. The nominated person was, in a sense, a patient representative and did not have the nearest relative’s powers of discharge or detention. The nominated person and nearest relative are thus fundamentally different, and we cannot simply replace one with the other.
The changes that we have made in the Bill will allow patients to apply to the county court to displace their nearest relative in certain circumstances and to nominate a replacement. The change is an addition to the existing provisions and will allow an AMHP, any relative of the patient or anyone living with them to apply. No matter who makes the application, if the person nominated in it is suitable and willing to act in the role, the courts must appoint that person. By making that change, we have therefore increased patients’ input into the choice of an acting nearest relative when they do not have one, or when the one they have is replaced.