Friday 3rd November 2017
(7 years, 1 month ago)
Commons ChamberMental Health Units (Use of Force) Act 2018 Read Hansard Text
This text is a record of ministerial contributions to a debate held as part of the Mental Health Units (Use of Force) Act 2018 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State for Health (Jackie Doyle-Price)
I join Members across the House in congratulating the hon. Member for Croydon North (Mr Reed) on bringing the Bill before us today. I thank him for the constructive way in which he has engaged with me and my officials. I look forward to taking this Bill further—hopefully completing its journey—so that we can bring Seni’s law to the statute book.
The death of the hon. Gentleman’s constituent, Seni Lewis, was a tragedy. I know that the hon. Gentleman has been deeply touched by the incident—so touched that he has brought forward this Bill, with an impressive coalition of interests behind it. May I send my very best wishes, through the hon. Gentleman, to Seni’s family? It must be an incredibly difficult time for them and I extend my deepest sympathies to them.
As we have heard, the Bill seeks to reduce the inappropriate use of force or restraint against people with mental ill health, to allow greater scrutiny of the use of force in mental health units, and to ensure that police officers use body-worn video cameras in the course of their duties in relation to people in mental health units. It also seeks to guarantee that the mental health system learns from and applies appropriate lessons in relation to the use of force. For too long, restrictive interventions have been accepted as the norm in health and mental health care settings, and we want to change that culture. That is why the Government support the principles set out in the Bill.
Eddie Hughes
It is important to note that there were 67,864 incidents against NHS staff in 2015, 67% of which took place in a mental health setting. We need to appreciate that there is a need for force, because staff working in these situations sometimes need to be protected.
Jackie Doyle-Price
My hon. Friend makes a valid point but I think that we are all agreed in this House—certainly in this debate—that we need to balance rights and liberties with the need to achieve safety. I can say, quite categorically, that this Bill goes a long way towards achieving that.
The Government support the principles set out in the Bill, but we accept—as I think the hon. Member for Croydon North would—that there is still some work to do on the detail regarding the right mechanisms and processes. We can explore those matters in Committee and we are fully behind the Bill’s Second Reading.
Tom Pursglove (Corby) (Con)
Does the Minister agree that the thrust of the Bill is about accountability, and that the measures provide protection for the individual patient and for the professionals working around them?
Jackie Doyle-Price
I agree with that point very ably made by my hon. Friend. The Bill brings real accountability and transparency, which will protect everyone in the system.
I welcome the opportunity to debate the Bill, and to highlight some of the progress we have already made on some of the provisions that the Bill seeks to introduce and strengthen. First, we should examine the issue of restrictive restraint. It is not a great picture, to be frank. Information from NHS Digital shows that more than 6,000 people who spent time in hospital in 2013-14 were subject to at least one incident of restraint. Collectively, these people experienced more than 23,000 incidents of restraint, with 960 people having been restrained five or more times in a year. As colleagues across the House have said, that can cause real trauma and should be avoided at all costs. The group who experienced the highest proportion of restraint per 1,000 inpatients was the category labelled “mixed ethnic group”, with 101 incidents of restraint per 1,000 in-patients. We need to get to the bottom of why that is the case. There is a link between the use of restraint and particular points in the patient pathway. For example, in 2015, the survey of restraint commissioned by the Government found that 23.6% of restraint incidents occurred in the first week of admission. We have discussed gender, and I can confirm that 54.7% of people who were restrained were men, compared with 42.5% being women. That clearly does not reflect the gender balance of people in detention.
Members have referred to the fact that on Monday the House welcomed the publication of Dame Elish Angiolini’s independent review of deaths and serious incidents in police custody, and the Government response. The report is thorough and identifies room for improvement at every stage in procedures and processes surrounding deaths in police custody. It makes 110 recommendations on the use of restraint, on training for officers and on making it easier for families facing an inquest into a death in police custody to access legal aid. The hon. Member for Croydon North is concerned about that issue.
The extent to which restraint techniques contribute to a death in custody and whether current training is fit for purpose is a crucial aspect of Dame Elish’s report. Police training and practice emphasise that under certain circumstances any form of restraint can potentially lead to death, so the National Police Chiefs Council and the College of Policing continue to ensure that legal, medical and tactical advice are embedded in the national personal safety manual, especially in relation to the challenges of prone restraint and mental health issues.
Members have expressed views on the use of restraint, particularly prone restraint, with some of them suggesting that that type of restraint should be banned altogether. I was at Broadmoor yesterday, and I was told about a man who had experienced a head injury and needed stitches. Because of the challenges of his behaviour and mental health condition, prone restraint was used. I am not condoning the use of prone restraint in that situation or in any other, but I will say some words of caution. We need to understand restraint and define it clearly before introducing an outright ban. The guidance says that prone restraint should be used only as a last resort, and we must be careful not to put staff at risk by introducing a blanket ban without understanding more about the circumstances in which that type of restraint might be necessary.
In August this year, the CQC published its report, “The state of care in mental health services 2014-2017”, which identified variations in the frequency with which staff used restrictive practices to manage people with challenging behaviour. It is looking at the issue more closely, and it has committed to reviewing how it assesses the use of restrictive interventions, including developing and regularly updating tools for inspection teams to ensure consistency of assessment and reporting. We believe that the variations are as much due to the principles behind the making of reports as differences in behaviour.
As part of its annual report, “Monitoring the Mental Health Act”, the CQC is developing a publication to highlight areas of good practice in reducing the need for restrictive interventions. Colleagues at the CQC have indicated that they support the principles of better reporting, improved training and accountability, and greater transparency under the Bill, and it is vital that we engage with that as we take this forward.
Turning to the measures in the Bill, there is provision for front-line staff to receive training in equality and non-discrimination, as well as awareness of conduct prohibited under the Equality Act 2010; a trauma-informed approach to care; and, critically, techniques to avoid and reduce the use of force. Individual providers are expected to ensure that all their staff are appropriately trained in the use of force, and there are many training programmes available to health service providers The Bill will help us to address the variation across the system in the training received by staff. Healthcare providers are encouraged to focus training on de-escalation and on understanding the causes of challenging behaviour, and to reflect on incidents of restraint to see how they can be reduced or avoided for both the individual concerned and for all service users.
Treating and caring for people in a safe, compassionate environment both for patients and staff is a priority for this Government. We know that restrictive physical interventions are risky for all individuals involved and that they have a negative impact on patients’ dignity and their trust in services. We have made progress since the publication of “Positive and proactive care: reducing the need for restrictive interventions” in April 2014. This guidance focuses on the use of preventive approaches and de-escalation for managing behaviour that services may find challenging. It also recommends that all restrictive interventions should be for the shortest time possible and use the least restrictive means to meet the immediate need. The guidance introduced an expectation that services develop restrictive intervention reduction plans. These plans, along with organisations’ relative use of restraint in comparison with other organisations, form a key focus of the CQC inspections. We expect the CQC to use its regulatory powers to ensure that services minimise the use of force and other restrictive interventions, including face-down restraint.
Our colleagues in the police are training officers on how to respond to calls that relate to those with mental health conditions and people with learning difficulties. The revised national police guidance on authorised professional practice on mental health was published by the College of Policing in October last year. It aims to give officers the knowledge they need to resolve situations and ensure that the public get the most appropriate service. While the police are not, and are not expected to be, mental health professionals, they are often first on the scene at incidents involving those experiencing a mental health crisis. The aim is therefore to ensure that officers can respond appropriately.
On data collection, the Bill seeks to gain more detailed information in relation to incidents of force used in mental health settings. From January 2016, NHS Digital has collected information about the use of face-down restraint as part of the mental health services dataset. There is still a lot of work to be done on the quality of the data, as the hon. Member for Croydon North said, as they do not currently go into the amount of detail that the Bill would require. However, we are confident that we can make changes to improve the transparency of the information that we collect.
Mr Alan Campbell (Tynemouth) (Lab)
claimed to move the closure (Standing Order No. 36).
Question put forthwith, That the Question be now put.
Question agreed to.
Question put accordingly, That the Bill be now read a Second time.
Question agreed to.
Bill read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).
Mental Health Units (Use of Force) Bill (First sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 28th March 2018
(6 years, 8 months ago)
Public Bill CommitteesMental Health Units (Use of Force) Act 2018 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 28 March 2018 - (28 Mar 2018)
This text is a record of ministerial contributions to a debate held as part of the Mental Health Units (Use of Force) Act 2018 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Mr Steve Reed (Croydon North) (Lab/Co-op)
I beg to move,
That the Bill be considered in the following order, namely, Clauses 1 to 6, Clauses 9 to 11, Clauses 7 and 8, Clauses 12 to 20, new Clauses, new Schedules, remaining proceedings on the Bill.
It is a pleasure to serve under your chairmanship, Ms Buck. We have finally got the Bill to Committee, and I am delighted that we are all here. The Committee has been delayed for four weeks in a row, because of the Government’s failure to lay a money resolution, which would allow us to consider the Bill in its entirety and all the amendments. Even this morning we will not be able to consider several amendments because a money resolution has still not been laid, despite the fact that the Bill enjoys the support of the Government and received the unanimous support of the House on Second Reading. When I asked the Government why the money resolution had not been laid, they said it was not possible because of the heavy schedule of business going through the Chamber, but both yesterday and last Tuesday the Adjournment was early because of insufficient business going through the House.
I want to register my disappointment that the money resolution has not been laid at this stage, and I urge Government and other Members to use their influence with the Whips to encourage the Government to do so as soon as possible. The Bill contains an important reform that will dramatically improve safety for many highly vulnerable people using mental health services, and I see no reason for it to continue to be delayed in such a fashion.
The Parliamentary Under-Secretary of State for Health (Jackie Doyle-Price)
It is a pleasure to serve under your chairmanship this morning, Ms Buck. I thank the hon. Gentleman for the points he has made. He is absolutely right to say that the Government support the measure. We support it very much because of the co-operative discussions that we have had, to get it to a place where everyone can agree. I fully endorse his point that the Bill is an important social reform; it is an important ingredient in our broader agenda to improve the treatment of people with mental health problems and illness.
The hon. Gentleman made his point about the need for a money resolution robustly. I will relay his representations to the House business managers, so that we can proceed without delay, as we all want such an important reforming measure to be on the statute book as soon as possible.
Question put and agreed to.
Clause 1
Key definitions
Mr Reed
I beg to move amendment 2, in clause 1, page 1, line 5, leave out subsection (3) and insert—
‘(3) “Mental health unit” means—
(a) a health service hospital, or part of a health service hospital, in England, the purpose of which is to provide treatment to in-patients for mental disorder, or
(b) an independent hospital, or part of an independent hospital, in England—
(i) the purpose of which is to provide treatment to in-patients for mental disorder, and
(ii) where at least some of that treatment is provided, or is intended to be provided, for the purposes of the NHS.’
This amendment replaces the definition of “mental health unit” with a new definition which clarifies that a unit may form part of a hospital. The amendment also removes care homes and registered establishments from the definition, and includes mental health units in an independent hospital within the definition only where the unit provides NHS treatment.
Jackie Doyle-Price
I confirm that the Government entirely support these amendments, which make the language in the Bill consistent with the 2015 code of practice under the Mental Health Act 1983, and with broader guidance. That makes for a much tidier way of achieving the objectives of the Bill.
Amendment 2 agreed to.
Amendments made: 3, in clause 1, page 1, line 8, leave out subsection (4) and insert—
‘( ) In subsection (3) the reference to treatment provided for the purposes of the NHS is to be read as a service provided for those purposes in accordance with the National Health Service Act 2006.’
This amendment ensures that “treatment for the purposes of the NHS” is read in accordance with the National Health Service Act 2006. It also makes a change which is consequential on the removal of care homes from the definition of “mental health unit” (see Amendment 2).
Amendment 4, in clause 1, page 1, line 12, leave out subsection (5) and insert—
‘( ) “Patient” means a person who is in a mental health unit for the purpose of treatment for mental disorder or assessment.’—(Mr Reed.)
This amendment provides a new definition of “patient”. This definition makes clear that a patient includes a person who is in a mental health unit in order to be treated for mental disorder or to be assessed in the unit.
Mr Reed
The clause establishes a named accountable individual in a mental health unit who will be responsible for a reduction in the use of force. It seeks to create established, clearer lines of accountability for the existence of appropriate policy, and for when things go wrong, so that it will be possible to find somebody who can explain exactly what circumstances might have led to any problems or failings with the use of force.
Amendment 7 replaces the phrase “registered manager” with “responsible person”. The change in language avoids confusion with existing Care Quality Commission regulations that use the phrase “registered manager”, but the intention remains the same. By introducing the legal concept of a responsible person for mental health units, the Bill increases accountability and leadership. Ultimately, the responsible person will be accountable for the requirement that the Bill places on mental health units, so it is important properly to define them as a senior officer in the organisation. They will set the organisation-wide direction for a reduction in the use of force. The responsible person will be at board level, with more detail about who is appropriate set out in guidance by the Secretary of State under clause 6. Amendments 5, 11 and 60 are consequential on changes of the phrase “registered manager” to “responsible person”.
Jackie Doyle-Price
The Government support the amendments. Perhaps one of the most important aspects of the Bill is that it enshrines accountability for ensuring that any institution fulfils its responsibilities. The buck needs to stop somewhere, and it is important that happens with someone at board level. The amendments are important for improving leadership, governance and accountability for the use of force. The amendments were drafted in line with the existing positive and proactive care guidance. It is also worth emphasising that this will not incur any additional burden on healthcare organisations; it will simply strengthen and enshrine accountability. On that basis, the Government are happy to approve the amendments.
Amendment 5 agreed to.
Amendment made: 6, in clause 1, page 2, line 1, leave out subsections (7) and (8) and insert—
‘(7) References to “use of force” are to—
(a) the use of physical, mechanical or chemical restraint on a patient, or
(b) the isolation of a patient.
(7A) In subsection (7)—
“physical restraint” means the use of physical contact which is intended to prevent, restrict or subdue movement of any part of the patient’s body;
“mechanical restraint” means the use of a device which—
(a) is intended to prevent, restrict or subdue movement of any part of the patient’s body, and
(b) is for the primary purpose of behavioural control;
“chemical restraint” means the use of medication which is intended to prevent, restrict or subdue movement of any part of the patient’s body;
“isolation” means any seclusion or segregation that is imposed on a patient.’—(Mr Reed.)
This amendment provides a revised definition of “use of force” which uses simpler language. It also removes threats from the definition and includes the isolation of a patient in the definition.
Clause 1, as amended, ordered to stand part of the Bill.
Clause 2
Mental health units to have a registered manager
Amendment made: 7, in clause 2, page 2, line 26, leave out subsections (1) to (3) and insert—
“( ) A relevant health organisation that operates a mental health unit must appoint a responsible person for that unit for the purposes of this Act.
( ) The responsible person must be—
(a) employed by the relevant health organisation, and
(b) of an appropriate level of seniority.
( ) Where a relevant health organisation operates more than one mental health unit that organisation must appoint a single responsible person in relation to all of the mental health units operated by that organisation.”.—(Mr Reed.)
This amendment replaces the requirement for mental health units to have a “registered manager” with a requirement to appoint a “responsible person”. That person must be employed by a relevant health organisation and be of an appropriate level of seniority. If an organisation operates multiple units, only one responsible person needs to be appointed in relation to those units.
Clause 2, as amended, ordered to stand part of the Bill.
Clause 3
Policy on use of force
Mr Reed
I beg to move amendment 8, in clause 3, page 2, line 36, leave out subsection (1) and insert—
‘(1) The responsible person for each mental health unit must publish a policy regarding the use of force by staff who work in that unit.’.
This amendment replaces Clause 3(1) and provides a clearer duty for the responsible person to publish a policy regarding the use of force in mental health units.
Mr Reed
I thank my hon. Friend for her intervention. Mersey Care is well known to me and to many others in the room as a fine example of the best practice that we wish to replicate everywhere across the country, so that patients, wherever they are, can enjoy the very best levels of service, to which they ought to be entitled.
I will go through the amendments in the grouping. Collectively, they are intended to add greater clarity and consistency to the policies. Amendment 9 provides that, for relevant organisations that operate a number of health units, the responsible person needs to publish only one policy to cover all staff in all those units. Amendments 10 and 13 ensure that the policy is consulted on when it is first published and when changes are made. It is important that the responsible person considers and consults the views of current and previous service users to ensure that their experiences form part of improving policy and guidance into the future.
Amendment 14 requires the policy to include reducing the use of force, which is a key purpose of the Bill, and a key commitment that the use of force should only ever be used as a genuine last resort, as indeed it is in Mersey Care and other mental health trusts. We should be clear that this is only a start—we would like the use of force to be minimised and not just reduced—but this puts into legislation the Government’s intention to reduce the use of force, and we will be holding them to that.
Amendment 16 places into statutory guidance a requirement on the responsible person to take all reasonable steps to ensure compliance with the policy, and makes a failure to have regard for the guidance a breach of the statutory duty.
Jackie Doyle-Price
The Government entirely support the need for every institution to which the Act will apply to make a policy on the use of force. Central to that is the concept of accountability; having a named person, as we have already discussed, plus a policy for an organisation to be held to account to, is clearly important to achieve that. The Government support these amendments and see them as important ingredients in reducing the use of force overall in mental health units. We will ensure that any guidance produced under this clause gives further detail about what policies should include. We expect that to look like what is already set out in positive and proactive care guidance. We expect it to say that responsible persons will have a duty to have regard to this guidance in the development of their organisation’s policy, which will help ensure that each policy meets the same basic criteria as well as allowing for local flexibility.
I associate myself with the comments of the hon. Members for Liverpool, Wavertree and for Croydon North on Mersey Care, which offers a good example. The culture of transparency in itself generates sensible use of force, and only when appropriate. It is a truism for everybody in this room that we want to see minimal use of force. There are occasions when, for the safety of both patient and staff, it sometimes needs to be used, but the way to be sure that it is only used appropriately is to have that culture of accountability. Many organisations could learn from Mersey Care in that regard. We support these amendments.
Amendment 8 agreed to.
Amendments made: 9, in clause 3, page 2, line 37, at end insert—
‘( ) Where a responsible person is appointed in relation to all of the mental health units operated by a relevant health organisation, the responsible person must publish a single policy under subsection (1) in relation to those units.’.
This amendment provides that if there is a single responsible person for all of the mental health units operated by a relevant health organisation, the person needs to provide a single policy for those units.
Amendment 10, in clause 3, page 2, line 37, at end insert—
‘( ) Before publishing a policy under subsection (1), the responsible person must consult any persons that the responsible person considers appropriate.’
This amendment requires the responsible person to consult before publishing the policy under Clause 3.
Amendment 11, in clause 3, page 2, line 38, leave out “registered manager” and insert “responsible person”.
This amendment is consequential on Amendment 7.
Amendment 12, in clause 3, page 2, line 38, leave out second “the” and insert “any”.
This amendment is consequential on Amendment 13.
Amendment 13, in clause 3, page 2, line 40, leave out subsections (3) and (4) and insert—
‘( ) The responsible person may from time to time revise any policy published under this section and, if this is done, must publish the policy as revised.
( ) If the responsible person considers that any revisions would amount to a substantial change in the policy, the responsible person must consult any persons that the responsible person considers appropriate before publishing the revised policy.’
This amendment requires a further consultation under Clause 3 if the responsible person intends to make substantial changes to the policy published under that clause. Amendment 12 is consequential on this amendment.
Amendment 14, in clause 3, page 3, line 2, leave out “minimise and”.
This amendment removes the requirement that the policy under Clause 3 must minimise the use of force. Instead it will require the policy to reduce the use of force.
Amendment 15, in clause 3, page 3, line 2, leave out
“at the mental health unit”
and insert
“in the mental health unit by staff who work in that unit”.
This amendment ensures consistency with Clause 3(1) as amended by Amendment 8.
Amendment 16, in clause 3, page 3, line 3, leave out subsection (6).
This amendment removes the requirement for the registered manager to take all reasonable steps to ensure compliance with the policy published under Clause 3.
Amendment 17, in clause 3, page 3, line 6, leave out subsection (7).—(Mr Reed.)
This amendment removes a consultation requirement that is superseded by the changes made by Amendment 10.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4
Information about use of force
Mr Reed
I beg to move amendment 84, in clause 4, page 3, line 12, leave out subsections (1) to (3) and insert—
‘(1) The responsible person for each mental health unit must publish information for patients about the rights of patients in relation to the use of force by staff who work in that unit.
(1A) Before publishing the information under subsection (1), the responsible person must consult any persons that the responsible person considers appropriate.
(1B) The responsible person must provide any information published under this section—
(a) to each patient, and
(b) to any other person who is in the unit and to whom the responsible person considers it appropriate to provide the information in connection with the patient.
(1C) The information must be provided to the patient—
(a) if the patient is in the mental health unit at the time when this section comes into force, as soon as reasonably practicable after that time;
(b) in any other case, as soon as reasonably practicable after the patient is admitted to the mental health unit.’
This amendment replaces Clause 4(1) to (2) with a duty to publish information about the rights of patients in relation to the use of force in a mental health unit. Before publishing the information, a consultation must be carried out. The published information must be given to patients in the mental health unit and to new patients admitted to the unit, and to any other person considered appropriate if in the unit.
Jackie Doyle-Price
I said at the beginning of today’s proceedings that I view the measures enshrined in the Bill as an important social reform. These amendments and this clause go to the heart of that, in the sense that it is all about empowering patients and enshrining their rights. That is very much the spirit in which we are embarking on the review of the Mental Health Act, so we completely support the clause and the amendments.
The amendments ensure that other appropriate people, such as patients’ carers and relatives, will normally receive information about use of force, which is key for patients who do not always understand the information that is given to them, as the hon. Gentleman suggested. It is also important to understand that sometimes too much information can cause patients further distress at a difficult time. In those circumstances, a good relationship with relatives and carers is extremely important. That can be as much about empowering the patients as furnishing the individual with such information.
On the specific concern that amendment 85 might cause a loophole, I must emphasise that the exception is not about letting any unit off, but about recognising when it might be appropriate so that information will not cause further unintended distress and ensuring that patients’ interests are protected. Different patients will require different approaches, and a one-size-fits-all approach does not count.
When the measure is set alongside the other provisions in the Bill, we are satisfied that we have the right balance between protecting the rights of patients and empowering them—and empowering their carers and relatives to look after them—while having appropriate safeguards to prevent further distress. I support the amendments.
Amendment 84 agreed to.
Amendments made: 19, in clause 4, page 3, line 24, leave out from “provided” to “in” in line 27.
This amendment removes the requirement that the Secretary of State must prescribe the form that information under Clause 4 must be provided.
Amendment 20, in clause 4, page 3, line 27, leave out “with regard to” and insert “having regard to”.
This amendment is a drafting change to Clause 4(4)(b).
Amendment 21, in clause 4, page 3, leave out line 28.
This amendment removes a paragraph that deals with providing information under Clause 4 that has regard to the patient’s communication needs because that paragraph is unnecessary.
Amendment 22, in clause 4, page 3, line 29, leave out “capacity” and insert “ability”.
This amendment is a drafting change to avoid confusion with the terminology of the Mental Capacity Act 2005.
Amendment 23, in clause 4, page 3, line 30, leave out subsection (5).
This amendment is a drafting change linked to Amendment 22.
Amendment 24, in clause 4, page 3, line 31, at end insert—
“( ) The responsible person must keep under review any information published under this section.
( ) The responsible person may from time to time revise any information published under this section and, if this is done, must publish the information as revised.
( ) If the responsible person considers that any revisions would amount to a substantial change in the information, the responsible person must consult any persons that the responsible person considers appropriate before publishing the revised information.”.
This amendment requires the responsible person to keep information published under Clause 4 under review. If the responsible person intends to make substantial changes to the information published under that clause, then a consultation must be conducted.
Amendment 85, in clause 4, page 3, line 31, at end insert—
‘( ) The duty to provide information to a patient under subsection (1B) does not apply if—
(a) the patient refuses to accept the information, or
(b) the responsible person considers that the provision of the information to the patient would cause the patient distress.
( ) The duty to provide information to another person under subsection (1B) does not apply if—
(a) the patient requests that the information is not provided to the person, or
(b) the responsible person considers that the provision of the information to the person would cause the patient distress.’—(Mr Reed.)
This amendment provides exceptions to the duties to provide information under Clause 4. It provides that a patient can refuse to accept the information or request that it is not provided to another person, and the information does not need to be provided if it would cause distress to the patient.
Clause 4, as amended, ordered to stand part of the Bill.
Clause 5
Training in appropriate use of force
Mr Reed
I beg to move amendment 86, in clause 5, page 3, line 33, leave out subsection (1) and insert—
‘(1) The responsible person for each mental health unit must provide training for staff that relates to the use of force by staff who work in that unit.
(1A) The training provided under subsection (1) must include training on the following topics—
(a) how to involve patients in the planning, development and delivery of care and treatment in the mental health unit,
(b) showing respect for patients’ past and present wishes and feelings,
(c) showing respect for diversity generally,
(d) avoiding unlawful discrimination, harassment and victimisation,
(e) the use of techniques for avoiding or reducing the use of force,
(f) the risks associated with the use of force,
(g) the impact of trauma (whether historic or otherwise) on a patient’s mental and physical health,
(h) the impact of any use of force on a patient’s mental and physical health,
(i) the impact of any use of force on a patient’s development,
(j) how to ensure the safety of patients and the public, and
(k) the principal legal or ethical issues associated with the use of force.’.
This amendment replaces Clause 5(1) with a revised duty on the responsible person to ensure that training is provided for staff that covers a wide range of topics relating to the use of force in mental health units.
Mr Reed
My hon. Friend makes an important point, clearly and eloquently. There are no circumstances in which an untrained member of staff, whether full-time or not, should be able to use force—effectively violence—on a patient. If they have not been properly trained, that should be an absolute no.
Jackie Doyle-Price
The clause relates to ensuring that all members of staff are appropriately trained on when it is appropriate to use force. It is worth emphasising that it will make any institution or organisation safer for patients, but also for staff. It is important to prioritise and enhance training in de-escalation techniques. That will make for a safer environment for everyone, with less harm to patients, and will probably help to some extent with their continuing care and recovery. I totally endorse the clause, and the amendments, which will make it more effective. Clearly these measures are important for a Government whose approach to leadership in health involves prioritising patient safety.
We see the provisions as an opportunity to build on the positive and proactive care guidance. The amended clause will now go much further to address the points made by the hon. Members for Croydon North and for Liverpool, Wavertree. Only people working in a professional capacity would be able to use force on patients; any volunteers would not be able to do so. In that sense, it is a much stronger measure, because we are giving a clear view that the use of force is not something that volunteers should be involved in.
Mr Reed
Rather than including too much prescriptive guidance in the Bill, we have decided that it is best dealt with through statutory guidance, so that it can always be kept up to date with the latest best practice or other information and can be changed more quickly than legislation. Clause 6 sets out the requirements for guidance to be issued to set out compliance with the various requirements of the Bill. Amendment 28 places a duty on the Secretary of State to produce that guidance. That is a more appropriate level at which to produce the guidance than the CQC, although the CQC will have an important role to play in monitoring and regulating compliance with the Bill. The guidance will be statutory, so a failure to have regard to it will be a breach of a statutory duty. The amendments provide me with the assurance that operators of mental health units will be fully aware of their duties and the requirements under the Act.
New clause 3 gives the responsible person the power to delegate their functions under the Bill to another employee of appropriate seniority, but it does not mean that the responsible person will no longer be accountable for that function. It is important that in every unit there is always a named individual who is responsible for compliance with the provisions of the Bill and accountable, should there be any failure to comply with the provisions.
Jackie Doyle-Price
I agree that it is more appropriate for the Secretary of State to produce the guidance under the clause. The guidance will provide mental health units and the healthcare organisations that operate them with a detailed explanation of the requirements of the Bill. That will help to ensure that they understand the obligations they are under and, in turn, help them reduce the use of force so that it is only ever used as a last resort and carried out appropriately.
I want to clarify something I said earlier, in case I gave a slightly wrong impression when I referred to volunteers. We do not expect volunteers to use force and, accordingly, we do not expect them to be given training. There will not be an outright ban, but clearly the emphasis in the Bill means that only appropriately trained professional staff will be involved.
The duty to consult will ensure that there is input from a wide range of partners and stakeholders, so that the guidance is well received within the health service. On that basis, the Government are content to support the amendments. We are also content to support the new clause, which will allow a responsible person to delegate some of their functions to the right person within the organisation, but still retain overall accountability for compliance with the requirements of the Bill.
Amendment 28 agreed to.
Amendments made: 29, in clause 6, page 4, line 3, leave out “registered managers” and insert
“responsible persons and relevant health organisations”
This amendment is consequential on Amendment 7 as well as including relevant health organisations as subjects of the guidance published under Clause 6.
Amendment 30, in clause 6, page 4, line 3, at end insert—
‘(1A) In exercising functions under this Act, responsible persons and relevant health organisations must have regard to guidance published under this section.’
This amendment places a duty on responsible persons and relevant health organisations to have regard to the guidance published under Clause 6.
Amendment 31, in clause 6, page 4, line 3, at end insert—
‘(1B) The Secretary of State must keep under review any guidance published under this section.’
This amendment places a duty on the Secretary of State to review any guidance published under Clause 6.
Amendment 32, in clause 6, page 4, line 3, at end insert—
‘(1C) Before publishing guidance under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.’
This amendment imposes a duty onto the Secretary of State to consult before publishing guidance under Clause 6.
Amendment 33, in clause 6, page 4, line 4, leave out subsection (2)
This amendment removes Clause 6(2) which is legally unnecessary.
Amendment 34, in clause 6, page 4, line 10, leave out subsection (3) and insert—
‘(3A) The Secretary of State may from time to time revise the guidance published under this section and, if this is done, must publish the guidance as revised.
(3B) If the Secretary of State considers that any revisions would amount to a substantial change in the guidance, the Secretary of State must consult such persons as the Secretary of State considers appropriate before publishing any revised guidance.’
This amendment places a duty onto the Secretary of State to consult before publishing revised guidance under Clause 6 where the revisions to the guidance are substantial.—(Mr Reed.)
Clause 6, as amended, ordered to stand part of the Bill.
Clause 9
Annual report by the Secretary of State
Mr Reed
I beg to move amendment 70, in clause 9, page 5, line 39, leave out subsections (1) to (4) and insert—
‘(1) As soon as reasonably practicable after the end of each calendar year, the Secretary of State—
(a) must conduct a review of any reports made under paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009 that were published during that year relating to the death of a patient as a result of the use of force in a mental health unit by staff who work in that unit, and
(b) may conduct a review of any other findings made during that year relating to the death of a patient as a result of the use of force in a mental health unit by staff who work in that unit.
(1A) Having conducted a review under subsection (1), the Secretary of State must publish a report that includes the Secretary of State’s conclusions arising from that review.
(1B) The Secretary of State may delegate the conduct of a review under subsection (1) and the publication of a report under subsection (1A).
(1C) For the purposes of subsection (1)(b) “other findings” include, in relation to the death of a patient as a result of the use of force in a mental health unit, any finding or determination that is made—
(a) by the Care Quality Commission as the result of any review or investigation conducted by the Commission, or
(b) by a relevant health organisation as the result of any investigation into a serious incident.’
This amendment replaces the provisions of Clause 9 with a duty imposed on the Secretary of State to review reports each year made by coroners under the Coroners and Justice Act 2008 (often referred to as “regulation 28 reports”). The Secretary of State can also review other findings. After the review, a report must be published that includes the Secretary of State’s conclusions arising from the review.
This clause is very important. When there has been a fatality in a mental health unit, a coroner investigates the circumstances and the causes of that death and produces a report. I sat in for part of the coroner’s hearing following the death of Olaseni Lewis in Croydon. The coroner’s findings in that case were very damning of failures that had occurred leading up to that young man’s death, which were certainly avoidable, had lessons from previous coroners’ inquiries been properly learned and applied.
The purpose of the amendment and the clause is to ensure that all findings from coroners’ reports over a year are collated by the Secretary of State and published in an annual report, with the Secretary of State’s conclusions on how the state is learning from any incidents that occurred during that year.
That is an important step towards transparency and a culture in which lessons are learned quickly and effectively. A striking element of the findings in coroners’ reports over the years is how frequently the same recommendations are made again and again. If there was learning in the system and those lessons were being applied, that repetition would be far less likely to occur.
The proposal is to ensure that when those findings are made, they do not vanish into the ether; they must to properly understood and incorporated into the future development of best practice, to keep mental health patients safe. Amendment 70 would make the necessary provisions for the Secretary of State to carry out the publication of the reports.
Jackie Doyle-Price
Transparency is such an important ingredient in ensuring that we strengthen the rights of patients in mental health settings, and ensuring the accountability of organisations that are discharging their responsibilities at the behest of the state. That is why transparency is at the heart of the measures in the Bill.
Having read more than my fair share of coroners’ reports since taking this job, I fully endorse the provisions in the clause and the amendment. It is important that the broader system learns lessons when things go wrong. If we learn lessons when things go wrong, the chances that they will not happen again are much stronger. It is very important that the healthcare system is able to learn lessons from any death of a patient in a mental health unit that results from the use of force.
Drawing together the lessons learnt from a variety of sources into one report will allow greater transparency and shine a light on the issues that need to be tackled by organisations, and it will ensure that the learning from these tragic events is not lost. For that reason, the Government support the amendment.
Amendment 70 agreed to.
Clause 9, as amended, ordered to stand part of the Bill.
Clause 10
Requiring information regarding the use of force
Question proposed, That the clause stand part of the Bill.
Mental Health Units (Use of Force) Bill (Second sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 18th April 2018
(6 years, 8 months ago)
Public Bill CommitteesMental Health Units (Use of Force) Act 2018 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 18 April 2018 - (18 Apr 2018)
This text is a record of ministerial contributions to a debate held as part of the Mental Health Units (Use of Force) Act 2018 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Mr Steve Reed (Croydon North) (Lab/Co-op)
It is a pleasure to serve under your chairmanship this morning, Ms Buck, however briefly. I thank Members for coming—I wish we were going to spend more time together, but it seems we are not.
I will just make a few points before I formally move the Adjournment. This is the fifth successive week the Committee has been unable to complete its work, and that is excluding the two weeks of recess. The reason is that the Government have not yet laid a money resolution, so we are not allowed to consider the remaining clauses. I have raised this directly with the Opposition Whips, who have raised it with the Government Whips. I have raised it in a direct question to the Leader of the House in business questions, and I pursued it in a letter to the Leader of the House, from whom I had a very charming reply that does not shed any further light on why the delays may be happening.
After five weeks, I am starting to feel that this is a little disrespectful to members of the Committee and to the Bill’s many supporters outside this House. I do not doubt for a moment the support of the Minister, or indeed the Government, who have consistently reiterated their support for the reform we are trying to get through, but it would be nice if the Government were able to let the Bill Committee get on with its work. With great respect, I would ask the Minister whether she has had any conversations with the Government Whips or Government business managers, what they may have said and when we might expect to have the money resolution.
The Parliamentary Under-Secretary of State for Health (Jackie Doyle-Price)
I share the hon. Gentleman’s impatience with the current state of affairs, not least because I really do believe that this is a very important reform, and the sooner we get it on the statute book, the better. However, as he alluded to, such matters are for the Government business managers. I am pleased that he has kept the pressure up at his end and raised this with the Leader of the House, and I know that those discussions are continuing.
I would remind the Committee that we have just had two weeks of recess and a very intense few days in terms of other business, which has perhaps dominated the business managers’ thinking this week. However, I hear the hon. Gentleman’s message completely, and I completely understand where he is coming from. Following this meeting, I will resume my conversations with the Government business managers so that we can make very fast progress.
Ordered, That further consideration be now adjourned.— (Mr Reed.)
Friday 15th June 2018
(6 years, 6 months ago)
Commons ChamberMental Health Units (Use of Force) Act 2018 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 15 June 2018 - (15 Jun 2018)
13:52 - The House divided: - Ayes: 8 / Noes: 47 - Question accordingly negatived.
14:04 - The House having divided: - Ayes: 3 / Noes: 49 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Mental Health Units (Use of Force) Act 2018 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Philip Davies
May I start by commending the hon. Member for Croydon North (Mr Reed), who is an excellent Member of this House? We clearly do not agree on a lot of things, but he really is an excellent MP. I commend him for two things. First, he has introduced legislation that is of particular interest to him, not least because of what happened to his constituent. He should be commended for doing that, and it goes to show the kind of local MP that he is. It is absolutely right that the tragic case of Olaseni Lewis has prompted him to introduce this legislation, the thrust of which I absolutely support, as he well knows.
Secondly, unlike many Members who promote private Members’ Bills, the hon. Gentleman has engaged in a rather constructive manner with everybody who has tabled amendments. I wish it were always like that—as we know, it often is not—but he has certainly engaged, and I absolutely commend him for that. The way in which he has conducted himself throughout the Bill’s passage through the House does him an enormous amount of credit, and I am grateful to him.
Having said that, there are parts of the Bill on which the hon. Gentleman and I disagree, as he alluded to in his speech. I absolutely support the thrust of what he is trying to achieve, and a great many parts of the Bill will make a considerable difference, but, as with most pieces of legislation, it would be naive to think that it could not be improved. As I said in the point of order that I made earlier, I fear that we are in danger of passing a piece of legislation that everybody in the House knows is not as good as it could and should be, largely because of the paralysis in Government decision making, which means that they do not seem to be able to assess and agree amendments with the speed with which the hon. Gentleman appears to have been able to do so. I suspect that is partly because the civil service appears to have taken the Government hostage in the running of public policy.
The Parliamentary Under-Secretary of State for Health and Social Care (Jackie Doyle-Price)
My hon. Friend is perhaps one of the most passionate Members about defending and championing the interests of Back Benchers, but I remind him of what the hon. Member for Croydon North (Mr Reed) has just said. The Government have worked with the hon. Gentleman to get his private Member’s Bill into a shape that they can support, while recognising that it is his Bill, and it has been taken forward in consultation with the sector. Rather than blame civil servants and processes, my hon. Friend could acknowledge that we want to take the whole sector with us on this Bill.
Philip Davies
I am sure we do, which is why I have consulted my local trust, Bradford District Care NHS Foundation Trust, about the Bill’s merits, and why I have tabled some amendments as a direct consequence of the discussions that I have had with the trust. I find the idea that only the Government are interested in moving forward with consensus rather offensive. I have been trying to move forward with consensus, too, as the hon. Member for Croydon North knows only too well. We have reached the stage at which the Government are saying, “I wish we’d known about some of these amendments earlier, because in that case we may well have been able to accept them.” What on earth is the point of having a deadline for the tabling of amendments three days beforehand if the Government cannot organise themselves to decide within that timescale whether those amendments should be agreed to? They should operate like most organisations and business do: if they have a timescale to meet, they should meet it, rather than pretend that the timescale is of only passing interest to them.
Jackie Doyle-Price
This is great fun. I come back to the point that this is a private Member’s Bill and the Government have agreed their position on it. We are not getting in the way of Back-Bench MPs tabling amendments, because although I will articulate the Government’s view on those proposals, it will be for the House of Commons to decide.
Philip Davies
I am grateful to the Minister for that. I appreciate that we are in a strange situation in which the Government do not have time to decide whether to agree with the amendments, but they certainly have time to write speeches on why they will disagree with them because they are not in a position to accept them. We have got ourselves into a completely farcical situation. The Minister is going to read out the speech that has been prepared to say why she cannot accept the amendments, but we all know that the reason why she cannot accept the amendments is that she does not have the Department organised to get things decided within eight days. As I said, that gives the impression that the Government have been taken hostage by the civil service. The Department of Health and Social Care is probably one of the worst offenders for being taken hostage by its civil servants. I am being charitable in saying that, because I presume that that is why so many socialist, nanny-state proposals come from the Department. I cannot believe that the Ministers actually believe in all that rubbish, so it must be the civil servants who are running the Department if those things are coming forward.
With this Bill, it seems that the civil servants, who never want to accept any amendments tabled by anybody other than themselves, are doing their best to try to stop any improvements to the Bill. It is a shame that we have got ourselves into a farcical situation. The Minister is absolutely right: there is nothing to prevent Members from tabling amendments—we know that because we have tabled them, and we are grateful to you for selecting them, Mr Speaker—but we have got ourselves into a rather farcical situation in which we have done an awful lot of work, and my staff have done an awful lot of work, I might add, to try genuinely to improve the Bill, and then we come across this ridiculous bureaucratic situation, about which I have only just found out with this Bill but which no doubt applies to every Bill. It is important that everyone knows that if Members table amendments at this stage of a Bill, they are wasting their time. It is a completely pointless exercise.
Jackie Doyle-Price
I advise my hon. Friend that the guidance we will issue on the Bill will be subject to consultation. I fully anticipate that we can pick up the themes mentioned in his amendments as part of that consultation.
Philip Davies
I am grateful to the Minister. As I suggested, the Government have the authority to put these things in guidance, but not in the Bill. I do not understand that, but there you go, Madam Deputy Speaker—that is the vagaries of the establishment and the Executive for you.
The point that I want the hon. Member for Croydon North to note, given that this is his Bill, is that if we have 11 things in statute, putting two others in guidance does not really cut the mustard, because they will not be statute but guidance. Institutions will focus on what is in the law and what they can be taken to court for if they do not act properly. We cannot have a pick-and-mix effort, with some of these things in law and some in guidance because, by definition, the things that are in guidance are clearly not as important as those in law. My contention is that the matters specified in amendments 11 and 12, with which the hon. Gentleman said he agreed, are so important that they should be part of the list that goes into law. Guidance just is not good enough; it is not acceptable.
Amendment 11 would include in the Bill training for mental health staff on who is responsible, and on roles and procedures when the police are called to assist. The amendment would ensure that we have a structured approach regarding the involvement of the police when restraining a patient, and it goes to the heart of one of the purposes behind the Bill. This is one of the reasons why the hon. Member for Croydon North brought forward the Bill in the first place, in my opinion, so it would be extraordinary if the Bill did not include training on the thing that is central to it. The amendment stems from that inspiration.
The hon. Gentleman has detailed on several occasions in the Chamber the case of his constituent, Olaseni Lewis, and the treatment he received in the lead-up to his death. On reading through the inquest into Mr Lewis’s death, alongside the coroner’s report, a number of things stood out to me, but predominantly the fact—I believe it can be agreed—that the entire scenario that took place on the evening of his death was a mess. It was a shambles, and it should not have happened. There seemed to be a sudden shedding of responsibility from the medical staff to the police, which I believe caused the quality of medical care that Mr Lewis received to be compromised.
What I find most disturbing is that the police seem to be blamed for Mr Lewis’s death, yet his cause of death was identified by the coroner as medical negligence. I therefore ask what responsibility medical staff have in such events and what responsibility the police have. That is fundamental to this particular case behind the Bill. Common sense suggests that if a patient is in a medical unit and experiencing an episode of mental illness, the priority is for medical staff to control the situation, due to the cause of the situation being medical, and the police are purely there to assist in giving someone appropriate medical care and treatment.
An interesting case is that of the former premier league footballer, Dalian Atkinson, who died in the early hours of Monday 15 August 2016. Police were called to attend a report of concern for safety. Neighbours had reported that Mr Atkinson was banging on and kicking his father’s front door after
“flying into a booze-fuelled rage”.
They had also reported that Mr Atkinson was trying to enter his father’s property because he claimed that he was homeless. Mr Atkinson’s father, who was not the person who called the police, stated of his son:
“I don’t know if he was drunk or on drugs but he was very agitated and his mind was upset…He was threatening and very upset.”
At the time of the incident, Mr Atkinson was reported to have been suffering for some time from a series of illnesses that left him in a fragile state, with a weakened heart. Alongside pneumonia and liver problems, Mr Atkinson was also said to have undergone dialysis for kidney failure and to be battling depression. Mr Atkinson’s brother Kenroy stated that, on the night of his death, Mr Atkinson
“had a tube in his shoulder for the dialysis”,
which he had removed himself, leaving him “covered in blood”. He also said that his brother had attacked their father, who was 85, and held him by the throat, telling him that he was going to kill him. He told their father that he had already killed his sister and another of his brothers, which was not true.
What makes Mr Atkinson’s case different from Mr Lewis’s is that, instead of force from person-to-person contact, Mr Atkinson was subject to the use of a Taser gun. With a combination of multiple health issues and a weak heart, this caused him to suffer cardiac arrest, which subsequently caused his death. In the days following his death, Mr Atkinson’s nephew, Fabian Atkinson, said of his uncle:
“He had some health issues that he was trying to get through and that’s why his heart was weak. When a Taser is deployed, as soon as a Taser is deployed, they need to automatically call an ambulance. How do they know the health of the guy or the girl that they are affecting?”
That is exactly my point.
When the police are called to an incident, they are not aware—they cannot possibly be aware—of a person’s medical history. There is no briefing beforehand, because that is simply not possible when they are put into an urgent situation. Training is designed to help them attend incidents and de-escalate them quickly and efficiently. The question is: how is it possible for this to be done and for them also to be able to take on the additional task of medical assessment?
It might be assumed, from the medical setting, that there is the reassurance of a medical professional being present to monitor the person’s health. In the Royal College of Emergency Medicine’s best practice guidance, the advice is that when a patient is restrained in the emergency department, even if the police are providing that intervention, the ultimate responsibility for the patient’s safety and wellbeing rests with the doctors and nurses of the emergency department. I think that that is absolutely crucial.
I appreciate that those guidelines are for a patient who is taken to an accident and emergency department, while Mr Lewis was in a specialist mental health unit where there were medically trained staff who should have been well versed in such situations. From reading the reports, it seems to me—other people may have a different interpretation—that the staff felt it appropriate to pass responsibility for Mr Lewis’s medical wellbeing to police officers, who are not of course medical professionals. I believe that that was the most detrimental aspect of the last moments of Mr Lewis’s life. That is why this matter should be one of the key focuses of the Bill.
In its memorandum of understanding, “The Police Use of Restraint in Mental Health & Learning Disability Settings”, the College of Policing states:
“People who talked to us wanted mental health staff to be proactive and use their therapeutic skills to de-escalate situations and only call on the police when absolutely necessary…Each situation where the police are called for emergency assistance should be properly assessed on its merits…The police role is the prevention of crime and protection of persons and property from criminal acts.”
This provides a very clear distinction between the responsibilities of the services. In case it was not already apparent, the police are responsible for crime, and the medical staff are responsible for health.
I do not want the police to have to be given a full medical briefing before assisting with the restraint of a patient—in most cases, there simply will not be time—so there needs to be understanding about the co-operation of the medical services and the police, with the medical staff giving direction to the police. I ask that amendment 11 be made to ensure that staff are given clear training to alleviate the possibility of a similar chaotic scenario arising when the police are involved in restraining a patient, and so that they are fully aware that the police are there to assist, not to take over additional responsibilities that the medical staff would otherwise have.
It seems to me that amendment 11 goes to the heart of what the Bill is trying to achieve: to prevent anyone from suffering in the same way as Mr Lewis suffered on that particular occasion. I do not understand how the Bill can be fit for purpose unless it specifically puts that aspect of the training into statute. If it does not cover that, I do not think we are being diligent in making sure that what happened to Mr Lewis is prevented. The hon. Member for Croydon North is quite right to bring that terrible situation to the attention of the House and to try to prevent such a scenario, but the provision in my amendment is what would most help to achieve that, and it is not right that it is not in the Bill. I hope that hon. Members will overcome the bureaucratic nature of the Government and insist that the amendment goes into the Bill. I would like to see that, and the promoter has said that he would also like to see that. It is our job to make the Bill fit for purpose.
Amendment 12 to clause 5—“Training in appropriate use of force”—relates to the same area. It would insert another new paragraph—paragraph (m)—with regard to training on acute behavioural disturbance, which is another really important thing that has been missed out of the list of areas that must be covered in training. The amendment would ensure that there was staff awareness training on acute behaviour disturbance, which can be life threatening when paired with restraint techniques on a patient.
I will again refer to the case of Olaseni Lewis, whose cause of death was detailed by the coroner as hypoxic brain injury caused by restraint in association with acute behavioural disturbance, or ABD. It states in the circumstances of death that Mr Lewis became agitated and fearful, resisting efforts to leave him alone in the seclusion room. Officers restrained him but were unable to regain control. Eventually, Mr Lewis became unconscious and suffered cardiac arrest.
Hypoxic brain injury, or hypoxia, is caused by an interruption to the constant flow of oxygen that the brain requires. The brain uses 20% of the body’s oxygen intake to survive, and that is needed to make use of glucose, which is its main energy source. Interruption of the oxygen supply causes a disturbance in the brain function and will therefore cause immediate and irreversible damage. A person can take as little as 15 seconds to fall unconscious due to a lack of oxygen, and damage begins to take place after four minutes.
Hypoxia is not easily identified at the beginning of an examination since the primary cause is often unrelated to the brain. Common causes can be low blood pressure, heavy blood loss such as a haemorrhage, suffocation, choking, strangulation, asthma attack, drowning, exposure to high altitudes, smoke inhalation, carbon monoxide inhalation, poisoning, drug overdose, electric shock, and predominantly—as was the case with Mr Lewis—cardiac arrest and heart failure. It is the acute behavioural disturbance element, which was referred to by the coroner in Mr Lewis’s case, that I feel would be most beneficial to add to the training, and I want to explore it further.
According to guidelines written by the Faculty of Forensic & Legal Medicine, acute behavioural disturbance may occur secondary to substance misuse, such as intoxication and withdrawal; physical illness, such as following head injury or hypoglycaemia; and psychiatric conditions, including psychotic and personality disorders. Of all the forms of acute behavioural disturbance, excited delirium is the most extreme and potentially life threatening. Similar to abnormal brain function, it can cause a loss of consciousness, confusion, stupor and agitation, which is the contributing factor to causing the characteristic outburst of violence.
The agitation element of the symptoms can stem from several causes, as stated in module 4 of the College of Policing’s personal safety manual. The causes are acute brain inflammation such as meningitis; limited oxygen supply to the brain, such as through acute pneumonia or heart attack; metabolic problems, as diabetes can cause high or low blood sugar levels, both of which can cause severe changes in personality and behaviour—from sleeping to agitation—and can be lethal if untreated; and general illness, in that severe sepsis can cause confusion.
It then goes on to list the symptoms associated with more severe agitation, which are as follows:
“Psychiatric illness…
Acute intoxication with a broad range of drugs or withdrawal from them”
or an
“Acute brain injury (such as a ‘stroke’”
Aside from violent behaviour, other clinical symptoms may include impaired thinking, disorientation, hallucinations, acute onset of paranoia and panic, shouting, unexpected physical strength, sudden tranquillity after frenzied activity or vice versa, high mental and psychological arousal, aggression and hostility, and insensitivity to pain and incapacity.
Philip Davies
I am grateful to my hon. Friend. If the Minister wishes to intervene, I will not stop her.
Jackie Doyle-Price
I am happy to give some clarification on the Government’s position on this issue. When I discussed the amendments with my hon. Friend, I emphasised to him that we did not feel that his amendments were necessary. I advise him that a memorandum of understanding about police involvement is already in existence. The Mental Health Act 1983 has been amended to emphasise that people in mental health settings should be in clinical settings with clinical care. The Angiolini report states specifically that agreement should be in place between health partners and police, which emphasises that health takes the lead on the use of force, in line with the principles of the already existing national memorandum of understanding. I say again that I do not believe that my hon. Friend’s amendments are necessary.
Philip Davies
I made it clear that I support and encourage the use of such cameras, but there may be occasions when, for whatever reason, they cannot be used, and the wording says “must”.
Jackie Doyle-Price
I completely agree with my hon. Friend’s points. It was precisely to address such concerns that the phrase “if reasonably practicable” was placed on the face of the Bill. To clarify, we do not want the fact that a police officer is not wearing a camera to impede them from doing what is right in this context. My hon. Friend raises concerns about the potential for the criminalisation of police officers, but that is not our intention. The subsections to which he refers are consistent with those in the Police and Criminal Evidence Act 1984, and they are there just to remind the police of their obligations. He rightly draws attention to the fact that cameras protect police officers as well as patients. As a force for transparency, they are an effective tool. I reassure my hon. Friend that his concerns are addressed in the Bill.
Philip Davies
I am grateful to the Minister for that, and I am sure that police officers will be grateful, too. However, I just feel that there are occasions when it may be practicable to wear a camera, but for whatever reason—the pressure, time or the heat of the situation—they forget, and I wonder what will happen in such cases. There could be a situation in which it is practicable for them to wear a camera but, owing to the noises they make and the flashing lights or whatever, they think, “You know what? In this circumstance, I’m unsure I’m going to do that, because it might make this patient worse.” I worry that there are insufficient loopholes, so to speak, for police officers who are trying to do the right thing in difficult situations and that we are in effect trying to make things more difficult for them. I fear that, as a result of this Bill, criminal proceedings will be brought against a police officer that never should have been brought. It is all right to say, “We don’t think that that will happen,” but these things do happen. I want the law to be worded to make that as unlikely as possible. That is my only concern, and we will see whether my fears are realised.
Philip Davies
The Bill will definitely conclude its Report stage at some point, but if it does not pass today, it will not be my fault. For goodness’ sake, we still have two and a half hours to go. The Government still have plenty of opportunity to say that they will accept amendments 11 and 12, and if they do so, the Bill will go through today. If they need more time to do a write-around before those amendments can be agreed, that is literally in not my hands, but the Government’s. If they want the Bill to get through today—
Jackie Doyle-Price
My hon. Friend is again mischaracterising the Government’s position. Our position is that the amendments are not necessary. I have already outlined to the House that the specifics of the role and responsibility of police officers on these occasions are subject to a memorandum of understanding on which the College of Policing, which my hon. Friend has praised, has led. I ask him again not to press his amendments, because they are not necessary.
Philip Davies
Perhaps when the Minister responds to the debate she can tell us which amendments the Government would accept if they could get their write-around sorted out in time—[Interruption.] The Minister indicates “none” from a sedentary position, but that is absolutely not what the Government communicated to me yesterday. They said to me yesterday, “I wish we had seen these amendments earlier.” The Minister’s indication flies in the face of that.
Philip Davies
Yes, that point has been raised. Basically, we are going to cover everything that is not in the Bill but should be in guidance. It seems that the Minister has made it abundantly clear that she is hardening her position as every minute goes by. We have gone from a situation of her saying, “If only we’d had the amendments earlier, we would have done something about them,” to, “They’re not necessary,” and now to, “We don’t agree with any of them.” The latest indication is that the Government do not agree with any of them.
Jackie Doyle-Price
Again, I would have appreciated sight of the amendments earlier, not least because we could have had a sensible discussion about how to achieve the outcomes that my hon. Friend wants. I am very clear that we can achieve that through guidance, which we will bring forward in consultation—we have consulted throughout the passage of the Bill—with the sector. I am talking about statutory guidance, and all institutions will need to have regard to it. We are in this position following dialogue with the sector and we have carried out parliamentary scrutiny. The Bill is not the only opportunity to bring forward legislation in this sphere because consultation on Healthcare Safety Investigation Branch legislation and the review of the Mental Health Act 1983 are taking place as we speak. This will not be the only opportunity for my hon. Friend to bring forward legislative proposals.
Philip Davies
Well, the only problem with that is that we will end up in the same game in which I table an amendment and the Government say that there is not time to do a write-around about it. I do not even follow the Government’s position any more. We have gone from them saying, “We wish we’d had these amendments earlier,” which the Minister has just reiterated, to then saying that they are not necessary—[Interruption.] The Minister says, “No they are not,” and then she says that they will be covered in guidance. Well, if they are not necessary, why would she put them in guidance? We will have to start getting our story straight. Are these things necessary or not?
Jackie Doyle-Price
My hon. Friend has been a Member of Parliament for a lot longer than I have, so he will be aware that Bills set out the principles of legislation, and it is standard practice for the detail under a Bill to be enshrined in guidance.
Jackie Doyle-Price
First, I thank and congratulate the hon. Member for Croydon North (Mr Reed) on his tireless work getting this important Bill to Report, and I hope it makes further progress. It is an important reform that will significantly enhance the rights of patients in mental health settings and will be a force for justice. We have had numerous references to its inspiration, and I pay tribute to the dignified and determined way in which Olaseni Lewis’s family have pursued an important reform that will materially improve the treatment of patients.
The Government welcome the measures on monitoring and reducing the use of force in mental health settings. The Bill will provide clarity in several areas, including on recording and reporting, and is very much in the spirit that sunlight is the best disinfectant—that transparency is the most effective tool for ensuring good treatment and performance. It will facilitate better and more consistent data collection, which in turn will give us better evidence by which to measure the success of the Bill and these reforms in minimising the use of force in mental health units. I take up enthusiastically the challenge from the right hon. Member for North Norfolk (Norman Lamb). We who believe strongly in these issues owe it to the public to campaign for the adoption of best practice and the minimisation of restraint. I will say more about his amendments later.
The Government have tabled amendments to clause 4 to remove an unintended consequence of amendments made in Committee, where we unwittingly inserted a loophole that might have enabled providers not to inform patients of their rights. We have made amendments to close that loophole, while still enabling an element of discretion in the system where advising patients might cause them further distress. I notice that my hon. Friends the Members for Shipley (Philip Davies) and for Christchurch (Sir Christopher Chope) tabled similar amendments. I hope they will support at least the action I have taken in response to those concerns.
The Government agree that it is important that patients have access to advocacy services, which are very much a part of the right to information on rights and something that the hon. Member for Croydon North and his stakeholders have repeatedly raised with me, but we do not want to put this provision in the Bill. That said, to reassure them about how we are treating the issue of advocacy, which we recognise is important, I remind the House that the independent review of the Mental Health Act 1983, which was set up to look at how its provisions were being used and how practice could be improved, will examine this issue. The interim report was published in May and the final recommendations will appear in the autumn. Following that, we will develop guidance through consultation. The report and recommendations will give us another opportunity to discuss this and ensure we are happy with the standards of advocacy in place. I hope the hon. Gentleman will understand why I cannot accept his representation.
I turn now to the hon. Gentleman’s amendments on the independent investigation of deaths and legal aid. I am grateful for the opportunity to address these points, which go to the heart of what he is trying to achieve in the Bill. The appalling, dehumanising experience suffered by Seni’s family during the investigation, which went on for an unacceptably long time, is really the test by which we should measure the effectiveness of the Bill.
Let me now explain why we would resist the amendment, describe the steps that we have taken to improve investigations of deaths in custody, and, hopefully, give the House some reassurance that the experience we are discussing today will not be repeated under the current regime. That is at the heart of the Bill: we want to ensure that what was experienced by Seni’s family is never repeated.
Clause 10 in its current form requires that when a patient dies or suffers a serious injury in a mental health unit, the responsible person must have regard to the relevant guidance relating to investigations of deaths or serious injuries, published by a list of organisations that are responsible for regulation: for example, NHS Improvement and the Care Quality Commission. That means that in the current NHS Improvement guidance, the NHS serious incident framework, which was last revised in 2015, will be put on a statutory footing. The framework outlines the process for conducting investigations of deaths and other serious incidents in the NHS for the purpose of learning to prevent recurrence. It requires the treating clinician to report an unexpected death when natural causes are not suspected. All deaths of detained patients must be reported to the coroner, the CQC and the provider’s commissioner as serious incidents. That will ensure that all deaths in custody are automatically reported.
If the death occurred in a mental health in-patient or hospital setting, NHS providers are responsible for ensuring that there is an appropriate investigation into the death of a patient detained under the Mental Health Act, or where the Mental Capacity Act 2005 applies. The death of a voluntary in-patient will also be investigated by the coroner, and under the NHS serious incident framework, if it was violent or unnatural. These are not inquiries into how a person died, as that is a matter for coroners, and they are not conducted to hold any individual or organisation to account. Other processes exist for that purpose, including criminal or civil proceedings, disciplinary procedures, employment law, and systems of service and professional regulation. That is an important point, because overlapping interests will need to be managed. I hope that I can give the hon. Gentleman some comfort, and reassure him that we are tackling the real problem that the Bill is intended to tackle.
Independent investigations within the framework are commissioned and undertaken independently of those directly responsible. I know that throughout our discussions on the Bill, the issue of independence was extremely important to everyone with an interest. It will be normal for the provider to conduct its own internal investigation, but that investigation will be reviewed by the relevant commissioner, and it will be for the relevant commissioner to commission an independent investigation. Commissioners must satisfy themselves that the investigation is clearly independent, and that there is no potential for conflicts of interests and no previous relationships. It will be their responsibility to establish that.
We expect commissioners to ensure that the family is properly informed throughout an investigation, and that all agencies involved in an investigation are held to account for their roles. We expect them to take the lead in commissioning an inquiry, and to take a number of steps including listing all the agencies that have had a stake in the care of those involved with the incident, and ensuring that they are aware of the process and their responsibilities in relation to the inquiry. It is up to them to identify all legal issues that may be relevant to the independent investigation or court proceedings and obtain appropriate legal advice. It is for them to co-ordinate meetings and discussions between the investigation team, the trust representatives, the police representatives and other agencies with an interest that have agreed to participate, so that all are agreed as to what their responsibilities are. They are responsible for early discussion with the local coroner. Crucially, they are responsible for informing the patients, carers and families about how the process will work and how they can be involved.
It is extremely important that as part of the investigation process the families’ needs and wishes are properly respected and they feel some ownership and accountability and can hold the process to account if dissatisfied with how things are progressing—that is extremely important. It will be for the commissioner as well to ensure they have access to the investigation team if they so wish. I also expect the commissioner to agree the timescale for the investigation together with timings and setting a date for the report. As much as I would like to be able to say that we will never have such a situation ever again, we can never say never, and if there were to be any delay the reasons must be clearly explained to the patients and families involved as part of keeping them fully informed and making sure they are fully supported.
The serious incident framework sets out clear guidance on who should be involved in the independent investigation team and that the healthcare commissioner is to identify a lead investigator who appoints the investigation team. The framework says the following, and I will quote directly again to underline the real independence of these investigations:
“In order to ensure independence and avoid any conflict of interest, no member of the independent investigation team can be in the employment of the provider or commissioner organisations under investigation, nor should they have had any clinical involvement with the individual(s) to whom the investigation relates.
Investigators must declare any connectivity that might, or might appear to, compromise the integrity of the investigation.”
I hope that is explicit and gives the hon. Member for Croydon North some comfort about what we are doing to establish that independence.
I should also mention that we have just completed a consultation on the serious incident framework, and independence of investigations was a key theme, so we will be continuing to review this to make sure we can guarantee that independence. We will be bringing forward our response to the consultation by the end of the year, so we have another opportunity to ensure that we are satisfied that what we have is fit for purpose.
Another complication in the case of Seni Lewis was the interaction with the police investigation. That is where there is still the possibility of delay, and again we need to do everything we can to ensure that families are supported in that context.
Michelle Donelan (Chippenham) (Con)
Does my hon. Friend agree that this Bill is vital and it is a testament to the work of Seni Lewis’s family? Is she as concerned as I am about jeopardising this Bill, because it is so important, not least to my constituents, that we tackle this important area?
Jackie Doyle-Price
This is an important reform that will considerably alter the balance of the scales of justice in favour of patients and bereaved families. I want it to make rapid progress, and the specific case of how long it took for Seni’s family to get a resolution in relation to his death is the inspiration for this Bill.
Sir Christopher Chope
Will my hon. Friend expand a little more on the timescale within which an independent forensic pathologist must reach a conclusion following a death? The husband of a constituent of mine died more than nine months ago, and the coroner ordered a pathology report but that still has not been carried out, causing enormous distress to everybody involved.
Jackie Doyle-Price
I am grateful to my hon. Friend for making that point. As he says, the longer the answers take, the more distressing and dehumanising it is for the bereaved. I will come to the timescales later in my remarks, but one of the real achievements of the Bill is that it places clear expectations on the authorities in regard to investigations.
As I was saying, a police investigation could be carried out at the same time, depending on the type of incident involved. That was the case when Seni died. NHS guidance now clearly states that, whenever feasible, serious incident investigations must continue in parallel with police investigations. That is an important point, because what happened in Seni’s case was that the police investigation basically put a brake on the NHS investigation. We are clear that these investigations should take place in parallel. That is possible because the terms of reference for the investigations are quite different, and where this eventuality arises, it should be considered in close consultation with the police so that they can be clear about the purpose of the healthcare-led investigation and how it will be managed.
If, following discussions or a formal request by the police, coroner or judge, an application is made to suspend the NHS investigation, it could be put on hold. However, the family must be very much involved in that decision, and the commissioner must ensure that they can agree a date for completion once the investigation can recommence. It is very much down to the commissioner to establish that timeframe. Whether an investigation is put on hold or not, it is absolutely central to our proposals that families should be kept engaged and informed of when the investigation will start up again, and when it will be completed. We also have national guidance on learning from deaths, which was published in March 2017. That now sets out clear expectations of NHS organisations for engaging with carers and families in these circumstances. Dialogue is absolutely central and underpins everything we are doing in this space.
I want to provide some details about what happens if a death follows police contact, when that contact may have caused or contributed to the death, as this is particularly relevant to the events that followed Seni’s death. In such circumstances, the police are under a duty to refer the matter as soon as possible to the Independent Office for Police Conduct. Following an investigation, a report is sent to the police force. The report provides the IOPC’s opinion about what should happen to those involved in the incident. For example, it might recommend further training, a misconduct meeting or a gross misconduct hearing. The police force will then provide its own view about what should happen. If the IOPC disagrees with the force, it has the power to recommend that it should take appropriate action, such as holding a misconduct meeting or hearing. Ultimately, the IOPC can direct the force to do that.
Under the scheduled reforms, this process will be further streamlined so that the IOPC will make the decision on whether there is a case to answer for misconduct or gross misconduct, and decide what form the disciplinary proceeding should take. The IOPC will provide a copy of the investigation report to the relevant police force, and to the complainants and the family of the person involved, as well as to the coroner and the Crown Prosecution Service, which will consider whether any further action should be undertaken.
I want to return to concerns about the quality of investigations, and to briefly explain the role of the Healthcare Safety Investigation Branch. The Lord Chancellor is looking at how we support people going through an investigation, and the hon. Member for Croydon North has also raised the issue of legal aid. It is important that we ensure that families have appropriate support as they navigate this process. This is not just about the process of walking through the contacts with the NHS investigating bodies, which can be quite formal; they could end up in a situation involving legal action or criminal proceedings, at which point they would need that support.
Much reference has been made this morning to the Dame Elish Angiolini review, in which she was clear that all deaths in custody should be treated on an equivalent basis, and I can confirm to the House that the Lord Chancellor’s review into legal aid for deaths in custody will consider deaths in mental health settings on the same basis as deaths in prisons and other forms of custody. I can also advise the House that the ministerial board on deaths in custody constantly reviews what we are doing and how we are implementing the recommendations of the Angiolini review, so the review of legal aid for inquests will consider how it can be applied to deaths in mental health settings, too.
Kevin Foster
The Minister is making some interesting points about the legal aid review. Will she confirm what groups she is considering talking to? I am thinking of third-sector groups, community groups and, potentially, law centres.
Jackie Doyle-Price
I thank my hon. Friend for that intervention. I hope that we will continue to consider everything that we can do to support people, and I welcome those suggestions. Ultimately, such people are facing massive injustice at the hands of the state, and we should never stop looking at what we can do to support people in those circumstances. The simple truth is that those people have put their trust in the institutes of the state, so there is double pain when they are failed by them, and we must ensure that we do everything possible.
I hope that what I have said about legal aid and the investigation process satisfies the hon. Member for Croydon North, so I hope that he will not press his amendments to a Division so that we can get the Bill into the other place and deliver the objectives that he and I both want.
To clarify something that I was saying about the Government amendments, we unwittingly included a loophole that would allow institutions not to provide patients with information, and I might have suggested that that was a matter of discretion. However, it is actually in the Bill that they must provide information unless “the patient refuses” to accept it. I just wanted to make that clear in case there was any misunderstanding. The remaining Government amendments are largely technical, linking the Bill with the Data Protection Act 2018, for example, and providing clearer definitions regarding mental health units. Those are very much drafting changes, and I hope that the House will approve them.
Turning to the amendments tabled by my hon. Friends the Member for Christchurch and for Shipley and the right hon. Member for North Norfolk, I have already discussed the Government’s view on such matters, but I will refer first to the right hon. Gentleman’s amendments in relation to threats and coercion. The Government’s main concern is that putting the use of threats of force and coercion on the face of the Bill might cause confusion for staff working in mental health units when we are trying to encourage them to use de-escalation techniques. We have the same objective as the right hon. Gentleman, which is to minimise restraint, but we are concerned that the amendments might act as an impediment to what we are trying to achieve.
Norman Lamb
Will the Minister look at whether the guidance will be clear about the importance of staff not inappropriately threatening force or coercion, because that all goes down to the culture of the organisation?
Jackie Doyle-Price
The right hon. Gentleman is right about that, so let me go through the provisions we think are in place to protect patients from exactly that circumstance. The care quality regulations—the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014—clearly set out the types of behaviours that are prohibited and create an offence of failing to comply with the requirement to protect service users from those behaviours. We are satisfied that those provisions would be an appropriate tool with which to tackle this issue. Clearly, we will be relying on guidance to implement much of this Bill, and I can give him every assurance that these issues will be very much part of that guidance; this process will be consultative and I am sure he will want to remind me of the undertaking I have just given him as and when that comes through.
My hon. Friend the Member for Shipley has discussed his amendments 44 to 78, providing us with his understanding of the use of the terms “force” and “restraint”. The point he made was that he wanted the Bill to be consistent with language used elsewhere in mental health settings. It is important that we make sure the language we use is consistent. The term “force” is a more overarching description of what is happening to a patient, and the individual elements that the definition needs to cover are the types of restraint. In the context of this Bill, those are physical, mechanical and chemical restraint, along with isolation. We have chosen to use the term “force” because it works alongside the Mental Health Act 1983 code of practice, with which practitioners are familiar, and it reduces any risk of confusing the drafting due to the use of similar terms, where that can be avoided. This approach has very much been accepted in our consultation with the sector. I heard my hon. Friend say that he had received representations to suggest the opposite, so I would be pleased to take that up with him offline, in order to satisfy his local care trust that what we are doing is consistent with other law, because it is important that we take everyone with us.
My hon. Friend the Member for Christchurch has tabled amendments that would remove certain types of force from the Bill, particularly chemical restraint and isolation, which covers segregation and seclusion. I am grateful to him for testing our conscience via these amendments, because it is entirely legitimate for him to worry that practitioners might be impeded from administering medication to their patients, as, obviously, that would be harmful if those patients needed it. I can give him the assurance that when we talk about “chemical restraint”, we are not considering a patient’s normal medication. The type of medication used for chemical restraint would usually be different from that used as part of a patient’s normal medication to control or treat their mental health condition. As part of a chemical restraint, patients would not simply be given more of their medication. The types of medication used in chemical restraint are a particular kind of product, lasting for only a short period and not having the effect of over-medicating a patient. It is important that we record and receive national data on the use of those products so that we understand their use and shine a light on areas where they might not be used appropriately. I hope that gives him some comfort.
Sir Christopher Chope
Will the Minister make a statement on which products would be covered by the Bill and which would not? From talking to my constituent, I had the impression that the products used in his case would be covered.
Jackie Doyle-Price
I will commit to writing to my hon. Friend with details of the products licensed by the National Institute for Health and Care Excellence for the purpose of restraint, if that would be helpful.
Sir Christopher Chope
Would the Bill cover situations in which the NHS is paying for private services in mental health units?
Jackie Doyle-Price
It would; indeed, to be more explicit, any service with which the NHS commissions mental health services would be expected to have procedures that comply with the Bill. That will cover non-NHS patients in those institutions as well.
My hon. Friend the Member for Shipley asked some testing questions about training. I really want to say that from my perspective the detail of what will be covered in training will be taken forward through statutory guidance that will be subject to consultation. He has made it clear that he believes that the training of police forces and training on acute episodes need to be factored into that. That is something that we will take forward as part of that consultation. In all honesty, I do not believe that his amendments will be necessary; in any case, we will take that forward as part of the consultation.
On police roles and responsibilities, my hon. Friend will know now that, as I have mentioned, we have a memorandum of understanding that governs how the police and health services interact in these circumstances. That is owned and taken forward by the College of Policing, and I am sure that he will agree that they are the right people to own that. If a provision affects the police in that way, I cannot make any decision without further consultation with colleagues across the Government.
I hope that I can assure my hon. Friend that I fully take on board his points; indeed, the hon. Member for Croydon North supports the inclusion of those issues in training. We will take forward that proposal as part of the consultation process that will develop the guidance. I hope that that is enough to persuade my hon. Friend to withdraw his amendments.
On enforcement, there have been representations such that the guidance should be published within six months of the Bill being passed. Again, I do not want to prejudge Parliament’s decision. We will take forward the consultation as and when the Bill is passed. These are significant issues and a 12-month process would be more appropriate in the context. It is better to get it right than to be guided by speed, however impatient we are to achieve the desired outcomes.
Sir Christopher Chope
My hon. Friend is being very generous. Will she tell us the current state of the guidance? Can it be published for consultation immediately this Bill attains Royal Assent?
Jackie Doyle-Price
We will undertake it speedily and it will be made public, but, as my hon. Friend will appreciate, the whole purpose of consultation is that it consults and we want to ensure that we are taking everybody with us. Personally, I will want to do it in an extremely timely fashion.
There are many amendments to go through, but I hope that I have articulated the Government’s overall support for this measure and what we are trying to achieve in terms of supporting the hon. Gentleman’s Bill. Central to all this is the need to underline transparency and to strengthen accountability so that patients are protected. Clearly, we desire to minimise the use of force. The best way that we can achieve that is by shining a light on those incidents. We will continue to take this forward in the spirit of openness, and the Secretary of State will be producing reports on how this is being implemented.
Let me turn now to my final point. I have already addressed this in response to the remarks of my hon. Friend the Member for Shipley. On police body cameras, I can give him this assurance: the proposal does not create a criminal offence for not wearing a body camera. We have been very deliberate in our language to say that it is practicable to make sure that we do not get in the way of the police doing what is right in these situations. The references he makes to the law are consistent with the Police and Criminal Evidence Act 1984, but this would not raise any issue of a police officer being faced with criminal prosecution for not wearing a camera. I hope that that gives him some satisfaction.
Norman Lamb
This is my very final point. Even if this is not in the Bill, does the Minister agree that it would be a good thing if the Secretary of State reported to Parliament annually on the basis of the data that was produced by NHS Digital?
Jackie Doyle-Price
That issue did come up in Committee. Although I appreciate the spirit with which the right hon. Gentleman makes that inquiry, we would not want to make a particular arrangement for one set of NHS data over another. Clearly, we need to explore this issue to make sure that there is some annual return on how this Bill operates when it becomes an Act.
I could say so much more, Mr Deputy Speaker, but I will not. Everybody in this House is very clear that they want this Bill to make progress. I appreciate that I cannot keep all Members happy all the time, but I do hope that I have been able to assure my hon. Friends the Members for Shipley and for Christchurch on how we will take forward their representations and that I can persuade them not to push their amendments to a vote.
Justin Madders (Ellesmere Port and Neston) (Lab)
May I start by congratulating my hon. Friend the Member for Croydon North (Mr Reed) on progressing this extremely important Bill to this stage? I had the pleasure of speaking to it on Second Reading back in November. I am sure that the past seven months have felt pretty long to him, particularly as there were delays outside his control with the money resolution, and I am sure that that feeling was present again at times this morning. I hope that his diligence and persistence will pay off. We all know how much it will mean to see this Bill finally enshrined in statute. Nothing can demonstrate better the positive impact that a constituency MP can have in such circumstances, where there are clearly shortcomings in the current law, which we hope to put right.
I congratulate all hon. Members who have contributed so positively to the progress of the Bill, and the Minister on her constructive approach. I also echo the tributes paid to the Lewis family for the dignified and helpful way in which they have assisted in shaping this legislation. It has been evident from contributions that hon. Members have made during the passage of the Bill just how united we all are in our determination to do something to ensure that the tragic case of Seni is not repeated.
It is shocking to hear that, according to the Independent Advisory Panel on Deaths in Custody, 46 mental health patients died following restraint between 2000 and 2014. Victims of restraint in these circumstances have said that face-down restraint by groups of men adds to the trauma that in many cases led to their mental illness in the first place. As well as bias towards women, there is evidence to suggest that members of the BAME community are disproportionately more likely to experience restraint, so we strongly support the Bill, which we hope will reduce the use of force and address the unconscious bias currently reported in the system, by increasing transparency, evidence, accountability and justice.
In terms of transparency, data is not currently collected consistently, so it can be hard to collate accurate data on how often restraint is used and on how restraint is used disproportionately against certain demographics. We hope that the Bill will create a level of uniformity that is currently missing. Recording how and why restraint is used, who it is used on and what steps were taken to avoid its use will inject much needed transparency and consistently into the system. We will then be in a much stronger position to tackle the issues of unconscious bias or overuse of restraint to which hon. Members have referred throughout the passage of the Bill.
We need to ensure that if tragedies of this nature occur again, they are independently investigated and that justice is not only done, but seen to be done. As my hon. Friend the Member for Croydon North has set out, new clause 1 would make it compulsory for an independent investigation to be carried out whenever a death occurs in a mental health unit. He set out the thinking behind the new clause very well. The Minister set out why it is not something that she can take on board, but she did give a clear view of some of the safeguards that will be needed regarding independence, particularly when it comes to potential conflicts of interest or, as she said, appearances of conflicts of interest. She was clear and strong about the need for the ownership and involvement of the families in any investigation. That is of paramount importance. I look forward to hearing whether my hon. Friend considers that a satisfactory response.
In conclusion, the Bill is a step towards a model of care, rather than one of containment. Of course, it does not have everything that we would want, but it is an important step in the right direction that will support patients, their families and emergency service workers. I commend my hon. Friend the Member for Croydon North on his hard work in reaching this stage and look forward to Seni’s Bill becoming Seni’s law.
Jackie Doyle-Price
My hon. Friend, as a good small state Conservative, will appreciate my desire not to put burden on business. When we bring forward regulations that will introduce additional burdens, we go through a consultation process to take business with us. I am satisfied that the Bill will affect all patients, because the NHS commissions services from independent mental health care providers, and any institution where the NHS is commissioning services will be captured under the Bill. It will benefit private patients in private settings where those institutions provide services to the NHS.
Sir Christopher Chope
Will it apply to private patients in private institutions as well?
Jackie Doyle-Price
Where that institution provides services to the NHS, it will, because we will only commission services in places that are compliant with the Bill.
Sir Christopher Chope
Okay. That is very helpful. As my hon. Friend says, I am keen to avoid unnecessary burdens and regulation, so it is good to have clarification on that and to know that imposing fresh regulations purely on the private sector would trigger several regulations having to be repealed. Perhaps her Department’s list of regulations to repeal is running a bit short. I am grateful for her response.
Amendment 87 is consequential to amendment 86. I am grateful to the Minister for dealing with my amendment 88, which relates to chemical restraint, and for her offer to write to me with a list of the chemicals that satisfy the definition of “chemical restraint”. The Bill defines chemical restraint as
“the use of medication which is intended to prevent, restrict or subdue movement of any part of the patient’s body”.
However, that does not provide as much clarity as I would wish. My concern is that medication should not be given because it will result in less violence from a patient—for example, if a patient normally takes their medication but becomes more violent if they do not. That seems to be a regular pattern, and I would not want there to be any perverse incentive or disincentive to give people their medication.
Amendment 89 deals with isolation, which the Bill defines as
“any seclusion or segregation that is imposed on a patient”.
I still cannot get my head around why the isolation of a patient is deemed a use of force. Quite often, isolation can prevent a patient from causing physical harm to other patients or indeed staff. Can the Minister expand on that?
Jackie Doyle-Price
My hon. Friend is right, it can, but that should be a clinical judgment. We are trying to tackle the use of seclusion as a method of control where it can do harm, because there are clearly cases where it can, but that will be very much a clinical judgment.
Sir Christopher Chope
I am grateful to my hon. Friend for that clarification.
I tabled amendments 92 to 95 because I was concerned about the term “relevant” health organisations and felt that we should be referring to all health organisations, but the Minister dealt with that point in response to an earlier amendment, so I will not press it. As my hon. Friend said, some of the issues relating to the unintended consequences of the amendments made in Committee have also been addressed.
I turn now to clause 5, and particularly my amendment 98. Clause 5 has turned out to be the weakest part of the Bill. My hon. Friend the Member for Shipley (Philip Davies) made a stunning and really illuminating speech in support of his amendments 11 and 12, which I most heartily endorse. I do not see how anybody who listened to him could do anything other than reach the same conclusion, which I am glad to say is the conclusion reached by the promoter of the Bill. A lot of my hon. Friends were sitting in the Chamber and listening to my hon. Friend the Member for Shipley, and I think they were also in strong agreement with the sentiments he expressed.
The Minister’s response has very much been to say that such amendments are not needed. I do not know whether she will respond in the same way to my amendment 98, but that amendment makes it clear that the training provided under subsection (1) must include how to involve not just patients but their families in the planning, development and delivery of care and treatment in mental health units. The involvement and engagement of families is of absolutely fundamental importance. If the Government have chosen to set out a whole list of what they consider to be very important ingredients in any training course, I cannot understand why they have omitted any reference to the involvement of families in the planning, development and delivery of care and treatment.
In one of the constituency cases I mentioned earlier, the parents have had an incredibly distressing time not just because of their personal circumstances, but because of their son’s circumstances. They have experienced great frustration in trying to get proper contact with the people in the mental health unit where their son is a patient. It seems to me that families, who often care for 20 years or more for mentally ill children, are in a really strong position to know and understand their children’s needs. It is also very important that they should be informed about what is happening. For example, in this case, the young person concerned is sometimes suddenly discharged from the mental health unit at the weekend, and he then goes and makes a nuisance of himself and the police have to bring him back to his parents’ house many miles away. On one recent occasion, he proceeded to trash the whole place. We cannot allow such situations to arise, and it seems to me that there is a really important role for involving and engaging with the families. I hope that my hon. Friend will confirm that the Government really take seriously the involvement of the families.
Jackie Doyle-Price
The Government most certainly do. I mentioned earlier that we are currently undertaking a review of the Mental Health Acts. The involvement of families is a key part of what is coming out of that, and there will be recommendations on that when the report is completed in the autumn. There are also issues regarding mental capacity, so the review of the deprivation of liberty law raises issues about the role of families, and we need to provide greater clarity. However, this is very much part of what we need to get right. My hon. Friend is absolutely right to say that families not only have an interest in, but can do much to support their loved ones. There are also occasions when that can cause harm and families ought not to be involved, but, again, that is part of the clinical judgment. I come back to the fact that all of this will be addressed in the guidance, which we will take forward in consultation with the sector.
Sir Christopher Chope
I am grateful to the Minister, and to you for your indulgence, Mr Deputy Speaker. It shows your flexibility that you allowed one long response, rather than having more interventions flowing on from that. [Interruption.] Well, it was very welcome for its content, and I am grateful to the Minister for putting that on the record.
My final point concerns clause 5(2)(k) and what we mean by
“principal legal or ethical issues”.
It seems to me that “principal” is redundant. Why do we need to talk about “principal” legal issues unless we specify more clearly what we mean by that? Do we mean that some laws or legal issues are more important than others? What does it mean? We have not yet had an answer on that—I do not know whether the Minister has one readily to hand.
Jackie Doyle-Price
I cannot pay tribute enough to the hon. Member for Croydon North (Mr Reed) for his incredible leadership in getting us to this point. He has made it extremely easy for me to work with him and to engage with the sector. I cannot overstate the signal that this reform will send both in terms of how we treat mental health and how we treat patients and enhance their rights; it will be extremely significant indeed. When, as I hope, the Bill gets on to the statute book, he can really be proud of a very significant achievement. I am very pleased that he was able to use his place in the ballot to bring forward such a progressive and important measure.
I could not disagree with a word the hon. Gentleman said as he introduced the Bill’s Third Reading. He was absolutely right. For too long, restrictive interventions have been accepted as the norm in health and in mental healthcare settings, as the right hon. Member for North Norfolk (Norman Lamb) said.
It has been great to have the right hon. Gentleman’s input into today’s proceedings. He is the one who blazed the trail that I am trying to follow, which is quite a tough act it has to be said, but we are all extremely grateful for the real efforts that he made while he was a Minister, and I hope to build on the change that he started to embed.
We must expect that restrictive interventions and the use of force must never be used for the purpose of punishment, or to degrade or to humiliate patients. Mental health settings are places where people should feel safe, and it is clear that the existing guidance is not having the impact that the Government expected, and that we must do more. This Bill will be a very important tool to achieve that.
I come back to why we are here today: the death of Seni Lewis. The measure of the Bill’s success will be in the strength of the independence of the investigations and in the support that bereaved families get should, unfortunately, any other family find themselves in this situation. That is the yardstick against which the Bill should be measured. We should be very sensitive to ensure that we all continue to do our best so that, when people are let down by organisations of the state, we in this House are at the front of the queue to see that they get justice—and justice promptly, because justice delayed is justice denied.
Friday 6th July 2018
(6 years, 5 months ago)
Commons ChamberMental Health Units (Use of Force) Act 2018 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 15 June 2018 - (15 Jun 2018)
This text is a record of ministerial contributions to a debate held as part of the Mental Health Units (Use of Force) Act 2018 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Sir Christopher Chope (Christchurch) (Con)
I hope that my hon. Friend the Minister will be able to give us a little more information today on her plans on the issue of the code of conduct. The advisory code is key to the Bill, and when we discussed it last time she said that she would bring draft guidance forward. I hope she will be able to tell me today whether that will be done before the Bill reaches the other place, so that there can be a proper discussion of the contents of the draft guidance at the same time as the substance of the Bill is discussed. I will give her the chance to intervene when she has the answer to that question.
In the meantime, I thank the Minister for responding to the point that I made on Report, when I asked which products were licensed by the National Institute for Health and Care Excellence for the purposes of restraint. She has now written back to say:
“there are no products in the UK which are licensed for chemical restraint as defined in the Mental Health Units (Use of Force) Bill.
However, a number of psychiatric medications can be used for rapid management of acute agitation in psychiatric patients. Of these products, Haloperidol 5mg/ml Solution for Injection is indicated for rapid control of severe acute psychomotor agitation associated with psychotic disorder or manic episodes of bipolar I disorder, when oral therapy is not appropriate.
Clinicians in the UK are primarily guided by the advice about rapid tranquilisation given in the following documents: Maudsley Prescribing Guidelines; Rapid Tranquilisation Algorithm by the Royal College of Psychiatrists; and the Rapid Tranquilisation section from Restrictive Interventions for Managing Violence and Aggression, which is published by the National Institute for Care Excellence.”
I put that on record because it is relevant to our discussion on Report, and I am grateful to her for writing to me with those details. I will give way if she has any more news about the guidance.
The Parliamentary Under-Secretary of State for Health and Social Care (Jackie Doyle-Price)
The guidance will be published and consulted on. Clearly, it would be inappropriate to propose guidance until Parliament has passed this legislation, but we fully undertake to consult all those with an interest. We expect that debate to take place so we can implement the Bill, if passed, within a year of its passage.
Sir Christopher Chope
I am grateful to my hon. Friend, and I hope that is the maximum timetable, rather than the minimum.
Philip Davies (Shipley) (Con)
I start by commending the hon. Member for Croydon North (Mr Reed) for his dedication to the Bill and, more importantly, for his dedication to his constituent Seni Lewis and his family, who have been through unimaginable tragedy.
The hon. Gentleman’s campaign to highlight the issues that the Lewis family have faced and to create a positive change in mental health practices is admirable and a true reflection of the care and compassion he applies to his role in his local community. As he knows, and as we have discussed on a number of occasions, I support the core principles of what he is aiming to do. The Bill is something of a curate’s egg, because some bits are very good, some bits are bad and, most frustratingly—this happens with virtually every Bill that comes before the House—some bits could have been much better, as he and I both agree.
As my hon. Friend the Member for Christchurch (Sir Christopher Chope) mentioned, the Minister said on Report that she could not agree to certain things being included in the Bill but that she wants them to be included in statutory guidance. I will outline my under-standing of the things that will go into statutory guidance, which the Minister will hopefully either confirm or correct. Hopefully, as I have always intended, the Bill will then be able to complete its passage in no time at all.
Clause 5, on training in appropriate use of force, is a positive step forward in the care of patients. It is an important change, as it centres on the very core of health services—the patient. Key elements of the training programme are listed in subsection (2). The use of techniques for avoiding or reducing the use of force, and the risk associated with the use of force are two fundamental points that are vital when restraint methods are part of a medical care plan.
It must not be forgotten that the most forceful restraint methods are advised to be used as a last resort. Medical staff should be fully versed in a wealth of techniques to avoid such restraints, where possible, but it must not be assumed that restraint should be banned altogether. Unfortunately, there are times when forceful restraint is necessary, but it is essential that such techniques are used with a full knowledge of the associated risks.
It is regrettable that my amendment 12, on introducing training on acute behavioural disturbance, was not accepted on Report, as it would have enhanced the Bill. I thank the hon. Member for Croydon North for supporting that amendment. I have been advised by the Minister that such training will be added to statutory guidance instead, and I thank her for sending me a letter on Wednesday to follow up on many of these points.
My concern, and I would like some clarification, is how the statutory guidance will be worded. In her letter to me, the Minister quoted the 2015 National Institute for Health and Care Excellence guidelines, which state that training on ABD
“should be included in staff training”.
The whole point of my amendment is that it would have ensured training on ABD must be included in staff training. My concern is that guidance is just that, guidance, rather than something that is mandatory. This is an opportunity to ensure the thorough education of staff on something we have established to be central to the Bill.
I therefore hope the Minister is able to confirm, whether today or in future, that training on acute behavioural disturbance must, rather than just should, be included in staff training. It must be mandatory.
Jackie Doyle-Price
I appreciate my hon. Friend’s frustration. One of the difficulties with clause 5, inevitably, is that a list of criteria could go on forever. He is right to highlight the issues of acute behavioural disturbance, which we consider already to be enshrined in guidance. I completely take his point, and I give him an assurance that we will use statutory guidance to make it very clear that staff need to be fully trained on acute behavioural disturbance, not least because, unless staff understand it, they cannot be proportionate when the use of force is, indeed, appropriate.
Philip Davies
Absolutely. The hon. Gentleman is not alone in that, and nor is the autism community—I want the Bill to become law, too. If he had not intervened on me, we could have completed this a bit sooner. I assure him that this Third Reading will complete very soon. I certainly do not intend to go on for long today and I do not think anyone else does. We want to complete this as quickly as possible and see the Bill on the statute book. I want to see that just as much as he does.
Clause 6 deals with recording the use of force and I am very supportive of having this in the Bill. It is right to record the carrying out of such practices on patients. The police have a system in place when using restraint as part of their role, so it is only right that medical staff should follow suit. I am advised by my local care trust that it does have some measures in place to record restraint of a patient, but this Bill will of course make it a legal requirement to do so, which is important and absolutely right. Again, I was disappointed that my amendment proposing that these records be added to the patient’s medical records was not accepted. As I have stated, restraint is considered to be a form of medical care and therefore should be documented in the patient’s medical notes. That would help people to know what reaction the patient had had when restraint had happened in the past. I hope the Minister will make sure that the statutory guidance can be used and updated to make sure that these things are added to people’s medical records at the same time. I hope she will be able to confirm that in the fullness of time, too.
On clause 6(5), the information listed to be included in the report is largely constructive. Where I feel it falls short is in insisting on adding what are referred to as “relevant characteristics”. As the hon. Member for Croydon North knows too well, I do not agree that that is necessary. I am of the opinion that including these “relevant characteristics” detailing race, sexuality, religion, marital status and so on is purely a politically correct gesture in order to be seen to be doing something to combat discrimination, when instead it causes the illusion of discrimination. There is a notion that this creates a more transparent mental health service, but that is not the case. For instance, the detailing of these “relevant characteristics” will extend only to the patient and not the staff. My amendment to say that staff members should be included in this was also supported by the hon. Gentleman, for which I am grateful. I hope that the Minister takes on board those points and will ensure that the statutory guidance she produces in conjunction with the Bill will set out that staff members’ “relevant characteristics” will be included alongside those of the patient.
Jackie Doyle-Price
I confirm to my hon. Friend that we will reflect on that when we come to discuss this matter with consultees. I want also to come back to the point he made earlier about families. On the face of it, we should be enshrining the rights of families in the Bill, recognising, as the hon. Member for Huddersfield (Mr Sheerman) said in regard to autism, that we often rely on families to protect individuals whose mental capacity is not enough to consent to treatment. However, we are also aware that patients suffering mental ill health can often not be best served by family members, so enshrining this in the Bill and in law could have unintended consequences. On the role of families, we strongly feel that statutory guidance gives us a better tool with which to manage both guaranteeing their rights and protecting individuals who might be vulnerable to their family under the law.
Philip Davies
Again, I am very grateful to the Minister for that and for her positive approach to ensuring that the points being raised here and that we raised on Report will be considered for the statutory guidance. We will therefore look forward to seeing it when it is published.
Finally, I wish to refer to clause 12, which deals with video recording and specifically details the police use of body-worn cameras when assisting in restraint at a mental health unit. Largely, police body cameras are used in this instance, unless there are special circumstances. I am a big fan of body-worn cameras, which are a beneficial tool for both officers, protecting them when complaints are made about them, and the public, in making sure that the true facts of a situation are seen by everybody. However, the Bill states that the police
“must take a body camera”
and
“must wear it and keep it operating at all times”.
It goes on to state that a “failure” to “comply” makes
“the officer liable to criminal…proceedings.”
As the Minister and the hon. Member for Croydon North know, I feel that that creates a severe disproportion of consequences between the actions of the police and the actions of the medical staff.
Philip Davies
I am grateful to my hon. Friend for that intervention. I cannot recall whether he was here on Report, but we went through this in some detail then and so I do not wish to test the patience of the House by going through it all again this morning. If he looks back at the transcript of the debate, he might not be so confident in what he said. I think there is some doubt about this provision and it offers some doubt for police officers, who have also looked at the Bill. Notwithstanding that intervention by my hon. Friend, may I ask that the Minister takes this issue into careful consideration when creating the statutory guidance, if that provides an opportunity to look at this? I ask her to make sure that there are no unintended consequences. My hon. Friend the Member for Croydon South (Chris Philp) sums up exactly what is intended by the Government and the promoter of the Bill, but I hope that when the Minister brings forward her statutory guidance she will clarify the situation, because police officers are concerned about it.
Jackie Doyle-Price
Perhaps I can give my hon. Friend reassurance by saying that the College of Policing will be fully involved in the development of the statutory guidance.
Philip Davies
Again, I am extremely grateful for that and am pleased to hear it.
To conclude, I reiterate my support for the Member for Croydon North with his private Member’s Bill. As I have said on a number of occasions, I support the core principles of the Bill, although I feel that there have been some missed opportunities to achieve fully the objectives he set out. I hope that his constituents, the Lewis family, feel that the Bill is something they can proudly remember the life of Seni Lewis through, knowing that his death was not in vain. It was a terrible tragedy for the family, but it was not in vain, in the sense that they have worked very hard and constructively, and they have a fantastic Member of Parliament who has taken on board their campaign, on the back of which they have played their part in making sure that the terrible thing that happened to Seni Lewis does not happen to other families. On that basis, we should all be pleased that the Bill is passing its Third Reading today.
Chris Philp (Croydon South) (Con)
Let me start by congratulating my constituency neighbour, the hon. Member for Croydon North (Mr Reed), on piloting this piece of legislation through the occasionally shark-infested waters of the private Member’s Bill process. He has done a very good job in getting the Bill to this stage. It is a particular pleasure to support it because, of course, it was the terrible suffering of a Croydon resident, one of his constituents, that inspired and motivated him to bring forward this very important piece of legislation in the first place.
This Bill, which I hope shortly will become an Act, does a very important thing in emphasising that physical force in a mental health context should be used as an absolute last resort and only after very careful thought and with great restraint, which, clearly, was not the case in the tragic death of Seni Lewis. I have been encouraged by the declining use of police custody suites as places of safety under the Mental Health Act; it has roughly halved over the past five or six years, which is a very welcome trend. I would like to see that reduced to zero.
The hon. Member for Liverpool, Wavertree (Luciana Berger) also made a very important point when she said that the use of any sort of physical force in a mental health environment is a symptom of failure. No mental health case should ever be allowed to progress to the point where physical intervention is required, although it may sometimes be unavoidable. Therefore, an emphasis on prevention, early intervention and treatment long before any physical intervention is extremely important. I am pleased that the Government are spending more money in this area. The more we can do to make sure that patients are treated well before things escalate, the better the system will be.
The Bill as amended for our consideration today is a very good Bill. I strongly support it and look forward to voting for it shortly. However, I have a couple of comments and questions that I hope the hon. Member for Croydon North and the Minister might be able to comment on and answer. My first question relates to clause 3, which is about the requirement to publish a policy on the use of force. It requires “the responsible person” to publish a policy, but as far as I can see there is no prescription as to the contours or limits imposed on that policy. For example, one might have expected to see a requirement in the Bill that any such policy limits the use of force to reasonable force. That may be done in regulations, or perhaps there was another reason it was not considered appropriate to put it in the Bill, but one might have expected some explicit statement limiting force to reasonable force. I would be interested to hear from the hon. Gentleman and the Minister why that does not appear in the Bill.
My second point relates to clause 5 on training, about which I have two questions. The first concerns subsection (2)(c) on
“showing respect for diversity in general”.
I wonder whether the hon. Gentleman could amplify a little what that means in practice. I would have expected a requirement that everyone should be treated equally, regardless of their background. Perhaps that is what he means, but I am not sure whether “showing respect for diversity” quite conveys that meaning. I would be interested to hear his and the Minister’s comments on that.
My other question relates to subsection (5) on refresher training, which it specifies should take place “at regular intervals”. I wonder whether regulations would specify what is meant by “regular intervals”. Annually would be a sensible degree of regularity, but if someone was not being true to the spirit of the Bill, they might interpret “regular” as once every 10 years, which clearly would not be frequent enough. I would be interested to hear the hon. Gentleman’s and the Minister’s views on what is suitable regularity and how that will be enforced. My view is that such training should be annually or at least once every two years.
Jackie Doyle-Price
I appreciate the spirit in which my hon. Friend is making these points. We do not want to be too prescriptive by putting in particular timings on how often the training should be, because obviously that depends very much on the context of the facility and how much wider training there is. At the same time, however, we want to be very explicit that it is regular training so that there is no excuse for staff not being properly informed about best practice in this area.
Chris Philp
I thank the Minister for her helpful intervention. Of course, I entirely sympathise with the point that Parliament should not impose unduly onerous requirements on already very busy and possibly, in some cases, overstretched mental health units, but I am concerned to make sure that we have not left a little loophole that might, perhaps inadvertently, end up being exploited so that training is not being given the degree of regularity that perhaps the House intends.
My final point of detail is on clause 6(10), which specifies the “relevant characteristics” of a patient. My hon. Friend the Member for Shipley (Philip Davies) questioned whether we need to record these “relevant characteristics”, which are listed in quite some detail. If we are going to do so, and any inference is to be drawn from those characteristics in future, it is important to measure them against the same characteristics for the whole population treated in any particular mental health unit. If we are going to say, for example, that X% of people who have been subject to this procedure have a particular gender, sexual orientation, religion or ethnicity, then before drawing any inference from that, it is important to compare that statistic with the proportion of people in the unit with the same characteristic. One needs to use those statistics with of careful thought to make sure that inappropriate or inaccurate inferences do not end up being drawn.
I am, like my hon. Friend the Member for Shipley, a great supporter of the use of police body-worn cameras, which are a great innovation. They have been responsible for a huge reduction in the number of complaints against police officers, because the officer is aware that the camera is being worn and recording—that, I am sure, has some moderating influence—and the person the officer is dealing with is aware of the same thing. I am sure that that has also reduced the number of vexatious complaints against the police. It is a very welcome move.
I was not present for the lengthy debate that my hon. Friend mentioned about whether a failure to wear a body-worn camera might be considered unlawful in the light of clause 12. Personally, I draw comfort from subsection (4), which appears to say expressly that there is not criminal liability. However, I will certainly follow his advice and refer to the report of the previous proceedings on that point. In general, the use of body-worn cameras when the police are dealing with mental health cases is extremely welcome and will, I am sure, assist with the problems that have existed in this regard.
I reiterate my very warm congratulations to my constituency neighbour, the hon. Member for Croydon North, for his tireless work in this area. I am sure that not just the London Borough of Croydon but the whole House and the whole country are grateful for his work.
Friday 7th September 2018
(6 years, 3 months ago)
Lords ChamberMental Health Units (Use of Force) Act 2018 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 15 June 2018 - (15 Jun 2018)
This text is a record of ministerial contributions to a debate held as part of the Mental Health Units (Use of Force) Act 2018 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)
My Lords, I shall begin by thanking three sets of people for getting us this far. The first is the noble Baroness, Lady Massey, whom I thank for introducing this Bill and for the opportunity to respond and contribute to the Second Reading. The second is Steve Reed, the MP for Croydon North, who, as all noble Lords have said, has done much of the work to get the Bill to where it is today. We know how difficult the journey of a Private Member’s Bill is, but that it has got this far in this good shape and has this broad support shows not just how important this issue is, but what a fantastic job he has done. I congratulate him. The third set of people are the parents and family of Olaseni Lewis. They have been through a heartbreaking experience, but they have nevertheless fought and campaigned tirelessly for justice for their son. I join other Members of the House in expressing my admiration for them, their resolve and the work they have done to ensure that other families do not to suffer in the way they and their son sadly had to.
This is an emotive subject. It touches the lives of people when they are at their most vulnerable, but at the same time we need to be conscious of the fact that patients must have trust in all NHS services in whatever setting. In that context, the topic of restrictive interventions is always difficult. They are never without risk. Going through an intervention and, I believe, delivering one can be a frightening and traumatic experience for patients and staff at a time when those patients are unwell. The Government are clear that restrictive interventions should only be used as a last resort when all attempts to de-escalate a situation have been employed.
Noble Lords are aware that in April 2014 the Government launched the positive and safe programme, which aimed to reduce the use of these kinds of restrictive interventions in the health and social care sector. That included the non-statutory guidance, Positive and Proactive Care: Reducing the Need for Restrictive Interventions. It was intended to inform the Care Quality Commission’s programme of monitoring and inspections.
What has been identified not just in this debate but during the passage of the Bill in the other place and by my honourable friend the Minister is that the existing guidance is not having the impact the Government expected and that much more needs to be done. For that reason as well as others, the Government are in full support of this Bill.
The noble Baroness, Lady Massey, was right in saying that this Bill is a good example of cross-party collaboration. A number of changes have been incorporated since it was first introduced to respond to multiple concerns, many of which have been raised this afternoon and by other parliamentarians, campaigners and staff. I pay tribute to all those who have contributed to the improvement of the legislation in the other place.
I shall deal quickly with some of the amendments that were made in the other place because they demonstrate how the Bill has been improved and that it is in a good place now. First, we have included “isolation” and “segregation” in the key definitions of use of force to address stakeholder concerns that these commonly used techniques would not be recorded and reported on nationally if they were not included in the Bill. We clarified the role of the responsible person in Clause 2 so that a board-level or equivalent person has responsibility for reducing restrictive interventions.
We have added to Clause 3 so that the policy on the use of force must set out what steps will be taken to reduce the use of force in the mental health unit, something that has been mentioned many times today. We strengthened Clause 4 in relation to sharing information with the patient about their rights, so that the responsible person has to take whatever steps are reasonably practicable to ensure not only that a patient is aware of the information about their rights but that they understand it. Critically, on the point that was raised by the noble Baroness, Lady Tyler, it will ensure that every patient and their family members or carers understand what the patient’s rights are in relation to the use of force while they are in a mental health unit, a really important improvement.
In Clause 5 we have expanded the topics that must be covered in training courses to recognise the impact that trauma may have on a patient’s physical and mental health and, as the noble Baroness, Lady Thornton, said, what is known as trauma-informed care. I will return to the issue of training but I will say at this point that we have also now included a requirement for staff to receive refresher training as appropriate, so it is not just one-off training.
We have expanded the list of information that must be recorded in Clause 6 to include a description of how force was used and the outcome of that use of force to increase transparency and accountability, while also amending the time for which records must be kept so that it is proportionate and in line with data protection law.
In Clause 7 we have ensured that the responsibility for publishing annual statistics sits with the Secretary of State in order to enable NHS Digital to collect national data and produce and publish those statistics. Following this debate today, in response to the question from the noble Baroness, Lady Tyler, I will clarify the timing of the publication of the statistics so that it can be done in a way that shines the greatest light on that information. I shall write to her and all noble Lords with more details on that.
In Clause 8 we have further committed to an annual review of published reports by coroners under paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009—more commonly known as regulation 28 reports—relating to the death of a patient as a result of the use of force, and any other findings made during that year. This will enable lessons to be learned across the system. This was one of the points made by the noble Lord, Lord Harris, and again, I will respond to that in a bit more detail in a moment.
Clause 9 is the result of much discussion about investigations, to ensure that mental health units have regard to any guidance relating to investigating deaths or serious injuries that is published by a range of organisations including the CQC, NHS Improvement and NHS England, as has been referenced. This puts the NHS Serious Incident Framework on a legal footing and gives strength to the requirement to carry out an independent investigation into an unexpected death, including the death of a patient following the use of force.
Finally on the improvements made in the other place, the clause on police body cameras was amended to ensure that the use of body-worn video is proportionate, legitimate, necessary and in line with the College of Policing guidance on its use. It was also amended to clarify that failure to bring or use body-worn video when attending an incident in a mental health unit is not in itself a criminal offence.
I thank noble Lords for indulging me in mentioning those points. I wanted to demonstrate the improvements that have been made in response to stakeholders from the charitable and voluntary sector. By virtue of those improvements, we can be confident that the Bill is in very good shape and, in response to the question from the noble Baroness, Lady Thornton, has the best possible chance of delivering the outcomes we want. We want to ensure that the Bill goes through in its current shape but, like my colleague Jackie Doyle-Price, I will be more than happy to meet any noble Lords who want further reassurance on any of the questions they have asked, although I shall try to deal with some of them as well as I can now.
I turn to some of the specific points and questions raised by the noble Baroness, Lady Massey, and other noble Lords. First, on the timing of the statutory guidance, calls to see drafts of it and the timetable for its publication, Jackie Doyle-Price in the other place accepted the need to move quickly and said that publication within 12 months of the Bill being passed would be appropriate in the context. I believe that this is reasonable, given the complexity of the guidance that we will need to consider. On the critical question of how it will be drawn up, we plan to establish and consult with an expert reference group, including experts in the field of restrictive interventions and people with lived experience, as well as carrying out a public consultation on the guidance before it is published. I reassure noble Lords that we will work closely with key stakeholders to take account of their contributions, and the discussions on the Bill in both Houses, in developing the guidance. I hope all noble Lords who have taken part in this debate will have the opportunity to contribute to the development of that guidance.
The issue of diversity and the disproportionate use of force for black and minority-ethnic groups was raised by the noble Lord, Lord Adebowale. Annual figures from the mental health services dataset showed that in 2017 the number of people subject to restrictive interventions was 9,771. Collectively, these people experienced more than 71,000 incidents of restrictive interventions. They also showed that they were disproportionately affecting patients from the BAME community, as well as women and children, as was mentioned by the noble Baronesses, Lady Thornton and Lady Tyler. This is clearly unacceptable, but we do not yet have a consistent and rich enough dataset to understand exactly where the problems in the disproportionate use of force take place, when they take place, in what settings, and so on. It is precisely for that reason that we want that rich dataset to inform practice and action, and to respond accordingly. I should be pleased to follow up our debate today with noble Lords, once data is available, to think about what action could be taken to address the discrepancies in performance.
The noble Baronesses, Lady Tyler and Lady Massey, asked about children. I can confirm that the Bill applies to all patients in a mental health unit, including children, for the purposes of treatment for a mental disorder. The children and young people who are being looked after in those mental health units are, of course, among the most vulnerable patients, and I absolutely acknowledge that staff will require a different skill set when looking after them. I will come to the issue of staff training in a moment, but Clause 5 sets out the requirements for staff training, including involving patients in their care, and this will be a different conversation for children and young people than for an adult. I reassure noble Lords that the statutory guidance that we produce will have specific examples and principles of good practice for how to carry out those conversations with young people and children, as well as with adults.
I should like to address some questions raised about the use of force. Although it has not been raised in this debate, it was asked in the other place whether the words “threat to use force” and “coercion” should be included. The reason for resisting that is that we believe that they can be useful terms when used properly as part of de-escalation techniques. As the noble Baroness, Lady Tyler, pointed out, those techniques are incredibly important in reducing the use of force wherever possible.
Nevertheless, we need to ensure that there is proper oversight to ensure that threats are not used improperly. That is part of the policy that we will expect the responsible persons to put in place to ensure proper responsibility, and proper accountability within the organisation for the reduction of the use of force and not merely substituting for it by other means.
Of course, as noble Lords have pointed out, staff must be properly trained. On those occasions where restrictive interventions are needed, we must feel confident that mental health unit staff have the techniques at their hands to use properly. In response to the question asked by the noble Baroness, Lady Massey, and other noble Lords, I say that Clause 5 sets out as a minimum the list of training topics which must be covered. The list in the Bill is not exhaustive, but covers the essential topic areas key to ensuring that, where necessary, force is used in a safe way using the least restrictive force. I mentioned that that will include ensuring that staff receive refresher training at regular intervals to ensure that they are up-to-date with the latest techniques and new approaches.
While we are on the topic of force, I shall address the question asked by the noble Baroness, Lady Thornton, about the use of the term “negligible”. As I have said, Clause 6 imposes a duty to keep a record of any use of force on the patient by staff who work in that unit. It sets out what information should be recorded and how long those records should be kept.
The clause also states that the duty to record does not apply to the use of negligible use of force. This is because, in consultation with our health partners, it was felt that staff should not be burdened with the need to record lower-level therapeutic activities, such as the use of a lap belt when moving someone in a wheelchair, or guiding someone by the arm down a corridor or through a doorway. These are activities that happen many times every day and, if we did not have this exception, staff would have to record such events as a use of force. This would significantly increase the time spent recording which would take staff away from caring for patients.
Baroness Thornton
Maybe that is the wrong word, then. Maybe the Bill should say “therapeutic” or something which does not allow a loophole which says: “Oh well, that slap was only negligible”. That might be the wrong word to use.
Lord O'Shaughnessy
The noble Baroness makes a good point, which is relevant to the point made by the Delegated Powers and Regulatory Reform Committee when it reported on the Bill, which I will use this opportunity to address. This was about our proposal that definitions should be within statutory guidance. This determines the appropriate mechanism for making the definition, to ensure that the kind of problems pointed out by the noble Baroness do not arise. The committee noted that the guidance under Clause 6(3) will determine whether a use of force is negligible, and thus affect the legal obligations of responsible persons in mental health units. The committee’s view is that this should be set out in regulations, in order to provide an appropriate level of parliamentary scrutiny. I have replied to the committee on this issue this morning and will share my letter with noble Lords.
We considered whether the meaning of a “negligible” use of force could be set out in regulations or, indeed, on the face of the Bill. However, the range of techniques that may be used for physical interventions alone is many and varied, from the most serious, such as prone restraint, to something as simple as guiding a patient by the elbow down a corridor or through a doorway. Furthermore, what is negligible will generally be a matter of degree rather than kind. It was concluded that the meaning would be more effectively illustrated through example case studies in guidance, which would also allow for more rapid revision to take account of changes in practice. The decision to require “negligible” to be determined in accordance with the guidance was taken to ensure consistency of approach to recording uses of force across the sector. Because the information recorded under Clause 6 will be used for the preparation of national statistics about the use of force under Clause 7, if responsible persons are taking a different approach to recording information—a current problem—that will affect the interpretation and value of the statistics.
The Government accept the committee’s concerns about the sensitive nature of the subject. This is why the Bill imposes constraints on the issue of guidance, one of which is to require the Secretary of State to consult any person he or she considers appropriate. In practice, that will mean consulting experts in the field of restrictive interventions and those with lived experience whom the Government consider appropriate for this type of guidance. It is not usually the case that we go against the advice of the committee, but in this instance we felt that the nuance required around the definitions of “negligible”, combined with the strength of force that is needed to provide consistency for statistics, meant that this particular definition within a form of statutory guidance was the appropriate way forward. I hope that noble Lords will accept that; if further discussion is warranted, I would be happy to follow it up.
My final point is on the issue of deaths of patients, which was at the heart of the questions asked by the noble Lord, Lord Harris. There was a lot of debate on Clause 9 in the other place and the clause was revised in Committee, but concerns remained about the timeliness, quality and independence of the investigations that would be made whenever a patient dies following the use of force. As Clause 9 is drafted, if a patient dies or suffers a serious injury in a mental health unit, the responsible person must have regard to any guidance relating to the investigation of deaths or serious injuries published by a list of organisations which are responsible for regulating and monitoring the NHS, such as the CQC. As I said, this means that the NHS serious incident framework is put on a statutory footing. The noble Lord, Lord Harris, gave some examples of how this would work in practice and talked about level 3 investigations. However, prior to that there is a legal duty, under the Mental Health Act, to report the death of a patient to the CQC. After that, an independent investigation should always be considered following the death of a patient in those circumstances.
As the noble Lord pointed out, level 3 investigations under the framework are those that will probably be most suited to these kinds of incidents, where the integrity of an internal investigation is likely to be challenged or where it will be difficult for an organisation to conduct such an investigation internally in an objective manner. I want to be clear that no one involved in the investigation process should be involved in the direct care of the patients affected, nor should they work directly with those involved in the delivery of that care. Following such an investigation, there would of course be an inquest, including a legal duty to report the death to the coroner, who has a duty to investigate violent or unexpected deaths. I hope that gives the noble Lord some reassurance about the objectivity and independence of the investigatory framework that would follow such a death. I am more than happy to discuss that further with him, and to make sure that the point he made is properly reflected: that there is an opportunity not just to investigate individual deaths but to look for thematic issues at a higher level—of the kind that he outlined and indeed used to be responsible for carrying out and which the IPCC used to carry out—which may be suitable for the new health services investigation board that we are introducing. That is something that I would like to discuss further with him.
The noble Lord also briefly asked about support for families. Legal aid is, I believe, the most appropriate way for that support to be offered. The Ministry of Justice has considered this in response to the Dame Elish Angiolini report and will also consider deaths in these settings on the same basis as deaths in prisons and police custody. Again, I hope that provides some reassurance, but if he wants to discuss that further I would be more than pleased to.
I hope that I have addressed all issues and questions raised in the debate today. I just finish by saying how important the Government consider this legislation to be and how much we support the noble Baroness in bringing it forward. Noble Lords have indicated that they do not intend to amend the Bill, and of course we are all conscious of time, but I am more than happy to speak to any noble Lords about remaining questions to make sure that we can put their minds at ease, provide the necessary reassurance and move ahead as quickly as possible.
Tuesday 30th October 2018
(6 years, 1 month ago)
Lords ChamberMental Health Units (Use of Force) Act 2018 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 15 June 2018 - (15 Jun 2018)
This text is a record of ministerial contributions to a debate held as part of the Mental Health Units (Use of Force) Act 2018 passage through Parliament.
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This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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Baroness Massey of Darwen (Lab)
My Lords, in moving that the Bill do now pass, I should like to sincerely thank several people, including the Minister and his counterpart in the other place, Jackie Doyle-Price MP, who have been so supportive and helpful on the Bill. I also thank the voluntary sector, which has been incredibly vigorous and thorough in making sure that the Bill is as close to perfect as it can be. Will the Minister confirm that there will be other, informal, meetings on the Bill, which will look at the guidance to the Bill, particularly on statistics, impact and measurements? I wish to say that the Bill should now pass.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)
I am very grateful to the noble Baroness for her question and, more importantly, for her steering the Bill to this point. I offer my thanks to her, her colleague Steve Reed in the other place and everybody who has been involved in this important piece of legislation. As she will know, my honourable friend Jackie Doyle-Price, the Minister for Mental Health, committed to the Government publishing statutory guidance within 12 months of the Bill being passed. I am happy to confirm to the noble Baroness that, in developing this guidance, the department will establish and consult an expert reference group, which will include experts on restrictive intervention as well as people with lived experience and, furthermore, that public consultation will take place before the publication of the final guidance. So I can absolutely reassure the noble Baroness and all noble Lords that we will consult widely with a broad set of stakeholders, as well as reflecting discussions in this House and the other place, to make sure that all those contributions are included in the guidance.