Mental Health Bill [HL]
Wednesday 6th November 2024
(8 months, 1 week ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text
Mental Health Bill [HL]
Monday 25th November 2024
(7 months, 2 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Baroness Merron
That the Bill be now read a second time.
Relevant document: Report of the Joint Committee on the Draft Mental Health Bill, Session 2022-23. Welsh legislative consent sought.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, it is an honour to move the Second Reading of the Mental Health Bill—a Bill which Members of both Houses have been waiting for and working on for some considerable time.
There is much consensus that our mental health laws are not fit for the 21st century. Many elements of the Mental Health Act 1983 are outdated. Its operation is associated with racial disparities and poor care for people with a learning disability and autistic people, and it fails to give patients an adequate voice. Modernising the Mental Health Act is a vital manifesto commitment for this Government, so I am proud to introduce reforms that will ensure that care is appropriate, compassionate and effective; give patients more say over their care; improve support to help patients understand and exercise their rights; and protect the safety of the public, staff and patients.
The wait has been too long. I know that a number of noble Lords were involved when the Act was last amended substantially in 2007, but, although attitudes to mental health have, thankfully, changed since then, the law has not kept up. The Bill is the product of the combined effort over some years by Members of both Houses and many outside Parliament, and all parties have rightly come together to support it. Sincere thanks are due to many, but I will highlight just a few, starting with Members of your Lordships’ House who served on the pre-legislative scrutiny committee in 2022: the noble Baroness, Lady Buscombe, as chair, as well as the noble Baronesses, Lady Barker, Lady Berridge, Lady Hollins and Lady McIntosh of Hudnall, and the noble Lord, Lord Bradley. All have given a huge amount of time, expertise and energy, which has informed and motivated this Government to strengthen the Bill. I confirm that we have improved the previous draft Bill by heeding the committee’s recommendations to include guiding principles and advance choice documents in this revised Bill.
I pay tribute to the former Prime Minister, the noble Baroness, Lady May, whom I had the pleasure of meeting earlier today with the Secretary of State. The noble Baroness, Lady May, identified the need for modernisation and set up the independent review of the Act in 2017. Without this, we would not be here today. I thank the independent review chair, Sir Simon Wessely, and his vice-chairs, including the noble Baroness, Lady Neuberger, who made the case for change and provided the blueprint to follow. I know they will continue to be champions for reform. I also thank the many stakeholders and parliamentarians who have engaged with us ahead of Second Reading and over the years, and those with lived experience, who have bravely told their stories.
The Bill will complement other major reforms that this Government have announced. The Budget announced £26 million to be invested in new mental health crisis centres to reduce pressure on accident and emergency departments. To cut mental health waiting lists, we will go further still, recruiting an additional 8,500 staff. As part of our mission to reduce the number of lives lost to suicide, these NHS workers will be specially trained to support people at risk. We will improve support for young people, with walk-in hubs in every community, making support workers more accessible to children, and a specialist mental health professional based in every school. The NHS has asked every provider of mental health services to review its offer for serious mental illness. By focusing on early intervention—prevention is the key—we seek to prevent people reaching crisis and to reduce the need for detentions in the first place.
I turn to what the Bill seeks to achieve. The Mental Health Act is there to protect people. Its core purpose is, and will remain, to be able to intervene, detain and treat when someone is so unwell that they present a risk to themselves or others. The overall aims of these reforms are to improve the care and treatment of people with severe mental illnesses when detained under the Act, to improve patient outcomes and recovery, and to protect the public, patients and staff. The existing Act confers certain rights on people who are detained, including the right to appeal their detention at a tribunal and a right to an advocate as well as to a medical second opinion in certain circumstances. The Bill seeks to strengthen and expand these rights. It will require the inclusion in the statutory code of practice of the new and revised guiding principles recommended by the independent review, which in turn informs professional practice around the Act. By doing this, we aim to improve things for patients and support a change in culture.
We are strengthening and clarifying the detention criteria to make clear that people will be detained only if they pose a risk of serious harm to themselves and/or others, and if there is a reasonable prospect that they will benefit from the proposed treatment. We are reforming the use of community treatment orders—CTOs—to reflect the revised criteria, to increase oversight and scrutiny of decision-making, and to improve the transfer of patients under a CTO from hospital to community services. We are also introducing statutory care and treatment plans for patients detained under the Act, except when under very short-term sections, to provide a clear plan for a patient’s recovery and a path to discharge.
Where the patient’s voice has previously been unheard, the Bill will place them at the centre of their care and treatment. We are introducing a new clinical checklist requiring clinicians to, as far as possible, involve patients in decisions about their care and to take their feelings and wishes into account.
We are making sure that patients know they can create an advance choice document and that appropriate support is available to help them do so, allowing those at risk of detention under the Act to outline their wishes and decisions while they are well. This document helps them retain control over decisions about their admission, care and treatment if they later become too unwell to communicate these preferences. Last week I saw and heard about the differences that these can make on my visit to the South London and Maudsley, where the words of welcome from service users about these measures highlighted the contribution that advance choice documents can make, particularly to tackle racial inequalities.
We are allowing patients to choose a nominated person to look out for them and their interests when detained and will be increasing their powers. The independent mental health advocacy service was a notable success of the 2007 reforms to the Act. It is a thriving sector, with advocates and volunteers working for excellent organisations such as VoiceAbility, making sure that people are involved with decisions about their care.
We are now looking to expand these services in two ways. First, we are making sure that patients who come into hospital voluntarily can access an advocate to help them understand their rights and be involved in decisions about their care. Secondly, for detained patients, access to advocacy will be on an opt-out basis, ensuring that patients are proactively offered this support when detained to improve advocacy uptake among detained patients.
I know only too well that noble Lords are acutely aware that for some people with a learning disability and autistic people, detention is both non-therapeutic and unnecessarily long. In order to better meet people’s needs in the community, we will limit detention so that people with a learning disability and autistic people can no longer be detained beyond 28 days, unless they have a co-occurring mental health condition that requires hospital treatment. This will affect only civil patients. Hospital will remain an option for those in contact with the criminal justice system, where the only alternative to detention in hospital is prison.
For people with a learning disability and autistic people, the right measures and support are very much needed alongside this change. That is why the Act will require that when people are detained, there is a care (education) and treatment review to be given due weight in decision-making. We are also creating new duties on commissioners to hold registers to help manage the risk of people going into crisis and being detained, and to better meet the needs of people through appropriate community services.
I am grateful for the work of the Ministry of Justice Minister, my noble friend Lord Timpson, and his department, to improve access to mental health care and treatment for people in the criminal justice system. The Bill will end the use of both prison and police cells as places of safety. It will end the use of remand for own protection under the Bail Act where the court’s sole concern is the defendant’s mental health.
We will introduce a statutory 28-day time limit for transfers from prison and other places of detention to hospital when a person requires treatment for their mental health under the Act. We will also introduce a subset of conditional discharge, called supervised discharge, to support the small number of restricted patients who are no longer benefiting from being in hospital.
We are aware that there have been concerns about public safety and are therefore ensuring that our reforms do not weaken the ability to detain people who could pose a risk of serious harm to themselves or others. I assure your Lordships’ House that these reforms do not change the core function of the Mental Health Act. Clinicians will remain able to intervene, to detain, and to treat whenever someone with severe mental illness presents a risk to themselves or others.
We are confident that this is the right package of reforms. However, the Bill further strengthens the measures in respect of public protection. The Bill improves on the previous draft Bill by: first, accepting the Joint Committee’s recommendation to remove “how soon” from the new detention criteria, making sure the Act cannot be misinterpreted to mean that a harm must be imminent to justify detention and early intervention; secondly, introducing a new requirement for the responsible clinician to consult another person when they are making a decision about whether to discharge a patient; and thirdly, strengthening the code of practice’s guidance on discharging patients and promoting the need for discharge planning tailored to the individual needs of patients and their circumstances. We will consult on changes to the code.
I am very grateful to noble Lords across the House for their ongoing support for and interest in the Bill. It has been a long time coming, and I know that we all want to get this on the statute book, which is why it is a priority piece of legislation for this Government. There has been a failure to reform, but today we begin to change that. I look forward to what I know will be a collegiate and constructive debate, which many will follow—inside both Houses and outside. I beg to move.
Earl Howe (Con)
My Lords, I begin by extending my gratitude to the noble Baroness, Lady Merron, for introducing the Bill into your Lordships’ House and for her very clear exposition of its contents. It is a Bill that we on these Benches warmly welcome. That welcome should not come as a surprise because, as the noble Baroness said, the Bill before us is the successor to a draft Bill prepared by the previous Government, a draft that owed its origin to my noble friend Lady May, on whose watch a review of the 1983 Act was initiated some seven years ago during her time as Prime Minister. Much of what we see laid out here is the product of diligent work carried out by Professor Sir Simon Wessely and his review committee, as well as the Joint Committee of both Houses, so ably chaired by my noble friend Lady Buscombe.
The passage of the Bill presents us with a golden opportunity to address both the current state of mental health provision and the law that governs it. The last major update of the Act took place in 2007 under the previous Labour Government. That may not sound like a long time ago but, as we shall no doubt hear from others, experience gained in the intervening years has taught us that a further update is indeed warranted if we are to ensure that the Act remains relevant and appropriate, and that its powers are proportionate.
Wherever the state uses its powers to deprive an individual of their liberty, the necessary safeguards must be in place so that those powers are used sparingly, proportionately and with the highest regard for human dignity and autonomy. That is why the Bill is so important. Since the last set of changes to mental health legislation in 2007, the number of people being detained under the Mental Health Act has grown exponentially. In fact, since 1983, the numbers have nearly doubled to a total of over 52,000 new recorded detentions between 2023 and 2024.
Within that total, we have also seen a stark disparity in the classifications of those being detained. Black people are 3.5 times more likely to face detention under the Act. Shockingly, to my mind, there are currently over 2,000 people with autism and learning disabilities detained in mental health hospitals across the country. I was equally shocked by the realisation that people with autism can be detained even if they do not have a mental health condition, leading to disproportionate, burdensome and wholly inappropriate treatment.
These issues occupied centre stage in the Wessely review, which proposed the formal recognition of four key principles that should from now on govern both theory and practice in this area of the law. The principles are: choice and autonomy; least restriction on liberty; therapeutic benefit; and the person as an individual. The previous Government fully accepted these four principles and—giving life, as it were, to those principles—the draft Bill set out to make a number of important changes. It strengthened the rights of patients with a learning disability, it gave patients greater autonomy in choosing how they wish to be treated, it introduced duties on commissioners to better understand and support people with a learning disability or autism, who may be at risk of crisis, and it sought to update community treatment orders, which are one of the key drivers of racial disparities in the numbers of people subject to restrictions under the Act.
It is therefore very pleasing indeed to see this Government’s firm commitment to enacting exactly these reforms, and I, for one, hope that as the Bill proceeds, we can come together as a House to implement and, where necessary, improve this hugely beneficial set of changes.
With consensus as the thread that, happily, we expect to run through our consideration of the Bill, there are nevertheless certain themes within it that are likely to require our particular attention. The first of these is community treatment orders. CTOs were first introduced in the Mental Health Act 2007. The Joint Committee on the earlier draft Bill was very clear that CTOs had been widely overused and that they are one of the leading causes of the racial disparities that I referred to a minute ago. The Bill before us makes a number of changes to the criteria governing the use of CTOs, all of them designed to support two of the key principles in the Bill: those of least restriction and therapeutic benefit.
As far as they go, these changes are desirable. However, the Bill stops short of including the full suite of recommendations made by the Wessely review. The Centre for Mental Health has raised this as a key concern. It points out that there is still no persuasive evidence of the benefits of CTOs. Against that background, it argues that a number of checks and balances are needed on the use of CTOs in future, over and above those already in the Bill. In particular, it notes that the committee recommended a full statutory review of the use of CTOs to report within a fixed timeline, which, on the face of it, is the least that we should be doing. I think we will want to debate in Committee why the Government have not felt it appropriate to go as far as the Joint Committee and the independent review recommended in this area.
The next important theme is children and young people. According to NHS data—and this was highlighted by the noble Lord, Lord Darzi, in his recent review—932 children in mental health units were subject to restrictive interventions in 2023-24. In total, more than 84,000 restrictive interventions were carried out on these children, which is a 51% increase from the year before. This is the highest number of restrictive interventions recorded since figures were made available in 2019, and that is despite the number of children in mental health units appearing to decrease.
We have a duty to use the Bill as an opportunity to identify ways of reducing such restrictive interventions and using them more humanely and more proportionately. Two years ago, the Government launched the Oliver McGowan training for NHS staff to help them better deal with young patients with autism. Noble Lords may remember that this was in response to a truly harrowing and appalling set of occurrences that ended with the death of a young man. It is fair to say that the case shook the health service to its core. I believe we have in the Bill the opportunity to take forward those lessons so as to protect children who may be at risk from unwarranted detentions.
The independent review and the Joint Committee had much to say about how treatment of children under the Mental Health Act could be improved. Unfortunately, by no means all those recommendations have found their way into the Bill. One such omission relates to the inappropriate placement of under-18s into adult wards or facilities that can sometimes be miles away from their home. The Joint Committee found that in each of the years 2016-17, 2017-18 and 2018-19, over 1,000 children were placed out of area, and that in 2020, 21% of children and young people were placed as in-patients more than 50 miles from their home.
It is perfectly obvious that being taken to an unfamiliar environment in a place far away from friends and family is almost guaranteed to exacerbate the issues young people face when experiencing a mental health crisis. On top of this, data from the Care Quality Commission showed that in 2021, 249 children and young people admitted for mental health treatments were housed on adult wards for more than 48 hours, some for a good deal longer than that. These are uncomfortable figures; I hope noble Lords on all sides of the House will want to ensure that, through this Bill, we take all possible steps to bear down on the scale of these problems and strengthen the protections afforded to children and young people.
One of the core themes that has remained prominent throughout the process that has led to this Bill is that of choice: giving patients as great a degree of autonomy as possible in how they are treated and maximising their ability to determine what happens to them if they are detained. In that regard, I think the Bill succeeds on many counts, but one measure recommended by the Joint Committee was that there should be a statutory right to an advance care document for every patient who has been or may be detained under the Mental Health Act. The Bill, as it stands, does not follow up on this recommendation. Instead, it places a duty on NHS England and integrated care boards to make information regarding such documents available to patients. I do not doubt that this is a beneficial reform, but we should debate whether it goes quite as far as it usefully might. Guaranteeing patients and service users the chance to state and record their preferences for care and treatment plays directly into the key principles of choice, autonomy and treating every person as a rounded individual—so what are the barriers to doing that?
There are a whole host of detailed issues which we will need to cover in Committee. The final, major area I want to touch on is that of the role played by the police. Inevitably, circumstances arise in which the police are required to become involved with people who may be a risk to themselves or to others. There is a strong feeling that encounters with the police are far too common for people with mental health conditions. As the independent review and the National Police Chiefs’ Council have pointed out, the presence of the police in situations where a mental health issue poses a risk of serious injury or death can be counterproductive. In its written submission to the Joint Committee, the Metropolitan Police stated that:
“Our officers simply cannot provide the specialist care needed, exposing both patients and officers to extreme risks”.
The NPCC has also expressed its concern that the role of the police in mental health pathways must be reduced.
It is welcome that the Bill goes some way to addressing this. Clause 46 removes police stations and prisons as places of safety, thereby preventing patients experiencing mental health crises from being locked up inappropriately. However, there is a potential knock-on effect that we should talk about in Committee. Well-intentioned as the provision is, it could well lead to a rise in people being admitted to accident and emergency departments, escorted by the police, and having to wait in crowded spaces with the lack of the necessary, specialised facilities until they can be assessed by clinicians. In this environment, the risk of harm could well be multiplied. We need to ask how this risk can best be mitigated. I fear that any realistic answer will need to involve resources, by which I mean taking steps to ensure that the requisite arrangements are made for NHS trusts to deal with an increase in the number of mental health patients being admitted to hospitals as places of safety. This is not an easy set of issues, but it is a subject that we cannot duck.
Parliament must see to it that wrongful, inappropriate and untherapeutic detentions of those undergoing a mental health crisis are brought to an end. The Bill provides us with a necessary and welcome opportunity to transform the treatment of those with mental health conditions and to bring both doctrine and practice well and truly into the 21st century. Along with my noble friend Lord Kamall, I look forward to working with the Minister and with noble Lords on all sides of the House to scrutinise and—where we can—improve the Bill’s provisions. Many thousands of the most vulnerable members of our society are depending on us to do so.
Baroness Barker (LD)
My Lords, I declare an interest as a member of an advisory panel for Rethink Mental Illness.
The House of Lords is an institution that is frequently criticised. Those of us who are often called on—not least by schoolchildren—to defend it often find ourselves having to give examples of work it has done which would not have been done by anybody else. As a veteran of the pre-legislative and post-legislative scrutiny of the Mental Capacity Act, the pre-legislative scrutiny of the Mental Health Act 2007 and all the various bits of subsequent legislation, I think that we have arrived at the point with this piece of legislation where we can make a defensible case for the unique contribution of this place to legislative progress. As the noble Baroness, Lady Merron, was generous enough to say in her introduction, there are a lot of us in this place who have got form on this. Specifically, there are an awful lot of us who have detailed knowledge of all those bits of legislation and of the workings of the 1983 Act.
If the noble Baroness will not mind me saying, we come to these pieces of work in two minds. It is great to have the opportunity to go back, look at what we did in the past and rectify some of the mistakes. However, it is always also deeply frustrating because, in truth, here we are again putting another patch on the 1983 legislation. We will never get the mental health system that we so badly and desperately need until we do more than that.
Having said that, along with other noble Lords, I congratulate Sir Simon Wessely and his team, and specifically the working groups that worked with him. If any noble Lord who has been inundated with briefings from all the interested parties, as we all have been, is ever in doubt about a subject, they should go back to the report of the working groups to understand how people have arrived at their conclusions and what we should perhaps strive for. I say that as the person who sat here night after night during the passage of the 2007 legislation, arguing for an advance choice document against a lot of entrenched opposition, not least from practitioners. It is really important that we use the privilege of our position—I mean that: privilege—to work away at this legislation as we did with that so that, perhaps uniquely, we can make some progress.
Those of us on these Benches will support anything that makes clinicians have to be more accountable and transparent in their work. We can have any legislation we like but, until such time as we call decision-makers to account, we are not going to get anywhere on behalf of people who are detained. They may be detained for their own good. They may be detained for the safety of others, but they are none the less detained. Their opportunities to challenge the decisions made are quite rare. As ever in this House, in the end, when we are coming to a decision, we always have a duty to defend human rights. Human rights legislation exists to defend the people that nobody in society likes. Quite often, that means the people subject to this legislation.
On the issue of principles against the Bill, having gone through the Mental Capacity Act, and having then subsequently reviewed it and its implementation, with serried ranks of professionals coming in to tell us that they just ignored the principles which had been in that Bill since the beginning, I am not overjoyed that they are going to be stuck into a code of conduct. This will surprise the noble Baroness, Lady Merron, not a lot. I do not honestly think it will make any difference at all. They are very good principles but, unless and until they are in the Bill and practitioners believe that their decisions will be judged against them, they will be useless.
Lots of other people can speak about learning disabilities far better than I can. I want to say just two things. First, the noble Earl, Lord Howe, talked about training professionals in relation to young people. Increasingly, people are diagnosed with learning difficulties, and particularly autism, as older adults. We should listen to what the noble Baroness, Lady Hollins, has been telling us for years and require all mental health practitioners to have training in the diagnosis of learning disabilities and autism. That is the one thing that would make a swift and tangible difference in this area.
Secondly, the alignment—or non-alignment—of the Mental Capacity Act and the Mental Health Act has been problematic. We have known about that for more than 20 years. To everybody who knows about it, I simply say “Bournewood gap”. To those who do not, I say that the two pieces of legislation are built on completely different bases. Two people, sitting side by side, can be treated according to one or the other depending on who is in the room at the time. If you get banged up under one, you have quite a lot of rights; if you get banged up under another, you do not. I understand why Sir Simon and his team thought that it would be too long and too difficult a job to sort this out. It was much better that we carried on to do some of the more urgent things in this Bill, but we have to go back and do it. Other jurisdictions are going down that path.
The one thing that the noble Baroness and the Government have to do is give a commitment that they will monitor that and, upon the passage of this Bill, put in place a system of funded research about the change to bring in what is known as fusion legislation. If we do not, we will just consign a load of people to being wrongfully treated, so I hope that she will do that.
In a similar vein, Dr Lucy Series and Luke Clements, who are academics and practitioners who have worked on this for a long time, sent us a briefing that explains in characteristic detail the deficiencies that arise under Section 73 of the Care Act 2014. It means that people who are being treated in private settings, even though their treatment was commissioned by the NHS, are not being properly protected by the Human Rights Act. They have written a very short but effective paper for us, and I simply ask the noble Baroness to commit to a meeting of interested Peers—there are a number of us—with Dr Series and Luke Clements, so that we can deal with that. Can we stop treating people differently just because of the person or organisation that happens to be providing their care?
On CTOs, we are not allowed to wear T-shirts in here but, if we were, I would be sorely tempted to wear one that reads, “Told you so”, because we did. In 2006-07, we sat here night after night saying, “You are telling us that this is not going to be used very often or used disproportionately against some people. That is not true, is it?” It really was not. Because of that and the racial disparities, I and others were for a long time of the view that CTOs really should go because they were enabling bad practice by practitioners. What changed my mind was listening to patients and their families, because there are a small group of people for whom CTOs work, are the least restrictive option and are beneficial. We should therefore keep them. I am reluctant to admit that, but we really have to change all the processes around them to make sure that practitioners are sticking to the intention.
Advance choice documents are another “I told you so”. I am so pleased that they have done what enlightened practitioners said they would back in 2005-06; they have improved care for people. I am indebted to the noble Baroness, Lady Finlay, for telling the joint scrutiny committee about the work that was done in the field of palliative care to make sure that advance choice documents are electronic, and therefore more widely available, and to minimise excuses on the part of practitioners: “Well, I didn’t know about it”. A team from King’s has been looking at that. I hope that, during our discussions, we can go into that in greater depth. I do not quite know how that will work, but it is important.
On prisons and police stations, we were very lucky in the joint scrutiny committee because one of our members was an A&E doctor so we talked about this quite a lot. The truth is that people will still turn up in A&E because the lights are on. That is where people in distress will go. There will also be people who, faced with somebody who is having an episode, still call the police, because they are frightened and do not know what to do. During the passage of the Bill, I hope that the Minister will explain how £26 million will deal with what is quite a big problem and that we look at the transition to the police stepping back to leave everybody else to deal with people who, at the point they meet them, are very ill and disturbed and who need help.
Finally, some of us argued strongly for a mental health commissioner. That was not because we wanted another commissioner—we have lots of commissioners for things already—but because we were trying to deal with a key issue. We do not have a system of mental health care or joined-up services. We have episodes of care, some of which are very good at the time but do not work together as a system. After the hours that we have sat in this place and looked at the various different bits of legislation in great detail, we do not understand why we lock up more people, year on year, and what the best use is of the resources available—they are not infinite—not only to deal with people who are experiencing real crises and trauma but to ensure that we use the best of what we have to put as much as we can into services that are also preventative.
It is a great privilege to be in this House. It is an enormous relief that we can do our work in great detail and largely away from the pressure of headlines, which I know people in the other place always feel whenever there is a failure. It may well be that, during the passage of the Bill, something in the media changes the national mood on this, but our job, privilege and responsibility is to think of the people who are in the worst possible place under this legislation and to do the best possible job that we can for them to make sure that we get the best out of this legislation.
Baroness Watkins of Tavistock (CB)
My Lords, it is a pleasure to follow the previous three speakers. I declare my interests as a non-executive member of the NHS England board and 45 years as a registered mental health nurse.
I warmly welcome the long-overdue reform of the Mental Health Act and congratulate the new Government on bringing it swiftly in their term. I appreciate the opportunity that the Minister has taken in holding discussions about the Bill prior to Second Reading and offering to consult further about potential amendments to strengthen and clarify particular sections. Modernising the 1983 legislation provides a real opportunity to reduce injustices in implementation and provide equitable support for people suffering from a mental health crisis, giving them more autonomy and choice and including a new right for service users to choose a nominated person to advocate for their interests.
First, I am pleased that the Bill aims to end the unnecessary detention of those with autism or learning disabilities, yet I share the concerns of the Royal College of Psychiatrists and other professional bodies that further clarity is needed around assessment and treatment. For many, the proposed 28-day limit for assessment may not be long enough to reach a comprehensive diagnosis, especially considering that those with autism often present with additional complexities. It may be difficult to admit, assess and support some patients within the time limit outlined in the Bill, risking recurrent use of overstretched A&E or admission and detention under Part III of the 1983 Act should there be safety concerns. The NHS Confederation drew on the example of New Zealand, where similar changes to mental health legislation saw a temporary increase in patients being sent
“to prison, left neglected in the community or admitted to forensic facilities as secure patients”.
Failing to allow for thorough assessment may worsen mental health care provision and further racial inequalities, as currently Part III detentions disproportionally affect black men.
To combat this, an emphasis on continuity of community care would cut the number of people admitted for an assessment, while ensuring that patients remain safe within the community, yet there is a chronic lack of community-based workers, with a third of all nursing vacancies being in mental health services. I therefore ask the Government to provide clarity on how they will ensure that those who, in the past, would have been detained for assessment and treatment will still be able to obtain a full diagnosis and the support that they deserve, preferably without hospital admission. Careful consideration of workforce planning in the community for social work and allied health professions, as well as psychiatrists, general practitioners and nurses, should form a significant part of the preparation for this Bill’s implementation; then patients and cares could more often be appropriately assessed, treated and cared for by both mental and physical health services, in community and primary care settings, thus avoiding admission.
The Bill offers an opportunity to improve support for those under the age of 18 who are admitted formally under the 1983 Act, yet it is estimated that 31% of under-18s are—thank goodness—admitted informally to hospital for assessment and treatment. I fully support the introduction of new statutory care and treatment plans, but I ask the Minister if they could be extended to those admitted informally, if it is a correct solution.
The Government are right to state that these plans will encourage patients to engage with treatment towards their discharge and beyond. Care and treatment early in a person’s life provides better outcomes than later intervention, so extending these plans to the significant number of informal patients aged under 18 could provide a solid foundation for later life. Additionally, ensuring the availability of quality community services would also reduce childhood detention. I therefore ask the Government to confirm their plans to encourage this early intervention via both the community and the care and treatment plans.
The Bill would be strengthened if it were to improve the environment for young patients. I will not repeat what has been so ably explained by the noble Earl, Lord Howe. However, we really ought to move to a statutory requirement that young people are not allowed to be kept in adult wards for treatment in crisis, or treated miles from home.
There must also be an exploration of the place of parental responsibility before the Bill is finalised. The introduction of a “nominated person” as well as “advance choice documents” are commendable steps to improve agency for those detained under the Mental Health Act. Some young people will choose not to include their parents for either of these. I therefore ask whether the Government can provide clarity as to how this will function with expectations of parental responsibility.
Healthcare professional bodies support the principle of ensuring that prisoners with severe mental health conditions are swiftly transferred to hospital, where they can receive proper treatment, but I have questions of practicality for the Government. What is the plan to ensure capacity in the in-patient sector? What happens to those who clearly cannot be properly treated in the in-patient sector, or who are a significant danger to others on the ward? As a former ward sister, I know that this is a real question from people working in those environments at the moment.
Will there be an assessment at the end of a patient’s treatment to determine whether they are recalled to prison or given a community treatment order if it is safe to do so and better for their mental health? I would welcome working with the Government to get clarity on this issue, particularly in relation to a code of practice.
As I have already said, continuity of care in the community will be essential to prevent unnecessary detention and to provide support to patients after detention. I therefore ask the Government to clarify the implementation timetable for the Bill in order to ensure that current staff have time to receive the development needed and that the necessary new staff are recruited.
I ask too whether there should be a research investigation into safe staffing ratios in the community. The Royal College of Nursing is calling for a maximum caseload for mental health community nurses to ensure that community treatment orders are conducted properly and that nurses can assist in preventing crises, but very little research into this ratio issue has been done outside in-patient facilities. It seems right that research and planning be done to ensure that the community can help fulfil the Bill’s admirable aims. A recent paper by King’s College refers to “frugal innovation” in healthcare. Investing properly in community care will reduce the costs overall.
I trust that the potential shortcomings of the Bill as it stands can be amended and/or resolved through the code of conduct to ensure that it is future-proofed and significantly enhances mental health service provision for patients, which is the aim of His Majesty’s Government, the vast majority of Members of this House and healthcare professionals themselves.
The Lord Bishop of London
My Lords, I am grateful to be able to participate in Second Reading of this important Bill. It is a privilege to follow the noble Baronesses, Lady Barker and Lady Watkins, who have a real breadth of experience in this field. I too welcome, along with many noble Lords, the reform of the Mental Health Act, which is long overdue.
The noble Earl, Lord Howe, highlighted the over-representation of minoritised communities detained under the Act but also placed on community treatment orders. Some groups are also more likely to be detained through contact with the criminal justice system or emergency departments. It is important to remember that we are speaking about these inequalities in the wider context of health inequalities; some groups present to health services far later, when their symptoms have worsened. The Royal College of Nursing notes in its briefing that mental health services are
“not seen as accessible to all communities”,
and that:
“Many black men have a first interaction with a service via the police during a crisis”.
Many of the organisations that have helpfully sent briefings ahead of the debate have acknowledged that the legislative actions available to address this issue are limited. The Minister highlighted the advanced choice directives, which are a welcome step towards this. As the Joint Committee on the Draft Mental Health Bill notes, this is important for those who have experienced trauma, disempowerment and discrimination.
Data collection has also been discussed during scrutiny of the Bill. Although data collection is improving, capturing more complex data on ethnicity is important when looking at health inequalities in this way. In much of the work I have done on health inequalities with the NHS and faith groups, ethno-religious identity is significant if communities are to be better understand at an ICB level or higher how to reduce inequalities.
It is also important that, in evaluating the changes to the Act, the Secretary of State has the appropriate data to do so. What steps are the Government are taking in the Bill or in other ways to mandate this kind of data collection, so that racial inequalities are monitored?
The Royal College of Speech and Language Therapists also emphasises that communication considerations are important to the Bill. In my experience, some faith communities find it very hard to discuss mental health, and that is made worse by the biases and discrimination they meet when they seek help. The patient and carer race equality framework is to be welcomed as the first ever anti-racism framework for mental health trusts and service providers. In order to assist in this, the Royal College of Nursing has recommended that mandatory training on equalities be given to all working under the Mental Health Act. As I often say in this place, faith literacy is an essential component of that.
Much of this is still about trust and culturally competent care. It is critical that services be accessible and effective for people with different traditions, cultures and faiths. Empowering patients to offer their data is as important as mandating that it be collected.
Many briefings note that the Bill will be effective in reducing racial discrimination and health inequalities only if there is investment in community services and other actions. Not everything we can and should do is medical; the involvement of the voluntary and community sector is also crucial.
I welcome the provisions in the Bill to restrict the long-term detention of autistic people and those with learning disabilities. I support the Joint Committee on the draft Bill’s recommendation of clearer duties for ICBs and local authorities to develop robust community services and social support.
I pay tribute to the work of the work of the noble Baroness, Lady Hollins, and the independent care and treatment review programme to expose the serious harm and trauma inflicted by the use of solitary confinement, detention and long-term segregation in mental health and specialist learning disability hospitals. I too support the comments made by the noble Earl, Lord Howe, with regard to young people.
The right reverent Prelate the Bishop of Gloucester is the lead Bishop on prisons for the Church of England, and she apologises for not being in her place. She and I commend the Government on bringing forward the long-overdue provisions to end the use of prisons and police cells as places of safety. The right reverend Prelate has told me that last year more than 300 people suffering mental health crises were taken not to a hospital but to a police station. According to the recent report from the Chief Inspector of Prisons, the average time to wait to transfer mentally ill patients from prisons to hospitals is 85 days—almost three months. We welcome the statutory time limit of 28 days, but I highlight, as other noble Lords have, that if this is actually to happen, it needs to be resourced. As the noble Baroness, Lady Watkins, highlighted, there is a question of resource not just on this point but for much of the Bill.
Shortages of mental health nurses and doctors impact on those detained under the Mental Health Act and in the community. The learning disability nursing workforce in the NHS has dropped by 44% since records began in 2009. Investment in the workforce will be key to the success of the Bill. Community services can be developed and resourced only as far as the NHS, local authorities and directors of adult social care are supported to do so. I welcome the Bill and look forward to following its passage and working on what is an extremely important reform.
Lord Touhig (Lab)
My Lords, I refer the House to my interest as a vice-president of the National Autistic Society, a role I share with my good and dear friend, the noble Baroness, Lady Browning.
I welcome the Bill. It has been a long time coming, and I passionately hope that it will allow us to end once and for all the myth that autism is a mental health condition. Autism is most definitely not a mental health condition, and our failure to address this has meant decades when autistic people have been wrongly incarcerated, often in appalling and degrading conditions, and robbed of their human rights. More than 2,000 autistic people and people with a learning disability are in mental health hospitals in England, a point made by the noble Earl, Lord Howe, in his opening remarks. The National Autistic Society tells us that 68% of these people are autistic.
Some 93% of autistic people and people with a learning disability in mental health hospitals are detained under the Mental Health Act 1983. The average length of stay is five years, but for a great number of autistic people the detention lasts for decades. Professor Sir Simon Wessely’s review of the Mental Health Act in 2018 found that the experience of detention was often damaging and traumatic. The Bill includes measures to improve care and support for autistic people, reducing reliance on hospital-based care. That certainly is good and is welcomed.
However, there are aspects of the Bill that concern me, and I have had a chance to discuss them with my noble friend the Minister. I have been fortunate to have had a number of fruitful meetings and discussions with a team from the Autism Centre of Excellence at Cambridge and, as a result, they and I share some concerns. First, the Government have said:
“For those with a learning disability or autistic people, the act will be amended to place a limit of 28 days for which they can be detained unless they have a co-occurring mental health condition”.
My noble friend mentioned this in her opening remarks. I stress again that autism is not a mental health condition, but given that eight in 10 autistic people experience mental health issues, without the right safeguards there must be concern that the new provisions could simply lead to a continuation of the current intolerable situation. I hope my noble friend, who kindly met with me recently to discuss these matters, will seek to assuage my fears on that point.
The Government have also said:
“Police and prison cells will also no longer be used to place people experiencing a mental health crisis … Instead, patients will be supported to access a suitable healthcare facility that will better support their needs”.
The right reverend Prelate referred to this in her remarks. The Lampard Inquiry was set up to look at more than 2,000 deaths of people in in-patient mental health facilities, specifically in Essex, and it is believed that many of those who died were autistic. I say to my noble friend that it would be wrong to assume that simply switching the location where autistic people are detained is going to achieve a much better way of protecting them.
The Government have also said the reforms will
“introduce statutory care and treatment plans”.
I share the Cambridge centre’s belief that every autistic person who needs support should have access to a statutory plan to enable them to get the help they need. It should not take an autistic person falling into crisis and being detained in a mental health hospital for such support to be provided, as is often the case today. Autistic people who are at risk of falling into crisis should have a similar right to such plans to prevent in-patient detention becoming a risk in the first place.
A focus on prevention would be in line with Wes Streeting’s idea of reforms of the National Health Service. It is recognised that the current system does, in fact, have a range of provisions, legal rights and safeguards that should, in theory, have reduced the number of people detained in in-patient mental health services. But published statistics show us that this has not happened, with thousands of people still inappropriately detained, so I ask my noble friend to consider these concerns as the Bill passes through the House in Committee and so on.
There is a danger of allowing, even unintentionally, the creation of a critical gap between what happens at a policy and legislative level and what happens on the ground. Without reckoning with this gap and setting up measures to ensure that what is said by government turns into real action on the ground, these reforms will not change the decades-long scandal of thousands of autistic people being detained inappropriately. To do this will require clear measurement, consistent and regular accountability and the necessary funding to enable the National Health Service and other agencies to deliver the hoped-for change that we need from this Bill.
Baroness Buscombe (Con)
My Lords, it gives me enormous pleasure to speak in this debate. For me, this legislation is above politics: it is a real opportunity for constructive opposition. I welcomed the call in July from the Secretary of State for Health, Wes Streeting MP, asking whether I would support the Bill and assist in its progress. Yes, there are some aspects of the Bill on which we on these Benches will wish to press the Government. However, our view is that it is overdue and critical for so many people who have felt misunderstood and suffered serious neglect for too long.
I feel lucky to have chaired the Joint Committee on the Draft Mental Health Bill. Everyone on the Committee apart from me had professional and practical expertise and experience and/or powerful personal experience and knowledge through friends and families. We received evidence from more than 50 organisations and many people who were service users, to whom we remain eternally grateful. We had many hours of strong debate and always managed to find a way through. Results sometimes involved compromise but were also consensual. I thank each and every member for their invaluable contributions, together with our advisers and the brilliant Alex Ruck Keene KC for his extraordinary drafting skills. I also thank the clerks and officials who worked skilfully against a very strict timetable.
I pay tribute to all our medical staff who work in this complex and, in many ways, challenging field of medicine. My sincere admiration for them, and the difficult choices and decisions that they must make, knows no bounds.
A key point for me—I speak as a lawyer—is that so much that directly affects the well-being of patients must be improved, not necessarily by legislation, which can hamper positive change, but through a step change in culture in order to genuinely value every individual and improve their life through choice, dignity, support and advocacy. The Bill seeks to address that, although it lacks a key tool: the use of technology and the drive for data, which I urge the Minister to consider.
The process of amending the current Act speaks volumes. Would that we could have torn up all the current Acts and started again with a fused approach to treating mental health, but we were persuaded that that would just take too long. It has taken too many years to get this far, and now change is urgent.
I have time to touch upon just a few of the many aspects of the Bill. It is right that the Government have agreed—here I say to the noble Baroness, Lady Barker, that we have good news—to embed in primary legislation what I call the Wessely principles: choice and autonomy, least restriction, therapeutic benefit, and the person as an individual. Each principle should be tested against the implementation of current proposals, future reform and change to ensure that patients as individuals remain the heart of the matter.
Least restraint is a key reason for reform, although in practice it is a difficult balance to strike. As the Wessely inquiry report makes clear, as a society we now benefit from a greater understanding of mental health. However, at the same time society has become much more risk-averse. Much of our debate centred around the need to address all avenues of least restraint, particularly given the current inequalities of outcomes, against the risk of unintended consequences for the protection of society and the therapeutic benefit of the patient.
To apply the principles, we need the data to track every patient and their outcomes. I remain appalled at the lack of information and communication across the NHS, which has a negative impact upon so many lives. Each time a person is moved, they are registered as a new patient. How much does that contribute to flawed data and poor outcomes? I urge the Minister to look at that.
A key missing element is technology, as I have said, and I do not mean some clunky, one-size-fits-all NHS-wide system. In short, we need to swiftly develop a national dataset to allow for real-time monitoring and accountability, evaluating variation and inequalities, understanding medium- and long-term trends and informing future policy decisions.
For choice, dignity and autonomy, we recommended a statutory right for patients who have been detained under the Mental Health Act to request an advance choice document to be drawn up and recorded in a way that is accessible digitally. There is no mention of digital in the Bill. Instead, it introduces duties on integrated care boards, NHS England and local health boards in Wales to make arrangements so that people at risk of detention are informed of their ability to make an ACD, a written statement, and be supported to make one.
Our report referenced the potential for creating ACDs via an app, similar in some ways to one already working for end-of-life palliative care, to support all patients. Simply put, it is a no-brainer and transformative, easily accessed by anyone, either on a mobile phone or even on a patient’s clothes, so that when that person is in crisis there is an instant critical guide to who that person is. That would greatly assist the police, if they are in attendance, and those in A&E. I am hopeful that this approach and other smart, cost-efficient moves will be in the code of practice.
The implementation of reform requires constant oversight. We recommended the appointment of an independent mental health commissioner with overarching responsibility to ensure consistency of delivery of the Government’s priorities for patients across England and Wales. This is not about the Government losing control; on the contrary, it is about an overarching small body with the ability to focus upon consistency across the whole sector, ideally using digitised national data to track and monitor the implementation of the reforms over a period of years, working with the associated NHS bodies to promote better outcomes. I ask the Minister: who else will do that?
Furthermore, we must address unacceptable racial disparities and inequalities, particularly among black men, who, as we have heard from my noble friend Lord Howe, are three and a half times more likely to be detained under the Mental Health Act and seven times more likely to be placed on a CTO. But how is that data collected and verified? Indeed, the facts could be worse. Our report was clear that better outcomes would be achieved and inequalities reduced if each health organisation introduced culturally appropriate advocacy and appointed a responsible person to collect relevant data and publish and oversee policies to address these inequalities. A mental health commissioner could ensure that that was done.
Mental health services currently operate in a static world. What happens when someone has a crisis far away from their local authority? We heard on a visit to SLaM in Lambeth that patients sometimes travel miles to Lambeth when on a downward spiral to receive, in their view, better treatment there than within their local authority. That is another reason to have accurate data.
Another critical area is children and young people. Issues highlighted in our report, including the role and profile of nominated persons, detention in adult wards and conflict with the Children Act, must be clarified and assurances given to families and their young. Investing in and building the right community support and action plan for people with learning disabilities and autism no longer detained under Section 3 is critical, as is monitoring the outcomes for those with learning disabilities and autism who may be at risk of being detained under the Mental Capacity Act or through the criminal justice system instead. This is an area where our committee had a strong debate, concerned about unintended consequences that might impact on the patient and/or society at large if the right protections, including safe spaces, were not in place. Are the Government content that they have achieved the right balance?
I feel I must record—because I want to be helpful to the Government—that our committee had one opportunity to put some of the crucial questions to, and test the opinions of, around 18 officials from the DHSC and the MoJ who had worked on the Bill for four years. That meeting was cut very short because one official said she had to collect her child from school, so all 18 walked out. That must not be allowed to happen again.
Priorities must be set for the implementation of the many proposals, and there needs to be a significant increase in capacity right across mental health services, all of which requires enormous investment. I wish the Government, particularly the noble Baroness, Lady Merron, well.
Baroness Murphy (CB)
My Lords, this is a long-overdue Bill, as many have said, and I hope it will progress through the House as quickly as possible. Quite why it has taken six years for Sir Simon Wessely’s report to be acted on, I am not sure, but I am particularly pleased that we have got advance directives in, even if in a slightly watered-down form.
However, there are some rather troubling changes that have been squeezed in recently for reasons that are difficult to understand, and I shall want to explore those in Committee. There are differences between the criteria for Parts 2 and 3 of the Bill, for example, which is bizarre, and I am scared that the changes in relation to learning difficulties and autism, in spite of all the good intentions, will be extremely difficult to implement. Throughout the Bill, there is an assumption that if you change the legislation, it happens, but we know very well that it does not—it takes years to implement—so I am concerned about that overall. Having said that, I will remain on the theme that the noble Baroness, Lady Barker, picked up. We will leave the rest until Committee, where we are going to have very detailed debates.
It is now 20 years since I came into this House with the certainty of the optimistic new girl that we would see a new mental health Bill that addressed the deeply flawed legislation that we had been living with since 1959, but I am pretty sure now that I shall leave the House having seen no fundamental change. I am ashamed that in England and Wales we are falling so far behind many other countries, when we used to be in the advance in devising mental health law that was fit for purpose. Scotland is 20 years ahead, as is Northern Ireland.
I was told back in 2017 by Simon Wessely and others that it would take 10 years to develop a unified mental health and capacity Bill. If we had started then, we would be almost there by now. We tinkered with the 1959 Act in order to produce the1983 Act. We added a new Mental Capacity Act in 2005 that cut across mental health legislation. Then we added the ludicrously undeliverable deprivation of liberty safeguards and added tiers of bureaucracy to an already overburdened system, all reducing the time for clinical and social care professionals to spend with patients as they had to spend more time filling in forms. The new Bill makes no attempt to address the complicated relationship between the 1983 and 2005 Acts or how they are meant to be used for individuals, and this is particularly difficult for patients with learning disability and mental disorders and also older people with dementia where people are tossing up which Bill is going to be used. It is clinically ridiculous.
I would have liked to see a Bill that addressed all mental health and capacity issues, putting capacity for decision-making at its heart, consistent with the United Nations Convention on the Rights of Persons with Disabilities, which we currently contravene and have done since its implementation by the UN in 2008. The human rights implications of the current Bill are profound. It does not address the fundamental rights of thousands of mentally ill people, primarily because of the absence of having decision-making capacity at its heart. We accept that patients with physical disorders can make decisions that may be seriously detrimental to their health or safety. In contrast to this, in mental health law capacity plays little or no role in decisions to initiate psychiatric treatment against a patient’s wishes. The criteria for the involuntary treatment of mental disorders fails to respect the autonomy of the patients. The key considerations are the presence of a mental disorder and risks to the patient’s health or safety. For persons with physical disorders, their personal values are given dominion. Those with mental disorders are not accorded this privilege in this Bill, even though we make such a meal of it in the Mental Capacity Act 2005. There is an underlying assumption that mental disorder necessarily entails an inability to make sound or rational judgments, but even among the most ill patients—those admitted to acute psychiatric wards—40% to 60% retain capacity.
People with mental disorders are unusual in being liable to detention, usually in hospital, because they are assessed as presenting a risk of harm to others before they have actually committed an offence. This constitutes a form of preventive detention that is selective. We spent some time in this Chamber a couple of weeks ago debating indeterminate sentences for people in prison thought to pose a continuing risk in the community. There was widespread agreement here that it was an iniquitous thing. And yet mental health law allows the detention of those with mental disorder on the basis of risk alone. How can that be justified? There is no evidence that risk is easier to assess in those with mental disorder or that violence is more predictable in this group, and it is an expression of the prejudicial stereotype that people with mental disorder are intrinsically dangerous, contrary to research evidence.
This does not mean that people’s dangerousness is unimportant. If it is reliably linked to an individual’s mental disorder, then, if the person lacks capacity, involuntary treatment may be justified, but if the patient has capacity, protection of the public becomes the sole interest. I do not deny there are problems with a capacity-based regime. Many people think you have to fudge the decision, but I would say it was because they do not understand the fundamental ways to assess capacity and the full influences on it.
One of the aims of this Bill is to reduce sections. The number of new sections, as we know, has rocketed again. Last year, there were over 52,000 sections, a further 5,000 or so placed on a community treatment order, and 140,00 people on mental capacity deprivation of liberty safeguards. If the aim of the new Act is to reduce detentions, I cannot see how. The discharge rate from tribunals has reduced from 25% in the mid-1980s to about 6% today. How is it going to happen exactly under this legislation?
I do not see how the overrepresentation of black people in the detained population is to be addressed by this Bill. We need a completely different new way of assessing people and allowing people to get access to services that are sensitive to their needs, providing something that they want to access. I cannot think that there is anything new in this Bill which reflects new thinking that is going on about how you encourage people to access services when they first begin to feel ill.
The Bill has nothing to say about restraint and seclusion. It does not address the hundreds of people in the prison system and their non-consensual treatment except to speed up those that are suitable for transfer. The majority of the mentally unwell will never even be considered for transfer, but they have terrible problems which impact on the prison system tremendously.
Finally, it is now 14 years since the Mental Health Act Commission was abolished and replaced first with the mental health commissioner and now by the totally inadequate low-profile CQC, which has no legally qualified members and no mental health representation at executive board level. Whereas the former chair and vice-chair of the commission had direct access to the Secretary of State for Health, as I am sure the noble Baroness, Lady Bottomley, will remember—she got tired of seeing us, I should think—mental health does not now appear to have the same direct influence. Perhaps it is not surprising that mental health appears only on the government agenda when there is some crisis that has been brewing for years or, as now, after meandering for years through our scrutiny and committee systems.
I have had my say. I am not going to raise this issue again. I felt I had to say it once. I will throw myself into Committee with enthusiasm and hope we can get this Bill through, but I do hope that one day we will get the mental health and capacity legislation that we really need.
Baroness May of Maidenhead (Con)
My Lords, it is a great pleasure to be able to contribute to the Second Reading of this very important Bill, albeit, as other speakers have already said, a Bill that has been too long coming. I wholeheartedly welcome this Bill and I thank the Government and commend them for bringing it forward so quickly in their term of office. I also thank the noble Baroness the Minister and the Secretary of State for the meeting that they held with me earlier today. Like others, I also want to look back and thank Professor Sir Simon Wessely and his team—including, not least, the noble Baroness, Lady Neuberger—for the invaluable work that they did that has led to the Bill before this House today. I want to say a particular thank you to those with lived experience who were willing to come forward and inform and advise the review panel, but also the pre-legislative scrutiny work and at other stages too, so that the Bill could be based on real experience, not just on what politicians and, dare I say it, the civil servants thought would be the right thing to do. So I welcome this Bill.
When in October 2017 Sir Simon Wessely was commissioned to undertake the review, there were a number of reasons that led to that. The first was the one that the Minister has already referred to: the Mental Health Act 1983, which was in place for over 30 years, had had some amendments subsequently but was felt to be out of date. Society and clinical treatments had moved on, so there was a need to look at it. But, for me, there was a more fundamental issue, which was the fact that so many people who found themselves in mental health crisis felt that, somehow at those points of crisis, they were people to whom things were done, to whom society did things, rather than people who were able to be part of and involved in that decision-making—they lost their human dignity in the processes that they went through. There were also issues about family members who were concerned that they were not listened to, when they felt that they knew when people were coming to points of crisis, or family members who felt that they were shut out from the discussions about their relative who was potentially at a point of crisis.
Then there was the overuse of detention. Reference has already been made, and I am sure will be made by others in this debate, to the racial disparity in the use of detention, a matter which should concern us all. There was also the question of the use of detention for those with autism and learning disabilities. All those issues underpinned the reason for looking at reviewing the Mental Health Act 1983.
The first point has been that issue about the loss of dignity and the way in which people in mental health crisis are treated. I hope that will be dealt with by those very first principles that appear in Clause 1. I draw particular attention to the fourth of those:
“The person as an individual”.
Under “Matters to be addressed”, it says:
“treating patients with dignity and respect and considering their attributes and past experiences”,
although I accept, as the noble Baroness, Lady Murphy, just said, that it is not enough simply to put it on a page of legislation. For that to be enacted requires changes of culture and attitude from all those who deal with people in mental health crisis.
Part of this sense, though, of people being able to feel that they are making decisions for themselves is the advance choice document enshrined in this legislation. I am sure that the Government will want to think carefully about the matters that it might encompass, and about its interaction with potential future legislation.
I want to pick up the issue of the nominated person. I mentioned families feeling that they are sometimes cut out but of course, as we know, sometimes for the individual with mental illness or mental health problems the nearest relative—that family member—might not be the most appropriate person to be their nominated individual. That individual may actually be somebody with whom—how can I put it?—the tensions can lead to increased difficulties for the person with mental illness, rather than reducing them. That ability to nominate somebody else as the person who someone wants to be there is critical. The noble Baroness, Lady Watkins, referred to this in relation to children but I think that, in general, it could create some tensions with family members who feel that it is their right to be that person alongside the individual in mental health crisis. Having said that, I believe that the nominated person point in the Bill is absolutely appropriate.
I want to focus also on the questions of detention. I have referenced how we need to look carefully at the inappropriate racial disparity in detention, but I also want to comment on the police issue. I am pleased to see the outlawing in the Bill of the use of police cells and prisons as first places of safety. This is of course the culmination of work in progress. There was voluntary work with the police and the health service, in 2012 and subsequently, to encourage and help them to ensure that the first person who someone in mental health crisis saw was not a police officer, and that they were not taken to a police cell as a place of safety. We then ensured that work in the Policing and Crime Act 2017, so that police cells could not be used as places of safety for those under the age of 18. The Bill takes it that bit further and it is absolutely right that it does—and right to do it for the individual who is in mental health crisis.
It is also right to do that for the police, because one issue that police officers themselves constantly made reference to me about was their fear and concern about being expected to deal with somebody who was in mental health crisis, when they had no training and no capability of knowing what to do in those circumstances. Of course, it is bad for the individual too if they are faced with somebody who has no actual understanding of what their condition is or how they should be dealt with.
Perhaps I may gently say to the Minister that in 2015 we put £15 million into providing alternative places of safety and in 2017 the Government put £30 million into providing them. This Government are now putting £26 million into providing those alternative places of safety. It is easier to say this from this side of the House, but the Government might wish to consider those figures, if I can put it like that. I also suggest to the Government that they consider alternative places of safety as not necessarily being a healthcare facility. Many places in the third sector are able to provide those facilities and the Government should look at that as well.
Finally, we also need those facilities to try to ensure that people are less likely to get to the point of crisis. If they are less likely to get to that point, they are also less likely to turn up at A&E because they are in crisis. That would be a win-win for the individual concerned, for the Government and for the health service.
Overall, I welcome the Bill. There are some very good provisions in it. As we have heard, it will be subject to detailed scrutiny in this House but it is no bad thing—I can say this now—that it started in this House. I welcome it and look forward to its passage.
Baroness Hollins (CB)
My Lords, it is a pleasure to follow the noble Baroness. I remind the House that I worked clinically as a psychiatrist for about 35 years and had been a consultant for two years by the time that the 1983 Act was introduced. I argued then, as now, that mental handicap, as it was called, had no place in legislation—although others disagreed. Profound changes in societal attitudes, alongside advancements in the understanding and treatment of mental illness, have occurred during my career. I agree with the noble Baroness, Lady Barker, and my noble friend Lady Murphy that fusion legislation really should have been considered.
There is no minimum age limit in the Mental Health Act, meaning that its provisions apply to children and young people as well as adults. The Joint Committee, of which I was a member, recognised their unique needs, saying that this is
“a crucial opportunity for the Government to strengthen the rights and protections for children and young people”.
We must never forget that the mental health of babies, children and young people is fundamental to the mental health of the adult population, and that we cannot legislate for the treatment of serious mental disorder without taking mental health seriously from the very beginning of each person’s life.
Psychiatry’s past has included some harmful and forced interventions, rather than the preventive approaches, early intervention and evidence-based treatments that are so needed. The Bill aims to safeguard dignity and autonomy, and ensure best practices for all, including people with learning disabilities and autistic people. A major current concern for me is that there are nearly 2,000 people with a learning disability and autistic people in psychiatric hospitals. Usually, that is because of a lack of individually tailored support and housing—they have an average stay of five years—and because of the shortage of effective treatment options in the community and lack of training for the wider mental health workforce.
My Heart Breaks, the report of a review that I chaired and which was published by the Government last year, shed light on the harrowing realities faced by many of the 100 or so of those 2,000 in hospital who are detained in long-term segregation at any one time. The systemic failures we found reflected a troubling overreliance on detention as a substitute for meaningful care, despite such detentions often lacking therapeutic goals, a pattern that unfortunately affects other patient groups as well, including those with personality disorders.
Historically, policy and practice have overlooked complex intersectional vulnerabilities, including learning disability, autism, gender, race, poverty and physical health issues. Marginalised groups, especially people from racialised communities, are detained more often. Trauma histories may be compounded by the excessive use of medication and restrictive practices which contain people, with an eye to safety, but disempower and just do not support recovery. People need better-adapted psychological therapies but are less likely to access them, and poorly co-ordinated discharge processes further trap individuals in a dysfunctional system. This violates people’s human rights and ethical care standards.
As a long-time advocate for people with learning disabilities and autistic people, for me, one of the Bill’s most significant reforms is the removal of learning disability and autism as stand-alone grounds for detention under Section 3, part 2. This change is complemented by new duties on health and care bodies to provide the community-based support and therapeutic approaches needed to prevent unnecessary detentions. But legislation alone will not provide better care; the right people in the right place with the right skills are needed. So the Bill introduces mandatory care, education and treatment reviews, which aim to create personalised care plans and facilitate timely discharges. Additionally, dynamic support registers are intended to track those at risk of crisis, allowing for early intervention before issues escalate. Advance choice documents could also be valuable for choice, safety and care.
The National Autistic Society, Mencap and several other charities have welcomed the Mental Health Bill as a step toward safeguarding the rights of individuals with learning disabilities and autistic people. All stress the need for robust support systems, including housing and social care. These are essential to prevent unnecessary admissions, emphasising that the Bill’s success depends on effective implementation, accountability and substantial investment in community services. They also request a new action plan to replace the Building the Right Support action plan. This is particularly urgent, given that targets to reduce in-patient numbers of people with a learning disability and autistic people have been repeatedly missed over the last decade, and only one in five integrated care systems have currently met the March 2024 target for reduction of in-patient numbers.
Can the Minister confirm whether a plan such as that being requested will indeed be co-produced and implemented with the help of people with lived experience, families, campaigners and relevant bodies, alongside the implementation of this legislation? Both the Royal College of Psychiatrists and the BPS have cautioned against removing autism and learning disabilities as stand-alone criteria unless there are substantial improvements, warning that this could divert unsupported individuals into emergency services or the criminal justice system. Easy to say, better not to do it—but we must use this as a lever to change the culture of care and support for these groups of people.
We do not want to risk criminalising people’s mental health needs, and we do not want to disproportionately impact already marginalised groups. I ask the Minister, what assurances can Government provide to ensure adequate funding to deliver minimum safe services in the community, such as early prevention measures, rapid response teams, crash pads and effective therapeutic approaches in the community? Indeed, could these alternatives be mandated?
Compulsory detention and treatment of individuals with personality disorders under Part 2 of the Mental Health Act is another issue. Personality disorders stem from relational difficulties and cannot be effectively treated in restrictive in-patient settings. Research shows that admissions without structured, evidence-based psychological interventions provide no benefits and can indeed worsen symptoms.
Why is Section 117 aftercare limited to Section 3? Social and health care should be integrated for all patients based on need, not the section they were detained under. For example, a financial crisis causing suicidal thoughts in a farmer might lead to a Section 2, when a social prescription might have been effective. After assessment, they will return to the same situation without appropriate support, such as legal or financial advice to resolve the crisis.
The new Mental Health Bill gives us an opportunity to address the stigma that shaped policy in the 1980s and create a legal framework which keeps pace with scientific advancements. We need to reframe our focus from risk management to supporting accessible, evidence-based community interventions, ensuring that care aligns with ethical and therapeutic principles and prioritises a rights-based, person-centred approach.
Our actions now will shape mental health care for the 21st century. Let us enact compassionate and progressive reforms that future generations will respect.
Lord Bradley (Lab)
My Lords, it is always a pleasure to follow the noble Baroness, Lady Hollins, with her expertise in this area. I declare my interests as listed in the register and am pleased to make a short contribution to this debate. It has been some time coming.
Following the excellent review of the Mental Health Act, initiated by the noble Baroness, Lady May, Sir Simon Wesley produced his report in 2018 and a draft Bill was published by the last Government, as we have heard. This was followed by detailed scrutiny by the Joint Committee of both Houses, which I was pleased to be a member of and which was so admirably chaired by the noble Baroness, Lady Buscombe. It was disappointing at that point that the deliberations were paused, but I was delighted that the new Government, following a manifesto commitment, immediately introduced this Bill, which everyone has welcomed today.
In the time available I will focus on only a few areas, the first of which is the proposed changes under Part 3 of the Bill—essentially, the interface between mental health and the criminal justice system. I am delighted that Clause 35 proposes a statutory time limit of 28 days for the transfer of acutely mentally ill patients held in prison to appropriate hospital provision. It is now well recognised that the prison environment and care capacity is detrimental not only to the prisoner but to other prisoners and the staff who care for them. I made a similar recommendation in my independent report to government in 2009, nearly 16 years ago—albeit with the perhaps unrealistic time limit of a 14-day transfer. Clearly, you have to be patient and persistent to achieve legislative change.
Secondly, on Clause 46 and the removal of police stations and prisons as places of safety, I made related recommendations back in 2009, and I am obviously now pleased that there is overwhelming recognition that both facilities are not appropriate as places of safety. Clearly, detailed examination of these proposals will be required in Committee to ensure that the wording delivers their intention. For example, when will the clock start on the 28-day limit?
Thirdly, for this to be effective, investment in alternative community-based healthcare provision will be required for places of safety, as will investment in liaison diversion services, to ensure that only those who need to obtain a place of safety. Otherwise, as we have heard, A&E departments will continue to be the default position, at huge cost to the NHS and to the police service. We also need additional acute mental health beds in every local area to ensure timely transfers and to make the legislative changes a reality.
There is also concern, well articulated by the Children & Young People’s Mental Health Coalition, that children and young people are still inappropriately placed in settings outside their local area, and on adult wards. It is imperative that the Bill strengthens safeguards against this and recognises the Joint Committee’s recommendation for stronger procedural requirements where such inappropriate placements are considered, including a requirement that such a placement is demonstrably in the child’s best interest.
There are many positive elements of the Bill, as the Minister clearly outlined in opening this debate, including improving the patient experience, improving patient choice and autonomy, and limiting the detention of people with learning disability and autistic people without qualifying co-recurring mental health conditions—all of which and much else, as we have heard, will be carefully considered in Committee.
However, I believe we need further debate on where the principles outlined by Simon Wessely are placed in the Bill. I am particularly disappointed that the Government have not currently accepted the recommendation to establish the role of a mental health commissioner and seemed silent on the issue when the Bill was introduced. As we have heard, the Joint Committee recommended that this post be statutorily positioned and that the mental health commissioner should be created with a number of roles, which I would like to briefly elaborate on.
The mental health commissioner should be a voice at a national level, promoting the interests of those who are detained and who are likely to be detained under the Mental Health Act, as well as the interests of their families and carers, raising awareness of their needs and challenging stigma and stereotypes. They should work in conjunction with the Care Quality Commission and other bodies to make recommendations on further reforming mental health law in the direction of more rights-led and fused legislation, such as we have heard on the Mental Capacity Act.
Critically, the commissioner should be a mechanism for tracking the implementation of the reforms in and associated with this Bill and other legal changes, essentially and particularly with the inclusion of the provision of data to understand how the Bill is operating. We saw the role of the commissioner as primarily to act as a watchdog to oversee the direction of travel for the key reforms in the Mental Health Act and mental health policy generally, overarching the whole government system. This has been supported by many organisations working in the mental health field, including the Centre for Mental Health, of which I am an ambassador. The centre added that, in addition to overseeing the reforms to the Mental Health Act, a commissioner could play a wide-ranging strategic role across all government departments.
Finally, I will say a few further words about resourcing and implementation, which will be crucial to the success of this legislation. Again, the Joint Committee recommended that the Government publish a comprehensive implementation and workforce plan alongside the Bill with key milestones detailing the implementation of the Bill and, crucially, how they link to milestones in the implementation of the NHS 10-year plan and other government initiatives. These should include milestones on workforce development, not only for mental health staff but allied health professionals, such as speech and language therapists. I declare my interest as honorary vice-president of the Royal College of Speech and Language Therapists.
The plan should also include milestones on training, advocacy and community care capacity, as well as on numbers of detentions, length of stay and, critically, reducing racial and ethnic inequality. There should also be a statutory duty to report annually to Parliament on the progress against these milestones during the implementation period. Disappointingly, unless I have misunderstood the Explanatory Notes to the Bill, the Government have so far offered only a financial assessment over a 20-year period, which is not at all coherent with the NHS 10-year plan.
However, in conclusion, I am very pleased that we are debating this incredibly important Bill now and in the coming weeks and months to try to ensure that we go a long way to producing a progressive Mental Health Act which is fit for 2025 and years beyond. I look forward to the Minister’s response at the end of the debate.
Lord Scriven (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Bradley, who was the MP for the constituency I lived in when I was a student. In those days, I campaigned against him, but, from listening to his speech today, I am sure that we will campaign together in Committee on some of the reforms that may be required in the Bill.
This Bill is a welcome direction of travel for mental health legislation in the United Kingdom, but it is only an extra stop. As other noble Lords have said, sometimes we have to look at the bus we are on—the underlying legislation. That bus was built when I was 17 years old, if we go back to the 1983 legislation, and it had its last MOT 17 years ago, in terms of its amendments. I believe that, although these measures are welcome, there is still a fundamental issue in terms of the basis of what we are traveling on. I understand the problems with that.
The questions we are really asking in this Bill are quite limited in the sense of the balance between individual freedoms and public protection when it comes to the detention of individuals. Because we look at such legislation infrequently, we must do our best in Committee to ensure that the balance is at its best and that, wherever we can, we take a person-centred, rights-based approach to this legislation. Having said that, there are some pleasing points in the Bill, including the tightening of the criteria for the detention and compulsory treatment of individuals. It is welcome that the four key principles are mentioned but it is a shame that they are not on the face of the Bill and are down as guidance only. It is important that those of us who really support the principles fight for them to be on the face of the Bill in Committee.
The advance choice documents are a welcome provision but, as many noble Lords have said, they need to be fully accessible 24 hours a day, 365 days a year to those who care for people who have given an advance choice document. I question why they are only for people aged 18 and over. If we are looking at Gillick competence, there are issues around those who are younger, who should be able to provide an advance choice document. I worry that they are not a right or a duty but are only to be given as a consideration.
I welcome the right to a nominated trusted individual but many people who have been involved in healthcare will know that it is not just about having that person as a right; it is about the way in which professionals listen to them and carry out the advocacy that they provide. I am not sure, as we start with this Bill, that the balance is correct; I believe that certain issues will have to be addressed in Committee.
I have also looked at the potential implementation of the Bill. It is always good to start with the impact assessment. It has in it some quite startling issues that I think we will want to look at in Committee. For example, community treatment orders are not meant to change for at least another seven years, but the implementation start is in seven years. The existing CTO regime will last for another seven years and, from the Government’s impact assessment, it looks as though the new regime will start in seven years at the earliest.
I will come back to people with learning difficulties and autism in a second, but the implementation of the measures for them not to be held for more than 28 days and for other provision in the community to have to be available will be in three years’ time, according to the impact assessment. However, there is no money in the next two years to start to provide for those community facilities. It is as though they will come on stream the second the implementation date is reached; I question the Government’s planning on that and whether it is a realistic adaptation for people with learning difficulties and autism.
My passion and focus in Committee will probably be learning disabilities and autism, because they are personal to me. I have close family members who are loving and warm but very misunderstood by those who do not have a close relationship with them. It is scandalous that, in 2024, having those labels attached to you means that you could be detained under the Mental Health Act for more than 28 days. I welcome the fact that the Bill’s provisions will move away from Section 3 and towards Section 2 detention, but I worry that it will not stop detention of people with learning disabilities or autism. For example, DoLS will be used, because these people are misunderstood. The legislation in itself will not change what happens to them. Individuals who are seen not as a threat but as difficult will be detained. As other noble Lords have said, fused legislation needs to be used to ensure that those individuals are not detained using different pieces of legislation.
As other noble Lords have said, it is also worrying that people with learning disabilities or autism who are under a Section 2 detention or detained under the Mental Capacity Act will not have access to Section 117 community facilities. It is quite fascinating that the very things under Section 117 that need to be in place to ensure that these people are not detained are the very facilities that they do not have a statutory right to. That needs to be looked at in this legislation.
There are many things to welcome, but many further questions need to be asked and drawn out, particularly regarding some of the contradictions in different parts of the legislative process on mental health provision within the UK and around the rights-based approach, which the Government seem not to have in place. We will want to explore that as we go forward.
Lord Meston (CB)
My Lords, consideration of this Bill has been greatly assisted by the thorough scrutiny and analysis undertaken by the Joint Committee on the draft Bill and its compelling report, published in January 2023. Parliament will now need to look with care at its recommendations, including those not incorporated into the Bill as now presented, and the justifications for any omission.
The first question tackled in that report was whether what is now required is fundamental reforming legislation rather than another amending statute. If I may follow on from the noble Lord, Lord Scriven, the bus was not built in 1983; its chassis was built in 1959, and we are still dealing with it. The report states:
“The Mental Health Act 1983 is … forty years old. It has been amended multiple times over those years, making it hard to use even for experienced professionals. It is overly complex, especially where it interacts with the Mental Capacity Act 2005”.
For example, the committee noted:
“Attempts to both protect and empower children in these settings have resulted in a complex mixture of statute law and case law alongside the MHA that … makes assessing a child’s rights to access certain safeguards in this draft Bill complex and obscure”.
For essentially good and pragmatic reasons, as the noble Baroness, Lady Buscombe, explained, the Joint Committee did not wish to introduce further delay or uncertainty, so favoured the form of the Bill considered by it, which is now before Parliament. However, for the courts, tribunals, lawyers and all the other consumers of the legislation, the question will remain, as per the quote in the invaluable Mental Health Act Manual:
“If the Mental Health Act is to be modernised, is it appropriate to base the modernisation on a legislative structure that was established over 60 years ago by the Mental Health Act 1959? The process of bolting on multiple miscellaneous amendments to that structure over the years has resulted in an Act which is overly complex, confusing, and expensive to operate”.
Inevitably, those problems will be exacerbated when this Bill adds further amendments to the 1983 Act. It is therefore to be hoped that the Government will see the Bill, as the Joint Committee put it, not as
“the end—or even a pause—in the process of reform of mental health legislation”.
Meanwhile, the code of practice under the 1983 Act will need, and I understand will now receive, further revision and updating once the Bill is enacted to cover the stronger requirements of the new legislation and provide clear guidance to meet the needs of patients and for all those who operate the changes.
I turn to some of the Bill’s detail. It is certainly welcome that it recognises the real problem that too many autistic people and others with learning difficulties have been detained inappropriately and for far too long. It is also welcome that the Bill removes police stations from the definition of a place of safety in the 1983 Act. Inevitably, the police will continue to have to deal with disturbed and distressed people suffering a chronic or temporary mental health crisis, but these are people who should not be in police stations any longer than absolutely necessary, particularly if expert assessment or treatment are required.
It is to be hoped that the changes will relieve the police of some of the difficult decisions as to risk required under the existing code of practice, but, as others have said, these changes will not work without sufficient community alternatives. As the noble Earl said, it will not be helpful if they simply pass the problem on to an A&E department. I do not want to get anecdotal, but I had a brief admission to A&E. It was, happily, not long lasting, but it was extraordinary to watch the staff in that hospital cope with a very determined and disturbed man. Unfortunately, I did not see the end of that because, luckily, I was released. Nevertheless, it is a problem that needs to be thought about hard.
By contrast with the ethos when I started as a lawyer, all courts now strive to ensure that people are not defined by their mental health problems, even if it is not always possible to prevent those with mental health problems entering the criminal justice system or to divert them from it once they are in it. Professionals in that system need help to deal with these people and their problems. Therefore, the improved provisions for transfer of prisoners to hospital, including those detained under the Immigration Act, should be valuable, but will always depend on compliance with the code of practice, which requires the need for in-patient treatment for a prisoner to be identified and acted on quickly.
The same problems apply when the criminal courts consider sentencing options. The courts depend on the Probation Service and legal representatives to draw attention to the possible need for psychiatric reports and detention. Having sat as a judge in the Crown Court, I can convey the real exasperation of the judiciary when necessary reports are not available or when suitable hospital places cannot be found without further delay and hearings in an overloaded court system.
I turn to a different topic, which has been referred to. The Bill will implement recommendations about replacing the existing “nearest relative” with “the nominated person”, under the principle of patient choice and autonomy. I have some concerns about the selection and replacement of nominated persons, and the complicated provisions within the Bill. Now is perhaps not the time for that, and I will leave it to Committee, but it needs to be looked at again. In particular, there is a need to focus on the consultation, at the very least, and recognition of the legitimate interests of parents and others with parental responsibility.
On this topic, I question—although, again, I leave this to Committee—the continued use of the county court for applications to terminate appointments of nominated persons. The use of the county court is left over from the 1959 Act, at a time when there was neither a separate family court nor a Court of Protection. I suggest that these would now be better equipped to deal with these applications.
There are further points focusing on the needs of children, one of which has already been touched on. It was highlighted by Dr Camilla Parker in her evidence and will strike a chord with many practitioners. It concerns the overlapping factors governing capacity and competence, and the differing processes for assessment. Dr Parker observed that, even after 40 years, we do not have “clear and consistent criteria” for determining whether a child is competent to make a decision. It would be helpful to understand the Government’s current intention, particularly if formulating any statutory tests is not intended.
More fundamentally important is the location for the placement of children. This overlaps with the real problem, which has been highlighted repeatedly by the judiciary, the Nuffield Family Justice Observatory and the Children’s Commissioner, of the use of deprivation of liberty orders, or DoLS, and placing children in unregistered settings—not just adult wards but unsuitable, unregistered settings. Again, I will return to this in Committee.
Baroness Browning (Con)
My Lords, I declare an interest as a vice-president of the National Autistic Society, with the noble Lord, Lord Touhig, and as having some responsibility for family members on the autistic spectrum.
Like the noble Baroness, Lady Barker, I am a veteran of the Mental Health Act 2007 and the Mental Capacity Act. When I came to this place, I was pleased to be involved in the review of the Mental Capacity Act. This and other Bills of this nature would merit looking at, to see what happens after we legislate. My concerns with the 2007 Act were, primarily, community treatment orders. Looking at the Bill, I see that these are to be altered, but I still share the view of the charity Mind, which would like to see them abolished altogether. I hope that, as we go through Committee, we can make substantial changes to what we have in front of us.
I was also concerned about the deprivation of liberty generally and the situation for autistic people in relation to mental health services. I am still concerned, but I welcome the proposed changes for people with autism and learning disabilities, making it illegal to detain an autistic person or a person with a learning disability unless they have a coexisting mental health condition. Presently, of the 1,385 autistic people detained in mental health facilities, 93% are detained under the Mental Health Act—they are not voluntary patients.
I make no apology for making the case for autism being a special condition that needs to be treated differently to other conditions. I say that because, apart from the Mental Health Act, autism is the only medical condition that has its own Act of Parliament. That tells you that something about it is different from other conditions. In 2009, both Houses of Parliament passed a short but important Act, which was introduced by my friend the late right honourable Cheryl Gillan MP.
So what is it about autism that makes it so different that we should have special regard to it as the Bill progresses? I will first look at how autistic people come into contact with psychiatric services generally. Autism is, of course, a spectrum, so we are talking about a wide range of conditions. There is the old adage that, if you have met one autistic person, well, you have met one autistic person. Although we may look at commonalities among this whole group of people, they are all individuals and should be treated as individuals.
Autistic people come into contact with psychiatrists, although a wider range of people diagnose autism now. I give apologies immediately to the eminent psychiatrists in this Chamber, but, over 32 years in this House—and having taken up many cases and I hope assisted several Members with their casework—I have seen what can often happen if a psychiatrist does not understand autism or, even worse, receives a patient with an autism diagnosis from another psychiatrist but will not accept that diagnosis. That is shocking. So often, misdiagnosis can occur when somebody is admitted to a mental health institution but the psychiatrist will not accept that diagnosis and starts to rediagnose somebody, giving them medicated treatment that clearly does not work. I have seen the results of that.
I particularly remember—it is fixed in my mind—a young man who was a very good artist and whose autism diagnosis was overridden when he was admitted. The diagnosis was, “No, no—this is schizophrenia”. Interestingly, that is a common mistake. As each medication was applied and did not work, that young man’s ability to hold a paintbrush and produce the sort of work he produced before was completely diminished. So autistic people come into contact with psychiatrists, and my point about psychiatrists is that they must have specific autism training. There is a huge lack of psychiatrists generally but particularly psychiatrists with that type of training.
As the noble Lord, Lord Touhig, rightly said, although autism itself is not a mental health condition, people with autism can of course have a mental health condition or a learning disability. But, out in the community, if an autistic person needs medication of one sort or another—I am talking not about drugs that are used for psychosis but drugs to help control anxiety, which is a natural side-effect of autism—accessing the correct drugs through a psychiatrist is impossible in some parts of the country. It is very much a postcode lottery, because psychologists—whom autistic people are very often referred to—cannot prescribe. So, if there is no local psychiatrist whom a GP can refer you to, your only option is very often to pay to see the right person privately. If any of us had a cardiological condition, we would not expect to have to pay for a cardiologist to treat us. I believe the Bill should address access to appropriate—that word is used so often—care from trained and qualified people, whether psychiatrists, CPNs or whoever.
The other thing about autistic people that must be taken into account is that so many of them have sensory side-effects to their autism. There is a vast variety of side-effects, which perhaps may not seem important to people who do not experience them. They can be anything from lighting to noise, sound and the proximity of other people to them. These things need to be taken into account, like the things that have been said already: what a horror it is for any of us to be admitted to A&E now, but, frankly, it can produce very serious results for an autistic person.
I would like this Bill to produce the right training and the right services in the community. For autistic people, the downward spiral into very severe anxiety is there when community services are not provided. When I talk about community services, I am not always talking about something that will cost a fortune; it is actually the low-hanging fruit of low-cost measures. Sometimes it can be as simple as something that provides somebody—a child or an adult—with a friend: somebody with whom they can form a relationship. That does not cost a fortune. However, when money is tight—and we know money is tight—those are the first sorts of services that get taken away, and the downward spiral of an autistic person when these services are no longer provided or are not provided in the first place is what results in them needing to come into contact with the more serious mental health services that this Bill will address.
The noble Baroness, Lady Watkins, mentioned parental responsibility, and in this debate we have not yet mentioned lasting powers of attorney. These are powers for people who are able to sign them when they have capacity, which may well be a very useful thing when people are denied access to their relatives or carers. I hope we will include that in the Bill.
Baroness Fox of Buckley (Non-Afl)
My Lords, it is somewhat humbling and not a little intimidating to follow so many insightful speeches from those at the heart of the issue. For me, as a bit of an amateur outsider, I broadly welcome the Bill, with some reservations that I will pursue in Committee.
For Second Reading, I suggest that we should always remember the cultural and political context of our deliberations and indeed definitions—I will come back to that. We also need to remember the lessons of history: locking people up for mental illness has been mired in ethical and political scandal over many years. We all can cite the former Soviet Union, where political dissidents were labelled mentally ill, but even in democracies it was not until 1973 that the American Psychiatric Association voted to declassify homosexuality as a mental disorder—and let us not forget those unmarried mothers who were sectioned in the 20th century.
However, even with this misuse of psychiatric power, it is still possible to be a defender of liberty—such as myself, I hope—and yet acknowledge the need for some people to have their liberty restricted because of their mental health. Many years ago, when I worked for Mind, this was a very polarising debate; but I argued then, and continue to believe, that when someone is severely psychotic, manic or out of their mind, psychiatric coercion is not a violation of individual autonomy. That is because the subject at that point in time—“at that point in time” is key—is not autonomous in any moral sense.
However, is release not different? And that brings me to the issue of community treatment orders. Along with others, I too would like them to be abolished. The general problem of CTOs was well explained by Dr Ken McLaughlin is his pamphlet Escaping the Straitjacket of Mental Health. In it, he makes the point that, while the case for compulsion can be justified at the point of hospital admission, when the patient is likely to be in an acutely psychotic state, can compulsion be justified at the time of hospital discharge when the patient should have mental capacity restored? Prior to 2007 and CTOs, on leaving hospital, an ex-patient regained their full rights of citizenship, including the right to refuse medical treatment. The problem of being released with a CTO is that you return to the community as neither a patient nor a citizen. This hybrid state is troubling in terms of compromising civil liberties.
I tend to agree with the noble Earl, Lord Howe, and others: at the very least I question why the Bill will allow indefinite CTOs to occur. I agree with the Centre for Mental Health’s call for the safeguard of time limits, and then CTOs could be extended only if there was proof of proportionality for the individuals concerned.
The question of indefinite “coercive orders” inevitably reminds us of the plight of the almost 3,000 prisoners held indefinitely behind prison bars under the abolished and discredited IPP sentence. Many of these people are incarcerated in prisons precisely because their mental health has deteriorated as they have been refused release, even on licence; a sort of unacknowledged section is happening here. What is more, shockingly, a wide range of experts now blame this very sentencing regime as the cause of IPP prisoners’ mental distress. The hopelessness—“psychological terror”, as it has been described—of never-ending sentences has literally driven prisoners to lose their minds, and even their lives through suicide.
So, while I am delighted the Bill will remove prisons from the list of places of safety, how does it help IPP prisoners? They are deemed too mentally unwell to be released safely. Their illness is derived at least partly from a shameful state mistake, yet IPP prisoners are coercively detained indefinitely in institutions that the Bill would have the state now deem as unsafe for those with serious mental illness.
One case that has recently attracted headlines illustrates an IPP prisoner’s plight as it relates to the Bill. Forty year-old Thomas White has served 12 years as part of his indefinite IPP for a non-violent theft of a mobile phone in 2012. According to his psychiatrist, Thomas developed his religious hallucinations and psychosis as a direct result of being on an IPP sentence. His sister Clara has been campaigning for over a year to have Thomas transferred to a hospital, but his recent assessment appointment was cancelled due to staff shortages. Clara notes despairingly:
“We waited a long time to have Thomas assessed again by the psychiatrist. We more than likely won’t get the assessment again. The system is nothing but criminal—people like my brother are being seriously failed”.
James Frith, the Labour MP for Bury North, agrees. He said:
“Thomas’s indefinite imprisonment has had a hugely detrimental impact on his mental and physical wellbeing. Thomas should be a patient, not a prisoner”.
Hear, hear.
Things are little better for the general prison population. The annual report from the Chief Inspector of Prisons complains of high healthcare staff vacancy rates and chronic recruitment and retention issues. In that context, Richard Garside, the director of the Centre for Crime and Justice Studies, concludes that the provision in Clause 35 to introduce a statutory target of 28 days for transfer from prison to hospital, while welcome, feels aspirational rather than practically implementable in the current system.
The broader crisis of staffing and resources and whether it will hinder the Bill, as we have seen in jails, is also mirrored outside the prison gates. Many briefings that we have all received for this Second Reading query whether the Bill will deliver its promises as a consequence of such problems.
I will now raise a related concern. I think that overstretched mental health services are not just a question of resources but rather a consequence of a recent cultural trend: the problematic medicalisation of more and more aspects of the human condition. Ever greater numbers of people are being encouraged—often by Government-backed policies—to view normal, if adverse or perhaps painful, life events through the prism of mental illness. As a consequence, a greater number of people now demand expert pharmacological or therapeutic intervention.
Over recent decades, this huge increase in classification in the psychological realm has moved the job of diagnosis far beyond the field of psychiatry. A veritable industry of counsellors, therapists and psychotherapeutic practitioners now label an ever-expanding set of behaviours as mental ill-health. As the number of labelled conditions has grown, those reporting that they suffer from such problems has risen exponentially. The stats bandied around are eye-watering. According to the psychologist Oliver James, a third of the adult population shows sign of “psychiatric morbidity”. The problems of worklessness and sick leave, which the Government are rightly tackling, seem dominated by those who have removed themselves from productive work because of mental health-related problems.
Student Minds reports that one in three students experiences clinical levels of psychological distress, but as it is now claimed that students might suffer PTSD if exposed to certain literary texts, it is difficult to assess the clinical authenticity of the so-called mental ill-health epidemic among the young.
The main thing is that the pathologising of ever more aspects of life has unintended consequences, some pertinent to the Bill. For example, we risk reducing the time and resources available to those who desperately need professional help if the system is clogged up with inappropriate referrals and arguably overdiagnosed conditions.
Finally, there is a danger of confusing public opinion if the true horrors and tragedy of serious psychotic illness are relativised and given the same mental health moniker as unpleasant but mundane psychological challenges.
Lord Adebowale (CB)
My Lords, this has been a fascinating debate so far. It is an honour to contribute and to listen to so many learned Peers around the House. In fact, earlier on I detected an almost kumbaya moment around the agreement on some of the aspects of the Bill.
I declare my interest as chair of the NHS Confederation, which is a membership organisation representing health and care leaders in England, Wales and Northern Ireland. We have the privilege of having 100% of all mental health trust leaders in membership.
This debate is overdue, just as updating the Mental Health Act is long overdue. I could not help thinking, during the contributions of the noble Lords, Lord Meston and Lord Scriven, that if we were to go back to 1959, this House would be of archaeological interest before we got anywhere near where we have got to today—so we shall start where we are and continue to make the Bill the best it can be.
I should also point out that a member of my family is on the autistic spectrum, so I get it, just as people who have that experience also get it.
Organisations such as the NHS Confederation have warned that the success of reforms will be dependent on the wider infrastructure to support them. My first question to the Minister is: can she confirm that as well as the important measures in the Bill, we will see further details in next spring’s spending review and in the 10-year NHS plan about how patients and staff working in mental health will be supported in years to come?
The Bill is welcome, not least because it is intended to stop people with learning disabilities and autistic people from being detained long-term, unless they also have a serious mental health condition, but only when there is sufficient and appropriate community care in place to support them. It is clear, therefore, that a plan on how this capacity will be built up is vital; otherwise, people will continue to be detained inappropriately. Can the Minister provide more details on what the Government will do to ensure that we see that capacity is built up, so that people with learning disabilities and autistic people are able to benefit from the support that community care can provide?
Concerns have also been highlighted to me by many of our members and other organisations that the changes for people with learning disabilities and autistic people may unintentionally risk these groups falling into the criminal justice system due to a lack of community provision, as mentioned by the noble Baroness, Lady Watkins. This is similar to the changes in New Zealand she referred to, which led to people with learning disabilities and autistic people sometimes being sent to prison and left neglected in the community or admitted to forensic facilities as secure patients, as they were unable to be detained under its equivalent of the Mental Health Act.
I welcome the safeguards that the changes relating to people with learning disabilities and autistic people will be enacted only once sufficient provision is in place. Can the Minister provide more details on what the Government will do to ensure that capacity is built up so that people with learning disabilities and autistic people are not inappropriately—and indeed unintentionally—detained for many years, often far away from home and for very long periods?
The Government are committed to enacting the changes to detention regarding people with learning disabilities and autistic people only once sufficient community provision is in place to reduce the risk of these people falling into the criminal justice system. Again, can the Minister outline how the decision to enact this part of the legislation will be made?
The reforms that we are debating introduce duties on commissioners to ensure an adequate supply of community services to prevent inappropriate detentions in hospital, but without a funded plan to build up this provision, there is a risk that the proposed changes to the legislation will never be enacted, and people will continue to be inappropriately detained. Can the Minister say what measures the Government will put in place to help commissioners get it right at local level?
In addition, as the noble Lord, Lord Bradley, mentioned, referring to the 28 days, some people are very concerned that it is not long enough to complete a thorough assessment to identify whether patients with a learning disability or autistic people have a co-occurring mental health disorder, due to the complexity of what patients often present. Does the Minister acknowledge these concerns, and will she remain open to discussions with the sector throughout the passage of the Bill so that the views of those who work day to day with vulnerable people, as well as the views of people with learning disabilities and autistic people and their families, can be fed directly into the legislative process?
It is nice to note that many have referred to the stark racial inequalities in the use of CTOs, and wider concerns around their use. However, mental health providers and many professionals agree that they can be beneficial to patients as they can be the least restrictive option, and we welcome the Government’s commitment to reviewing CTOs. Can the Minister share details about the scope and timescale of this review?
The NHS Confederation has raised concerns about high vacancy rates across the sector, which are bound to impact on staff capacity. Again, can the Minister give assurances that this will be addressed as soon as possible, if not as part of this legislation then through the upcoming 10-year plan or the review of the NHS workforce plan? This was mentioned by the right reverend Prelate the Bishop of London, and indeed the noble Baroness, Lady Buscombe, whose points on data I also agree with.
The NHS Confederation has pointed out that more opportunities for patients to challenge their detention are likely to increase the number of tribunal hearings. This would require an additional 33% expansion of the in-patient responsible clinician workforce. Given that national consultant psychiatrist vacancy rates are currently around 10% to 15%, this will be very challenging. With the Government set to publish an updated long-term workforce plan for the NHS next year, as mentioned earlier, can the Minister give an assurance there will be measures in this plan to specifically tackle workforce shortages in mental health?
In referring back to the issue of racial inequality, the patient and carer race equality framework is the key vehicle in reducing the racial disparities that exist in the Mental Health Act and in wider services—which mean, for example, as we mentioned, that black people are far more likely to be detained under the Act or to be placed on a community treatment order than white people. The so-called PCREF is not part of legislation, but all mental health providers are expected to implement it. Concerns exist that the lack of understanding of the framework, as well as the lack of resources available, are hampering its implementation. Again, will the Minister consider using legislation to address these concerns?
Racial disparities are a significant issue, and the NHS Confederation has described the disparities in rates of detention of people from different racial backgrounds as unacceptable—I agree. For example, black people are more than three times more likely to be detained under the Mental Health Act. There is evidence that advance choice documents reduce racial disparities in the level of detentions. This led to many in the sector calling for them to be made statutory. Indeed, this was recommended by both the Mental Health Act review and the pre-legislative scrutiny committee which looked at the draft Bill. Can the Minister set out why advance choice documents will not be made statutory? Is she confident that measures in the Bill concerning such documents will help reduce those racial disparities in detention rates? There are very few evidential interventions that actually reduce racial disparities, so let us use the one that we know works.
The NHS Confederation has highlighted concerns that the new criteria for detention set out in the Bill—namely, that serious harm may be caused—need to be defined. If they are not, we risk inconsistency in how the definition is interpreted. Will the Minister come forward with a definition of what constitutes serious harm so that there can be no doubt about what this means in practice?
Funding for new mental health crisis centres announced in the Autumn Budget was welcome, but we need to see more funding provided for the NHS and mental health in the coming years. As the confederation has pointed out, successful implementation of the legislation we are debating will depend on ensuring that the workforce and resources are in place. That includes capital funding to improve the safety and therapeutic environments of in-patient wards. I have seen some shocking places, as no doubt many noble Lords have. Can the Minister say whether, alongside these much-needed reforms, we will see further funding for mental health in next spring’s spending review? I urge her to speed dial the Treasury.
The Government estimate the overall cost of the reforms to be around £5.3 billion for housing, health and social care costs and £313 million for costs to the justice system in England and Wales. The upcoming 10-year plan and next spring’s spending review are key opportunities for the Government to acknowledge what is needed to enact these reforms. The money for the NHS in the Budget was very welcome. I am a big fan of £22 billion for the NHS, but will the Minister give an assurance that further funding will be made available so that these reforms have the best chance of being effective?
The Government’s commitment to shift more care into the community is welcome because it supports better patient outcomes and is a more efficient use of funding. However, the NHS Confederation and I are among those who have pointed out that we need to make sure that the right provision is in place for that community care. Can the Minister provide assurance today that the Government acknowledge this, and can she set out the Government’s plans to ensure that we have this provision?
As the NHS Confederation pointed out recently, on behalf of our members, people with mental health needs and those with learning disabilities—
Lord Cryer (Lab)
Let me just point out that the limit of nine minutes is voluntary, but a lot of people want to speak.
Lord Adebowale (CB)
I know. I have two things to say and then I will finish, honestly. People with mental health needs, those with learning disabilities and autistic people are waiting too long for appropriate care and support. The mental health estate has also experienced years of underinvestment. Can the Minister give an assurance that alongside this Bill, the Government will use every opportunity they have with the 10-year plan and the upcoming spending review to ensure that we see further investment in care and support for those who need it and into the mental health estate?
Baroness Parminter (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Adebowale. I will not have quite as many questions for the Minister as he had, but I very much agree with what he says about community treatment orders, which I will return to at the end of my remarks. Like many other Peers, I welcome the Bill, which I hope will improve the treatment of people who are detained when they need to be, for their safety and other people’s, because they are in mental crisis. As others have said, it is a long time coming, and I very much congratulate the Government on bringing it forward so early in their term.
I am not an expert in the field, unlike just about everybody else in this debate, and nor do I have scars on my back from considerations of the legislation in the past. I come to it as someone with lived experience of the impacts of the deadliest of all the mental health conditions, eating disorders, and, in the context of the Bill, as the mother of a daughter who was sectioned aged 17. I know that sectioning is hard. It is hard for the individual: they are separated from their loved ones and the people who care, they cannot do what they want, and they are not where they want to be. It is hard for families and loved ones who are trying to navigate the system. But I know that sectioning works. It saves lives. It saved my daughter’s life when she was in the grips of an extremely vicious eating disorder. She was so malnourished that she could not even allow anyone to feed her by a nasogastric tube, and the state had to step in and save her life. She went to a hospital more than 100 miles away. She was initially restrained and then kept there for five months. We visited her and they kept her safe. At the end of those five months, we were able to bring her home. She was treated in the community by the NHS team, and we are grateful for that care.
I know that detention works, but as the noble Baroness, Lady Watkins, rightly said, we would need less of that detention if there were more provision of community services all around the country so that people could be treated quickly and appropriately. We know that will require more funding, and that was a point that the noble Lord, Lord Adebowale, raised very well. It will require a bigger workforce, and it will require those community services to support people when they need it.
It will also need more specialist beds, and these are particularly needed in the field of eating disorders. At the moment, there are only 251 NHS beds in our country and 198 in the independent sector of specialist adult eating disorder services. The Bill covers England and Wales, but there are no beds at all in Wales. Yet we know that they are absolutely needed. Beat, the leading charity for eating disorders, estimates that about 1.25 million people in this country have an eating disorder. Mental health eating disorder services are absolutely up to the gunnels and beyond, and since 2010 the number of hospital admissions for eating disorders has quadrupled from 7,000 to 28,000—so there is a real pressure point.
When my daughter Rose needed an eating disorder bed, one was not available. She was kept for a month on an adult general ward in the local hospital, where her condition deteriorated to the extent that she had to be sectioned. We need more of these beds. It is no good if we just spend all our time in this Chamber focusing on the particulars of this very small but important part of the Mental Health Bill, on detentions, if the Government do not also grasp the nettle about the need for more beds for people when they really need them.
The other worrying aspect about not having beds is that it stops the mental health law being applied in the first place. The 1983 Act insists that local areas make arrangements for beds in urgent circumstances. I was talking to Dr Ashish Kumar, the chair of the eating disorder faculty at the Royal College of Psychiatrists, who told me that
“even after two medical recommendations, clinicians are not allowed to apply the section because the tier 4 (inpatient unit) services do not offer them a bed. Hence this is a silent crisis—where these seriously unwell patients are not admitted to psychiatry wards or given the opportunity to have a legal provision of the MHAct applied … The whole legal provision is disregarded in a very high number of cases”.
Therefore, I ask the Minister to reassure us—in summing up today and, I am sure, in Committee—that the Government will put equal focus on ensuring that there is community provision for people with eating disorders to minimise the need for people to go into beds, and that there will always be sufficient beds for people with severe eating disorders who really need it.
I agree very much with the comments of the noble Lord, Lord Adebowale, about community treatment orders. It pains me to disagree with the noble Baroness, Lady Browning, for whom I have the highest regard, and with Mind. When we faced Rose being sectioned, the place we turned to for advice to understand the Mental Health Act, as parents literally pushed into it, was Mind and its fantastic website, and I pay tribute to it for that. But I believe that for eating disorders, community treatment orders can be very beneficial.
If you are sectioned for an eating disorder, it is because your condition is such that you are at risk. When you come to be released, you are at high risk, even if you have community support, of losing weight quickly and facing an urgent readmission. That is because the complexity and the tyranny of the eating disorder mean that the person cannot, of their own volition, maintain their weight. A community treatment order puts a boundary around the eating disorder in a way that a voluntary agreement could not, in that it makes it clear what will be the result and what will result in an in-patient setting.
Eating disorders are a really complex battle of control. The person with an eating disorder feels that they are completely out of control, but they are desperate for control. A community treatment order gives them control by not keeping them in a hospital, but it also gives them some sense of control through the terms of the order: they know what is going to happen. Let us not forget that it also gives some control to the community treatment team, who do not have to wait for a medical emergency in order to readmit if that is needed.
I contend that if it is done in the right way—in an open and consultative manner, with the intention of supporting that person to live in the community and access their community care—a community treatment order can be uniquely beneficial for people with eating disorders. It has the benefit of keeping that person out of hospital, and the restriction is on the eating disorder and not on the person. In Committee, I hope to carry on making the case for people with eating disorders and their carers, alongside the many other experts in this field, so that we can ensure that this welcome Bill is as good as it needs to be.
Lord Alderdice (LD)
My Lords, I am grateful for the opportunity to participate in this debate. I declare an interest as a retired psychiatrist and a fellow of the Royal College of Psychiatrists.
So much of what I will say comes from my experience of working as a consultant psychiatrist in Northern Ireland. This is particularly important because the legislation in Northern Ireland has always been different from the legislation on this side of the water. The 1950s’ legislation was referred to earlier. In Northern Ireland, the 1961 Act did not, for example, permit admission or detention on the basis of personality disorder. I will come to that in a minute because that foundational difference is of enormous importance.
I welcome this Bill, not because it is a perfect Bill and not even because the foundations of the Bill are particularly good, but because it is at least an improvement on the way things have been for some time. I welcome the four principles it identifies. There are choice and autonomy, a least restrictive approach, and therapeutic benefit—although, of course, this is a difficult one to assess in a short period, as the noble Lord, Lord Adebowale, has pointed out. It can be difficult to work out whether particular approaches to treatment are going to work in the short term. Often we need time. The fourth principle is treating the person as an individual, although again this is not as straightforward as it might appear.
As Dr Lade Smith, the president of the royal college, has pointed out, there are ways in which a piece of legislation such as this can be introduced. Although with plenty of resources there would be a good outcome, if there are inadequate resources the situation can be made much worse. It is not just that not enough resources do not make the situation sufficiently better; that can actually make it worse. For example, if a decision is made not to admit the most seriously ill patients to hospital, which is a very good principle, the consequence is that the people in the wards are even more disturbed and much more difficult to handle. Keeping the same level of staff makes it impossible to manage them because that number is not sufficient to deal with an increasingly toxic and non-therapeutic environment.
Changing from the most direct family member to a nominated person is very good. I entirely support it, but it is not without its consequences. If, before admission, the person is living with the family, but they decide to choose someone outside the family, the family may not be prepared to accept them back again. The nominated person may not be in a position to accept them either.
The truth is that none of us is simply an individual. We exist in the context of relationships. If we do not find ways of engaging with those relationships, simply operating on the basis of individual autonomy and human rights may actually create problems of its own. I absolutely agree that we should not admit disturbed people to police cells or to prisons, but if we do not provide sufficient alternative resources then either they are admitted to psychiatric units and other people who should be in those units are unable to be admitted because there is no room, or they are not admitted at all and things become worse.
This is a complex issue; it is not at all simple. There are unintended consequences. A whole list of colleagues have pointed this out: the noble Baronesses, Lady Murphy, Lady Hollins, Lady Buscombe and Lady May of Maidenhead, and the right reverend Prelate the Bishop of London. Almost anyone who has had direct engagement with the care of patients in these circumstances realises that there is a degree of complexity in dealing with them that a piece of legislation on its own will not resolve, especially if it is not legislation that requires the provision of resources—which, of course, this Bill does not. Doing something without resources can not only be unsuccessful; it can make the situation worse.
Are there better ways of dealing with this? Yes. The Northern Ireland legislation is much better. It is what was referred to earlier as fusion legislation. That is to say that it looks first at the question of whether a person has disturbance of mind and brain function and, secondly, at whether they understand the information relevant to decisions and appreciate the relevance of it. For example, a person who had delusional thinking would obviously not understand the relevance or appreciate it. It gets away from lots of the problems that this part of the country finds itself dealing with because of the separation of mental illness and mental capacity. Those two things were brought together in the Northern Ireland legislation. That was easier because, as I said earlier, personality disorder was never regarded as an appropriate basis for a formal admission in the first place.
As has been said by a number of colleagues, one of the difficulties that has to be dealt with when legislation is changed if that change is not fundamental—or, frankly, even if it is—is that the culture being operated in is one in which all the staff have been working for decades. Trying to change that is really difficult. One way of doing it is to take little steps. I regard separating out autism and learning disabilities as a positive step in the right direction. The noble Baroness, Lady Fox, is not in her place but I agree—perhaps unusually—with what she said about the overmedicalisation of problems of living. It is true in universities, where there are huge problems now in dealing with students. It is true in all sorts of areas. Every time someone has problems of living it is called mental illness: “I’ve got mental health, doctor”. We wish they did have mental health; that is what they do not have. That is why they have a problem.
All sorts of problems of living are now thought of as disturbance and disorder. That, in my view, is a serious mistake. I have to say that psychiatrists have made their own contribution to developing things in that way, but we have to pull back and look at it again. That is one of a number of very good reasons pointed out by noble Lords for why taking autism and learning disability out of that kind of package, and seeing them in a different way, is an important step in the right direction but—I come back to this again—as long as there is appropriate provision of resources. Without that, things will not go well and we will have unintended consequences.
Those who have produced this legislation and those who will scrutinise it have done and will do it with the best will in the world. They want to make things better and they are doing their best, but a funny thing happens in science: you produce a theory, do some work with it and then discover that it does not quite cover an issue, so you put in a little caveat. Then it does not cover that issue, so you put in another little caveat, and more and more. The whole thing becomes more complex until suddenly, one day, somebody says, “Do you know what? This is not the right theory”, and then there is a shift in understanding to a whole new way of thinking about it.
That is where we are with problems of this kind. We really need to make a paradigm shift. Your Lordships would expect me to say it but, on this issue, the approach that was taken where I was working in Northern Ireland is useful to explore, just as bringing together health and social care was useful. There are other useful things, such as advance choice, but there are so many that we could not possibly deal with them all in one debate. That is why we will be discussing them for quite some time.
Baroness Keeley (Lab)
My Lords, I am glad to take part in this debate in your Lordships’ House, after four years as a shadow Minister for Mental Health and six years on the Health Select Committee in the Commons.
In welcoming this Second Reading, I will speak about dealing with the inappropriate detention of autistic people and people with learning disabilities in mental health hospitals. Noble Lords, including those who served on the Joint Committee on the draft Mental Health Bill, understand that too many autistic people and people with learning disabilities have been detained in inappropriate facilities and for far too long. But we, as politicians and legislators, have not made the changes needed to stop this.
The Winterbourne View scandal and a series of other scandals since 2010 have shown abusive treatment meted out to autistic people and people with learning disabilities detained in inappropriate units. In 2011, following the shocking revelations made by journalists of the abuse to residents detained in Winterbourne View, which was rightly described as “torture”, the then Prime Minister pledged to close all inappropriate in-patient units by 2014. That did not happen. Since then, successive Governments have also committed to targets to reduce the number of autistic people and people with learning disabilities in in-patient settings and to prioritise housing and support in the community for those individuals. These targets have all been missed.
In 2021, the Commons Health and Social Care Select Committee, of which I was a member, completed an inquiry into this treatment. Commenting on the missed and delayed policy targets, the inquiry report suggested that “a more radical approach” was needed to unlock community provision for this group of people. Now there is a chance for reform but there are widespread concerns to raise with my noble friend the Minister that the measures in the Mental Health Bill will not be enough in themselves. While it is welcome that the Bill makes it harder to detain a person under the Mental Health Act on the grounds of autism or learning disability, there are widespread concerns, as we heard in this debate, that this could lead to people being held under alternative routes, including the Mental Capacity Act 2005 deprivation of liberty safeguards. We must guard against that happening.
In many cases, autistic people and people with learning disabilities are not being detained just because of the legal framework they are under. They get stuck for years in mental health hospitals because of the lack of support for them in the community. In too many cases, discharge planning is repeatedly delayed because those responsible see the needs involved as too complex or feel that there are no suitable care providers. I will mention two cases to illustrate this: a young autistic woman called Bethany, and Tony Hickmott.
When I first raised Bethany’s case in the Commons, she was a 17 year-old autistic woman with extreme anxiety, kept in seclusion in St Andrew’s hospital, Northamptonshire. In a cell-like room, she was fed through a hatch in a metal door. When her father Jeremy visited, he had to kneel at the hatch in the door to speak to her. Bethany was detained and held in seclusion despite an assessment that the hospital setting that she was in could not meet her needs and a recommendation that she should be moved to a community residential setting with high support.
The lack of funding for support in the community was clearly a factor. The Walsall Council officer responsible for her placement told Bethany’s father that her care had already cost the council £1.2 million. “To be frank,” the officer said to him, “Walsall could do with a breather”. Moving Bethany to a community setting would involve her local council paying £100,000 to £200,000 a year from the adult social care budget, instead of leaving the NHS to pay the much higher bill, which was £676,000 a year. It seems that Bethany was being held in isolation so that the local council responsible did not have to pay her costs, but the very high costs of her detention were then borne by NHS England.
I raised Bethany’s case numerous times in the Commons and she was at last discharged to live in the community. Fast forward seven years and her father talks about what a happy life his daughter now has, in her own property, with good support from a wonderful care team.
The outcome has not been as positive for Tony Hickmott, an autistic man with learning disabilities. In 2022, Tony had spent 21 years in a secure assessment and treatment unit and it looked as if he could finally move back to his hometown of Brighton, close to his parents Pam and Roy.
Tony had stopped meeting the criteria for being detained in a psychiatric hospital in 2013, but it was ruled that he could not be discharged from there because a suitable community placement could not be found for him. His parents applied to the Court of Protection in 2019 and, after a number of hearings, the judge ruled that Tony should be discharged from hospital to live in a specially renovated house with care from a brought-in provider.
This should have been a happy ending too, but it was not. Reports describe that Tony is now effectively barricaded into the bedroom, with the care staff in his home operating the house like a seclusion room. Tony’s parents, now in their 80s, are prohibited from taking him out into the community. He is held under the deprivation of liberty safeguards. I hope that Tony Hickmott’s care provision can be improved.
Much could have been done by Governments over the last 12 years to tackle this issue of inappropriate detention. The new Government now have the chance to change this. First, we must act to prevent new inappropriate admissions of autistic people and people with learning disabilities. Secondly, we must act to enable the discharge of the 2,000 autistic people and people with learning disabilities detained inappropriately in mental health units.
As we have heard in this debate, the average length of detention for this group is 5.4 years, with 355 people detained for more than 10 years. Mencap has estimated the cost of this care in inappropriate units for this group as £534 million a year. Detentions are often, as we have heard, far away from family and friends, with alarming reports of people from this group being overmedicalised, subject to physical restraint and shut away in isolation. All this is as traumatic for those detained as it is devastating for their families. As Mencap has said, its findings on the staggering cost of institutional care show that this is
“an appalling waste of public money on the wrong type of care”.
I hope that there is now a will to change this.
As I mentioned, there is first the issue of ensuring no new placements of autistic people and people with learning disabilities in those inappropriate mental health units. The Commons Select Committee inquiry report made recommendations on how this could be achieved.
Secondly, the issue of who is paying for care and community support must be tackled. I support the plea made by the noble Baroness, Lady Hollins, for an action plan to succeed the Building the Right Support Action Plan. The Commons Select Committee inquiry recommended that the Department of Health and Social Care should
“redesign the financial incentives … so that local authorities”
and local NHS bodies
“do not seek to ‘offload’”
the care of
“autistic people and people with learning disabilities onto the NHS or place these individuals in inpatient facilities”.
Tackling these issues of funding flows now needs strong cross-governmental action.
There are some further actions that could be taken to improve the mechanisms around this area of work. I thank the human rights lawyer Dr Oliver Lewis for his input. Currently, mental health tribunals are not considered useful in dealing with people stuck in hospital in-patient units. Tribunals dealing with cases for this group should be required to have a medical member with expertise in autism and learning disabilities. Working through the practical issues of achieving a discharge destination for people currently detained could be improved if mental health tribunals are given the power to compel a local authority or NHS body to find a discharge destination in the community or if the Court of Protection was used more to rule on discharge arrangements.
The Bill presents an opportunity to correct an oversight under Section 73 of the Care Act 2014 affecting human rights, which the noble Baroness, Lady Barker, raised earlier. I too thank Dr Lucy Series and Professor Luke Clements for information about the issues raised in the Sammut judgment. As we have heard, that is a ruling that means the Human Rights Act does not apply where mental health patients get Section 117 aftercare in private settings. There is a real concern about the broader implications of this for patients receiving continuing healthcare through private services, children in private social care, and even patients detained in private hospitals under the deprivation of liberty safeguards. This latter group could expand to include the numbers of learning disabled and autistic people who are detained in hospital under the deprivation of liberty safeguards because they are no longer eligible for detention under Section 3 of the Mental Health Act. I am sure it was Parliament’s intention to protect the human rights of vulnerable adults and children for whom the state arranges health and care services. I hope that my noble friend the Minister will agree to the suggested meeting with Lucy Series and Luke Clements to discuss that.
I hope that we can bring forward amendments as necessary to correct this oversight as well as to address the other issues I have raised.
Lord Crisp (CB)
My Lords, I too welcome the Bill. It is overdue and times have changed. People’s views and sentiments, and our knowledge, have changed over those years. I welcome the principles that seek to rebalance the way we handle these issues.
All this is in the context of a Bill that is about the safety of service users as well as public safety. I want to come back to the former but, very briefly, on public safety, I note that the bar for detention will be higher—there must be evidence that
“serious harm may be caused to the health or safety of the patient or of another person”.
The question is: what counts as evidence? Where is the place for the judgment of experienced clinicians? Is that evidence? Is the testimony of relatives? What is the definition of “serious harm?” I understand the need for transparency, but this is a very difficult area that will obviously need much more discussion at later stages of the Bill.
I also welcome the separation out of the care for people with learning disabilities and autistic people, the attention to the needs of people in the criminal justice system and, of course, the importance of tackling racial disparities.
We have had a lot of impressive briefings for this Bill. I will quote one of them, from Blooming Change. That was the one about children who had experience of the system. There were lots of issues about patient safety and quality of care. They talked about being injured during restraint, just being drugged and restrained and being scared all the time. There is a dreadful sentence there, which I will read out:
“Hospital makes you worse … going into hospital with one problem and then leaving with trauma, new behaviours, new diagnoses, assaults, PTSD – it’s awful”.
I noted the earlier comments by the noble Earl, Lord Howe, about the very large number—I think it was 52,000—of uses of restrictive interventions in the last year, and the comments of the noble Baroness, Lady Watkins, about this, and about the importance of children not being in adult wards. It seems to me that this is a great example of what we just heard from the noble Lord, Lord Alderdice, about admission making the situation worse. The idea was to put people into a ward, but, actually, it led to a deterioration of their condition.
If I think about the Mental Health Act, I understand why the review that a lot of this was based on was focused, but actually we cannot think about the Mental Health Act in a vacuum. Let me pick up two or three examples of that. The first one is that the very same Sir Simon Wessely asked me 10 years ago to look at the capacity of acute adult wards across England. I did so, and with a group we were in contact with every service in England and with consultants who were leading the admission and discharge of patients. One of the interesting findings of that was that something over 20% on average of discharges were delayed because of housing. Indeed, of all those units in England, only two had any links with the housing authorities. This seems to me to be a very fundamental point: if you are stuck in hospital, you may well lose your accommodation, which will lead to other problems. That is just one example of many wider social issues that need to be taken into account, even though we are focusing on something as narrow as the terms of the Mental Health Act.
There is also the impact on A&E, which the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, referred to very early on about just shifting the problem if we are not careful: shifting it from one place to actually landing up in A&E, where there may not be liaison, psychiatry or anything else that will help with the problem.
A number of noble Lords deplored the lack of a wider Bill in which this would nest, but it is very clear that this needs to be implemented in the context alongside other changes that are already under way. There are some profound questions here about care and treatment. We have been very privileged to have heard from a lot of people who know a great deal about this, including a number of very distinguished senior commissioners who could give us insight, as well as parents who can give us remarkable insight and profound comments.
If you look at some of the statistics, healthy life expectancy for all of us has improved massively over the last 40 years, but the gap between life expectancy for those with severe mental illnesses and life expectancy for the rest of us has doubled since the 1980s and is now 20 years behind. If we also look at some other evidence, the NHS independent Mental Health Taskforce argues that outcomes from severe mental health problems have worsened in recent years, and others have argued that they flatlined for about 40 years and, in some cases, have deteriorated.
Various noble Lords have talked about the importance of the change in the model that we are talking about here, with much more focus on the community, much more focus on prevention and much more focus on thinking of this end to end, rather than just as isolated incidents involving isolated patients who do not have relationships with the rest of the world in that sort of model. It really seems to be fundamental that we get hold of those issues; even if they are not in this Bill, they need to be linked to an understanding that those changes may well come with the forthcoming 10-year plan and the implementation of this.
I want to touch on a wider point about the overmedicalisation of common problems. Here is another statistic: in the year to April, 8.7 million people received antidepression tablets—and that is just England, without counting anywhere else. The major problem in that area, apart from the overprescribing itself, is helping people to get off those drugs in due course, which is another example of where some of our current practices have been doing harm. We need a new emphasis on some of the social interventions that many noble Lords have mentioned and a new emphasis on patient safety.
Lastly, this is only legislation. It needs to be accompanied by a real implementation plan for the management of change because it cannot be treated in isolation. These other moves and other leaders are making change happen elsewhere. I very much welcome the Bill and look forward to the discussions about some of these important issues in Committee and beyond.
Baroness Berridge (Con)
My Lords, it was a privilege to sit on the Joint Committee to scrutinise the Bill, but it was disturbing to see for how long the legislation has been failing patients, their families and clinicians. I thank my noble friend Lady May, who is not in her place, for instituting the process and for placing a clear focus on the disproportionality faced by racialised communities. There is much to commend the Bill, such as the change in detention criteria, and statutory care and treatment plans, but it could still be improved.
The introduction of community treatment orders made a bad disproportionality situation even worse. The mental health factsheet accompanying the Bill says that black communities are seven times more likely to have a CTO than their white counterparts, although that is an improvement on the evidence to the committee, where we were told that it was up to 11 times, while Parliamentary Office of Science and Technology research states that it is up to 10 times. Whatever it is, it is too high. If CTOs are to remain, I hope the Minister will outline that proper research will be undertaken to understand what is causing that disproportionality.
While I welcome the changes to CTOs, I stand by the Joint Committee recommendation that they should be abolished for Part II patients; I stand with Mind on that. There are differing opinions on this issue now, and it would be useful to return to it in Committee. Because of disproportionality, the CTO issue is of particular importance to certain communities. However, I agree with the noble Lord, Lord Adebowale; we also heard about the informed research showing that advance choice documents are known to reduce detentions and reduce medicalisation when someone is detained. So, while I am pleased to see the advance choice document in the Bill, I ask His Majesty’s Government to consider that there should be a right to request that.
As the Bill goes through Parliament, I hope that the hard work of a smaller, often less-resourced group of activists for these communities will be appreciated. The work of the NAS and Mencap is exemplary, but sometimes those who are not able to shout the loudest are in the greatest need of our support. I am sad to notice that two of the provisions that are particularly important to racialised communities are being diluted.
One of the most important changes is that the outdated use of nearest relatives is being replaced by nominated persons who represent the patient and exercise relevant statutory functions. It is important to note the power that the nominated person has. It includes the power to order the discharge of the patient, unless of course a barring order is made. Ideally, the nominated person is chosen by the patient, but if they do not have capacity, that function is done by the approved mental health practitioner—AMHP. Those are welcome changes for most adults—I note the comments from the noble Lord, Lord Alderdice—but the Joint Committee’s report highlights that all is not clear with regard to the nominated person and children and young people.
The decision not to have a new piece of legislation is a particular problem. When the Mental Health Act 1983 was passed, it was envisaged that it would really apply only to children in the criminal justice system. To complicate matters, the Children Act 1989 was passed, with further amendments later on giving 16 and 17 year-olds the right to consent to medical treatment if they have capacity. Then came the Mental Capacity Act, which does not apply to under-16s but does if you are 17. Then Gillick competence was added to the mix. Yes, it is all rather fudgy, even before you add on the nominated person under the Act.
I will give a couple of examples. For the under-16s, under new Schedule A1, the nominated person must be the person with parental responsibility, but what of the situation of a special guardianship arrangement where the parents keep some residuary parental responsibility? Does the AMHP have to appoint the parents and the special guardian? That would set up quite a difficult arrangement for clinicians. Also, why does this schedule refer to a local authority being “willing” to act as the nominated person? Under the Children Act when there is a care order, local authorities have a duty to act when they have parental responsibility.
I turn to the 16 or 17 year-old who lacks capacity to appoint a nominated person. There is no mention at all of parents’ responsibility in paragraph 10 of that schedule, yet the young person might be living with them. So if the nominated person uses the powers of discharge, a process takes place for them to be discharged. You are relying on the mental health institution to remember that parental responsibility lasts until someone is 18 and to tell the parents that the patient is on their way home. That might not sound like a problem, but if you have got other, younger children in the household, it might be a risk to them to have that person back in the household. Also, a 16 or 17 year-old may be under a care order. Is the local authority going to be informed because it is going to be providing the accommodation? The schedule is silent on that. A common statutory mechanism is to mandate for particular circumstances like those of the under-16s but to have a presumption for other situations. So why not have some kind of presumption that a 17 year-old person with parental responsibility should be the nominated person if they are residing with them?
The previous Government accepted that after the independent review on children and young people more thought needed to be given. So will the Minister agree to have a meeting about children and young people with officials, interested Peers, and the experts in this field who are practising in this niche area of the Mental Health Act and the Children Act?
Children and young people are also in a vulnerable position if they have learning disabilities and autism and no co-occurring mental health illness. If they are in crisis and the parents need help, if there is no Mental Health Act provision, then what happens? We have heard about the use of DoLS under the Mental Capacity Act, but if you are 17 or 18 and lack capacity and are held under that, there is no Section 117 aftercare. However, if you are under 16, or 17 with capacity, you are not under the Act at all. Where does that leave you? That probably leaves you under the inherent jurisdiction of the High Court or, rarely, a care order. Only last week the Children’s Commissioner reported on around 1,000 children a year who are now under the jurisdiction of what is called a High Court DoLS order. Let us just say her report is not good news about that third provision to restrict a person’s liberty.
While the situation for those with learning disabilities and autism is currently shocking—and I marvel at the work of the noble Baroness, Lady Hollins—the Act could make a bad situation worse. This is also important to cover at the meeting that I have suggested and as High Court DoLS are a relatively new creation, it would be good to have there former members of the judiciary who have had experience of imposing those orders on children and young people.
I am disappointed not to see the recommendation from the Joint Committee of a mental health commissioner as part of the Bill. Since the Joint Committee reported, rare events have shown the danger to the public if mental health services fail. Often it is those who not medically trained but are friends and family who can see that someone is getting really unwell and needs help. Is it obvious to know where to go if you have tried the previous hospital and you have tried to use PALS? Do friends and relatives know that it is the CQC that they need to go to? The police have rightly stepped back in some respects in these situations. Not appointing a mental health commissioner is a missed opportunity as it is imperative that those people know somewhere to go to. While the Joint Committee’s report was not overt about this being a function of the mental health commissioner because it was before the events I have outlined, an emergency process such as this could well fit within their remit. It would be a one-stop shop. While there is a mental health homicide review under way, if there is the need to legislate, we could now be missing it. However, if His Majesty’s Government established a mental health commissioner whose functions could be by way of secondary legislation, the door to legislation remains open if that review suggests such measures.
Finally, I hope the Minister will inform your Lordships’ House that the Law Commission is being requested to look at whether, in England and Wales, we should be doing what the noble Lord, Lord Alderdice, recommended, and which is happening in Northern Ireland: the fusing of our mental capacity and mental health laws. This is a sticking plaster only on an area of law that badly needs a restart.
Baroness Neuberger (CB)
My Lords, I declare interests as chair of University College London Hospitals NHS Foundation Trust and Whittington Health NHS Trust, and as a member of the North Central London Integrated Care Board. I am delighted to be able to speak in support of the Bill today, which has been a long time coming. As noble Lords know, I was one of the three vice-chairs of Simon Wessely’s review. It seems a long time from when we published that in 2018.
I pay particular tribute to the noble Baroness, Lady Buscombe, and her team for their pre-legislative scrutiny, which did so much to clarify and to push the draft legislation nearer to what our original review had said, but your Lordships will not be surprised to hear that there are still some areas of concern. I say that as I pay tribute to the Minister for all her engagement, both formal and informal, with members of the review team.
The Government have published the impact assessment for the Bill, showing what they believe will be the costs of the improvements that we all wish to see happen, but have said absolutely nothing about how they will pay for all of this. If we are going to make these reforms work, we are going to need money in the system. Other noble Lords have said precisely that, notably the noble Lord, Lord Alderdice, and the noble Baroness, Lady Watkins, on the subject of staff. You have only to speak to people working in this field to realise that they are desperate for resources, beds and staff—particularly nurses—alongside alternatives to detention that provide real care and do not leave people on the streets. That goes back to the issue of community treatment orders, which we will no doubt come back to in Committee, because this is a really serious concern.
We all know that public finances are under huge pressure but I urge noble Lords, and particularly the Minister, to push as hard as possible for funding for these reforms and the mental health system as a whole. It really is needed and if we do not do that, whatever we legislate will make precious little difference to what happens. That is what we ought to worry about. It is also vital that this House notes the commentary from the Royal College of Psychiatrists whose president, Dr Lade Smith, warns us that these reforms must not make worse the racial disparities already associated with the use of the Act. We need to take heed of that, as many other noble Lords have said.
I want to thank some people in particular, notably Sir Simon Wessely, the chair of the review and, one might argue, the architect of these reforms, and my co vice-chairs Mark Hedley and Steven Gilbert, for their essential contributions. I want also to pay tribute to the Civil Service teams in the Department of Health and Social Care and the Ministry of Justice, particularly Matthew Lees, who put in huge amounts of hard work and showed astonishing devotion to the cause. Some of them have seen it all the way through.
We are delighted that the Bill includes the new guiding principles that we devised and recommended, as well as provisions to promote the use of advance choice documents; but as the noble Earl, Lord Howe, and the noble Baroness, Lady Berridge, have said, there is something very peculiar about the way this is framed. Advance choice is not given as a right to patients; it is a duty upon the ICBs. When we get to Committee, we need to push that one quite hard.
We also remain disappointed that the Government have not been able to include measures relating to our recommendation that the tribunal consider appeals from patients whose expressed preference for a particular kind of treatment has been overturned by doctors. We believe that that would be an uncommon occurrence; nevertheless, it is an important safeguard for patients’ rights—a right to be involved in decisions to do with your own care. I really hope that the Government will reconsider this proposal, ideally before we end consideration of the Bill.
We are living in a time of increasing tolerance and understanding of mental ill health and decreasing stigma surrounding it, but that is not what many people in the system experience. Many people are most distressed not by the detention itself but the way in which they are treated and made to feel helpless, ignored and stripped of their dignity and self-worth. That is why the review identified—and this is key—a clear gap when it comes to supporting and valuing patient autonomy. It is why we argued that we must move away from what we heard all too often: the default position of clinical staff rejecting what the patient wants. Many of the independent review’s recommendations therefore aim to shift the dial in favour of greater respect for the wishes, choices and preferences of patients. It was also clear that when people were—rightly, in their own view—being deprived of their liberty, they were also all too often being deprived of any say in how they should be treated. As one service user who was part of our core team told us when we started on this process:
“I am sure being detained saved my life, but did it have to be such a terrible experience?”
In one significant respect, the Bill goes beyond any recommendations that we made, proposing, in effect, to exclude learning disability and autism from the scope of the Act, except for short-term admission. Other noble Lords around the House have spoken on that; however, we were and remain concerned that exclusion from the scope of the Act might not solve the problem—although it should—but instead simply shift it elsewhere. The noble Lord, Lord Alderdice, I believe, was hinting at that too.
This Bill, unlike its predecessors—I am a veteran of 2008 as well—enters Parliament with a considerable level of agreement from all the political parties, professionals, media, the charitable sector, service user groups, and in particular stakeholders representing ethnic minority communities, although there are considerable worries.
So there are some concerns, and we know about that. I very much hope that the Minister will be able to meet once again with the team from the Royal College of Psychiatrists and with some user groups, particularly people with autism and other disorders who are expressing major concerns—all of us will have had some of those emails. I hope that that can happen as the legislation goes through, so that we can see if any further fine tuning can be done. But this is without doubt the right time—one might even say it is overdue—to modernise the Act, and I very much hope that the House will support it.
Baroness Ramsey of Wall Heath (Lab)
My Lords, today I will focus on those aspects of the Bill that concern children and young people with learning disabilities, autism or both. I also want to note that I found listening to the lived experience of the noble Baroness, Lady Parminter, very moving indeed.
My formal interest in this issue dates from my being the independent chair of NHS England’s children and young people transforming care steering group—for children and young people with autism and learning disabilities—from 2017-20, and before that as chair and non-executive board member of various NHS organisations. My close personal interest, however, is lifelong, as the younger sister of Patricia, who I mentioned in my maiden speech.
Patricia was born in a much less enlightened time than we enjoy now, with a learning disability that denied her expressive language and deemed her at the time of her early childhood in the 1950s as a mental defective under the then mental deficiency legislation. My brother Jim followed soon after. My younger sister and I came some years later, to our loving parents’ great joy, but neither she nor I ever lived with my sister Patricia, as she was taken away from our parents when she was seven—before we were born—to a huge and forbidding mental hospital near Birmingham, three long bus rides away from where our parents lived. They had to write each month to the hospital authorities for permission to visit, a maximum of once a month.
When our father died in 1990, my mother asked me to become Patricia’s co-guardian with her and gave me a box that he had kept containing all the paperwork concerning Patricia. The letters from my father asking for permission for Jim, my brother, to visit his sister once she was removed from the family home are heartbreaking to read, as he was always refused, even at Christmas time, because Jim was under 12. So Jim did not see his sister for years.
By the 1960s, these rules had relaxed, and my other sister and I were taken to visit one Sunday a month. I am ashamed to say that I dreaded those visits as a little girl—not because of Patricia, who I liked to see and spend time with, but because the heart of the hospital was a forbidding Victorian building where patients with mental health issues were kept. Sometimes I would hear screams and see figures trying to put their arms out of the tops of windows. At the side of the hospital for the learning disabled—by then called mentally handicapped—which was physically a much pleasanter part of the site, we would sit and eat with and cuddle our sister, who was always delighted to see us, especially our mother.
In time, my parents got a car, and my father would drive us to a café with Patricia. Sometimes we were made welcome, and sometimes not so much. My sister never went to school as she was 18 by the time the duty to educate children with learning disabilities came in following the 1970 Act. My mother found that heartbreaking.
As a child, I did not know that my parents were campaigning to get Patricia moved nearer home, hoping to take advantage of a more benign regime that was developing in the 1970s of long-stay campus-style hospitals where young adults with learning difficulties could live, still under NHS care but with fewer restrictions on the number of visits and more activities for patients—later residents. Eventually, my parents were successful, and those were happier years, with much more contact and my sister being able to visit the home that she had not grown up in.
After my father’s death I took up the campaigning mantle from him to make sure that Patricia genuinely benefited from the latest initiative: care in the community. My sister lived her last years, until she died in 2018, in a real house near our family home with three ladies she had been with previously, and we could visit whenever we wanted. My brother died 30 years ago, so he did not live to see this. My other sister and I had moved to London, but my mother was delighted, as were we, that Patricia lived in a proper house with its own kitchen with home-cooked meals and we could visit whenever we liked.
When the noble Lord, Lord Stevens of Birmingham, in his previous role as chief executive of NHS England, asked me to establish and chair the steering group in support of transforming the care of children and young people with autism and learning disabilities, your Lordships can see why I jumped at the opportunity. As the chair of the steering group, my task was to help bring together all those organisations which had important roles in reducing the number of children and young people with autism, learning disabilities, mental health conditions and behaviours that challenged, but with no criminal backgrounds, being detained.
The steering group included representatives from the Department of Health and Social Care, the Department for Education and local government, as well as charities advocating for these children and young people. What became crystal clear was that detention happens when local education, health and children’s social care services either do not or cannot meet their complex needs appropriately. Although the world has clearly moved on a long way from the days of my sister’s incarceration, I am afraid that I heard some very distressing accounts from families and hospital staff about the reality of detention, as eloquently described by my noble friend Lady Keeley, and not so short of enforced solitary confinement, as described so eloquently in the important work of the noble Baroness, Lady Hollins.
At the same time, I saw inspiring examples of what is possible when local community services come together around the needs of children and young people, including on a visit to a special school in north London where I saw pupils who in other circumstances would have been locked away in secure hospitals. The head teacher worked with a multidisciplinary team, including social workers, speech and language therapists, psychologists and others, who liaised closely with the pupils’ families.
One key issue was raised repeatedly by families and those youngsters who could speak for themselves in the stakeholder engagement meetings we held. Although NHS guidance states that each child or young person in such a situation should receive a care (education) and treatment review—CETR—and DfE guidance requires that they should also receive an education, health and care plan, or EHCP, this was all too often either not happening in a timely manner, or it was happening but not being acted upon. This was partly a matter of resources, partly a matter of priorities, and partly a lack of joined-up work between health, education and local government.
This important Bill includes proposals to strengthen current arrangements, and this is to be greatly welcomed. In particular, the assumption that children and young people with autism and learning disabilities should not be detained if at all possible—and, if this is not possible, for only the minimum of time and with a proper review and plan for treatment in place—is a huge step forward. I am delighted that it has received wide support across the political parties, beginning with the noble Baroness, Lady May, when she was Prime Minister and subsequently under more recent Governments. It shows families such as mine that society is beginning to make real progress towards greater understanding and humanity in its attitude towards people with learning disabilities and autism—albeit sometimes more slowly than we would wish for.
However, legislation on its own can take us only so far. Genuinely sustained improvement will require multiagency work—including at government level, as my noble friend Lady Keeley said—with high levels of co-operation in the community to provide effective support for children and young people at risk of being detained. Stronger multiagency community services, combined with the Bill’s provisions, would ensure a very different life for those children and young people and their families from the one my sister had.
Lord Stevens of Birmingham (CB)
I am very pleased to follow that very powerful speech from the noble Baroness, Lady Ramsey, which reminded us all of the personal stakes that we are debating, as did many other such speeches today. I started my NHS career 30-odd years ago running a large psychiatric hospital outside Newcastle, where in some respects the quality of care was high but in others, frankly, far too many people with long-term mental health problems had been warehoused, in effect, for decades. That was a point in time when there was a big shift to re-provide services in less restrictive community settings.
I mention that simply to remind us that it was not the Mental Health Act 1983 per se that triggered all that; it was a combination of better therapies, alternative services and, frankly, greater power and influence for the voice of users of mental health services that together constituted that initial shift in services. So, as we think about the Bill before us, of course we must attend principally to the content of the legislation but we must also think about how quickly it will be implemented and the context in which it will land.
As we have heard, this is a very well-vetted piece of legislation. We will want to pay attention to the unintended consequences that various noble Lords have raised and I agree with others that some components are seriously underpowered. The advance choice documents provision, I am afraid, will not cut it as currently described. We heard that from the noble Baronesses, Lady Buscombe and Lady Barker, the noble Earl, Lord Howe, and many others. Unlike the clinician checklists set out as a requirement in Clause 11, the care and treatment plans that are a statutory requirement in Clause 20, or the new rights for voluntary in-patients to access independent advocacy set out in Clause 38, when it comes to the advance choice documents all we have is a fairly vague, subjective responsibility on the NHS and integrated care boards to give it their best shot. I am paraphrasing, but only slightly. In effect, they are asked to provide information and help to the extent that they consider appropriate. Frankly, a notice on a noticeboard with a phone number to call would constitute progress as far as the Bill is concerned. We need to address this fundamentally. Based on the comments this evening, it sounds as if there may be a latent majority for an amendment when we get to Report, depending on how our debate in Committee has gone.
That is just one example of the Bill’s content. The related question is the one the noble Lord, Lord Scriven, very powerfully raised: however good this is, when will it actually see the light of day? When will it be implemented? Actually, the most salient piece of this legislation is lurking right at the end, at Clause 53(3), which says that most of this stuff will spring into life only through the fiat of the Secretary of State at a date yet TBD. As the impact assessment—which, again, as the noble Lord said, is a very important and revealing document—says, a lot of these measures are seriously back-loaded. Even the ones that are supposedly front-loaded are highly dependent on a set of resourcing which may or may not occur.
For example, the new detention criteria for people with learning disabilities and autistic people may start in 2026-27, but next to a little asterisk is written:
“This timeline is highly indicative as an illustration for modelling purposes. This reform will commence once systems are able to demonstrate sufficient levels of community support for people with a learning disability and autistic people as an alternative to hospital-based care”.
As we have heard from the noble Baroness, Lady Keeley, and others, we have been waiting for that for some long years. My concern is that we run the same risk here as we saw with, say, the implementation of the Dilnot reforms: something sits on the statute book but never actually comes to life because it is always, “Mañana, mañana”, given the chicken and egg problem of resourcing and alternative services to allow the thing to come about. There is an implementation timescale question that I am sure we will want to pay attention to.
Related to that is the extent to which the Bill interacts with the real-world state of mental health services, social care, housing, the criminal justice system and so forth. Two of the four principles in Clause 1—“Choice and autonomy” and “Least restriction” of care—are intrinsically tied to the availability of alternative services. Therefore, you cannot divorce the Bill from decisions that this Government and future Governments will make on its resourcing.
If we want a moment of legislative humility, let us cast our minds back to the Health and Social Care Act 2012, where parity of esteem was legislated from the rooftops. Frankly, we did not see parity of esteem begin to kick in on the back of that declaration. In fact, between 2010 and 2016—a time of rising mental health need—the mental health workforce was cut by 9.4%. I took the decision—with the support of the now noble Baroness, Lady May, as Prime Minister—that, from 2016 onwards, we would introduce the mental health investment standard. This required that, each year, the share of NHS funding going on mental health could not fall—it had to be at least constant and should be rising—to stop the squeeze that was otherwise taking place. As a result, in contrast to that 9.4% reduction, we have seen a 26.5% increase since then. In his review for the new Government, the noble Lord, Lord Darzi, said:
“This important intervention has … enabled much of the mental health capacity that was cut in the first part of the 2010s to be rebuilt”.
That is why this House was good enough to support my amendment to the 2022 health Act, which was then adopted by the Government. This ensured that, prospectively, before the start of each financial year, the Government of the day have to set out their stall and declare whether they intend that mental health spending will grow as a share of the overall pie in the year ahead. The reason that is so important is not just history: at a time when, understandably, there will be great political focus on waiting times for physical health and routine operations, the most likely outcome, absent that mental health investment standard, would be that mental health services would get screwed at a time when other things are prioritised.
We will want a renewed commitment by the new Government to that mental health investment standard, perhaps as early as the planning guidance for the coming year, 2025-26. We will be able to take stock of that before Committee to make a judgment about whether we should recommend a strengthening of that mental health investment standard in the statute, because it is inconceivable that the good measures laid out in the Bill can actually be implemented while mental health services are squeezed as a share of the growing NHS budget.
In the western movie “The Magnificent Seven”, Steve McQueen said that, as gunslingers, “We deal in lead”. Clearly, here in Parliament, we deal in law, but my underlying point is that law gets you only so far. The question is not just the content of the law but how it is implemented, how fast and in what context. We need to keep our eyes on all those as the Bill proceeds.
Baroness Bennett of Manor Castle (GP)
My Lords, as the last Back-Bench speaker in this rich and informed debate, I note that we in the Green group start our meeting each week by asking ourselves what original things we have to say, specifically as Greens, about a Bill or a debate—so it is useful to come at this particular point in the circle. As Greens, we very much agree with the need for the Bill, which virtually every noble Lord noted. We also very much agree with the need to strengthen it.
I respectfully disagree, however, with a number of noble Lords who have suggested that we are seeing an overmedicalisation of life events. Perhaps this is not quite what they meant to suggest, but it sounded like they were saying that we do not have a mental health crisis in our society. I would very much say that we do. I agree with the noble Lord, Lord Crisp, that there is a great need for more talking therapies and that, for want of those, medical professionals are very often forced to resort to pharma solutions.
We need the talking therapies, but we also need treatments because we have a mental health crisis. Behind that is not any characteristic of individuals but a deeply unhealthy society and, when we are thinking about this Bill, we have to think about it in that context. We have to think that when we compare ourselves to the societies we generally consider comparable, we have much greater health problems than them. We must ask ourselves why. This is true of mental and physical health, in so far as it makes any sense to make a division between those two. I do not think anyone this evening has yet used the phrase “the gut-brain axis”, but in the last decade there has been an explosion of understanding of the link between the microbiome and mental health. We have, particularly in the UK, a broken food system. This is of course a long way from legislation but, if we are to think systemically, it is the context in which we have to think about the Bill.
As some noble Lords have made reference to, there are also the social issues to consider, whether the levels of poverty, the insecurity of income and housing, or the pressurised jobs that treat workers like robots and make them ill. We have a loneliness epidemic, which I do not think anyone has mentioned yet, but that is very much related to our mental health epidemic. We have a huge problem with domestic violence, which is also related to mental ill-health, particularly among the victims. We need to take a public health approach to mental health. While that is not directly part of the Bill, we cannot talk about mental health without talking about all those issues.
On other areas on the Greens’ unique approach to mental health issues, we do not believe that the coercive power of the state—which is what the Bill is talking about—should ever be put into private hands; nor do we believe that healthcare should ever be run on a for-profit basis. Here, I remind us of the points made by the noble Baroness, Lady Keeley, about when the private provision of mental health care has gone horribly wrong.
A number of noble Lords have focused on the problem of stigma; perhaps we have made progress over recent decades, but we still have a long way to go. We have to think very carefully about using the rhetoric of “strivers versus skivers”, and the suggestion that all we have to do is get these people into a job and then they will be fine, because that is the underlying message we are hearing from certain very senior quarters in our society. I must mention that there has been talk of combining support for people seeking jobs and mental health care. I would not necessarily say not to do that, but it has to be done with extreme caution to ensure that it is not something that puts more pressure and stress on people, interfering with them becoming well.
More positively, I commend the Government on bringing the Bill forward so early in their term and on making it a Bill that starts in the House of Lords. I compare it to the Domestic Abuse Act, during the passage of which many noble Lords who have taken part in today’s debate also took part. There was a genuine effort from all sides of the House to make that Act better, and it has been very clear this evening that there is the same desire in this Chamber today.
Many noble Lords have made the point about the need to resource what is in the Bill—we also said that about the Domestic Abuse Bill—including, to single out a few, the noble Lords, Lord Alderdice and Lord Adebowale, and many others. There have also been some really good ideas in this debate, and here I particularly single out the noble Baroness, Lady Watkins. The idea of a safe staffing level for community services strikes me as a potentially transformative idea that is really essential. Far too often, care in the community has simply meant being abandoned in the community, being left in the hands of horribly overworked staff, who are then subject to abuse and questioning when things go wrong because they simply have not been able to handle the workload, through no fault of their own. It is really crucial that we tackle those issues.
I will quickly whizz through some specific points of the Bill, particularly focusing on things that other people have not said. I have not heard a great deal of discussion of the idea, as recommended by the Joint Committee on the Draft Mental Health Bill, that we have a mental health commissioner. The briefing from the Centre for Mental Health draws a parallel with the powerful impact of the Children’s Commissioner; I would also add the impact of the Patient Safety Commissioner, on which I worked with the noble Baroness, Lady Cumberlege, over many years. Again, that was a case in which your Lordships’ House was very powerful in pushing to create that position. Having the Patient Safety Commissioner has made a real difference, and having a new statutory role to champion mental health across government and speak up for people with mental illness is something we really should be including in the Bill.
Very briefly, I agree with the noble Baroness, Lady Fox, on community treatment orders. The Bill still allows these to be continued indefinitely rather than placing a time limit on them with an option for a new one if needed. These should not be renewed without proof of necessity and proportionality.
I will use my remaining time to focus particularly on the importance of children and young people. Many other noble Lords have addressed and given us statistics on how our mental health services are failing young people. I want to draw another parallel with another element of what the Government are doing and which I have praised. A couple of nights ago, rather late in your Lordships’ House—about this sort of time, actually—we were discussing the Government’s plan for a new youth strategy and their plan to make sure that there is really strong consultation on it with young people. The one direct question I will put to the Minister is: I am sure the noble Baroness is aware of the phrase “Nothing about us without us”. What is being done to ensure that there is a real say for young people, particularly young people with experience of the mental health system, to ensure they actually have the chance to be involved in the Bill?
I will rush into one final, technical point. The Bill introduces the new statutory care and treatment plans for all patients. That is welcome, but many under-18s are admitted on an informal basis, so they will not be covered by this. How will that be dealt with?
One final rushed point is that the noble Lord, Lord Alderdice, and others, have talked about how we can learn from other parts of the UK. The mental health Act in Wales includes a measure to give people the right to have a mental health assessment if they request help. That is surely something we could learn from and include in the Bill.
Baroness Tyler of Enfield (LD)
My Lords, I apologise for my croaky voice. It has been an excellent and very well-informed debate. Like all other noble Lords today, I welcome the early introduction of this Bill, after so many years of delay, to modernise the woefully out-of-date 1983 legislative framework. Indeed, it has been one of the longest and most tortuous gestation periods of any piece of legislation I can remember.
I thank so many organisations for the excellent briefings I have received, as well as those who have worked so hard to get us to this stage, including the independent review chaired by Sir Simon Wessely and the cross-party Joint Committee chaired by the noble Baroness, Lady Buscombe.
Those people directly affected by this piece of amending legislation deserve better. From these Benches, we welcome the introduction of the Mental Health Bill as an important step towards modernising the mental health care system and enhancing patient rights. We are encouraged by the Bill’s emphasis on empowering patients and giving them greater control over their treatment decisions, and we want firmly to establish the principle that detention is an opportunity for treatment and a path to recovery, rather than being seen solely in terms of containment.
Like so many others, I particularly welcome the fact that the Bill seeks to limit detention for people with learning disabilities and autistic people who do not have a co-occurring mental health condition and removes prisons and police cells as suitable places of safety. As my noble friends Lord Scriven and Lord Alderdice said, this reform package moves incrementally in the right direction, seeking to balance the rights of individuals with the imperative of public safety.
But there is much more to do to strengthen and improve the Bill and to look at the wider context, particularly at the adequacy of existing mental health services outside of the Act and broader social inequalities. Ensuring we have the necessary funding, the workforce with the right skills and training in the right place will all fundamentally affect the implementation of this Bill.
However, I am disappointed that quite a number of the recommendations by the Joint Committee have not been picked up, in particular those on a mental health commissioner, on the interface between the Mental Capacity Act and this Bill and on strengthening duties on integrated care boards and local authorities to ensure an adequate supply of community services for people with learning disabilities and autism—points to which I shall return. Will the Government provide a detailed response to the Joint Committee report setting out the rationale for the recommendations that have been accepted and those that have not?
There are a number of themes that we will want to explore in Committee, and the first is prevention. We all know that, in healthcare, prevention is better than cure, and the noble Lord, Lord Darzi, Wes Streeting and the Prime Minister have all said it is one of the big three transformational shifts that are needed. We need to apply that same principle to this Bill and live up to that mantra. Put simply, we need to focus on preventing people from reaching the point where they risk being sectioned in the first place. That means deeper and wider preventive mental health in our communities. Currently, as a country, we focus on treatment rather than prevention. We spend around £230 billion on healthcare but only £3.5 billion on public health and only about 3% of that on preventive public mental health work. There is so much more we could do in schools, with walk-in hubs in the community and regular mental health check-ups et cetera.
A key Liberal Democrat objective in this Bill will be promoting good mental health. I believe we need a power included in the Bill that enables the relevant health and local authorities to undertake the promotion of mental health with realistic resources attached. That is also why I want to see a new right to both assessment and treatment for mental health introduced, similar to the Care Act rights that we introduced back in 2014, for people to get the help they need at earlier stages, directly preventing unnecessary admissions.
On racial disparities, given that two of the key drivers of the 2018 review were to reduce detention rates and the stark disparities in the application of the Act on some racial groups—as the noble Baronesses, Lady May and Lady Berridge, said so powerfully—we must explore what other opportunities exist to strengthen legislation in this regard. Specific examples would be putting the Patient and Carer Race Equalities Framework on a statutory footing and including an equity principle—in addition to the four existing guiding principles—which, like the noble Lord, Lord Bradley, and my noble friend Lord Scriven, I would like to see in the Bill to underline that these principles sit at the heart of all decision-making covered by it. I also support a new responsible person role at hospital level to oversee and monitor race equality in the day-to-day operation of the Act, with a corresponding duty on the Secretary of State to report annually on progress against reducing inequalities. Such a package could have real teeth.
Like the noble Lord, Lord Bradley, and others, I also strongly support the establishment of a mental health commissioner, as recommended by the Joint Committee. Such a commissioner would both promote access to treatment across the spectrum of mental health services, including things like beds for eating disorders, and oversee implementation of the Act, including ensuring that racial disparities are fully addressed and monitoring the use of community treatment orders.
On seeing detention as an opportunity for treatment and recovery, I would like to see the definition of appropriate medical treatment strengthened to take account of the settings in which treatment is delivered, including community settings, and the importance of non-drug-based intervention—either in tandem with medication or on its own—where it is clinically effective.
As many noble Lords have said, the Bill makes some important changes to better regulate the use of CTOs. These were originally meant to be a route out of disproportionate sectioning but, in reality, they have exacerbated the number of black people who are subject to compulsion under the Act. However, the revisions in the Bill currently stop well short of adopting all the independent review’s recommendations. For example, they allow CTOs to continue indefinitely, rather than placing a time limit on each CTO, with the option to make a new one if it is still needed. As my noble friend Lady Parminter made clear, we should explore this in Committee.
As many others have said, we need to view equal treatment between Part II and Part III patients as paramount. Ensuring that all patients detained under the Mental Health Act, including those involved in the criminal justice system, have equal access to advocacy, mental health tribunals, appeals and other rights—no matter which part of the Act they are detained under—is a key principle. Given, as I have said, that one of the key drivers for reform was addressing racial inequalities, and that black people are significantly more likely than white people to be detained under Part III, we currently risk further entrenching these disparities.
Much has rightly been said about people with learning disabilities and autism. The changes to Section 3 are an important step in ending the human rights scandal of inappropriate detentions of autistic people and people with a learning disability. As the noble Lord, Lord Touhig, and the noble Baroness, Lady Hollins, said, legislative change must be accompanied by investment in the right community support. Without this, autistic people and people with learning disabilities will continue to reach crisis point with their mental health. There is a real risk of these groups falling into the criminal justice system, simply due to lack of community provision. This has been the New Zealand experience, as the noble Baroness, Lady Watkins, highlighted. They are then unable to access Section 117 aftercare support. We are told that this change will be enacted only once sufficient provision is in place. Can the Minister provide more details on how this decision will be taken and what the Government will do to ensure that capacity is being built up in the community?
My noble friend Lady Barker, the noble Lord, Lord Bradley, and others expressed concerns about the interface between this legislation and the Mental Capacity Act. I share these concerns. I feel that it is currently fuzzy and unclear, leading to inconsistency in practice and confusion as to which legal framework applies. We must explore this further in Committee, including understanding what has happened to the liberty protection safeguards that were introduced under the Mental Capacity (Amendment) Act but have not yet been implemented.
I am also aware of concern within the sector that there has not been adequate or meaningful engagement with people with learning disabilities or autism, or sufficient time for them to be properly involved in decisions that directly affect their lives. How do the Government intend to remedy this? Do they have a plan of stakeholder engagement, particularly with groups led by people with learning disabilities and autism?
One area which particularly concerns me and about which we have heard a lot today is the position of children and young people who are too often receiving poor-quality care in unsuitable conditions. There are many things we can do in Committee to strengthen the position for children. I was profoundly moved by the family experience that the noble Baroness, Lady Ramsey, recounted. I thank her for that.
There is much else that I would like to say about implementation, but I have probably run out of time. I welcome the collaborative style adopted by the Minister towards improving the Bill. I look forward to working with other noble Lords on this vital and long-overdue piece of legislation.
Lord Kamall (Con)
My Lords, this has been a fascinating debate. Having read the various reports sent by many organisations, including the excellent briefing from the House of Lords Library, I felt pretty well briefed but, having listened to today’s contributions —including the moving contributions from my noble friend Lady Browning and the noble Baronesses, Lady Parminter, Lady Keeley and Lady Ramsey—I realised that there is so much more for us to learn.
These Benches welcome the Bill. In particular, I pay tribute to my noble friend Lady May, who, as Prime Minister, commissioned the Wessely review to consider a number of issues: why, as we heard from many noble Lords, were detention rates increasing and, in particular, what could be done to reduce inappropriate detention? I understand very well the point made by the noble Baroness, Lady Parminter, about when detention may be appropriate or inappropriate. The review also considered how to improve the way that different agencies respond to people in crisis to ensure that they are treated with dignity and respect. It looked at the disproportionate number of people from certain ethnic backgrounds, specifically Afro-Caribbean men, being detained under the Act and what should be done about it.
I am also grateful to noble Lords who served as members of the pre-legislative Joint Committee on the 2022 draft mental health Bill, which was based on the recommendations of Sir Simon Wessely’s review. Some of them have spoken in this debate: in particular, my noble friend Lady Buscombe, who chaired the Joint Committee; my noble friend Lady Berridge; the noble Baroness, Lady Hollins, who has a long history in this area from personal and professional experience; the noble Baroness, Lady Barker, who has many times said, “I told you so”; and the noble Lord, Lord Bradley, who was a champion for mental health during the passage of the Health and Care Bill. Quite often I was urged to resist some of his amendments but, with hindsight, I am glad that he prevailed to ensure that we continue to discuss the parity between mental and physical health. As many noble Lords have said, the challenge is how we turn those words into action throughout the system. I also thank the noble Baroness, Lady Neuberger, who sat on the Wessely review and who, when we looked at and discussed this when I was the Minister, gave me quite a bit of time—partly, I think, because she chairs the trust of the hospital where I was born.
They all had very incisive insights so, in approaching this debate with my noble friend Lord Howe, we considered the report from the Joint Committee and this generated many of our questions. We wish to probe the Government on the recommendations from the report, especially those with which the Bill seems to disagree. We will not, at this stage, tell the Government where we agree or disagree; it is more to understand the Government’s reasoning for not including specific recommendations from the Joint Committee.
We also ask the question: if and when the Bill is passed, what next? How and when will the Government implement the main changes in the Bill, as was alluded to by the noble Baroness, Lady Murphy, and the noble Lord, Lord Scriven? Last week during Oral Questions, one of the ministerial colleagues of the noble Baroness, Lady Merron, made what sounded like a government commitment. But when questioned by one of my noble friends, that Minister admitted that it was not a commitment but an aspiration.
Similarly, the briefing notes accompanying this year’s King’s Speech stated that the Bill would take
“a number of years to implement”
and that the Government would introduce these reforms
“in phases as resources allow”.
At this stage, therefore, we would like to understand which changes the Government plan to introduce immediately and which reforms they are aspiring to, rather than actively planning. This is to make sure that we avoid some of the problems that the noble Lord, Lord Alderdice, alluded to in his contribution.
I move now to the main areas that have been raised in today’s debate on which we would like to learn more about the Government’s intentions. The noble Lord, Lord Touhig, reminded the House that autism is not a mental health condition. My noble friend Lady Browning highlighted the lack of understanding of people with autism. The Joint Committee recognised the risk that people with autism or a learning disability could be given additional and unnecessary medical mental health diagnoses in an attempt to justify detention, when they can no longer be detained under Part II of the Mental Health Act. What firm plans do the Government have, in this Bill or otherwise, to try to manage and mitigate this risk?
The Joint Committee recommended a full statutory review of the use of community treatment orders within three years but, as my noble friend Lord Howe pointed out, there is no commitment to such a review in the Bill. Can the Minister explain the Government’s reasoning for not committing to a review within three years?
On children, both the independent review and the Joint Committee made recommendations—some of which are not in the Bill—about the treatment of children, such as the inappropriate placement of under-18s into adult wards or into facilities that may be miles away from their home. Can the Minister clarify the Government’s position on these two specific issues?
On advanced care documents, which the noble Baroness, Lady Barker, has championed for many years, the Joint Committee recommended that these be made a statutory right for all patients detained under the Mental Health Act. As my noble friend Lady Buscombe has said, this could be done in the form of an app if we make sure to push through the digitalisation of the NHS and the whole care system. The Bill as it stands does not follow up on this recommendation, preferring to place a duty—one noble Lord alluded to it being “vague”—on NHS England and ICBs to inform patients about advance care documents. Many noble Lords, including the noble Lord, Lord Stevens, have raised this issue, so I think the House would find it helpful if the Minister could explain the Government’s reasoning behind not introducing these documents as a statutory right in the Bill.
We welcome the Bill removing police stations and prisons as places of safety for patients not in the criminal justice system. However, as my noble friend Lord Howe said, one unintended consequence raised by several bodies was that this could lead to a rise in the number of people admitted to A&E departments, sometimes escorted by police and having to wait in crowded spaces with a lack of specialised facilities until they can be assessed by clinicians. When do the Government envisage that NHS trusts will be able to deal with the potential increase in the number of mental health patients admitted to hospitals as places of safety?
The president of the Royal College of Psychiatrists, who contributed to the independent review, raised concerns about the proposed changes to the treatment of those with learning disabilities or autism, as there may be times when community services cannot manage the level of risk that such patients present, and when it might take some time to decide whether this is related to co-occurring mental illness. In such cases, patients may be brought into A&E, but what happens if their behaviour is perceived as affecting the safety of others in the A&E department? This could lead to the police being called, and suddenly they are in the criminal justice system. I wonder how the Minister sees the Bill dealing with such a situation.
I now turn to the issue of early intervention, which the British Association of Social Workers raised during pre-legislative scrutiny and which the noble Baroness, Lady Watkins, raised today. The BASW stressed the importance of early intervention to prevent the admission of mental health patients into hospitals in the first place, which they described as being at
“the interface of mental health and mental capacity legislation”.
A number of noble Lords have talked about whether we could have gone back to first principles and started with fusion legislation. We note that Sir Simon Wessely suggested that this was not practical or would take too much time; I do not wish to misquote him. My noble friend Lady Berridge also mentioned the interface with the Children Act. This all asks how we can do this in a holistic way, but by taking a step back are we just waiting even longer for something to be done to fix the problems with the existing legislation? We have obviously decided on this route but I ask the Minister what thought is being given to future fusion legislation or rethinking the interface between the various Acts affected here?
The pre-legislative scrutiny committee also recommended
“the creation of a Mental Health Commissioner … to oversee the direction of travel … and implementation, monitoring outcomes and supporting cultural change … be an advocate for patients, their families and carers and speak up about the stigma still attached to severe mental illness”.
Yet the Government have decided not to accept this recommendation. I note that a number of noble Lords across the House have spoken on this missing part of the legislation. Can the Minister explain why the creation of a mental health commissioner has not found its way into the Bill?
One of the main reasons for commissioning the independent review was to examine why so many people of Afro-Caribbean heritage are detained under the Mental Health Act. Indeed, Sir Simon Wessely wrote in his report that one of his earliest academic papers, in 1989, was on the subject of the overrepresentation of those of black, African and Caribbean heritage among those diagnosed with schizophrenia. Are the Government, the NHS and the department any closer to understanding the key factors behind this overrepresentation? What do they believe can be done to reduce this disparity, or does it need further research?
The Minister might find this odd coming from me, given that when I was Minister I quite often tried to shield the Government from this—now that the roles are reversed, there might be a certain irony—but I will ask about a workforce plan. In all honesty, when we were in government we were pressured by the Treasury not to accept this, and it quite often pushed back when we tried to make the case for this, so I understand that it is a real challenge for the Government. We completely understand, and it would be unfair of me now to take advantage of the fact that I am in opposition. Our Government belatedly published a workforce plan. What is the thinking on publishing a workforce plan, given that many noble Lords across the House have asked about this, particularly once the Bill becomes an Act? How long would it take to actually implement this? We need to understand more about the resources—otherwise, it could make things worse.
I realise that I and other noble Lords have asked many questions, and I certainly do not envy the Minister. We look forward to her responses, either now or in writing, and we welcome her engagement with noble Lords across the House.
Baroness Merron (Lab)
My Lords, I put on record my gratitude to all Members of your Lordships’ House for contributing to what was widely agreed, I am sure, to have been an excellent debate—excellent not just because of the level of engagement but because of the detail. I really feel that spirit of wanting to improve the legislation and the support for the Bill thus far. I will endeavour to respond to as many themes as possible; I am very grateful to the noble Lord, Lord Kamall, for his sympathy, which I accept, but I regard that as a good thing. I regard it as admirable that I will not be able to answer all the questions, because that is the purpose of being here. It sets us up for Committee. It is obviously going to be a very rich Committee, and I very much look forward to it.
I hope noble Lords will understand that I look forward to following up on the many points that I will not get a chance to address in the time I have and doing a proper review of the debate today, picking up points as needed. I pay tribute to the dedication and the detailed attention to the Bill that noble Lords have already given. I am very glad to see my right honourable friend the Secretary of State gazing on. The reason I say that now is that the Secretary of State knows only too well—and not just from me—the contribution that your Lordships’ House makes and will continue to make. I for one certainly appreciate it, as I know he does.
I also thank the noble Baroness, Lady Parminter, for her bravery in sharing her and her family’s experience and anguish of eating disorder. I say the same to my noble friend who shared her experience about her sibling. It is not always easy to do that, but it really brings a lived experience of those around the person we are often thinking about, and it is so important that we do that. This debate has confirmed to me what I knew already—but it is always worth doing it again. It is the product of persistence and of a number of investigations and recommendations. It is also inspired and underwritten by the tireless campaigning that many have undertaken to improve the rights and experiences of people with mental health conditions and learning disabilities and autistic people.
It also reflects the input of those with lived experience, which was first raised as necessary in the debate by the noble Baroness, Lady May. It is about striking the right balance between getting the details of a framework of legislation right, along with the urgent need for reform, and the point that noble Lords have raised about how that is going to be done.
Attitudes and knowledge, as many noble Lords have acknowledged, have changed radically. Mental health is increasingly out of the shadows, and through the Bill we can make sure that legislation does a much better job of keeping up with a shift in societal attitudes and expectations and the development of treatment.
Regarding the role of your Lordships’ House, like the noble Baronesses, Lady May and Lady Barker, I recognise the relevance of this House. I too welcome that the Bill has started its passage through Parliament here because I believe your Lordships’ House will do the job that it is here to do, which is to improve legislation, and this debate today has certainly confirmed that.
In looking at what we are trying to achieve, I am reminded of the words of Professor Sir Simon Wessely in his foreword to the independent review’s final report, where he said that
“we want the Mental Health Act to work better for patients, the public and professionals. We hope that the result will be to reduce the use of coercion across the system, whilst giving service users more choice, more control and better care, even in the event that detention is still required. And we particularly hope that the end result will be to reduce the inequalities and discrimination that still remain”.
Almost six years after the former Prime Minister, the noble Baroness, Lady May, commissioned that independent review, the draft legislation before us speaks to those aspirations as well as delivering our manifesto commitment to modernise the 1983 Act.
On the reduction of detentions, I certainly agree with the noble Baroness, Lady Murphy, and other noble Lords that reducing detentions cannot be achieved by legislation alone. It will depend on having the right services in the community.
New models of care in the NHS are already giving over 400,000 adults greater choice and control over their care. We are also trialling new models of care through six early implementers, bringing together community crisis and in-patient functions into one neighbourhood team that will be available 24 hours a day, seven days a week, to increase access and improve continuity of care in the community. I know from the debate today that many noble Lords are looking for that sort of development and good practice.
As we know, the Bill makes a number of improvements in respect of patient experiences and care, and of the increase of choice and autonomy. It seeks to tackle racial discrimination and provide safety for public, staff and patients, and to provide better support for those with autism and learning disabilities.
I turn to some of the main themes that have been raised. I say to the noble Baroness, Lady Tyler, that we continue to be committed to engaging with those with lived experience. Part of the point of the Bill is that, where those with lived experience have not had their voices heard, I believe our continued engagement will allow that.
On racial inequalities, many have spoken passionately about this matter, including the noble Baronesses, Lady Watkins and Lady Buscombe, and the noble Lord, Lord Adebowale. The racial disparities associated with the operation of the current Act were one of the many drivers of reform, and rightly so. The changes in this Bill will give patients greater say in their treatment and encourage more collaboration and less coercion in care and treatment planning, which are all crucial to reducing inequalities. This will include increasing oversight and scrutiny of community treatment orders, where racial inequalities are at their most acute. It will also be about encouraging the uptake of advance choice documents, where those with lived experience, as I said in my opening remarks, have been very generous in their reference to their use in reducing inequalities. Legislating so that people can choose their own nominated person will also protect rights.
Inequalities in outcomes are not just a result of how the Act has been applied but also due to wider social and economic factors. We will therefore be working across government to ensure that the Bill’s provisions are effectively implemented, aiming to reduce those racial disparities in decision-making under the Act, starting with using the code of practice to make clear which actions can be taken in the application of the Act. We are also taking forward non-legislative reforms recommended by the independent review, including the Patient and Carer Race Equality Framework and also piloting culturally appropriate advocacy models to support those from minority ethnic backgrounds to understand their rights under the Mental Health Act and to give voice to their individual needs.
On the mental health commissioner, I have heard many comments, including those expressed by the noble Baronesses, Lady Murphy, Lady Barker, Lady Buscombe and Lady Berridge, and the noble Lord, Lord Bradley, and others. That is quite a group to address, but I will have a go. It is true that we have not taken forward the pre-legislative scrutiny committee’s recommendation to establish a statutory mental health commissioner. We recognise that improvements need to be made to the quality of care and the patient safety landscape. However, the concerns are that the proposed mental health commissioner’s function would be potentially largely duplicative of existing bodies and functions, and nobody wants to risk diluting accountability or causing confusion. As noble Lords will know, Dr Penny Dash has been asked by the Secretary of State to assess if the current range and combination of organisations within the healthcare regulation landscape is effective and to make recommendations of what might be needed, and I think it is important that we await her recommendations.
Learning disability and autism were raised by a number of noble Lords, in particular by the noble Baronesses, Lady Hollins, Lady Buscombe and Lady Browning, my noble friends Lady Keeley, Lady Ramsey and Lord Touhig, and the noble Lords, Lord Scriven and Lord Adebowale. This is a very important point and I recognise that we want to improve care and support for the over 2,000 people who are currently detained, as well as anybody who may need support in the future. We know from the NHS’s safe and wellbeing reviews that four in 10 people who are detained in this group have needs which could have been met in the community with appropriate support. That is why we are going to be focusing on developing community services and improving the quality of care, which will happen alongside the Bill’s reforms.
Through the Bill, we will be taking forward a package of measures for those with a learning disability and autistic people, so there will be a significant programme of work, alongside investment. I will be pleased to engage with expert stakeholders and those with lived experience, including parliamentarians, and to update your Lordships’ House as we progress.
With regard to the recommendations of the pre-legislative scrutiny committee, there is no doubt in my mind that the Bill has benefited greatly from undergoing scrutiny in 2022. It is a better Bill for that and we have tried to incorporate more of the Joint Committee’s recommendations within it. Many of those recommendations relate to the statutory code of practice and we will consider how we take these forward following Royal Assent.
On the important point of implementation, raised by many noble Lords, including the noble Lords, Lord Adebowale and Lord Bradley, the truth is that we estimate that the full implementation of these reforms will take around 10 years. The speed at which we can implement will be limited by the time that we need to expand and train the workforce. This goes to the point raised by the noble Lord, Lord Kamall, and I am grateful for his honesty in the way that he described previous work on the workforce. I thank him and his ministerial colleagues—predecessors of mine—who have worked on this.
The reality is that while some reforms can commence much sooner than others, we will need to commence powers under the new Bill in phases. Implementation will depend on what happens during the passage of the Bill and the reality of future funding settlements—to the point raised by the noble Lord, Lord Stevens—as well as other developments, such as the 10-year plan, but I can briefly give an indicative timeline.
A small number of reforms relating to the criminal justice elements of the Bill will commence within two months of Royal Assent. In the first year after Royal Assent, there will be a focus on updating the code of practice and creating the necessary secondary legislation to enable implementation. We will need a further year to train existing staff on the reforms and ensure that processes are in place. We would therefore hope to commence the first phase of significant reform in 2027, and to commence further reforms as and when there is sufficient resource in place to do so. In the spirit of honesty, the truth is that for what I would call the most burdensome reforms—for example, the increased frequency of mental health tribunals—those would not be likely to commence before 2031-32.
Alongside the passage of the Bill itself, we are looking closely at implementation in relation to learning disability and autism. Again, the exact timing of implementation of the reforms will depend on future funding. I know that noble Lords will understand that I am limited in what I can say on that, but we have already demonstrated our direction of travel by: treating and resourcing mental health seriously, including having a mental health professional in every school; introducing open-access Youth Futures hubs; recruiting 8,500 mental health workers; and having £26 million in capital investment. Indeed, there is the priority that many noble Lords, including the noble Lord, Lord Crisp, have acknowledged of bringing this Bill forward as a matter of urgency.
The noble Lord, Lord Meston, and the noble Baroness, Lady Berridge, raised the disparity of treatment between children and adults. It is true that there are a small number of reforms which do not apply to children and young people, as was also raised by the noble Baroness, Lady Watkins. It is the case that there is a difference; nevertheless, we are committed to improving children and young people’s autonomy over their care and treatment. We still believe that these reforms will go some way to achieving this. Like adults, under-18s should be supported to share their wishes and feelings by the clinician when it comes to care and treatment decisions.
On the issue of prison transfers, which was raised by the noble Baroness, Lady Watkins, and the noble Lords, Lord Scriven, Lord Bradley and Lord Adebowale, we recognise that operational improvements are needed to ensure the safe and effective implementation of the statutory 28-day limit. NHS England is indeed taking steps to address some of the barriers to timely transfer of patients. The wording in the Bill, which refers to the need to “seek to ensure” a transfer within 28 days, should be sufficiently robust to provide accountability for a breach of that time limit, while recognising that there are multiple agencies involved.
As we know, while this legislation—
Baroness Berridge (Con)
I hate to interrupt, given the lateness of the day and the lateness of the hour, but the point that a number of noble Lords were making in relation to children is that this Bill potentially does not sit with the principles under the Children Act. If the Government intend impliedly to repeal parts of the Children Act, then it would be good to have that clarification from the Dispatch Box.
Baroness Merron (Lab)
I look forward to coming to that point in Committee. The marrying up of legislation will be important, as is making progress on the Bill. That applies to the point of the noble Lord, Lord Alderdice, and others about fusion. We do not want to hold up this Bill while we make progress, but we will be mindful of the interface with other legislation.
In this Bill we are starting with the most overdue reforms to make the law fit for the 21st century. I very much look forward to working through the Bill in much greater detail in Committee. I am most grateful to all noble Lords who have not just spoken this evening but worked to get us to this point.
Baroness Merron
That the Bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee that they consider the Bill in the following order: Clauses 1 to 3, Schedule 1, Clauses 4 to 23, Schedule 2, Clauses 24 to 38, Schedule 3, Clause 39 to 54, Title.
Mental Health Bill [HL]
Tuesday 14th January 2025
(6 months ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (14 Jan 2025)
Baroness Tyler of Enfield
“Equity | addressing inequalities in treatment, particularly racial inequalities, outcomes, and related provisions regarding protected characteristics” |
The purpose of this amendment is to include a fifth guiding principle to ensure that there is equity in treatment and outcomes addressing inequalities related to protected characteristics, particularly racial inequalities, in the operation of the Code of Practice and the Mental Health Act 1983 more generally.
Baroness Tyler of Enfield (LD)
My Lords, in moving Amendment 1 standing in my name, I will also speak to Amendment 3 in my name. There are other important amendments in the name of the noble Baroness, Lady Whitaker, in this group.
Before I turn to my two amendments, I would like to make one general point. On these Benches we very much welcome this long-overdue Bill and will work with others to strengthen it further. The 1983 Act, which we are amending, is more than 40 years old and no longer reflects current understanding, attitudes or best practice in relation to severe mental illness or learning disability and autism. We need to ensure that the final law is truly fit to serve people’s needs for years to come, and our proposed amendments reflect a comprehensive effort to strengthen mental health services by promoting equity, tackling racial disparity, supporting the well-being of children and young people and ensuring that adequate resources are in place to deliver the Bill’s provisions.
A brief look back at the history shows that significant changes to mental health legislation happen on average every 15 to 20 years. That is understandable because it takes time for legislative reforms to take shape and be implemented. This Bill is likely to be the legislation that impacts on the health and well-being of people with mental health conditions for the next two decades. During our debate, we will be raising issues. It may not be possible to deal with them all in the legislation but they are important to mental health services overall, so I hope the Government will view them as part of a wider package of reform, be they issues around resources in the community or the interface between this Bill and the Mental Capacity Act. It is all part of our wider scrutiny, and I hope that the Government welcome that.
Amendment 1 would add a fifth principle to the existing four set out, which of course I fully support, and provide additional momentum towards the goal of addressing the racial disparities in the Mental Health Act. I believe that making equity one of the guiding principles, as in my amendment, would give it far greater clarity, weight and focus. If we look back at the underlying rationale for this legislation, addressing inequalities, particularly racial inequalities, is one of the key issues identified in Sir Simon Wessely’s review of the Act and is one of the key drivers behind this Bill. However, concerns remain in the sector and beyond that the Bill as drafted does not go far enough to address this deeply entrenched inequity. Adding such a principle would also reflect existing duties under the Equality Act and the requirements of the patient and carer race equality framework, a point made by many noble Lords at Second Reading. This would go some way to recognising one of the key drivers behind reforming the Act: to address racial disparities.
I will give a quick reminder of the key facts. Black people are more than four times as likely to be detained under the Act than white people. Black people are over seven times more likely to be placed on a community treatment order, a CTO. On average, people from racialised communities have a worse experience of care and worse outcomes, and black and black British people are more likely to be detained for longer and to experience repeated admission. They are also more likely to be subject to police powers under the Act and to experience higher levels of restraint than white people. These are gaping disparities in the use of the current Act, and we must ensure that the Bill does something about them.
My Amendment 3 is intended to probe whether the principles in subsection (2B) will be statutorily binding. Given that the code can only reflect law and act as guidance, placing the guiding principles in the code leaves a loophole in which they can be deviated from. That is the purpose of this amendment. The Bill provides an updating of the principles to be contained in the statutory code of practice, and that is welcome, but it does not include the statutory principles appearing in the legislation in the way that principles appear in Section 1 of the Mental Capacity Act 2005. I am not clear about the reason for this distinction between the two pieces of legislation, hence this probing amendment. I would welcome an explanation from the Minister of the thinking behind this distinction.
I am aware of strong views held by those working in the sector that it is hard to understand how the principles will be binding unless they are included in the Bill itself. Many feel that this would have much greater force than simply being referenced as “things the Secretary of State must consider” when writing the code. There is also case law. Back in 2005, R (Munjaz) v Ashworth Hospital Authority made it explicitly clear that the Mental Health Act code is guidance rather than instruction.
Baroness Whitaker (Lab)
My Lords, I first apologise for not having been able to speak at Second Reading; I would have welcomed the Bill. In speaking to Amendments 2, 49, 52, 60, 112, 114, 118, 119 and 126 in my name, I declare my interests as honorary vice president of the Royal College of Speech and Language Therapists, as a former member of the Tavistock and Portman NHS Foundation Trust board, as a patron of the British Stammering Association, and as a stammerer myself. I thank the Royal College for its briefing and my noble friend Lord Bradley and the noble Lord, Lord Patel, for their support. I also warmly support Amendment 1 in the name of the noble Baroness, Lady Tyler. I shall add amendments consistent with it in a later group.
My amendments, which are supported by 49 professional, charitable and training organisations, are all based on the premise that speech and communication difficulties are an insufficiently recognised component of a very great number of mental ill-health symptoms and that professional speech and language therapy could—and should—enable more successful treatment. One study found that 80% of people accessing mental health services had a difficulty with language and 60% with communication or discourse. Especially in the case of children and young people, those with a mental health disorder report having five times more speech or language problems than those without. One study found that 81% of children with social, emotional and mental health needs had significant unidentified language deficits.
One of the problems with the lack of specialised staff to help such children is the demoralisation or challenging behaviour that comes from frustration with unmet communication needs, quite apart from the impediments to treatment. I could quote many examples of this, as well as some success stories—for instance, where speech and language therapy effected a sizeable reduction in the use of restraint in a secure children’s home, or enabled psychological treatment to work and give the inestimable benefit of the ability to cope. I must emphasise that most of us take the ability to communicate for granted, perhaps without realising how essential it is to our lives. It is when it is lacking that you notice what it means. I am therefore sure that it must underpin the principles of this excellent Bill.
Amendment 2 does that. Without a rider of that kind to the principles, we will not have effective treatment in very many cases of acute distress and challenging behaviour. Amendment 49 puts the speech and language therapist squarely in the frame of responsible clinician, so that where communication difficulties are the key problem, that can be tackled. Amendment 52 does the same for treatment decisions and Amendment 60 for care and treatment plans.
Amendment 112 provides the same safeguard for detained patients who need to complain and Amendment 114 is to make sure that patients can understand their information on discharge, which is surely essential. Amendments 118, 119 and 126 have a similar function: to make sure that advance choice documents are properly understood and properly made.
Lord Bradley (Lab)
My Lords, I rise to speak in support of Amendment 2, to which I have added my name, but first I declare my interests as listed in the register, especially as honorary vice-president of the Royal College of Speech and Language Therapists and as an honorary fellow of the same organisation. I am able to speak briefly as a result of the excellent explanation of these amendments by my noble friend Lady Whitaker, which I am pleased to support.
As we have heard, the lead amendment would place a requirement in the statement of principles to specify in the table the communication needs of the individual and recognise the disability, difficulty or difference to ensure they will be identified and supported. This requirement then flows throughout the Bill—as evidenced by the number of amendments to which I have also added my name—ensuring a thread of consistency for this vital area of support. These include, as we have heard, Amendments 49, 60, 112, 118 and 126, but I will not speak specifically to each of those and test the patience of the Committee.
The importance of Amendment 2 is clearly laid out in the excellent briefing, as we have heard, prepared by the Royal College of Speech and Language Therapists and endorsed by at least 46 related organisations representing this crucial area of work and service.
As we know, communication is fundamental and foundational to human life. It is central to how we express ourselves, how we understand others and how we interact. It is also fundamental and foundational to the aims of this Bill. It underpins the principles to inform decisions and is key to the matters to be addressed. Crucially, it ensures the individual is properly involved in the decisions taken as a consequence of this legislation. As we know, many people accessing mental health services have some form of communication disability, difficulty or difference. This can affect whether they are able to make themselves understood, understand what is being said to them, and how they interact with people. Left unidentified and unsupported, it can subject people to a range of negative outcomes, including inaccessible referrals, assessments, treatment and care and, potentially, unnecessary detentions and detentions longer than necessary.
I first recognised this issue when I undertook my independent report for the then Government, published way back in 2009, about people with mental health problems or learning disabilities in the criminal justice system. At that time, I identified appropriate adults as a key group to support people with communication issues and recommended that they should receive specific training to ensure the most effective support. They still play an invaluable part in such communication. I also recommended the establishment of liaison and diversion services, and I am pleased that in the subsequent years they have been rolled out across the country and we now have 100% coverage for that service.
These liaison diversion teams, placed in police stations and the courts, identify, assess and support people with complex needs, including mental health problems, to try to divert them away from the criminal justice system and support them along the criminal justice pathway. I recognised during this rollout that certain key additional services should be connected to the teams, including speech and language therapists, to enhance the support required for these people with communication difficulties in a variety of settings and circumstances. As the speech and language therapists who I have met over the years themselves identified, these many situations and settings include significant unmet communication needs among individuals on mental health wards, challenging behaviour relating to communication needs, lack of staff knowledge and skills in relation to communication needs in people with mental health conditions, and many more.
Although it is welcome that the Bill’s Explanatory Notes highlight that a care and treatment plan
“may also contain other information, for example, how the patient’s communication needs will be met”,
clearly this is not sufficient. The Bill must therefore be strengthened to make it explicit both that communication is central to the Bill’s aims and that
“communication disability, difficulty, or difference”
must be identified and supported. This would help to ensure that people receive the best possible treatment and care to support their recovery, including through the necessary reasonable adjustments that should be made. It would also help to reduce the risk to them, including of their being unnecessarily detained, and to assure the wider public. These issues must also be fully covered in the code of practice. I hope therefore that the Government will recognise the importance of such communication being in the Bill and look forward to the Minister’s response on these points.
Lord Patel (CB)
My Lords, I will speak briefly in support of all these amendments, including Amendment 114 in the name of the noble Baroness, Lady Whitaker. I apologise for having to scratch my name from the speakers’ list at Second Reading, as I had been struck down by the dreaded virus.
In all areas of healthcare, communication between patient and healthcare professionals is extremely important for diagnosis and treatment, and to achieve the necessary outcomes. This is drummed into medical students and other health professionals daily.
I declare an interest: I am an honorary fellow of the Royal College of Psychiatrists—an honour awarded to me by the noble Baroness, Lady Hollins, who is not in her place, when she was its president. The citation of unknown accomplishments in mental health on my part was read out by the noble Lord, Lord Alderdice, who is also not in his place.
I remember, however, that although my professor at the time, Sir Ivor Batchelor—a well-known psychiatrist—was a quiet man, during our psychiatry clinical attachments he used to drum into us that not all mental health patients can communicate well. We had to be patient to learn and understand their ways of communicating to help them communicate their problem. I had forgotten that I was taught that; at the time, I think he hoped that he would make us all psychiatrists, but that did not happen.
The noble Baroness, Lady Whitaker, has highlighted the extent to which patients with mental health problems have communication disability, difficulty or difference. NHS Digital research has shown that children and young adults with mental health problems are five times more likely to have communication problems, and that in 81% of children with social and emotional needs their needs remain unidentified. Even without communication disability, difficulty or difference, people with chronic acute mental health problems also show communication problems.
As the number of people with complex mental health needs increases, so does the need for more speech and language therapists. Very few multidisciplinary teams include such professionals and, where they do, most of the professionals work in in-patient settings. NHS Digital research suggests that there are about 256 such professionals, mostly working in in-patient secure settings. The provision of such services in community settings is patchy or non-existent, leading to long waits.
Baroness Murphy (CB)
My Lords, I shall speak to Amendment 49 on this issue. I do not disagree with anything that has been said about the vital need for communication and to ensure that the patient understands what is happening and has access to specialist help. But I particularly want to comment on the proposal that speech and language therapists should become responsible clinicians.
The role of responsible clinician under the Mental Health Act is really quite onerous. Of the 50,000 or so clinicians who take on the role and are appointed the responsible clinician when somebody is detained, the vast majority are consultant doctors. Fewer than 100—0.002%—have been psychologists or nurses. The appetite for taking on this role is low and, of all the members of the team who could take it on, it would be appropriate only in a very small minority of cases for it to be speech and language therapists. I do not want to rule them out because I know how valuable these people are, but we must see that, in practice, this will probably not fly very far. It is important that we concentrate on how we get proper communications, but this particular amendment would probably not find favour. I do not think that profession is yet trained to the full extent of what would be required for that role. Although I hope that it will be one day, this Bill is maybe too early for it.
Lord Patel (CB)
My Lords, with the greatest respect to the noble Baroness, I did not suggest—and I did not hear any other noble Lord suggest—for a minute that language and speech therapists would become clinicians in their own respect. I said that they would be part of a team that would help to establish appropriate communication. As doctors, we are not the best people for that—so I do not see how the amendment cannot fly, when there is a need for such people.
Baroness Murphy (CB)
I entirely agree with the noble Lord. However, the reality is that the responsible clinician, as mentioned in Amendment 49 to Clause 10, has a wide range of roles. It is very onerous and specific, so this is not likely to be a good idea for a speech and language therapist. I agree with the rest of what everybody has said.
Baroness Butler-Sloss (CB)
My Lords, I declare an interest as an honorary fellow of the Royal College of Psychiatrists, but without any qualifications, unlike the noble Baroness, Lady Murphy. For the reasons that have already been given, I entirely agree with the whole group of amendments, which have been proposed so much better than I could do—so I do not propose to say any more.
Baroness Berridge (Con)
In supporting Amendment 1, I am delighted that the noble Baroness, Lady Tyler, began Committee with this focus on the impact of the Mental Health Act on racialised communities, because that is where this whole journey began, with the noble Baroness, Lady May, when she was Prime Minister, announcing it in that context—and then, of course, it became a wider reform of the whole Act.
I served on your Lordships’ Joint Committee with the other place, scrutinising the Bill. In the course of that, I became aware of the relative strengths of civil society among some of the groups. There were excellent civil society groups speaking on behalf of people with learning disabilities and autism; they were highly professional and articulate. We had one evidence session on the effect of the Mental Health Act on racialised communities, but I saw that the strength of civil society and of media coverage in that area was less—so I am sympathetic to Amendment 1, which would give a profile to one of the main issues under the legislation.
On whether the table should be in the Bill to be in the code or in the Bill sitting as primary legislation, I have sympathy for that proposition. We have learned that the code of practice merely reflects primary legislation. I am aware, of course, that the independent review came up with those four principles, and this fifth one was not part of that. I expect to hear the Minister say that it is already in the Equality Act, so we do not need to put it in the Bill—but I am persuaded of the merits of the amendment. During the whole process of an independent review, a White Paper, a response to a White Paper, a draft Bill, a Joint Committee and now the Bill before your Lordships’ Committee, it has become clear to me that many of the changes that ethnic minority communities need to see are in practice. They are in resources and training—people would not look to the Bill and see their needs as the first or an important priority in it. I would be grateful if the Minister would take seriously this consideration of putting this equity principle in the table and putting it in the Bill, full stop, and not within the code.
Lord Kamall (Con)
I begin by thanking all noble Lords who spoke to this first group of amendments in Committee. Before I comment, I refer noble Lords to my interests as set out in the register. I am not an honorary fellow of the Royal College of Psychiatrists, noble Lords will be relieved to know, but I should mention my previous work with a couple of think tanks—the Institute of Economic Affairs and Politeia, which have both published on health and social care issues. There is also my work at St Mary’s University, where I am a professor of politics and international relations, and which has recently applied to open a new medical school. I also sit unpaid on the advisory board of a start-up coalition, and I know that there are a number of start-up companies helping people with mental health conditions. I just wanted to cover those interests, in case anyone made any accusations.
This group addresses the principles that will guide the application of the Mental Health Act, as set out in the Wessely review. Sir Simon pointed out, rightly, that there are already guiding principles in the code of practice, but that
“there is limited awareness of these, and it seems very likely that they do not inform practice in the way they should”.
Clearly, as noble Lords said at Second Reading, the important aim of including the four principles is to improve their application and ensure the highest level of care and therapeutic benefit for patients, while ensuring that all patients are treated as individuals.
I thank the noble Baroness, Lady Tyler, for her Amendment 1. Of course, equity is at the heart of the Bill, as my noble friend Lady Berridge just said. The Wessely review was commissioned by my noble friend Lady May of Maidenhead with the intention of understanding why a disproportionate number of black people were being detained and receiving community treatment orders under the Mental Health Act. I think all noble Lords welcome the idea of including equity in principle, as long as it then feeds through into practice. That is the key here, and my question for the Minister is: would putting the principle in the Bill make a difference to practice? How do we make sure that it makes a difference to practice, rather than simply adding the words or adding the principle? One of the values in the NHS constitution is that “everyone counts”. Does this equality duty go further than that, and would it have a greater practical significance? That is one of the questions we need to dig out and probe the Government on.
The noble Baroness, Lady Tyler, makes an interesting observation with her Amendment 3. The principles were included in the Bill, as the Wessely review argued, to improve clinical practice. This is vital, because we know that the Mental Health Act is the legislation that is used to compel detention in hospital for treatment. This may very well raise awareness of the principles, but once again, how do we make sure that this is applied? We have to keep pushing this point, although I will not repeat it again, of making sure that this gets fed in to practice in the clinical setting.
I also note the amendments in this group of the noble Baroness, Lady Whitaker. I will not repeat the statistics that she read out about the impact of the lack of or inappropriate support for people with mental health issues or learning difficulties. Of course, it is not difficult to appreciate the complexities. Someone in my close family worked with speech and language therapists in his youth, and I could see the difference it made. It is almost too obvious to say, but how do you get your needs across if you cannot communicate them, or your needs are not understood by the person who is supposed to be offering treatment? As the noble Lord, Lord Patel, mentioned, this is included in the Explanatory Notes, but how do we make sure that it gets into the Bill and into practice? Obviously, it is a problem that is acknowledged by the Government, or it would not be in the Explanatory Notes, but why have the Government chosen not to go any further on this issue?
I was very struck by what the noble Baroness, Lady Murphy, said about Amendment 49 and her concerns. Will the Minister address that debate? Of course, we all want to make sure that patients feel that they are understood. We know that patients have to be supported as much as possible to make sure they get their point across and that they are understood, in order to give them adequate treatment, but I noted the concerns of the noble Baroness, Lady Murphy, even though the noble Lord, Lord Patel, intervened. Have the Government taken a view on this or does the Minister need to write to us? I look forward to her comments.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I feel it necessary to start, instead of talking about the Bill, by offering our condolences to the noble Baroness, Lady Hollins, on the very recent loss of her dear husband, and to thank her, as I know all noble Lords will do, for her close engagement on these reforms over many years. I say to the noble Baroness, who said she would be watching if she could, that we absolutely understand why she cannot be with us today. We miss her and I know that the thoughts of all noble Lords will be with her at this very sad time.
If I may make a few general points, as we know, this legislation has been in development for many years. I put on record my thanks for the collaborative and constructive nature of that work and the discussions I have held in my post over the past few months with Peers on all sides of the House. I extend my appreciation to the former Prime Minister, the noble Baroness, Lady May of Maidenhead, for her highly significant role in commissioning the independent review which informed this Bill and to Sir Simon Wessely and all those who worked on this landmark review, which provided a blueprint for this Bill. Like other noble Lords, I am very pleased to have got to this point.
Baroness Whitaker (Lab)
I apologise for interrupting my noble friend’s eloquence, but it is not the case that speech, language and communication difficulties are a protected characteristic. Can she absolutely assure us that they do come under the Equality Act?
Baroness Merron (Lab)
I am grateful for my noble friend’s intervention. I will later make specific points about speech and language therapists.
The revised code of practice will give guidance for decision-makers and those involved in care and treatment on how to support individuals with communication needs to make sure that their voices are heard. Following Royal Assent, we will draft, and consult on, a code of practice, and it will be laid before Parliament. In addition to the code, we will lay secondary legislation to support the reforms set out in the delegated powers memorandum. I am committed to sharing papers setting out further details on this, including what we expect the content of care and treatment plans to cover, some of which is highly relevant to this debate.
Amendment 3, in the name of the noble Baroness, Lady Tyler, and also spoken to by the noble Lord, Lord Kamall, would mean that the individuals and organisations referenced in Section 118(1) of the Mental Health Act 1983 must have regard to the code of practice when making decisions. It seeks to probe whether the principles set out in the table in Clause 1 of this Bill—under new Section 118(2B) of the 1983 Act —will be statutorily binding. Practitioners are already under a statutory obligation to take account of the code when making decisions under the Act. Anyone who must have regard to the code of practice under Section 118(2D) must therefore also have regard to the statement of principles that the Secretary of State must include in the code when carrying out specified functions under the Act. That includes all those referenced in Section 118(1).
The Government expect practitioners to follow the code. Anyone seeking to depart from it must have compelling reasons for doing so. Reasons for any departure must be recorded clearly, as courts have the power to scrutinise such reasons to ensure that there is sufficiently convincing justification for not following the code.
I believe that this is the right approach, because relevant individuals and organisations must have regard to the code and, in turn, the principles. But the system is not so inflexible that a principle must be followed irrespective of the circumstances, because there could be very rare cases whereby it could create a risk that an individual is not being treated according to their own particular needs, which is not the intention of the Bill.
Lord Scriven (LD)
I think the Committee would understand that if it was to do with a therapeutic intervention. This is about the principles according to which clinicians and others have to work when dealing with the Act. First, can the Minister enlighten the Committee as to which principles, as a framework, would not be suitable for a particular patient? It is a principle. Secondly, my noble friend tabled this amendment because case law on codes of practice in the public sector goes back to 1998 and Regina v Islington Borough Council, in which the court made it very clear that public bodies have the right to deviate on admissible grounds where there is good reason. I can see no reason, unless the Minister can give one, why deviating from a principle is acceptable. That is why my noble friend wants the principles to be in the Bill. I could understand if it was a restrictive practice, but it is not; it is a principle.
Baroness Butler-Sloss (CB)
To add to what the noble Lord, Lord Scriven, has said, I am having a problem understanding why the code is not statutory.
Baroness Merron (Lab)
I thank noble Lords for their interventions, for which I am grateful. They give me the opportunity to say now what perhaps I should have said at the outset: I will of course reflect on all the points that are raised as we move forward. I will be honest and say that I am not sure that what I am about to say will do justice to the points that have been raised. Overall, the real concern is about making very complex legislation even more complex. We are wrestling with our attempt to update the Mental Health Act—we are not starting from scratch. That is the point I would like to like to move on to.
The noble Baroness, Lady Tyler, raised a comparative point about the Mental Capacity Act and asked why, if that could include principles, it is not possible for the Mental Health Bill to. To extend what I have just said, it is because the Mental Capacity Act was structured around principles from the outset when it was drafted and did not have to meet the challenge that we are trying to debate today. As I said, we are currently looking at amending the existing Mental Health Act, which has not been designed or structured around statutory principles. In my language, I would say that we are starting from an entirely different place.
Baroness Berridge (Con)
I hate to interrupt the Minister’s flow, but we are going to come back to the code of practice again and again. Can she outline whether we will get to see a draft of that code? If the argument from the Government is that it needs to be in the code and not on the statute, it would be very helpful to see a draft code of practice before Report, at the very latest.
Baroness Barker (LD)
Those of us who were here in 2006 listened to the Minister’s predecessor at the Dispatch Box making pretty much the same speech that she has made now, and nothing has changed in the meantime. We are trying to do what we can to make sure that we do not have the same situation for the next 20 years.
I take the point that the Mental Health Act 1983 was not built on principles. Does the Minister accept that it is time that we moved forward to a situation where both the Mental Health Bill and the Mental Capacity Act are built on principles, including that the people who are subject to them have rights to dignity and so on, as we have seen set out in different places, and that if they are not treated in that way they have the right to take people to court?
Baroness Merron (Lab)
I thank noble Lords for their interventions. I will take the point from the noble Baroness, Lady Berridge, first. Following Royal Assent, we will be drafting and consulting on a revised code of practice, which will be laid before Parliament. We will be working with key partners to ensure that everyone is trained in the new Act before the first major phase of reforms. I hope that that will be helpful.
I hear the disappointment in the comments of the noble Baroness, Lady Barker. On her request for specific examples, I will need to write to noble Lords on that. I hope noble Lords realise that not having the principles in the Bill, as the amendment refers to, does not mean that there is less intention that they apply. For me, it is about the way of getting there, rather than the commitment to it. However, I hear the question about that point.
Amendment 49, on the matter of speech and language therapists, is in the name of my noble friend Lady Whitaker, supported by the noble Lord, Lord Patel, and my noble friend Lord Bradley. I turn first to the question raised by my noble friend Lady Whitaker. It is true that not all speech and language difficulties or differences would count as a disability under the Equality Act 2010, so my noble friend makes a relevant point.
The definition of who can and cannot be approved as an approved clinician was spoken to by the noble Baroness, Lady Murphy, and the noble and learned Baroness, Lady Butler-Sloss. That definition is set out not in primary legislation but in instructions issued by the Secretary of State, under the power in Section 12ZA of the current Mental Health Act. These instructions have the same status as secondary legislation, so it is our belief that it would not be appropriate to specify in primary legislation that speech and language therapists can be approved clinicians, because all other professional groups are covered only in the instructions.
For that reason alone—but noble Lords should bear with me—we will seek to reject this amendment. However, I can commit that we will be revising the statutory instructions under Section 12ZA following the passage of the Bill, and we are very happy to consider extending the criteria to include speech and language therapists. I offer an invitation to the royal college to discuss this matter with the department and to consider how it can work to support and encourage those of its members who may be interested in this role.
I am aware that time is not on my side. However, a number of amendments in this area have been tabled—
Lord Kamall (Con)
I wonder whether I can be of help to the Minister. The timing is advisory so, if there are important points that the Minister wishes to make, she should please go ahead.
Baroness Merron (Lab)
I have never had so much encouragement to carry on speaking. Noble Lords will be glad to know that the flashing clock always makes me very nervous. I thank the noble Lord, Lord Kamall.
Baroness Murphy (CB)
Can I just add to what the noble Lord, Lord Kamall, just said? I have never before sat through a Committee where the Minister has been restricted in going beyond any advisory time. She should say what she darn well likes. She may have to respond to an awful lot of complicated spots in this; there is no reason at all why she should not carry on, in my view—and that of everyone else in the Committee, I think.
Baroness Merron (Lab)
I am extremely grateful to the noble Baroness for helping me out there.
I referred to my invitation to the royal college. Given this commitment to pursue these changes, that will be subject to agreement with the royal college. I hope that will be of assistance to noble Lords.
I turn now to Amendment 52 in the name of my noble friend Lady Whitaker, supported by the noble Lord, Lord Patel, and my noble friend Lord Bradley. It seeks to ensure that clinicians consider a patient’s communication needs and make reasonable adjustments as part of the new clinical checklist; this requires clinicians to consider a number of matters when deciding on a patient’s treatment, with the aim of making treatment more patient-centred.
We share the goals of this amendment. However, the checklist already requires the clinician to take steps to assist and encourage the patient to participate as fully as possible in the decision-making process. We consider assistance to include making reasonable adjustments to account for a patient’s communication needs, which is something that noble Lords have rightly raised as being of concern. We very much intend to make this clear in the code of practice, which will already provide specific guidance on the need to make reasonable adjustments under the Equality Act. For example, the clinician should provide information in an accessible form, perhaps by involving an interpreter, a signer or someone who can communicate via the person’s preferred communication method.
My noble friend Lady Whitaker has also tabled Amendment 60, supported by the noble Lord, Lord Patel, and my noble friend Lord Bradley. It seeks to ensure that the new statutory care and treatment plan introduced by the Bill covers
“information about a patient’s communication disability, difficulty, or difference”,
and how these might be identified and supported. The Bill makes it clear that a statutory care and treatment plan is a plan made in accordance with regulations, so we intend to set out in regulations that a patient’s plan must include, among other things, information that is important for the treating clinical team to be made aware of during the patient’s detention. This is to encourage the treating clinician, as noble Lords have spoken about, to consider the individual needs of patients—including communication needs—so that the appropriate reasonable adjustments can be made. A record of how their needs will be supported should be evident throughout their plan, which should, as far as possible, be developed in consultation with the patient and others, such as their family members.
Regarding the identification of any communication needs, as already set out in the Mental Health Act code of practice under the Equality Act, mental health professionals should already be identifying and making any reasonable adjustments to account for a person’s communication needs. Where applicable, a patient’s care (education) and treatment review may also identify and make recommendations about a patient’s communication needs. We intend to set out in regulations that these recommendations must be attached to the patient’s statutory care and treatment plan, so that they can inform planning and delivery of care. I hope that this will reassure noble Lords that the patient’s statutory care and treatment plan should cover any communication needs and how they will be met, but in reflecting on this debate I will ensure that the actions we are proposing take account of this.
Amendments 112 and 114, tabled by my noble friend Lady Whitaker, would require managers of hospitals or registered establishments to provide information in an accessible format when discharging duties under Clauses 39 and 41 to give information on complaints to detained and conditionally discharged patients. I agree that it is important that all patients can access information about their detention, including the complaints process, and in a format that is accessible to them. However, the clauses are already drafted with the overriding obligation that the patient is helped in whatever manner is practical to understand the information being given to them. Therefore, it is unnecessary to add the words in the amendment proposed by my noble friend. Additionally, hospital managers have an existing duty under the Equality Act to make reasonable adjustments based on disability, which is the legal basis for ensuring that information for patients is accessible.
I reiterate that I understand that communication needs will not always be related to the letter of the Equality Act. There is already guidance in the mental health code of practice on how a patient’s communication needs should be considered when providing information on complaints. When we come to revise the code, we will engage with stakeholders to explore whether further guidance on the complaints process, including how information on complaints should be provided, is required.
Amendment 118 in the name of my noble friend, supported by my noble friend Lord Bradley and the noble Lords, Lord Patel and Lord Bourne, seeks to ensure that the advance choice document template is available in a format that the service user can understand. We strongly agree with the principles of this amendment and are committed to mitigating any barriers that people may face to creating an advance choice document or making their wishes and feelings known in advance. Where a person wishes to make an advance choice document, our intention is that they are given a standard template to complete, alongside supporting guidance and, where the individual wishes to receive it, the support of mental health practitioners. The template should prompt the individual to think about the sort of things they may wish to consider and decide in advance of becoming unwell. We will work to develop these resources.
We also plan to set out in guidance to health commissioners that these resources and the support provided by mental health practitioners must be delivered in a way that is accessible to individuals and that responds to their needs. That will be in line with the Equality Act and the public sector equality duty. Of course, if a person wishes to create a record of their wishes and feelings in another format that is easier, they absolutely may do so. We have purposefully made it that individuals do not need to complete a prescribed form in order for their advance wishes and feelings to be considered at a later stage. I agree with the need and hope that this will provide maximum accessibility and increase patient voice and autonomy.
Finally, Amendments 119 and 126, tabled by my noble friend Lady Whitaker and supported by my noble friend Lord Bradley and the noble Lord, Lord Patel, seek to ensure that the support provided to people to create an advance choice document is responsive to the needs of people with a
“communication disability, difficulty or difference”.
I agree that is important. To achieve this, it is important that support and information around advance choice documents respond to people’s needs individually, so that no one is unfairly disadvantaged. That includes communication needs.
Baroness Tyler of Enfield (LD)
I thank the noble Baroness for her extremely comprehensive but very helpful response to all the amendments, and I am happy to withdraw.
“Application of the Mental Health Act 1983: autism and learning disability(1) Section 1 of the Mental Health Act 1983 (application of Act: “mental disorder”) is amended as follows.(2) Omit subsection (2A).(3) Omit subsection (4).(4) At end, insert—“(4A) Mental disorder does not include autism or learning disability for the purposes of this Act.””
Baroness Bennett of Manor Castle (GP)
My Lords, in moving Amendment 4, I will speak to the Schedule 1 stand part notice, which is consequent on Amendment 4. Both appear in my name. I will not speak to the other amendments in this group, although my understanding is that Amendments 5 and 38 to 41 inclusive—tabled, variously, in the names of the noble Baronesses, Lady Browning and Lady Hollins, and the noble Lord, Lord Scriven—are effectively trying to achieve the same thing but by different means. I will leave them to speak to their amendments, because I want to explain why I have structured mine in this way.
I must begin by thanking Jen Smith at the Bill office for her great patience and expert assistance to this non-lawyer in producing this and a number of other amendments. I also want to stress that I am not, unlike many people taking part in this debate, an expert in this area, but I seek to represent voices of people who have reached out to me who may not otherwise be heard in your Lordships’ Committee.
I will set out the background to Amendment 4. I had a detailed briefing from the group Liberation, a user experience group led by people who have experience of mental distress and trauma, which has the slogan “for full human rights”. It is seeking a complete end to involuntary detention in psychiatric hospitals and forced treatment for the people it represents—people given mental health diagnoses. It asked me to exclude all people from what is known as detention or sectioning.
Liberation says that involuntary detention and forced treatment are forms of disability-based discrimination, and these people should not be subject to them. This may not be the case under the European Convention on Human Rights—I acknowledge that the noble Baroness, Lady Merron, signed a statement to that effect in the Bill—but I understand that it can be argued to be the case under the UN Convention on the Rights of Persons with Disabilities. I note, however, that the Parliamentary Assembly of the Council of Europe has, in line with Articles 12 to 14 of the UN CRPD, strongly endorsed a complete end to involuntary hospitalisation and compulsory treatment and recommended the removal of Article 5.1(e) from the ECHR—the paragraph that limits right to liberty if people are judged to be “of unsound mind”. It describes it as
“not compatible with our 21st-century understanding of human rights”.
I note that the recent report on the situation in the UK from the UN Committee on the Rights of Persons with Disabilities, particularly paragraphs 79 and 80, expresses concern about the lack of government measures to end disability-based detention and that the then Conservative draft mental health Bill continued to allow involuntary detention and forced treatment. The Bill brought before us by the Labour Government still has the same kind of provisions. The argument is that the Bill as it stands remains non-compliant with the UN CRPD deinstitutionalisation guidelines and the World Health Organization publication Mental Health, Human Rights and Legislation: Guidance and Practice, in which countries are urged to replace institutions with high-quality services.
I can almost feel your Lordships’ Committee saying, “How can that be possible?” Starting from now, that looks like such a long way away. That was indeed the question that I put to Liberation, which presented me with a number of case studies from around the world. I imagine that the Minister is aware of the case of Trieste, in north-eastern Italy, which almost managed to abolish involuntary detentions. They have been replaced with wide-ranging and accessible community services, based on a whole-person approach. Its community mental health centres are open 24 hours a day, seven days a week, and they play a key role in preventing people reaching a point of crisis. This has enabled people with mental health diagnoses to remain in and be part of their local community, in line with Article 19 of the UN convention. Compulsory psychiatric treatment orders are still possible, but the numbers are very low and orders typically last seven to 10 days.
In Spain, Act 8/2021 recognises the legal capacity of all adults and stipulates that disabled people should receive the same legal treatment as non-disabled people, including those with mental health diagnoses and learning disabilities. This is still not complete equality but it is heading that way and has made further progress than we have.
Costa Rica, Peru and Colombia have all taken steps in this direction. In Peru, for example, a recent study on the impacts of crisis interventions indicates that involuntary detention rates have been significantly reduced and that, when people are detained, they typically leave hospital after a couple of days.
In Mexico, the general health law of 2022, a national civil procedure code, says that everybody has legal capacity, including people with mental health diagnoses. It enables access to supported decision-making for everybody. Mexico City, in particular, has set a real lead in delivering on this, but I acknowledge that not all of Mexico has.
Why have I tabled an amendment that would, in effect, end detention for those with autism and learning difficulties? I feel like I must apologise to the people I have spoken to, as I did not feel able to put down another amendment—this a probing amendment, by nature—as I looked at the realistic situation. The noble Baroness, Lady Tyler, in starting our debate, referred to the extreme lack of resources. I and many others have amendments later in the Bill referring to the need for it to specify the level of resources. I am sorry that I did not feel able, even in this probing stage of Committee, to table another amendment. I would like to, and I would very much welcome the Minister’s comments on how we sit in that UN framework and whether the Government have a long-term goal to reach the kind of levels that an increasing number of other countries have attained, as I have just set out in my quick survey.
But I have to look at the reality of the statistics. I have looked at the figures in the briefing from the Royal College of Psychiatrists. The number of recorded detentions in 2023-24 is 52,500. We really have to reflect on that number. Of those, we have seen a fall, to 1,880, in the level of detentions relating to learning disability and autism—that seems a step in the right direction. We are talking about disabilities. Can we really continue, a quarter of the way into the 21st century, to detain people for their disability rather than provide them with the support they need in the community? That is a question this amendment seeks to raise.
I want to reflect on the fact—we will come back to this again and again—that people are not getting the help they need, and that is leading to the state of crisis we have now. I note in Mind’s briefing that people are crying out for help and not getting it. In June 2024, very urgent referrals to crisis teams for adults were 45% higher than a year before. I should here declare my position as a vice-president of the Local Government Association and refer to the LGA briefing, which talks about the significant resource implications for councils of the Bill as it stands as presented by the Government.
There are voices here that should be heard. We should frame this in the context of the international situation of the UN Convention on the Rights of Persons with Disabilities. That is why I have tabled this amendment. I hope we can have a constructive discussion and see some real progress here today. I beg to move.
Baroness Browning (Con)
My Lords, I declare my interest as a vice-president of the National Autistic Society and a co-chair of the APPG on Autism, and I have responsibilities for close relatives who are on the autism spectrum.
I will speak to Amendment 5 first, and to the Mental Capacity Act, which is not the Act we are looking to change but it is my contention in this proposed clause that the Mental Capacity Act has a relationship with the Mental Health Act.
There has for some years been concern about the deprivation of liberty safeguards as defined in the Mental Capacity Act 2005. They were inserted into the Mental Health Act 2007 following the Bournewood judgment in the European court which involved an autistic man whose liberty was denied, whose carers were ignored, and who had had what I can best describe as an autistic meltdown that resulted in his incarceration for a very long time.
Although the Mental Capacity Act has much to commend it, there has been ongoing concern about the deprivation of liberty safeguards—often referred to as DoLS—and I managed to obtain a House of Lords inquiry into the Act in 2013, ably chaired by the noble and learned Lord, Lord Hardie, who is in his place today. I will quote a section of the summary of that inquiry that deals specifically with deprivation of liberty safeguards. The House concluded:
“The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned”.
Baroness Berridge (Con)
I pay tribute to the work that the noble Baroness, Lady Browning, has done in relation to this matter. This is a matter that we considered in great detail in the Joint Committee. I am grateful that that gives us the opportunity to discuss in the round the legal basis on which people are detained. The independent review did not recommend what is currently in the Bill, which is the removal of learning disabilities and autism from the Act. The Joint Committee’s report quotes it saying,
“the risk of completely removing learning disabilities and autism from the Act is too high”.
The noble Baroness, Lady Browning, outlined one of the reasons for that, which is that if you remove the legal basis for detention under the Mental Health Act, then the bucket that these individuals and patients would fall into without Amendment 5 would be the Mental Capacity Act.
In the consideration by the Joint Committee, there is the other danger that—when there is no co-occurring mental health condition—you end up with people coming through the criminal justice system, instead of being detained under the Mental Health Act. That is the worst of all the evils we could be discussing here today and would be completely inappropriate.
I would be grateful if the Minister will ensure two things when we know that these are dangers: first, an increase in diagnoses of co-occurring mental health conditions to use the Mental Health Act; and, secondly, an increase in the use of the Part III criminal justice provisions. It is important that we know the exact statistics for the group with learning disabilities and autism before implementation of the Act. Then we would know whether the Act has caused an increase in diagnoses of co-occurring mental health disorders and an increase in the use of the criminal justice system.
I believe that currently 39% of people detained with learning disabilities and autism are detained under Part III of the Act. I see the noble Baroness, Lady Browning, nodding. It is important that we remember that New Zealand tried this, removing learning disabilities and autism from its mental health legislation. I cannot remember whether it had the co-occurring mental health diagnosis provision, but, only a few years later, it had to amend the law, as it had caused an increased number of learning disabilities and autism patients to come in through the criminal justice system.
What would be the position if the Bill were amended in accordance with Amendment 5? The evidence that we received in Joint Committee was that there would be no patients—that community facilities would be at a level where they could not think of anybody who would need to be detained. I wish the world were thus, but the ideal world portrayed in that way does not exist. Even with the community facilities that we all wish to exist, it seems clear to me that there would be circumstances in which there would still be a need to detain.
I recognise that, in reality, we may see that increase in diagnoses of co-occurring disorders. Physicians may reach for that to protect someone—to detain them to get them treatment. However, it was made clear to us that 28 days is a relatively short time. You can be detained for assessment, but it can take many days to get the level of distress down—I do not want or like to use the word “meltdown”—to assess the mental health of the person and whether there is a co-occurring disorder.
The Joint Committee came up with a special exceptional tribunal that would still allow the Mental Health Act to be used in that small number of cases—once community facilities are as we would like them to be—to continue detention. Why? For the reasons outlined by the noble Baroness, Lady Browning: the protections under the Mental Health Act are much greater. You have the nominated person, you can go to the Mental Health Act tribunal, and—ker-ching—you get Section 117 aftercare, which, of course, is not available under the Mental Capacity Act.
If Amendment 5 were accepted, we would have no Mental Health Act, no co-occurring diagnoses, no criminal justice system—I hope—and no Mental Capacity Act to refer to. If a clinician is in that circumstance where someone is so distressed and they do not have that diagnosis in the 28 days, where is the law? We are not talking about the practicalities here. Where is the law?
In any event, the Mental Capacity Act does not apply to under-16s. So the risk would be an increased use of what we now know as High Court DoLS. These are not DoLS under the Mental Capacity Act. They are DoLS under the inherent jurisdiction of the High Court. They are a most unsatisfactory way of restraining the liberty of under-16s.
Only two or three weeks ago, the Children’s Commissioner issued a report outlining the problem, and outlining that, already, some children with learning disabilities and autism are under a High Court DoLS. It is a matter that your Lordships’ House needs to consider. Nearly a thousand children are detained under a High Court DoLS.
Obviously, the Mental Capacity Act would have applied to 16 and 17 year-olds and adults so where does that leave those vulnerable adults? Where is there a power to detain them? The Mental Health Act and the Mental Capacity Act will both have gone. If clinicians are in that circumstance where there is no co-occurring mental health disorder, there is a vacuum which may end up being filled by the inherent jurisdiction of the High Court using vulnerable adults. We will have created another little bucket of people. I accept the criticism made by the noble Baroness, Lady Browning, about DoLS under the Mental Capacity Act. They are supposed to be replaced by protection of liberty safeguards, but those are not in force yet.
If we accept Amendment 5, are we going to create more work for the High Court with clinicians in that situation because the law will not have provided any means for them to detain? I recognise and repeat that the practicality will probably be a co-occurring mental health disorder but, as far as I understand it, that is where the law will be left if Amendment 5 is accepted.
Although the Mental Capacity Act is far from ideal, I hope the Minister can help us understand what the situation would be if we were to accept the amendment. As I say, for the under-16s it would be more cases under High Court DoLS, as far I understand it.
Baroness Murphy (CB)
My Lords, I have an amendment in this group but I want to speak particularly to the amendment from the noble Baroness, Lady Bennett, and to thank the noble Baroness, Lady Berridge, for her good sense. I agree with every word she has said.
I had earlier tabled amendments to Clause 3 and Schedule 1 to give effect to opposing any change in the definition of mental disorder for the meaning of the Act in the same way as Sir Simon Wessely’s committee recommended and I withdrew them in favour of a compromise amendment because I was not sure, to be honest, that I would get here at all today. I have. I am not quite sure how many more I will be able to get to but for the moment I am here so I will speak to this one.
I want to make it clear right from the start that if we had changed our legislation to be a hybrid Bill that was a fusion of a mental capacity and a mental health Bill we would not be in this pickle because we would have capacity-based legislation and therefore we could have proceeded without any of these silly criteria for what is this diagnosis and what is another. As the legislation is at the moment, I believe the move to remove autism and learning disabilities from what is a mental disorder is frankly bizarre, akin to having Parliament establish that for the purposes of legislation, the earth is flat and the sun goes round the earth. Galileo had the same problem. I want to ensure that Hansard will record that not everyone is in agreement with the notion that autism and learning disabilities are somehow separate and different from other mental disorders.
Neurodiversity, which, of course, exists, is the term used to describe statistical outliers from the norm and, of course, as for many other mental states, there can be many positive and interesting aspects of alternative ways of thinking about and responding emotionally to the world that enrich society. I understand that many people with autism and learning disabilities do just that and that is where neurodiversity has been so supported by people who want to ensure that they are recognised as individuals and citizens just as the rest of us are. But that does not change the fundamentals.
I know noble Lords know that I was a professor of psychiatry for many years at the University of London but I ought to mention at this point that I also have a special interest in mental health legislation because I was for six years vice-chair of the Mental Health Act Commission. I co-authored this now much revered code of practice for the 1983 Act. It is actually my only bestseller—if only it did not say Secretary of State on it—and I know first-hand how the Acts and codes are used. That is why I do not get involved in the principles of where this should be. The code does have statutory effect, by the way—I am sorry that the noble and learned Baroness, Lady Butler-Sloss, has left, because I can reassure her it does have statutory force. I was also UK advisor to the WHO on mental health and older people and was exposed to the developments in mental health legislation in other jurisdictions, not only in the UK, with the Scottish and Northern Ireland Acts as they were being developed, but in the Republic of Ireland when it introduced its new Act, and abroad in English-speaking legislatures.
Baroness Browning (Con)
The noble Baroness asked me a question. Was it rhetorical? I wonder whether she could accept that autism is different. From the time that Kanner first identified autism, which is what a lot of psychiatric bases are based on—we then had Asperger and others, and the very good, more recent documentation from Lorna Wing, with whom I am sure she is familiar—autism has been different. If people doubt that, it is important to note that, apart from the Mental Health Act, the only other condition, however you label it, to have its own Act of Parliament is autism. In the Autism Act 2009, this Parliament unanimously agreed—in both Houses—that autism is different and deserved its own Act of Parliament.
Baroness Murphy (CB)
I would say that all mental disorders are different but that they cannot all have their own Acts of Parliament. I do not accept that autism is different. Of course, it is different in the way that it manifests—
Lord Stevens of Birmingham (CB)
I will make a slightly cheeky intervention, if I may, on the noble Baroness. I am not weighing into the debate that is taking place but simply make this point. Does she accept that the fact that a condition is listed in the DSM or the ICD is not itself definitive? Until 1973, homosexuality was listed as a psychiatric condition in the DSM and until 1990 it was, I believe, included as a psychiatric diagnosis in the ICD. Therefore, that is not the strongest evidential basis for her claims.
Baroness Murphy (CB)
I agree with the noble Lord, but the reality is that we use DSM-3 and ICD-11 in the international classification of disorders. If we in Britain are to go outside that, for reasons of our own, then we had better have some pretty good ideas why that should be. I am not so sure that we have them.
The Wessely review rejected the notion because, as the noble Baroness, Lady Berridge, said, it carried serious risks that individuals would be extruded and neglected, the opposite of what is intended. Similar anxieties were expressed in the development and creation of other Acts—I am sorry that I am going to go on longer than the advisory—so as not to exclude anybody from this group, because we want mental disorder to be an inclusive thing and not to exclude whole groups of people. Their protections are gone if we exclude them.
I accept that almost all the developments for autism and learning disabilities in the Bill are very positive. They will really improve the way that people think about autism and will have an extremely beneficial effect on trying to develop services and improve training, but there is no evidence that changing the criteria under the Act will do anything to improve it. Getting money into services and service design is what we need and not a change in the legislation for criteria. As the Royal College of Psychiatrists’ group of specialists in learning disabilities have pointed out, the vast majority of them do not want this change in legislation. We should think very carefully before we submit people to something when we do not know what will be unleashed as a result.
Lord Scriven (LD)
My Lords, I wish to speak on this group; I have tabled two amendments, Amendments 38 and 40. I declare an interest as a vice-president of the Local Government Association. I also wish to share an interest which is similar to that of the noble Baroness, Lady Browning. I used to have two nephews who had learning disabilities and autism. One of them, sadly, has died—there is a statistic that people with learning disabilities and autism die, on average, at 20 years below people without them. I still have a loving, warm, neurodiverse and very proudly different nephew, who I love. I see his behaviours and the way that many people do not understand him and deal with him differently.
I listened carefully to the noble Baroness, Lady Murphy, and was going to make the exact point that, as a gay person, before 1973 I would have been defined as having a mental illness. The discussion among psychiatrists and the mental health professions at the moment is not as robust as the noble Baroness made out. Many people within the profession say that those with learning disabilities and autism are not on the mental health spectrum and should not be treated as having a psychiatric illness.
We are in a difficult position. My amendments are probing amendments to try to preclude Sections 2 and 3 of the Mental Capacity Act being used to detain people who do not meet the Mental Health Act detention criteria. It is fascinating that, in some cases where people are detained at the moment, it is not because there is a therapeutic benefit but because there are no community facilities—this is completely at odds with the code of practice. Professionals are using a lack of facility to detain people. Let us be clear: these people are detained for 4.8 years on average, in solitary confinement, and this has a lifelong detriment. They are scarred for life. Many probing amendments in this group are trying to tease out exactly what will happen and to ensure that the Mental Capacity Act is not used to detain people because provision in this country does not exist.
As the noble Baroness, Lady Bennett, pointed out, there are places, such as Trieste, where this issue has been dealt with starting from a different view: starting from what is needed, rather than this power being required because things are needed. That is the fundamental change that we need to make because, if not—I am glad the Government are moving down this path—we will continue to see people detained when they have not a mental illness or a psychiatric disorder but a development issue, which is not a psychiatric disorder. There are many papers on learning disabilities and autism by professionals who would argue that that is the case. We are all probing to try to work out what will happen.
I fully support the change to the detention criteria for autistic people and people with learning disabilities, and I believe it is key to reducing the number of autistic people and people with learning disabilities detained in mental health hospitals. But to achieve this policy intent, the Government need to make sure that a backdoor to detention is not opened through the inappropriate use of the Mental Capacity Act—detention in a mental health hospital under the deprivation of liberty safeguards instead. Without further guidance on the use of the Mental Capacity Act, the Government’s intent to reduce the number of autistic people and those with learning disabilities in mental health hospitals may be undermined.
I am concerned that the Mental Capacity Act may not be generally appropriate for use in deciding on treatment in a mental health hospital, as its primary intention is to help decide issues relating to people’s overall care and living arrangements. I am also concerned that somebody detained under the Mental Capacity Act would not benefit from procedural safeguards and access to the mental health tribunal if required.
Amendment 35 from the noble Baroness, Lady Murphy, would mean that people with a learning disability or autism could be held for six months. There could be a six-month period of detention but only in exceptional circumstances, which are not defined but are to be defined and put in the code of practice. Again, as we know, people can divert from the code of practice, so it is not the safeguard that the noble Baroness would suggest. Exceptional circumstances in a code of practice could be diverted from. Furthermore, based on the noble Baroness’s amendment, there could be a further six months for a tribunal to decide. Nowhere in here is there anything about therapeutic benefit and how that detention would be to the benefit of the individual rather than of society. So I am not clear how therapeutic benefit would be determined under the noble Baroness’s amendment.
Baroness Murphy (CB)
What does the noble Lord think will happen to the people in the gap?
Lord Scriven (LD)
As I said, the noble Baroness, Lady Bennett, pointed out what happens internationally, in Trieste in Italy, for example, and I therefore suggest that good international comparisons and practice could be enacted in legislation to ensure that the needs of as many people as possible are met in the community, rather than them being held in detention because the provision is not there. That is exactly what will happen unless this gap is dealt with by looking at what is required rather than looking at the gap and continuing detention.
Lord Hardie (CB)
My Lords, I apologise that I did not speak at Second Reading, but I have been listening to this interesting debate and it seems to me that Clause 5 is introducing the concept of detention in extreme cases, where there is a risk of serious harm to the health or safety of the patient or another person unless the patient is detained. That is the reason for the detention: to protect the patient from serious harm to himself or herself, or to protect others from serious harm.
As I read the amendment from the noble Baroness, Lady Browning, it simply seeks to suggest, or to put on the statute book, that someone suffering from autism or a learning disability would not satisfy the test in Clause 5. But the amendment permits the admission to hospital of someone with a learning disability for the purpose of assessing whether he or she has a mental disorder. I am not sure that this amendment by the noble Baroness, Lady Browning, would result in people slipping through the net.
Baroness Murphy (CB)
I wrote the amendment in a terrible hurry as a compromise amendment when I could not table the amendment that I really wished to table, which was seeking to get back to having clarity about the diagnostic criteria. I apologise if that was not the provision that the noble Lord wanted in the Bill—I am not sure that I want it very much either. I do not have any great devotion to the proposed new clause; it was just a way of trying to address this leaving of the gap. We used to do that, by the way. After the 1983 Act, noble Lords will remember that we dropped alcohol addictions and drug misuse from the Act, saying that we could not detain people for those reasons alone. What happened was that there was total neglect for the next 20 years until voluntary organisations and local authorities got moving and said, “This won’t do—we must do something”.
Noble Lords should remember that that is what happens. If you leave somebody out of protective legislation, they will not be included; they will be neglected and they will end up in prison. That is what Sir Simon Wessely thought and it is what the noble Baroness, Lady Berridge, has been talking about. I can guarantee that nobody will be interested in autistic meltdowns if there is no way in which to intervene to save a family from having that person with them, seven days a week and 24 hours a day, during the period of this terrible disturbance.
Community services are great. I urge noble Lords to visit Trieste, as it has brilliant services in a tiny area; it is one of the very few in Italy, and it continues to work very well. It is cited all over the world, and that is very good. But this is Britain, with 80 million people and massively underfunded services, and it ain’t going to happen. I want to know what will happen to those people noble Lords would like to see neglected until such time as the Government produce some alternative provision.
Lord Scriven (LD)
I do not think that I or anybody else who has a different opinion from the noble Baroness wants to see those people being neglected. We have a different view. The issue I have with her stance is that the evidence is that putting people with learning disabilities and autism in a psychiatric hospital—and that is where they will go if there is no provision, because that is where they go at present—is damaging. It is not the correct provision. I believe that what she is arguing for—to continue the neglect of provision by putting them somewhere—is significantly not in their best interests and causes damage.
Baroness Berridge (Con)
Perhaps I can clarify. I think that the noble Baroness’s amendment is to some extent based on the spirit of the Joint Committee’s report, which was about providing some kind of mechanism, after the 28 days—I am glad to see the noble Lord, Lord Bradley, nodding. There would be a specialist tribunal, and we said that it should be composed of people with experience of learning disabilities and autism, so that there was not a get-out for clinicians that they had not done the assessments properly. There would have to be grounded reasons to go beyond the 28 days and, in exceptional circumstances, you could authorise the detention, to make sure that the law covered that gap or group of people. No one wanted to see people detained for the reason that there was no community provision—that is ridiculous.
I accept that the reality is probably going to be that clinicians will find a mental disorder diagnosis to use the powers under Part II to do what is in the best interests of that person and their family at the time. But the law should also cover that situation and not force clinicians into those diagnoses—hence the need for accurate data, so that we can track what is happening when the law is enacted.
Lord Kamall (Con)
Once again, I am grateful to all noble Lords who spoke to this group of amendments. The purpose of today’s Committee is to probe the Government, but it is interesting that we find noble Lords probing each other—though I have learned a huge amount from these discussions. They say that discourse leads not only to liberty but to an increase in knowledge.
I add my words to those of the Minister and offer my condolences to the noble Baroness, Lady Hollins, who is not in her place today. I recall a debate in 2021 led by the noble Baroness—one of my first as Health Minister—in which she highlighted that people with learning difficulties and autism were being detained in secure settings, even when an assessment had recommended that they should live in the community. This goes back to the words of my noble friend Lady Berridge, who talked about how we can deal with the world as it is and not with the ideal world that we want to live in.
I was shocked at the time by what the noble Baroness, Lady Hollins, told the House about some of the findings from the oversight panel for the independent care (education) and treatment reviews. I bear in mind what the noble Baroness, Lady Bennett, said, when she gave some examples of other countries with much shorter detentions, but I will never forget the story that the noble Baroness, Lady Hollins, told about a Mr W, who had been detained in hospital for more than 20 years, spending most of his time in what amounted to solitary confinement. At the time of the debate, Mr W had been living in his own home for nearly three years, near his family, with his home environment and care being built around his needs. That is something that all noble Lords are trying to push for in this group of amendments. It was not only a heart-warming story but the point was made that, financially, it cost no more to support Mr W living in his own home than it did to detain him in hospital. More importantly, the noble Baroness shared the happy ending that, despite the trauma of being in the wrong environment for so many years, Mr W was, we hope, going to live happily ever after. That highlights the reasons for the amendments in this group.
I should add that I recall the noble Baroness who is now the Minister pushing the Government from these Benches on ending detention. I am sorry—I am going to be a little naughty here, but she can do it if we ever get back into government. She told the House that the average length of stay for people with a learning disability and/or autism in in-patient units was 5.4 years, saying:
“That is 5.4 years that no person will ever get back”.—[Official Report, 28/10/2021; col. GC 231.]
She asked how that could be justifiable when the cost of living in the community was the same as the cost of detention. I know that she is naturally sympathetic to ending these detentions. The detention of those with autism and learning disabilities was one of the central issues addressed by the Wessely review.
I was interested in Amendment 4, in the name of the noble Baroness, Lady Bennett, arguing the definition of “mental disorder” under the Bill. While I am sympathetic to the amendment, can the Minister confirm whether my understanding is correct that the World Health Organization defines a mental disorder as
“a clinically significant disturbance in an individual’s cognition, emotional regulation, or behaviour”,
and whether the WHO includes neurodevelopmental disorders, which includes autism? If so, are the Government sympathetic to Amendment 4 and considering bringing forward their own amendment? How would they avoid running contrary to the definition accepted by the WHO and included in the Diagnostic and Statistical Manual of Mental Disorders, particularly DSM-5? I understand the point that these things can change, as the noble Lords, Lord Stevens and Lord Scriven, have very importantly alluded to.
Amendment 5, in the name of my noble friend Lady Browning, seeks to ensure that, if a person has autism or a learning difficulty but not a mental health condition, we should not be using deprivation of liberty safeguards to replace detention under the Mental Health Act. We fully support my noble friend’s amendment and the intention behind it.
I am grateful to noble Lady, Baroness Murphy, who has tabled Amendment 35, for the time she has taken to share her experience and expertise with me and my noble friend Lord Howe. She addresses an issue that we should all be aware of with any legislation: that of unintended consequences. While most noble Lords here today would accept and support ending these detentions, for all the reasons that we have all given, and particularly after the harrowing stories that the noble Baroness, Lady Hollins, told all those years ago, how will the Government ensure that anyone with learning difficulties who could potentially pose a considerable risk in the community receive the required supervision? That is the challenge here, and it is the challenge to which my noble friend Lady Berridge referred when she reminded us that we have to talk about the world in which we live and not the ideal world that we all want.
I am very grateful to my noble friend Lady Berridge for sharing some of the deliberations of the pre-legislative Joint Committee, particularly on the issue of the High Court DoLS. Given that, and the point of the noble Lord, Lord Scriven, if we are to have alternatives, how do we prevent detention by the back door or opening a massive loophole for detention?
Amendment 39, from my noble friend Lady Browning, would ensure that detention was for needs associated with the degree of psychiatric disorder, along with Amendment 40. We are sympathetic to that, and I look forward to the Minister’s response.
Baroness Merron (Lab)
My Lords, I am most grateful to noble Lords across the Committee for their contributions. I will start by referring to the points raised by the noble Lord, Lord Scriven. A range of views has been expressed today on the matter of detention. The noble Lord asked what provision will be in place to ensure that we are not using some kind of backdoor, and that is a very good general question for us to hold in our heads. It is a very important matter, given the very poor outcomes we have seen for those with a learning disability and for autistic people under the current Act. I know this is something that has really exercised noble Lords—rightly so, in my view.
The noble Lord, Lord Kamall, is quite right to remind me of comments I made from that Dispatch Box, which I still stand by. I have concerns, as I know he does too. The proposals here are intended to address the matter of improving outcomes. The debate today has been extremely helpful and will allow me to reflect on where we need to go in respect of these. I am also grateful for the range of wider topics raised in this group—for example, on the importance of the community sector—and I look forward to moving on to these when we come to subsequent groups later today.
Let me first address Amendment 4 and the notice to oppose Schedule 1, tabled by the noble Baroness, Lady Bennett of Manor Castle. Currently, a person with a learning disability can be detained for treatment under Part II, Section 3 of the Mental Health Act when their learning disability
“is associated with abnormally aggressive or seriously irresponsible conduct”.
I heard what the noble Baronesses, Lady Browning and Lady Berridge, said. The noble Baroness, Lady Browning, used the word “meltdown”, and she has spoken to me about this before. I know that not all noble Lords like that word, which is why I put it in quotes, but the point is well made and the noble Baroness has explained to me about understanding a person’s conduct. It is also the case that an autistic person can be detained under Section 3 on the basis of mental disorder.
While the independent review found examples where use of the Act can deliver therapeutic benefit, it also found that hospital detention—a number of noble Lords spoke about this—can be detrimental for people with a learning disability and autistic people, due to exposure to environments or experiences that are completely insensitive to what I would call reasonable adjustments. This obviously causes stress and leads to behaviour considered to be challenging. We have heard that it is too often the case that people with a learning disability and autistic people are being inappropriately detained due to a crisis—which may be a better word in this instance—that has arisen due to a lack of community support, rather than for treatment of a mental health condition. That is unacceptable and the point has been extremely well made, both in the Chamber today and on earlier occasions.
The Government are committed to ensuring that hospital detention happens only when an individual has a mental disorder that warrants hospital treatment that has a reasonable prospect of providing a therapeutic benefit. It should not be some form of punishment. Schedule 1 and Clause 3 will change how the Act applies to people with a learning disability and autistic people by introducing new definitions for “psychiatric disorder”, “learning disability” and “autism” in the Act, and making amendments using those definitions throughout the Act. These amendments remove, for the purposes of Part II of the Act, learning disability and autism from the scope of conditions for which a person can be detained for compulsory treatment under Section 3. I hope that will be of reassurance to the noble Lord, Lord Kamall, and other noble Lords.
The noble Baroness, Lady Bennett, argued that the Bill is non-compliant with the UN Convention on the Rights of Persons with Disabilities. The measures in the Bill give patients greater choice, enhanced rights and support, and seek to ensure—I know that noble Lords want to probe this—that everyone is treated with dignity and respect throughout their treatment, and that the treatment is appropriate to the situation. It is the view of the Government that the Bill is compatible with the convention. Detention under the Act is not based merely on the existence of disability: that is something I really want to emphasise. Detention is risk-based. Detention and other compulsory measures are permitted only where they are justified by the risk posed by a person’s mental disorder and, through the Bill, I hope that we are very much strengthening the criteria for detention. We will come back to this later in Committee.
Amendment 4, tabled by the noble Baroness, would leave out Clause 3 and put in a new definition of mental disorder to remove learning disability and autism from the scope of the Mental Health Act entirely. This would mean that a person could not be dealt with under any section of the Act on the grounds of learning disability or autism alone. We very much recognise the arguments for removing these conditions from the scope of the Act, but there could be unintended consequences in the removal of critical safeguards. I know that the noble Baroness does not wish to cause that effect.
For example, the Bill retains the ability to detain people under Part II, Section 2, for a maximum of 28 days, for the purpose of assessment. That can be necessary both for the safety of the individual and the public, and for a clinician to understand fully whether a treatable mental health condition is the cause of the behaviour. I suggest that this is particularly important when considering conditions associated with high rates of co-occurring mental health conditions. Without these powers, there is a risk that the mental health needs of these groups of people are not identified or met appropriately, leading to further health inequalities for this group of people. I know that is not something that noble Lords would wish.
Baroness Barker (LD)
I have not spoken in this debate so far, but I have listened intently to everything that everybody has said, including the noble Baroness, Lady Murphy. Members of the Select Committee will remember—they could not forget—the evidence given to us by particular witnesses who have autism and have been through the trauma of being detained. They made to us, unforgettably, the point that there are some people with autism and learning disabilities for whom detention is an aggravating factor.
I happen not to agree completely with the noble Baroness, Lady Bennett, that there should be an end to all detention, although I have some sympathy with her arguments. I believe there are people for whom detention is necessary—both for them and for the safety of others—but they should be held in mental health facilities and not the criminal justice system.
I listened intently to the noble Baroness, Lady Murphy. I understand that it may be absolutely correct to define people with autism and learning disabilities as having a disorder, but we have moved on over 20 or 30 years to understanding that their manifestations and treatment are different from those of other mental health conditions. There is therefore a problem in having the diagnosis and treatment carried out by the same people. I hoped that she would explain, but she did not, why keeping people within the definition would improve their care.
Baroness Murphy (CB)
Does the noble Baroness accept that, in talking about treatment, we are talking about care, education and training in social circumstances? Treatment is not about medication, which may be totally inappropriate, but about looking at the individual’s developmental needs as a whole, which include a whole raft of things. I agree that it is not just about psychiatrists or psychologists; it can be about teachers, people with a special understanding of speech and language, and so on. I would never deny that you have to encompass the whole thing—I would promote it.
Baroness Barker (LD)
I am sure that the noble Baroness would. Does she accept that for some people, particularly those with autism and learning disabilities, being held in conditions that are noisy, filled with light and full of people they do not know—in which they are made to feel completely powerless and do not know what will happen to them next—will be a contributory factor to their illness? I make that point to the noble Baroness, Lady Merron. She talks about choice, but what increased protections are there in this Bill for people with autism or learning disabilities who find themselves in detention, which is an aggravating factor causing them to be wrongly diagnosed?
Baroness Merron (Lab)
I will be pleased to come back to that point. I think agreement broke out for a moment, which I would share, on the fact that detention takes many forms. It is about getting the right form and being sensitive to the needs of the individual, which is what the Bill is all about. I am grateful for those comments.
To pick up my point about the expert consultation that has taken place, a decision was taken to retain the ability to divert people who are autistic or have a learning disability, who have committed a crime, from prison to hospital under Part III of the Act. Without this safeguard, the only alternative to detention in hospital is detention in prison. Noble Lords have referred in this group to how, often, this would be inappropriate in meeting those people’s needs and would exacerbate and manifest distress. On balance, we believe it is right to retain the ability to divert such patients to hospital, where they are much more likely to access the right kind of support and care that they need.
The noble Baroness, Lady Bennett, raised concern about resourcing implications for local authorities. I refer her to the impact assessment, which sets out anticipated costs, including a breakdown of costs for councils. I assure her that we will do further work with MHCLG to assess any new burdens on local authorities created by the Bill. We are very alive to that situation.
Baroness Browning (Con)
The Minister will not be surprised to hear that I like what she just said. Is there no way she can put that in the Bill under a government amendment?
Baroness Merron (Lab)
I am grateful for the invitation, as always. Government amendments will be considered as we progress through Committee, but I say that as a broad point, as I know the noble Baroness understands.
The intention of the provisions in the Bill on registers and commissioning is that people with a learning disability and autistic people are not detained but supported in the right way. The proposed changes to Part II, Section 3 will be commenced only where there are strong community services in place.
Baroness Berridge (Con)
I am aware of how much time the Minister has given and how generous she has been in allowing interventions. If she is minded on Amendment 5, can she outline whether she is proposing that there would be the special tribunal that the Joint Committee outlined? If so, how would she then deal with these issues for under-16s in respect of DoLS and for vulnerable adults? When there is no legal basis at all, it is then left for clinicians to detain anybody after the 28 days.
Baroness Merron (Lab)
I became a little worried, listening to the noble Baroness, Lady Berridge, that perhaps I had been a bit too generous.
Baroness Merron (Lab)
I am sure that I have not been generous enough. I cannot give a commitment to government amendments on any of these areas. As noble Lords will be aware, that is the purpose of the kind of debate that we are having in Committee. However, we will certainly return to these matters.
The Mental Capacity Act protects people subject to arrangements that may amount to a deprivation of liberty in hospitals, care homes and other settings, by allowing a deprivation of liberty only when it is necessary and proportionate. There are instances when it is important that the Mental Capacity Act can be used to protect and to safeguard people where appropriate, and we do not want to lose that aspect.
The concern about the amendment is that it might have the effect of undermining decision-making, or of denying a specified group of people the right to protections under the Mental Capacity Act—although I know that this is not intended. I will give an example. Where a person lacks capacity but does not have a psychiatric disorder that requires treatment, there may be elements of that person’s care plan and arrangements that require deprivation of liberty safeguards to ensure that they can access the community safely and maintain a safe home environment. Similarly, certain specialist community placements are also registered hospitals, so the proposed amendment could unintentionally—I stress “unintentionally”—remove such provision as a viable community-based option, where the individual lacks capacity but would benefit from this placement as an alternative to in-patient care.
The noble Baroness, Lady Berridge, rightly made some comments about the statistics for LDA detention rates. I assure your Lordships that the data and statistics being referred to are absolutely key. They are collected and published, and they will continue to be monitored. If there are any matters where the noble Baroness or other noble Lords feel that we should go further, I would be very pleased to receive their comments.
On the point raised by the noble Baroness, Lady Berridge, about the use of High Court deprivation of liberty safeguards for children, I will refer to the action of the previous Government, which I hope will be seen as very helpful. In 2023, a task and finish group was established called “Improving cross-sector support for children in complex situations with multiple needs”. It was made up of a number of central government departments, operational local agencies and representative bodies, the NHSE and the Youth Custody Service to represent the voice of children and young people, as well as the Children’s Commissioner. This group has been developing a cross-sector response to help ensure that there is suitable provision in place for children and young people with complex needs who are at risk of being deprived of their liberty. To that point, I will take a particular interest in the task and finish group and its work, and we may come back to it.
Baroness Barker (LD)
I thank the Minister for giving way again. Listening to the noble Baroness, Lady Browning, set out and explain her amendments, it seems to me that they require the people making the decisions about whether to detain somebody to be clearer about which law they are using to decide to detain at a particular point for a particular person. As I understand it, they are not excluding or preventing the use of either bit of legislation for an individual; they seek just to have greater clarity about which legislation is being used and why, and therefore what protections the person will have. The Minister said that, if these amendments go through, some people will, somehow, be excluded from the correct treatment. Is there a particular group of patients or conditions that are at risk if the amendments tabled by the noble Baroness, Lady Browning, are implemented? Can the Minister give us some examples? Otherwise, I fail to see the logic of what she is saying, given the explanation that the noble Baroness, Lady Browning, gave the Committee.
Baroness Browning (Con)
I agree. The amendment seeks to strengthen and to clarify, rather than to make changes that would be completely different to what is intended in the Mental Capacity Act.
Baroness Merron (Lab)
I am grateful for the noble Baronesses’ comments. I will come back with some examples before I sit down, because that is a very good suggestion. If I fail to do so, I will gladly provide them in writing.
Amendment 35, tabled by the noble Baroness, Lady Murphy, intends to provide a route to detain people with a learning disability and autistic people who do not have a diagnosed psychiatric disorder. Detention could be authorised only with the approval of the tribunal in “exceptional circumstances”, with power to provide guidance on what those circumstances will be in the code of practice. The amendment seeks to address the needs of those with a learning disability and autistic people, with whom I know the noble Baroness is concerned, where a considerable risk is being posed in the community, but who do not also have a diagnosed psychiatric disorder warranting detention for treatment under Part II, Section 3.
Our clear intent throughout the Bill is that people should be detained beyond Section 2 only when they have a psychiatric disorder that requires hospital treatment. It is our feeling that this amendment runs contrary to that intent. I am also grateful to the noble and learned Lord, Lord Hardie, for his comments on Amendment 35.
We also have some concerns about the scope of the “exceptional circumstances”, which would potentially result in a position no different to the current effect of the Act. It is unclear, in advance of the code of practice being developed, how broadly this might be defined. There would be considerable scope for different, divergent approaches in comparable cases, which, again, I know is not the intent of noble Lords.
Baroness Merron (Lab)
I am sure that the noble and learned Baroness’s yawn speaks for many.
Baroness Merron (Lab)
There is no need to apologise.
I am pleased to provide the reassurance that the proposed changes to the Section 3 detention criteria mean that it would no longer be possible to detain someone with a learning disability or an autistic person under Section 3, unless they have a psychiatric disorder. Additionally, the Act already requires a statement of rationale for detention and statutory forms. The registered medical practitioner will have to confirm that the patient meets the criteria for detention, including that they are suffering from a psychiatric disorder requiring hospital treatment and not just that the patient has a learning disability or is autistic. I hope that will be of reassurance to the noble Baroness.
For the reasons I have set out in respect of all the amendments—I thank noble Lords for them—I ask the noble Baroness to withdraw hers.
Baroness Bennett of Manor Castle (GP)
I thank the Minister for her rich and full response, and indeed all noble Lords who have taken part in this important debate. It has been long but that has been quite necessary. I thank the Minister particularly for responding directly to my question about the UN Convention on the Rights of Persons with Disabilities. I do not agree with her response but I appreciate that she engaged fully with it, so I thank her for that.
I will not go through and summarise all the contributions, but I just want to make two points, which are perhaps specifically directed to the noble Lord, Lord Kamall, and the noble Baroness, Lady Murphy. A phrase which has been missing from our whole debate is the “social model of disability”. That is the idea that society is discriminatory, and that people are disabled by the barriers in society, not by their difference. That position was endorsed by the Government Equalities Office in 2014, and so far as I know, that still holds, and it is preferred by most disability charities.
I invite noble Lords to consider another phrase in this healthcare space, which is “parity of esteem”. I think that when we come to the social model of disability and physical disabilities, most people have now accepted that if there are only steps and not a ramp, that is a failure of society, not the failure of the person in the wheelchair. However, we have not heard in this debate an acknowledgement of the same parity of esteem—the same approach to mental disability as we have accepted towards physical disability—and we should consider and think about that.
In that context, just to pick up a couple of points from the Minister, she talked about how people with autism or learning difficulties can be detained for aggressive or irresponsible conduct. The Trieste model—if I can call it that—which is being adopted by many countries around the world, asks: “Can we intervene before that point and ask what has provoked that person? Can we intervene before we need to detain someone?” That needs to be very carefully considered.
The other point that the Minister addressed, which I confronted myself with, asking why I did not table the broader amendment that I might have done, is what happens when people get to the point of being a danger to themselves or—I stress that this is extraordinarily rare—a danger to others as a result of a mental disorder. Again, how did people get to that point, and should there not be services and support and community wraparound in the Trieste style? I do not think that any nation or area is saying that it has totally got to that point, but surely we should be aiming at that.
Lord Kamall (Con)
The noble Baroness referred to the Trieste model, and I thought that led to quite a deal of interest from noble Lords across the House. Could she share some details on the Trieste model with other noble Lords but especially the Minister and the department, so we can all start learning those lessons?
Baroness Bennett of Manor Castle (GP)
I should absolutely stress at this point that I am not an expert, but I will certainly do my best to secure as much information as possible and share it with all noble Lords. The Minister may also have access to resources that may not be available to me. Reflecting on the intervention of the noble Lord, Lord Kamall, perhaps we could even arrange some kind of discussion—it might be useful—and perhaps even hear some testimony, because that would really inform our consideration of the Bill. But in the meantime, I beg leave to withdraw the amendment.
Baroness Barker
“(iv) housing”Member’s explanatory statement
This amendment ensures that housing needs are considered as part of care, education and treatment review meetings.
Baroness Barker (LD)
My Lords, since this is the first time during our proceedings that I propose something, I declare an interest as a member of an advisory panel for Rethink Mental Illness in an unpaid capacity.
I apologise if I risk sounding like a broken record; it is just that I have been here discussing these issues so many times in the past, as indeed have many other Members of your Lordships’ House. I will not apologise for taking a long-term view of things or for saying that there have been areas of change and areas of progress. But I also do not apologise for explaining to your Lordships the amount of effort and discussion that it has taken to bring about change and movement, not least against some of the entrenched views of the professions, which over the years have put up quite a deal of resistance to change.
It is also our job to look at the proposals that have come forward from patients’ groups and say that some of them are valid and some of them are not. We are in a unique and very privileged position in this House where we get to take a long-term and wide perspective, and we should use it wisely.
I say that because we have debated care and treatment plans time and again. Mental health institutions up and down the country are littered with files of care and treatment plans, many of which have sat on shelves and never been implemented. With this legislation, we are moving to the position we need to get to where everybody who is subject to mental health treatment has a care and treatment plan, the decision-making behind that plan is open to scrutiny, and the people responsible for delivering it are held accountable.
I cannot imagine what it must be like to sit day after day in a place where I know I am supposed to be given treatment that will enable me to get better and get out, and to receive nothing. I imagine the temptation to sit there and think about that all day long is in itself is a gravely depressing factor. That is the sort of thing that we have listened to over the years from people—particularly young people—who have been subject to mental health treatment and care plans and never had them delivered, so how pleased we are to have moved forward to this point. I am also very pleased that Members are trying to take this opportunity to beef these plans up, in particular the accountability around the delivery or failure to deliver them.
I want to include housing in the Bill. You do not have to have a mental health condition to be severely worried about housing these days. Any young person in this country can have real concern about availability of housing, tenure and all the rest of it. If you have a mental health condition and are likely to be detained for an indefinite period, and therefore very likely to lose your tenancy or whatever, that must be a huge aggravating factor.
One reason why I was prompted to table this amendment was because I was on the pre-legislative scrutiny committee for the then Bill back in 2006. Somewhere there is an unwritten law that, when mental health legislation is coming up, Members of this place will be sent to the South London and Maudsley. There is no way out; you have to go. But it is always good to go to SLaM to talk to the staff, who are immensely generous with their time. You cannot go on one of those visits and walk out unchanged from the experience.
I remember, in particular, a bunch of your Lordships going to talk to one of the best teams that I have seen in practice. Back in those days they were called an assertive outreach team; I do not know what they are called these days. They were absolutely brilliant, dedicated individuals. Their job was to work with people out in the community, to know them all and to predict the problems that would arise. One thing I remember them telling us was that they would frequently go to the local authority or to landlords when they had somebody whose particular crisis was that they had got into arrears. They would head it off by negotiating and de-escalating the situation so that the person did not get turfed out and therefore end up in acute care.
Similarly, we know that discharge is a lottery for anybody who goes into any acute hospital for any reason at all. Discharge from the NHS is one of those things that when it goes brilliantly, it goes brilliantly. When it does not, it is an absolute and utter disaster, and the person at the centre of it has absolutely no control over it at all—even less, I would suggest, when they are being discharged from mental health treatment.
Lord Scriven (LD)
My Lords, I shall speak my Amendments 8, 11, 15, 18, 19 and 20 in this group. They are to do what my noble friend Lady Barker said: to try to beef up the care (education) and treatment reviews, because something is amiss. As my noble friend said, too many of them are sitting on stuffy and dusty shelves, and not enough people get access to them to be able to advocate for and follow through on them.
Amendments 8 and 15 are important regarding the people who are legally entitled to receive a copy of the care (education) and treatment review. I support the amendment from the noble and learned Baroness, Lady Butler-Sloss, to add the parent and guardian, which was an omission. Currently, the Bill provides for a copy to be sent only to the responsible commissioner, the patient’s responsible clinician, the ICB and the local authority. To ensure that the patient and their family, carer and advocates are fully aware and informed of the decisions being made around their care, can hold services to account and can follow up on the care and treatment plan recommendations, it is essential that they too receive a copy of the report.
These amendments would ensure that the patient, the patient’s nominated person and the patient’s independent mental health advocate receive a copy of the care and treatment report. I note that the Minister has tabled an amendment setting out that a copy of the report “may” be given to other persons, but this does not place a strong enough duty to involve the patient and significant others to ensure that adequate oversight of the care and treatment review reports is available to them.
Amendments 11 and 18 reduce the maximum time between the reviews from 12 months to six months for adults and children. This is in line with the recommendation of the Joint Committee on the Draft Mental Health Bill. According to NHSE data, 24% of autistic people and people with learning disabilities detained in mental health hospitals have been waiting for more than one year for a CETR or have no CETR at all, and 31% have had the date of their next scheduled CETR pass or have no scheduled CETR at all.
We know that autistic people and people with learning disabilities face lengthy stays. There must be a drive to discharge these people. The idea that we would have a CETR only every 12 months to help prevent a lengthy stay shows how worryingly normalised long lengths of stays have become for these individuals. In many cases, a maximum interval of 12 months may be too long and mean that autistic people and people with learning disabilities face delays to their discharge planning. The current frequency of CETRs in the Bill is not in line with NHS England’s policy, which states that, for adults, CETRs should be held at a maximum frequency of six months.
Amendments 19 and 20 seek to ensure that the recommendations of CETRs are followed through. This is essential to ensuring that the needs of individuals are being met and that steps are being taken to prepare for their discharge. Often, the recommendations arising from CETRs are constructive, and those attending may leave with the impression that the right steps are being taken. However, the frequent failure to carry out the recommendations arising from these reports undermines faith in the process and can lead to unnecessary delays in an individual’s needs being met and in their discharge.
CETRs, which are essential to providing safeguards for autistic people and people with learning disabilities under the Bill, are important. Their being undermined cannot be allowed. The current language in the Bill for the responsible clinicians, commissioners, integrated care boards and local authorities says that they must “have regard” to the recommendations. I believe that this is too weak. Legally, the definition of “regard” is that a public body must consider something and, once it has been considered, has discretion to carry out or ignore it. A duty in law is an obligation and must be followed, and the reason why it has been followed must be given. These amendments would substitute “regard”—the weaker definition—for “a duty” to carry out these actions unless a compelling reason is provided for why this is not possible. This follows a similar recommendation from the Joint Committee on the Mental Health Bill, which stated that ICBs and local authorities should be required to “follow” recommendations in reports—that is, have a duty.
Baroness Butler-Sloss (CB)
My Lords, I should like to speak to Amendment 9, following on from the noble Lord, Lord Scriven, on Amendment 8.
We are dealing with the responsible commissioner making arrangements for the care (education) and treatment review meetings and the report. I do not know whether I am a lone voice speaking in this House but I am a mother and a grandmother, and there is not a single word in any part of this Bill about parents or guardians—not a word. I could find references to parental responsibility only in new Schedule A1 and Schedule 2, although I may be wrong.
Can I just suggest something to noble Lords? Where you have a child—here, I am dealing specifically with a child—with autism or physical or mental disabilities, it is quite probable, if not most likely, that that person will be living with their family and their parents. I must say, my experience as a family judge led me to believe that only about 5% to 10% of parents who came through the courts were not suitable to look after their children full time. But according to Clause 4—which inserts new Section 125A—the one group of people who will not be told what the future care (education) and treatment review given to their child will be includes the people with whom that child has been living for all their life. I cannot understand why this Bill seems to think that parents, guardians and other people with parental responsibility do not matter. That is why I have raised this issue. I feel intensely strongly about it, as a mother and a grandmother.
Baroness Bennett of Manor Castle (GP)
My Lords, I shall speak very briefly, having attached my name to Amendments 19 and 20. I support all of the previous amendments, which are in essence about people knowing about care and treatment review plans. I particularly wanted to sign these two amendments because of the clause identified by the noble Lord, Lord Scriven, and the noble Baroness, Lady Hollins. It states that integrated care boards and local authorities “must have regard to” the plan—as the noble Lord outlined, that is a very weak, weaselly form of words—rather than having a duty to deliver the plan that has been established for the well-being and health of a person. The phrase in the Bill now really is not adequate.
I want to share something with noble Lords. On Friday night, I was in Chorley, in Greater Manchester, at a meeting with the local Green Party and NHS campaigners. One of the things I heard there was a huge amount of distrust and concern about integrated care boards and the restructuring arrangements that have happened with the NHS. I am not going to get into those issues now but, with the words “must have regard to”, we are leaving an open door and a door to distrust. Surely the right thing is for this Bill to say that the ICB has a duty to deliver a care plan.
On Amendment 20, we will undoubtedly talk endlessly about resources, but that there must be a compelling reason is the right terminology to have in the Bill; it really has to be justified. I believe that both of these amendments should be in the Bill.
Baroness Tyler of Enfield (LD)
My Lords, I will speak to Amendment 13 in my name in this group, but wish to add my support to the amendments that have already been talked about: those in the names of my noble friends Lady Barker and Lord Scriven, and the very important amendment in the name of the noble and learned Baroness, Lady Butler-Sloss. I have experience in my wider family of someone with autism, so I know full well the importance of having the parents and the wider family involved in review meetings. Frankly, it would be very difficult indeed if they were not there for those review meetings to express the wishes and preferences of the individual concerned.
I guess that that is quite a helpful link to my amendment, which is about communication needs. I know that we explored this issue pretty thoroughly in our debate on the first group—you could argue that my amendment could have been in either the first grouping or this grouping, but it is in this grouping. I will keep it short, because we have talked about this quite a lot. In essence, the amendment is designed to ensure that communication needs being met is included on the list of the subject matter that must be considered and on which recommendations must be made during the care (education) and treatment review meetings.
It is clearly vital, as we have all acknowledged, that every effort is made to ensure that autistic people and people with learning disabilities are involved in their own care and treatment decisions and are able—this is the critical point—to express their preferences and needs. To ensure that this is the case, their communication needs must be understood, considered and met; the noble Lord, Lord Kamall, made that point powerfully in our debate on the first group. Often, this needs to include understanding a person’s communications preferences; having the right sort of environment; making sure that the environment is supportive; or, sometimes, using very specific communication tools, which do exist. This can also include—this refers to the amendments from the noble and learned Baroness, Lady Butler-Sloss—the involvement of a person who knows and understands the patient well, quite often a family member or advocate. That can be key to meeting someone’s communications needs.
I am sure we all agree that care and treatment reviews need to be designed to ensure that the person affected is central to the decisions being made about their care and treatment. It is therefore absolutely self-evident that communications needs should be considered and discussed at the beginning of those meeting to ensure that the person concerned is able to express their thoughts, wishes, feelings and preferences, so that everyone involved in the care and treatment of individuals is equipped to meet those moving forward.
I am very supportive of the amendment tabled by my noble friend Lord Scriven which would lengthen the time between reviews from 12 months to six months. I think 12 months is just too long. An awful lot can happen in that period and circumstances can change. I know that we have a subsequent group on care and treatment plans, but on the point made by my noble friend Lady Barker, it is important to think of the individual in a fully joined-up way, looking at housing needs as well. I know that we are going to return to it in a subsequent group, but it vitally needs to include things such as money matters, debt advice, ensuring that the individual does not fall into financial exclusion and all of that. I have put my name to an amendment on that in a later group.
Baroness Watkins of Tavistock (CB)
My Lords, I support the amendment in the name of the noble Baroness, Lady Barker, with relation to housing. I do not want to go back 20 years for any reason except to say that, when we were closing the vast majority of mental health in-patient beds, the main aim of many of us doing those change programmes was to ensure that people had somewhere to live when they had been living in hospital for 10, 20 or, in some cases, 30 years, and that the housing had to be appropriate to their level of ability. Spending 30 years in a hospital does not exactly teach you self-reliance. There are some real challenges about that, so housing must be considered in any discharge planning.
On Amendments 19 and 20, the noble Baroness, Lady Hollins, has sent me a copy of her speeches in her absence. Like others, I think that it shows her commitment to this House that at this point in her life she is trying to make sure that her voice is heard. I add my condolences to those of others in the Committee. Her point is that you would not discharge people from acute hospital without some proper care and treatment plan. I want to use my own words rather than hers, but when you say that somebody needs dialysis or that they need regular checking of their heart monitor, we automatically do it. Elective care is still getting a huge amount of focus, but elective care in this country is defined as acute hospital care, not elective care for mental health patients and people with learning disabilities. I want to rest it there, but that is why I support Amendments 19 and 20 so strongly.
Lord Stevens of Birmingham (CB)
I too am supportive of the spirit and intention behind Amendments 19 and 20, but I want to raise two textual questions relating to whether they would give effect as was intended.
In respect of Amendment 19, I am not sure that the explanatory statement accurately characterises what the amendment proposes. It says that the amendment ensures that ICBs and local authorities would
“have a duty to carry out”,
whereas at the point at which those words would be inserted it appears that the duty would also then fall to the patient’s responsible clinician. Amendment 19 by itself would essentially see CETRs overriding the judgment of the responsible clinician, which I think is quite a significant step to take.
In any event, I wonder whether Amendment 20 undoes any of the good work that Amendment 19 proposes in the first place. It says that you can ignore the exhortations of Amendment 19 if there is a “compelling reason” to do so. My question to the drafters of Amendment 20 would be: what statutory interpretation should be placed on “compelling reason” and how might the courts be expected to adjudicate in the event of judicial review?
Lord Bradley (Lab)
I support and have added my name to Amendment 13, tabled by the noble Baroness, Lady Tyler, around communication issues. As she rightly pointed out, this could have been linked to Amendment 2, which has already been debated at some length. I will not repeat the same arguments, but they apply to this amendment, which is why I support it.
I also very strongly support the amendment on housing tabled by the noble Baroness, Lady Barker. I am chair of NHS England’s health and justice advisory board and have worked on the development of RECONNECT, the service to support people coming out of prison back into the community, which is very much a health-based initiative. Unless their housing needs are met at that point, their treatment, their support and their care plan can fall apart very quickly. Consequently, they are very quickly back in the criminal justice system. The same comparison can be made with this amendment. I strongly support housing being at the core of all issues relating to health and social care.
Baroness Berridge (Con)
My Lords, I rise to support the noble and learned Baroness, Lady Butler-Sloss, on Amendment 9. I know that there are other amendments in relation to the inclusion of parents and guardians. I raise just two small points in relation to this.
When one looks at where this amendment is inserted in the list, the last of the persons currently listed who would receive the report is
“the local authority in whose area the patient is ordinarily resident”.
That potentially will not always be the local authority where there is a care order. Therefore, in those circumstances, the local authority is caught with an
“other person who has parental responsibility”.
However, that is not how this is drafted in other parts of the Bill, where an
“other person who has parental responsibilities”
means guardians et cetera. For consistency of drafting, we need to look at that.
I know that the Minister has been very generous in the time that we have had with her and her officials, but we need a consistent phraseology within the Bill because with this amendment, if there was a special guardian the report would also go to the person with what is informally known as residual parental responsibility. Normally they are informed only, for instance, of the change of name of the child or if the child is going to leave the jurisdiction. We need to look at everybody with parental responsibility and have some consistent phraseology within the Bill when we are meaning the local authority when there is a care order and parental responsibility, to include all the different circumstances in which a child may have their status changed from the ordinary situation of living at home with parents when a court order is in place.
The Earl of Effingham (Con)
My Lords, this group of amendments aim to strengthen provisions for care (education) and treatment reviews—CETRs, as we have heard—for individuals with autism or a learning disability. These amendments collectively aim to address gaps in the current drafting and ensure that the needs and rights of these individuals are fully considered and respected.
This reflects the dignity, respect and patient-centred care principles that strengthen the Bill. Amendments 6 and 12, in the name of the noble Baroness, Lady Barker, highlight the importance of considering housing needs during care (education) and treatment review meetings. A stable, safe and appropriate home environment is a critical determinant of mental health and well-being. Failure to address housing can undermine the effectiveness of care plans, leading to avoidable crises, as the Minister put it earlier, and setbacks that can risk damaging the long-term success of these care plans. Can the Minister please clarify how housing needs will be integrated into the CETRs under the current provisions of the Bill?
Amendments 8 to 10 and 15 to 17 focus on ensuring that the CETR process is inclusive and transparent. These amendments expand the list of those who should receive CETR reports to include the patient, their nominated person, independent mental health advocates and, where relevant, their parent or guardian. These measures should help foster trust and collaboration in the care process and create a more holistic approach to care planning by ensuring that all key individuals are kept informed. Can the Minister please confirm whether the current drafting of Clause 4 sufficiently addresses these inclusivity concerns or whether these amendments are necessary to achieve that goal?
Amendments 19 and 20 address the issue of ensuring that recommendations from CETRs are acted upon. It is not enough for reviews to generate reports and recommendations: there must be a clear and enforceable duty on integrated care boards and local authorities to act on them. Amendment 19 would strengthen this by replacing the current requirement to “have regard to” recommendations with a “duty” to carry them out; while Amendment 20 ensures that “a compelling reason” must justify any deviation from these recommendations.
These amendments reflect the frustration often experienced by patients and families when well-intentioned recommendations are not implemented. A stronger duty to implement recommendations would not only improve outcomes but restore trust in the system. Can the Minister outline how the Government intend to ensure that recommendations from CETRs are indeed implemented effectively?
Amendment 13 highlights the importance of addressing communication needs during the CETR meetings. It is highly welcome that the issue of communication and language has been addressed by so many noble Lords. Effective communication is essential for patient-centred care, ensuring that patients can meaningfully participate in that very care. Ensuring that individuals’ additional or alternative communication needs are met is not merely a courtesy, it is a necessity and a must-have. This group of amendments highlights the importance of a holistic, inclusive and accountable approach to care and treatment reviews. They seek to ensure that the needs of patients, including those related to housing, communication or support networks, are fully recognised and addressed. They also emphasise the need for timely reviews and actionable recommendations backed by clear accountability mechanisms.
His Majesty’s Official Opposition are broadly supportive of the aims of these amendments, and we look forward to the response from the Minister.
Baroness Merron (Lab)
My Lords, I am grateful to noble Lords for their amendments and contributions today. It seems a while ago that the noble Baroness, Lady Barker, originally spoke, but I put on record that I hear her frustration about having been here before. I certainly acknowledge that; and I am grateful for the contribution and time that noble Lords have given to this really important matter, so that perhaps, finally, we will not have to keep going where we have been before.
Baroness Butler-Sloss (CB)
I entirely understand what the Minister has just said, although I do not agree with her, but the point she made about other persons is not contained in the clause that I was complaining about.
Baroness Merron (Lab)
I am grateful to the noble and learned Baroness for making that point, and I will gladly review this in the light of it.
To return to the specific amendments, they would ensure that the patient, the patient’s nominated person, the independent mental health advocate and the parent, guardian or other person with parental responsibility receive in all cases a copy of the report following a care and treatment review meeting—or a care (education) and treatment review meeting for children and young people. The current drafting of the Bill is intended to make clear that a copy of the review report must be provided to those who have a legal duty to have regard to the review recommendations, so that any recommendations are implemented as appropriate.
We recognise that there may be individual circumstances that mean it is appropriate for the report to be provided to other people, including the patient themselves. For children and young people, this report is most likely to be shared with a parent, guardian or other person with parental responsibility, but it is important that the legislation does not inadvertently create a legal requirement that must be complied with, which would not be appropriate for every person.
A longer list of people with whom the report must be shared, in every case, may increase the chance of an individual withdrawing the consent for a review to be held if they do not wish for some or all the people to see the report. There may also be circumstances in which the report should reasonably be shared with other people in addition to those set out in the amendments—for example, a family member who has been part of the review process with the patient’s consent but is not the patient’s nominated person or someone with parental responsibility.
We have tabled a government amendment to make it clear that the arrangements may include provision authorising or requiring a copy of the report to be given to other persons, so that the patient may also ask that a copy be provided to others or decide to provide it to others. Statutory guidance will help assist the responsible commissioner when exercising its functions, including when considering other persons who are to receive the report. We wish to allow flexibility for this, so that individual circumstances can be taken into account based on the needs of the patient and their wishes, rather than by providing a prescriptive list of people to whom the report is to be sent in every circumstance.
Lord Scriven (LD)
For clarification, is the Minister therefore saying that the Government’s amendment will lead to some statutory instrument, or will it be just at the discretion of the Minister to determine a list and change it without any scrutiny?
Baroness Merron (Lab)
I am approaching this without going down the amendments’ route of having a fully prescriptive list, which might have unintended consequences.
Lord Scriven (LD)
I really need to understand the intent of the Minister’s Amendment 17
“authorising … a copy of the report to be given to other persons”.
How do the Government intend to draw up that list, to change it and to make it public, so that people know that they are appropriate persons and might be able to get the report?
Baroness Merron (Lab)
I hope it helps to advise that the responsible commissioner will be key to all that. I emphasise the need to design around the patient and their needs. If there are further points that I need to look at on this, I would be very pleased to. I am grateful to the noble Lord for raising it.
Amendments 10 and 17 are technical and minor government amendments that make it clear, for the avoidance of doubt, that the responsible commissioner may make arrangements for a care and treatment review report—or a care (education) and treatment review report for children and young people—to be provided to persons other than those listed in the clause. They could, for example, be those who have an interest in the recommendations because they are involved in the review process, such as an independent mental health advocate, a nominated person or a professional involved in the patient’s care and treatment. This would be subject to the patient’s consent. We believe that this is important to clarify, since the review process is likely to involve more people than those who are listed in the legislation, although this will vary according to the individual and their needs and circumstances.
In addition, the Bill makes specific provision to clarify which persons and bodies are to receive the report in every case to ensure that they can comply with their duty to have regard to the review recommendations. I hope that these government amendments find favour with noble Lords.
Amendments 11 and 18 were tabled by the noble Lord, Lord Scriven, who raised the point that around a third of people have no CETR or CTR. My response is perhaps to provide the assurance that that is exactly why we are putting them on a statutory basis. It seems that Amendments 11 and 18 are intended to reduce the maximum amount of time between CTRs for adults and CETRs for children and young people from 12 months to six months following a patient’s initial review meeting. These amendments would apply to children and adults.
I listened closely, as I have listened closely to all comments from noble Lords, but we believe that these amendments are somewhat unnecessary. Current drafting provides that review meetings take place at least once in a 12-month period, in line with the maximum timeframe within NHS England’s policy and guidance. This is in addition to the requirement that arrangements must be made for everyone to have a review promptly upon admission, within 14 days for children and 28 days for adults. Commissioners should use their judgment to determine the frequency of subsequent reviews, in line with the specific needs of the patient. Patients, their families and advocates can also request a review meeting at any point.
There will be statutory guidance to provide commissioners with further information on factors to consider when determining whether more frequent reviews should take place. I understand the noble Lord’s point, but I hope that helps. For example, it is current practice that children under 18 have a review meeting every three months, and this would be articulated in the guidance. We consider it preferable to set out this information in statutory guidance, which can provide detailed case studies. That would not be possible if we set it out in the same way as primary legislation, not least because guidance can be readily updated in line with emerging best practice, including on frequency and considering particular circumstances.
Lord Scriven (LD)
I have listened very carefully to the Minister about flexibility. Why is 12 months in the Bill? All I am trying to do is to change a statutory timeframe that the Government have put in the Bill to six months. That flexibility is not there because 12 months is in the Bill. I am trying to move that fixed point from 12 months to six months, regardless of what guidance says.
Baroness Merron (Lab)
Yes, I understand the intention, but I refer back, perhaps usefully, to the point I made earlier that review meetings would take place at least once in a 12-month period; it is not a maximum—I think I have got it the right way round. It will be at least once in a 12-month period; it is not that it can be only once in a 12-month period. That is, as I said, in line with the maximum timeframe in NHS England’s policy and guidance.
Amendment 13 tabled by the noble Baroness, Lady Tyler, relates to care and treatment reviews. The amendment seeks to ensure that a patient’s review makes recommendations about ensuring communication needs are met where there are additional or alternative communication needs. That is something we discussed very constructively in the first group and it was referred to by the noble Earl, Lord Effingham. We believe that current drafting already provides for that in the Bill.
As set out in the clause, those meetings are to review any needs of the patient for social care or medical treatment and can make recommendations about whether and how those needs can be met. This should include recommendations about the patient’s communication needs, which may be important in ensuring that their treatment is effective and to support their discharge from hospital. As set out in the clause, a number of named persons and bodies are to have regard to the recommendations of the review. That will give them the appropriate legal weight to ensure that they are considered and that there must be clear reasons if they are not taken forward.
The Bill also introduces statutory care and treatment plans for all patients detained under the Act, excluding those under short-term sections. We plan to set out the required contents of the statutory care and treatment plan in regulations. It is our intention that this includes information about communication needs to enable the treating clinician to consider the protected characteristics and individual needs of the patient, which speaks to the point I made in the first group to my noble friend Lady Whitaker, and to make reasonable adjustments. Regulations will also require that the report from a patient’s care (education) and treatment review is attached to the care and treatment plan so that recommendations are included as part of this.
Finally, I turn to Amendments 19 and 20, tabled and supported by the noble Lord, Lord Scriven, and the noble Baronesses, Lady Hollins and Lady Bennett. These amendments seek to ensure that there is a duty on integrated care boards and local authorities to carry out recommendations from a patient’s CTR, or CETR if the patient is a child or young person, unless there is a compelling reason provided for why a recommendation cannot be carried out. I thank the noble Baroness, Lady Watkins, and the noble Lord, Lord Stevens, for their differing but nevertheless significant contributions.
These review recommendations should be given the appropriate legal weight to ensure that they are given serious consideration. We have decided to include these provisions in the Bill to put the existing NHS England policy on a statutory footing.
The duty to “have regard” is a well-established duty that clinicians, ICBs and other public bodies are used to applying and it already exists within the Act. The noble Earl, Lord Effingham, asked how the Government will ensure that these recommendations are implemented effectively. I hope that my comments will assist the noble Earl. Where effective care and treatment is the central aim, we would expect careful consideration of all recommendations. Where those bodies decide not to accept a relevant recommendation, we would expect them to have very good reasons for making that decision. It is an appropriate duty in this context because we do not intend to place an absolute duty on a body to follow recommendations in every case—that would be incompatible with understanding the individual needs and requirements of the person concerned.
The legislation must not impose unreasonable duties on relevant bodies that they cannot fulfil or where it would be inappropriate for them to do so; for example, if a recommendation was made that was outside of their purview. The Bill already requires that certain named persons or bodies carefully consider the recommendations and give them appropriate weight.
In view of all those comments, I thank noble Lords and ask that they do not press their amendments.
Baroness Barker (LD)
My Lords, I thank everybody who has taken part in the debate on this group of amendments. We were, in essence, trying to get answers to the following questions. Who is responsible for drawing up the care plans and for reviewing the care (education) and treatment reviews? Who is responsible for ensuring that what is in those plans is compliant with the law? Who is responsible for making sure that it actually happens? Who is responsible for finding out whether it has not happened? Who carries the can if it has not happened?
At various points in the Minister’s answer, I was quite hopeful, then, towards the end, we went down the slope quite badly, because it turns out that, apparently, duties will not be put on people, and that is highly regrettable. The Minister does not need to explain to the Committee the difference between a statutory code of practice and a statutory instrument; the issue my noble friend was trying to get to is the extent to which Members of this House will see that these plans reflect what was intended in the law and what scope they will have to call it out if they do not.
I am pleased that it will be a statutory code of practice. That is one step up from nothing—it is not great, but it is better. I am also glad that the Minister said that care and treatment plans will be put in regulations. Will those regulations be done under the affirmative or the negative procedure? That is quite important. In light of all our discussions, we in this House should have the chance to examine that at considerable length and, if it is not right, to have a second go at it.
It is always salutary to sit and listen to the noble and learned Baroness, Lady Butler-Sloss, on the subject on which she is quite rightly famous, not just in the House but outside it. I listened to her strong statement. She will know from other discussions that we have had on the wider subject of health that I have said many times, and I believe it to be true, that we have a health and social care system that is openly predicated on people’s families doing much of the work, and that is never more so than when it comes to discharge. She will have heard me bang on about this before, but I have a considerable degree of concern about what happens to people who do not have families or children. We have never done research on hospital discharge, but I suspect that, if people do not have a relative standing by the bed saying, “No. You are not discharging this person because they are not fit to go home”, they end up being discharged far too early, and I suspect they then go back into hospital as acute admissions a result of that.
That said, I understand what the noble and learned Baroness says about the involvement of parents. However, in 10% of cases, the parent is not the right person. We have heard that in evidence before, which she may recall, where young people who have been subject to mental health treatment have talked about problems within their families. Similarly, people under the Mental Capacity Act have sometimes been the subject of overbearing, overprotective parenting that they have found to be detrimental to them. I am not being anti-parent or asking that parents be excluded. Nobody knows better than the noble and learned Baroness that families are complex, and, as the Minister said, we must make sure that there is the scope to do the right thing for a child.
Baroness Butler-Sloss (CB)
The noble Baroness, Lady Barker, is absolutely right. Any amendment I might put forward in future would have to allow for that, as there must be some parents who would not be suitable.
Baroness Barker (LD)
It is getting late, and people wish to have their dinner because they been here a long time. I think we have had a partial response from the Minister. I believe that care and treatment plans and reviewing them are sufficiently important that some of us will want to go away to see whether, on issues that we may not have got technically right, we can come back, perhaps in discussion with the Minister, to satisfy ourselves.
Baroness Merron (Lab)
When I review all of the debates, particularly where there are areas where we need further discussion or information, I will be glad to pursue that. I give that assurance to the Committee.
Baroness Barker (LD)
I thank the Minister and welcome that. I beg leave to withdraw the amendment.
Mental Health Bill [HL]
Tuesday 14th January 2025
(6 months ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (14 Jan 2025)
Lord Cryer
Member’s explanatory statement
This amendment and my other amendments to Clauses 4 and 43 are minor and technical amendments to clarify that the references to after-care services include services arranged (as well as directly provided) by a public authority under section 117 of the Mental Health Act 1983.
Lord in Waiting/Government Whip (Lord Cryer) (Lab)
My Lords, in moving government Amendment 7, in the name of my noble friend the Minister, I shall also speak to government Amendments 14, 87 to 94, 127, 161 and 162, also in the name of my noble friend the Minister.
The minor and technical government Amendments 7, 14 and 127 make changes to Clauses 4 and 43 to clarify that the references to aftercare services include services arranged, as well as directly provided, by a public authority under Section 117 of the Mental Health Act 1983.
I turn to government Amendments 87 to 94, which concern Clause 31, and Amendment 162 on the commencement of certain provisions within Clauses 29, 31 and 34. Amendments 87 to 94 divide Clause 31 into two clauses to allow for automatic referral rights to the mental health tribunal to be commenced separately for patients who will be subject to conditional discharge subject to deprivation of liberty conditions. This is an important safeguard for this new form of conditional discharge, given the level of restriction that these individuals will be under. Under Clause 31, patients conditionally discharged under deprivation of liberty conditions will be referred to the tribunal 12 months post discharge and every two years thereafter.
Amendment 162 amends Clause 53 to adjust commencement for certain provisions currently commenced by regulations to be commenced two months after Royal Assent, and vice versa. Automatic referral to the tribunal under Clause 31 and increased application rights under Clause 29(2) shall now commence at two months post Royal Assent for conditionally discharged patients subject to deprivation of liberty conditions. That is to coincide with the introduction of this new subset of conditional discharge at Clause 33 and ensures that the new measure is introduced with the full suite of carefully considered safeguards in place.
Amendment 162 also adjusts commencement for the change of detention criteria for transfers from places of detention to hospital under Sections 47 and 48 of the Mental Health Act 1983 to commence via regulations. This change in the detention threshold ensures that the detention criteria can be met without the need for a hospital bed to be identified, and is closely linked to the introduction of the statutory time limit at Clause 35. The ability to commence this reform simultaneously with the time limit at Clause 35 will allow for streamlined implementation planning around the new statutory notice process and accompanying guidance.
Finally, government Amendment 161 creates an equivalent power for Welsh Ministers to make consequential provision in areas of their devolved legislative competence. This is a limited power and allows Ministers to make regulations containing such provision as they consider necessary to deal with legislative consequences that arise as a result of the Bill. The power cannot be used to make substantive policy changes. This new clause would mirror the powers of the Secretary of State, as set out in Clause 51. This provision was requested by the Welsh Government in their legislative consent memorandum, in which they recommended that the Senedd grants consent to the Mental Health Bill. We believe that this is appropriate, and I am grateful to the Welsh Government for their close collaboration and support for this important piece of legislation.
I hope that noble Lords are able to support these technical and necessary amendments. I beg to move.
Lord Kamall (Con)
My Lords, I am sure the noble Lord is thinking, “If only all groups went as swiftly as this one”. I thank him for bringing forward these government amendments. We understand that although they are largely technical in nature, they address some important points regarding the delivery of aftercare services, tribunal reviews and the broader application of this legislation.
We see the point of Amendments 7, 14, and 127 to clarify the references to aftercare services under Section 117 of the Mental Health Act, including services arranged by public authorities in addition to those directly provided. We understand that this reflects the practical realities of service delivery and may help to avoid ambiguity in how these obligations are interpreted. If we have heard any lesson throughout this debate, it is about how we avoid ambiguity when it comes to the treatment of patients.
We understand also that Amendments 87 to 94 focus on tribunal reviews for patients subject to conditions amounting to a deprivation of liberty, which we have discussed in other groups. The proposal to commence these provisions two months after Royal Assent is pragmatic and necessary to provide patients with timely access to justice. The amendments also introduce a new clause requiring the Secretary of State to refer certain cases to the tribunal within defined timelines. We agree that this will ensure that patients who are conditionally discharged but not recalled to the hospital are not left in a state of indefinite uncertainty. Once again, that was covered in the last group of amendments as somewhere where the patient could fall between the cracks, as it were. Timely tribunal reviews are essential for safeguarding patients’ rights and ensuring that any conditions imposed remain proportionate and necessary.
We understand also that Amendments 161 and 162 propose adjustments to the commencement of specific provisions, including granting Welsh Ministers powers to make consequential provisions within their devolved competence. Though these amendments are largely procedural, they underline the importance of clarity in implementing the reforms set out in the Bill. Of course, we understand that healthcare is a devolved matter. I remember having to deal with the devolved Administrations when I was a Health Minister, and we always did so collaboratively. Welsh Ministers should indeed have the same right to make consequential provisions, although if I have a question for the Minister, it is: what safeguards and oversight mechanisms will be in place to ensure equal application of the Bill to Wales, as in England? I am sure he will be aware that we have sometimes had questions in this place as to why the standard of health or social care in another part of the United Kingdom might be different, even understanding that it is due to devolution. Are there any safeguards to ensure that one part of the UK is not seen as having an inferior service to the rest of the UK? How would the Government address that?
With that, we very clearly understand that these are technical amendments and we will not oppose them.
Lord Cryer (Lab)
I am grateful to the noble Lord and take his point about ensuring there are equal standards across the devolved Parliaments and Assemblies. However, nothing is guaranteed. As he undoubtedly did when in government, we will endeavour to collaborate with Welsh colleagues—as well as others—to ensure that equal standards are applied across England and Wales. That includes regular contact with the Senedd and the Welsh Executive on a variety of matters, including health. That may be a slightly vague answer, but at the moment it is the best I can do.
I thank the noble Lord for his other comments. I have spoken about the need for these minor, technical and necessary amendments, and I hope noble Lords can support them.
Lord Kamall (Con)
This raises another issue, which I know has been raised in other areas of healthcare, of families who live across borders—if the parents live in one part of the United Kingdom and the children live in another, or if someone who has lived away from home moves back. I do not expect an answer now, as that would be unfair, but if the noble Lord could write to noble Lords on cross-border issues, where someone has commenced care in one area but then they or their parents have moved to another area, that would be satisfactory. We had a number of issues around this in healthcare, particularly mental health care, and it is important to resolve them.
Lord Cryer (Lab)
I am happy to do that. I remember having those sorts of issues when I was a Member of the other place. Probably a number of us have experienced them. I suppose that, at present, it is how it has always been: you have to try to communicate with the respective authorities and bring them together so that there is some sort of continuity.
Lord Cryer
“(The arrangements may also include provision authorising or requiring a copy of the report to be given to other persons.)”Member’s explanatory statement
New section 125A(3)(b) requires arrangements to include provision for reports to be given to the people listed in that provision. This amendment provides, for the avoidance of doubt, that arrangements may also include provision for reports to be given to others.
Lord Cryer
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 4, page 5, line 20.
Lord Cryer
“(The arrangements may also include provision authorising or requiring a copy of the report to be given to other persons.)”Member’s explanatory statement
New section 125B(3)(b) requires arrangements to include provision for reports to be given to the people listed in that provision. This amendment provides, for the avoidance of doubt, that arrangements may also include provision for reports to be given to others.
Baroness Tyler of Enfield
“(ba) the person is under 18 years old and satisfies the conditions in (b)(i) and (b)(ii),”Member’s explanatory statement
The amendment inserts a new subsection that extends the duty on integrated care boards to establish and maintain a register for those at risk of detention to all children and young people under the age of 18.
Baroness Tyler of Enfield (LD)
My Lords, I will also speak to Amendments 27 and 32 in my name. My amendments all relate to children and young people, but this group also includes important amendments in the name of my noble friend Lord Scriven, which I support, on the duties on commissioners, integrated care boards and local authorities regarding care provisions for people with a learning disability or autism. Also important are the amendments from the noble Baronesses, Lady Browning and Lady Hollins. I add my condolences to the noble Baroness, Lady Hollins. I am sure we are all thinking of her today.
By way of context, the Bill introduces a new duty on integrated care boards and local authorities to commission community services for those with a learning disability and autism. The Bill also places dynamic support registers on a statutory footing. These are welcome and much-needed duties, and the Bill presents a crucial opportunity to strengthen the support provided to those with learning disabilities and autism. However, I want to go further. I recognise that there is some piggybacking on my part, but I am passionate about the mental health support that is available to children and young people, so I believe that the duties to provide community services should be extended to include everyone aged under 18, to ensure that children and young people can have their needs met without them having to be admitted as in-patients. That is where is my Amendments 21, 27 and 32 come in—they are all interrelated.
Amendment 21 seeks to extend the duties placed on integrated care boards to maintain a register of those at risk of detention to all under-18s. Amendments 27 and 32 would extend the new commissioning duties on integrated care boards and local authorities to include under-18s. In essence, the duties are both to identify and to commission services in the community that meet the needs of all under-18s.
As I think we all know, the Bill has been introduced at a point when waiting times and thresholds for mental health support for children and young people across early intervention services, targeted support services, CAMHS, et cetera are worryingly high. Consequently, too many children and young people are left to reach crisis point. Evidence shows that the number of children referred to emergency mental health care in England has increased by more than 50% in three years. These amendments will not only help to achieve improved outcomes for children and young people but have wider benefits for the mental health systems through intervening at an earlier stage, providing improved care for children and young people in the most appropriate settings, and reducing costs. This is all in line with the Government’s key drive to move to a more community-based, preventive model of healthcare—and, frankly, that should apply to mental health as well as to physical health, and to children and young people as well as to adults.
We all know, as we have discussed so many times in this Chamber, that children’s mental health support has historically been woefully underfunded. There is a lack of clear accountability to ensure that effective community provision is in place. I therefore consider that adding all children and young people to the new commissioning duty placed on local authorities and ICBs in the Bill is crucial to ensuring that their needs can be met at an early stage, preventing crisis and later admission to mental health in-patient care. We should worry about the whole system and try to prevent people getting to in-patient care, as well as worrying about those who do. In short, my argument is that their needs should be met without the need to detain children and young people, wherever that is possible.
Research has demonstrated that children’s and young people’s experience of in-patient care is consistently poor, too often further harming their mental health. A survey conducted by Mind on children’s and young people’s experience of care in mental health hospitals found that 69% of the young people surveyed said that their experience as in-patients had not been positive. In my view, a shift to such community-based provision would not only reduce the number of children and young people requiring in-patient beds but would in turn reduce demand for in-patient care and the risks of children and young people being cared for in what can often be highly unsuitable environments. It would also ensure that those with the most complex needs who do need in-patient care receive high-quality care in a setting that is right for them.
In case people are sceptical as to whether this sort of care can be provided in the community, I am aware of case studies of types of support in the community, such as hubs and the like, that can be used to manage high levels of risk. Where that care is provided in the community, in a relaxed, warm and calm environment, it can often be an alternative to young people having to visit A&E, where they may not get specialist mental health support and waiting times can be so long. I beg to move.
Baroness Browning (Con)
My Lords, this group includes Amendment 22, tabled by the noble Lord, Lord Scriven, to which I have added my name—to which I will not speak because I think it will be fully discussed—and two amendments in the name of the noble Baroness, Lady Hollins. She is a dear colleague and friend of many years, and this is my first opportunity in the debate to express my personal sympathy for her loss this week.
I will speak to Amendment 28 in this group, which is in my name. In addition to local authorities’ market-shaping function—I have to say I find the choice of words there a little difficult; I had to read it a few times just to make quite clear that I know what that is—the Bill includes reference to the “commissioning functions” of local authorities when having regard to information from risk registers and ensuring that the needs of people with a learning disability and autistic people are met.
Under the Bill, new Section 125G makes it clear that integrated care boards’ commissioning functions are related only to health services. New Section 125E(3) makes clear that
“‘market function’, in relation to a local authority, means its function”
to
“promoting diversity and quality in provision of services”
under the Care Act 2014. This amendment would add local authority commissioning explicitly, by which is meant the local authority’s commissioning duties in relation to providing care and support under the Care Act 2014. The proposed duty in relation to local authority market shaping does not adequately cover local authority commissioning. The issue of poor commissioning in relation to this group has been frequently cited in reports. This is an opportunity to redress that and to be clear about their function.
Lord Scriven (LD)
My Lords, I will speak to Amendments 22, 24, 25, 26, 29, 30 and 31 in my name in this group. I support Amendment 28, which was just spoken to very ably by the noble Baroness, Lady Browning, and Amendments 36 and 37, in the name of the noble Baroness, Lady Hollins. I want to put on record my condolences to her at what must be a very sad and difficult time.
Quite a number of amendments that I have put down in this group, particularly Amendment 22, are about prevention. It is about getting upstream and trying to use the dynamic support registers—the risk registers—in a better way, and, by so doing, having the correct information that is available to a place, rather than just to an organisation, such as the NHS or the ICB, within that place.
Amendment 22 would ensure that local authorities have an active role in assisting ICBs in identifying people for inclusion in the risk registers. NHS England’s policy and guidance on dynamic support registers states:
“Early identification of people at risk of admission to a mental health hospital and their access to person-centred planning and support are essential for the prevention of avoidable admissions”.
Many people with risk factors will first come into contact with a local authority, particularly people with learning disabilities and autism. It is important that the local authority has a clear responsibility to assist ICBs in identifying people for inclusion on the register, to ensure that people get the right support at the right time. I hope that the Minister will take this amendment in the spirit that it is given. This is an important issue which is not strong enough in the Bill and which really needs to be taken account of.
There have been difficulties for some people getting enrolled on the DSR, and this is particularly true for autistic people without a learning disability. Additionally, NHS England data shows that 52% of autistic people and people with a learning disability detained in a mental health hospital are not on a risk register prior to admission. Therefore, there is a gap, and the Bill gives us a chance to help plug it. Hopefully, placing this duty on local authorities will facilitate greater uptake and enrolment on the register for all, therefore helping to reduce admissions, improving support in the community and being a good preventive measure.
Coupled with this, Amendments 36 and 37 in the name of the noble Baroness, Lady Hollins, would help with that prevention role by making sure that proper provision was available. Taken together, Amendments 22, 36 and 37 would be a really good group of steps forward to help with preventive measures to make sure that all people who can be identified who come into contact with a local authority but are not known to the ICB go on the register, and that provision is made.
Amendments 24 and 29 would change the current language in the Bill. After listening to debate on previous amendments, I will not labour the point because I have a good idea what the Minister might say, but again I think the provision needs to be strengthened so that ICBs and local authorities have a duty to consider the risk register when exercising commissioning and marketing functions.
In Amendments 25 and 30 there is the same approach by strengthening the words in the Bill to ensure that ICBs and local authorities have a duty to ensure that the needs of autistic people and people with a learning disability are met in the community wherever possible. The current language in the Bill states only that ICBs and local authorities must “seek to ensure” that the needs of autistic people and people with a learning disability are met. This wording is vague and does not compel a strong enough duty to meet the needs of people in the community. Again, the amendments in the name of the noble Baroness, Lady Hollins, would strengthen my amendments even further.
These amendments are important. I hope that the Minister has listened very carefully, will make efforts to implement some of these steps and reports back on Report.
Lord Crisp (CB)
My Lords, I will speak to my noble friend Lady Hollins’s Amendments 36 and 37. I add myself to the comments by the noble Baroness, Lady Watkins, about the remarkable commitment that my noble friend is showing at this awful time and express my personal condolences. What I am going to say is based on comments that she has passed to me. I should perhaps say at the beginning that I too am an honorary fellow of the Royal College of Psychiatrists—“(unqualified)”, as others have made that disclaimer.
The purpose of these amendments is very clear. Amendment 36 states that ICBs
“must ensure the availability of integrated comprehensive, accessible, and responsive community services for autistic people and people with learning disabilities … to reduce hospital admissions … and … reliance on restrictive interventions”.
As the previous two noble Lords said, it is very much about prevention and creating appropriate services.
I note that the Explanatory Notes to the Bill say that Clause 4
“is designed to help ensure that ICBs can monitor individuals at risk of detention and put in place the necessary preventative measures to help keep people out of hospitals”.
Putting it simply, this amendment takes that rather weak wording in the explanation and toughens it up. The issue here is not about good intentions and ensuring that it is possible for something to happen. I am sure that all noble Lords share the intention and the hope that these things will be in place, but this is about making sure that something happens. It is about implementation and seeing that a change happens.
This is vital because it is clear that there are major problems in service coverage right now. For example, only a quarter of integrated care systems are meeting their target of having only 30 people per million admitted. Of course, that number would ideally be much lower than it is, but only a quarter of these systems are even meeting that. Amendment 36 spells out what these services should include. I will not read them out in detail but noble Lords can see that they cover all the relevant areas that one would expect: evidence-based treatments, crisis prevention and intervention services, non-restrictive walk-in services, and the provision of “suitable housing”.
I will comment on two of those items in a moment. All of them are important but what I think the noble Baroness, Lady Hollins, had in mind was not just discussing these items but seeing her amendment as an opportunity to discuss which services are the right ones—the ones that should be there—and which areas ICBs and local authorities should address. The key point at this stage is not so much about the detail but the need for some clear legislative requirements on what services must be provided. Good intentions are simply not good enough; implementation is what is needed.
I will mention two of those items that relate to points made earlier by other noble Lords in our debates on this group and others. One is the reference to “non-drug-based interventions” and “social prescribing”; their importance in community services applies in all kinds of ways. The second is the point about housing, which, as has been discussed, is vital. Ten years ago, I did a review for the Royal College of Psychiatrists on discharges from acute adult hospitals. A third of the people in those hospitals were there because they did not have adequate accommodation anywhere else. That third included people who had nowhere to be discharged to, in terms of adequate housing. It is a really serious issue. I make those points because both of these issues go beyond this amendment: in some ways, they are not about healthcare as much as they are about enabling people to have a decent life and creating the conditions for people to be healthy and live in the best way possible.
Amendment 37 is about issuing guidance on standards and monitoring and reviewing progress. Again, without that, we cannot be sure that this legislation will make a difference to the people who matter.
I will make three final points. I recognise that there are perverse issues of finance here because, of course, the NHS pays when people are in hospital and the local authority pays for the services in the community. Of course, that reminds us all of the need to get the social care policy right and the importance, wherever the boundaries fall between public bodies, of using public money wisely across organisations.
In that context, I stress that what the noble Baroness, Lady Hollins, has set out in this amendment is not an unachievable wish list. Even in today’s circumstances, some people are making real progress. Mencap pointed me towards the Black Country’s emergency response team, which noble Lords may know about and which meets many of these criteria for services. In 2022-23, it supported 51 people who were presumably being paid for by the local authority and who might otherwise have been admitted for the equivalent cost of a single assessment and treatment bed, presumably paid for by the NHS. Preventive and good-quality services so often make good financial sense, as well as being better for the people concerned. I do not know whether the Minister is familiar with that project but I would certainly encourage her to have a look at it if she has not already done so.
The second point I want to make is that, although I have not actually checked the reference, I believe that the Minister said something at Second Reading about delaying the implementation of some parts of this Bill until the services are in place. I would be grateful if she could say what was meant by that, but also why it is necessary when people can make progress quite quickly.
The Black Country example—and I suspect that there are others—shows that people are making progress and that, in many ways, it is better to have a stretching target that people are moving towards rather than saying, “If you don’t have the services, we won’t implement the legislation”. We need to keep moving forward and show faith both in what this Bill is designed to achieve and in the Government’s agenda on prevention and on moving towards the community. No doubt the digital transformation is also extremely relevant here.
The Earl of Effingham (Con)
My Lords, I thank the noble Baroness, Lady Tyler, my noble friend Lady Browning, the noble Lord, Lord Scriven, and the noble Baroness, Lady Hollins—who sadly is not in her place today—for their amendments in this group.
Given that it is now widely accepted that we should be moving towards a system of health and care focused on prevention, these all appear to be sensible amendments. They seek to understand how integrated care boards and local authorities are identifying those with autism or learning disabilities, the risk of them being detained and, if appropriate, the risk to the community, as well as ensuring that those with autism and learning disabilities receive the appropriate level of care.
Amendment 28, in the name of my noble friend Lady Browning, specifies that local authorities must seek to ensure the needs of people with autism and learning disabilities can be met without detention when they are exercising not only their market function but their commissioning functions. This acknowledges the roles that local authorities play in commissioning health and social care. Local authorities commission publicly funded social and healthcare services, many of which interact with mental health service provision, such as authorised mental health professionals and addiction services. By explicitly mentioning the commissioning functions of local authorities and not just the market functions which arise out of the Care Act 2014, this amendment gives the Bill greater clarity.
The noble Baroness, Lady Hollins, has tabled Amendments 36 and 37 in this group, which relate to the provision of community services for autistic people. These amendments are in a similar vein to Amendment 139 in the name of my noble friend Lord Kamall, which will be discussed in the next group and which seeks to ensure a greater availability of community services. Amendments 36 and 37 expand the duties on integrated care boards and local authorities to provide better and more responsive care to those on dynamic support registers.
Of particular interest is subsection (3)(a) of the new Section 125I proposed in Amendment 37. That new provision states that integrated care boards must
“establish digital systems to … assess, monitor, and address sources of inequality”
arising out of the current provision of mental health care. As my noble friend Lord Kamall has been keen to stress, digitalisation in health and social care is the way forward for improving productivity and ensuring the best possible care outcomes.
I know the Minister believes in the value of the expanded use of technology and digital systems, and it would be welcome if she could give some commitment here. When we hear from her, we would be interested in whether there are any legal reasons for not being able to accept what these amendments seek to do, such as around issues of privacy, or whether the barriers are financial. We very much look forward to the response of the Minister.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to the noble Lords present for their contributions this evening. Perhaps I can make a general point to the noble Baroness, Lady Tyler, and the noble Earl, Lord Effingham, about the main pillars of change which we look forward to in the 10 year-plan. The noble Earl has just referred to one of them, which is the move from analogue to digital. In that context—the noble Baroness raised a point about parity between mental health and physical health—the moves from sickness to prevention, from hospital to community and from analogue to digital apply at least as much to mental health as they do to physical health. That is our way forward. I am looking forward to the 10 year-plan to really give structure to that.
Let me turn to Amendment 21, tabled by the noble Baroness, Lady Tyler. This amendment seeks to ensure that the register under new Section 125D includes autistic children and children with a learning disability who have risk factors for detention, so that they can be supported in the community. We absolutely agree with the intention behind the amendment, although I have to say that it is regarded as unnecessary because the current drafting does not limit the duty to adults; it includes anyone who meets the other criteria, including children, which I know the noble Baroness is rightly looking for. The register is designed to provide health and care bodies with additional information about the needs of those with a learning disability and autistic people who have risk factors for detention under Part II of the Act. That is to ensure there is a particular focus on their needs, so that they can be better supported in the community.
The noble Baroness, Lady Tyler, made the observation, which I understand, about too many children being left to reach crisis point and the increase in the number of children in need of mental health services, particularly over the last three years. I very much recognise this concern. We have seen an increase in referrals and access across children’s and young people’s mental health services, including crisis services. This is due to an expansion of the services to meet need but also to an increase in prevalence and intensity. It might be helpful if I indicate that NHS England is in the process of developing proposals for a new model of specialised children’s and young persons’ mental health services, supported by a new service specification and quality standards. This new approach would support delivery of specialised services in the community, as well as in appropriate in-patient settings close to the child’s or young person’s family and home. That is a matter that has been raised many times in this Chamber and one that I am very sympathetic to.
Amendment 22 was tabled by the noble Lord, Lord Scriven, and supported by the noble Baroness, Lady Browning. If taken forward, this amendment would require each local authority to assist the integrated care board in its duties in respect of support registers for people with a learning disability and autistic people. We certainly agree with the intent of this, and I am pleased to be able to provide reassurance that the clause already provides the Secretary of State with the general power to make further provision about the register in regulations. We expect this to include detail on how relevant information is to be obtained and from whom. This is to include the role of local authorities, alongside other relevant health and care bodies, in providing further relevant information.
We believe that it is most appropriate to include this detail in regulations rather than in primary legislation, since the way in which information is obtained, what information is obtained and who might be involved may change with emerging best practice. As noble Lords will realise, that point has been made in respect of a number of these amendments. Returning this to Parliament at every instance would be disproportionate.
However, it is important that the process actively involves health and care system partners. We are clear that the integrated care board must retain overall responsibility for the register. Providing a list of named bodies that have a role in providing information in the legislation may create an unintended diffusion of responsibility, which could negate the benefits of putting these registers on a statutory footing.
Lord Scriven (LD)
I am sorry to interrupt the Minister in mid-flow. She has just explained why it would be wrong to put the process for collecting the data in the Bill, with which I completely agree, but my amendment does not seek to do that. It seeks to make it a legislative requirement of local authorities to be part of the process.
The reason I have tabled the amendment—and I am sure it is the same for the noble Baroness, Lady Browning, in putting her name to it—is that NHS England’s figures say that a lot of people who are admitted to hospital, 52%, are not on the register, but many will have come into contact with the local authority. That is why it is important for the Bill to make local authorities part of the process of identifying who should be on the register. That would subsequently allow the Government to provide statutory guidance about the collection of the data, but it is important that there is a statutory duty in the Bill to do that.
Baroness Merron (Lab)
I thank the noble Lord for adding to the points that he made in response to my comments and the assurances that I have just given, and I am happy to review them. I understand the intent.
Amendments 24 and 29, tabled also by the noble Lord, Lord Scriven, seek to impose a duty on integrated care boards and local authorities to consider information in the register, or obtained by virtue of this clause, when exercising certain existing functions. I strongly agree with the principles behind these amendments, although it is considered that the current drafting in the clause, which requires both integrated care boards and local authorities to “have regard to” the relevant information, already achieves the intended effect. The common duty to have regard is one that both integrated care boards and local authorities are familiar with and used to applying. In this context, we expect this duty to result in careful consideration being given to the information.
Departing from the wording of a well-established duty could create ambiguity, leaving it to the interpretation of individual integrated care boards and local authorities. As I can see the noble Lord agrees, that would be a very undesirable outcome. It may inadvertently create a weaker duty than that set out in the Bill or lead to variation in interpretation and response to the duties.
If Amendments 25, 26, 30 and 31, tabled by the noble Lord, Lord Scriven, were taken forward, they would put a duty on integrated care boards and local authorities to ensure that the needs of people with a learning disability and those who are autistic could be met without detaining them, unless there was a compelling reason why that was not possible. A point was raised, including by the noble Lord, Lord Crisp, about difficulties in enrolment on dynamic support registers and the need to address that in the Bill. DSRs are part of existing NHS England policy and we have heard that they can be effective in preventing hospital admissions. That is why we propose putting these important registers on a statutory footing and making them a requirement.
The Bill already places duties on integrated care boards and local authorities to seek to ensure that the needs of those with a learning disability and of autistic people can be met without detaining them under Part II. This is a legal requirement to ensure that particular attention is paid to the needs of people with a learning disability and of autistic people, and that services should be commissioned accordingly.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her response. I also thank other noble Lords who have participated in this debate.
For me, the nub of this grouping has been the whole issue of prevention—I think “getting upstream” was the phrase my noble friend Lord Scriven used—and having in place within the community better and more responsive services, with the aim of reducing admissions to in-patient care but, at the same time, improving the in-patient care that is available, because the only people there are those for whom nothing else will work. It is very welcome that the Bill puts the dynamic support register on a statutory footing. On the two amendments from the noble Baroness, Lady Hollins, beefing that up still further, I think I heard a slightly encouraging response from the Minister. I will look carefully at Hansard tomorrow, as I am sure will the noble Lord, Lord Crisp, to see what was said.
I can see that while some people may think that prevention is very important, they would ask what it has to do with this Bill. I do not see it like that. You have to take a system-wide approach. To get the whole mental health service working, even when you are looking at what I call the hard end—the crisis end—you have to look at what is happening at the preventive end and try to reduce the number of people who might need to be admitted. That would send an important message that there are clear legislative requirements for what services should be available within the community. This Bill, frankly, is the obvious place to do it—hence the amendments around children and young people that I raised.
I was pleased to hear the Minister say that the transformation and the 10-year plan will apply at least as much to mental health as to physical health. That is very encouraging and I am glad that we have got it on record. I was not altogether surprised that the Minister thought that my amendments were unnecessary. I do not agree. I was not just talking about children and young people with learning disabilities and autism. They are obviously a very important group, but my rationale for trying to broaden it out to all children and young people was, in essence, to make sure that only those with the most complex needs would receive that higher-quality care in an in-patient setting—everyone would benefit from that approach. The Minister talked about a new approach to children’s and young people’s services, and I look forward to hearing more details. I do not know whether the Minister can tell us when we might expect to see that.
Finally, my view is that the 1983 Act was never really designed with children and young people in mind; I think everyone agrees with that. This Bill is an opportunity for us to put children and young people centre stage—hence my amendment. This is such an important topic that I think we shall be returning to it on Report. On that basis, I beg leave to withdraw my amendment.
Mental Health Bill [HL]
Monday 20th January 2025
(5 months, 3 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-II(a) Amendments for Committee (Supplementary to the Second Marshalled List) - (17 Jan 2025)
Earl Howe
Member’s explanatory statement
This probing amendment seeks to clarify the Government’s intended definition of “specified risk factors for detention” under Part 2 of the 1983 Act.
Earl Howe (Con)
My Lords, in moving Amendment 23 I shall speak also to the other amendments in this group, Amendments 139 and 141. These amendments, although they may not look it, are all of a piece, because they bear upon the fulcrum for any decision to detain a patient under the Mental Health Act, which is the concept of “serious harm” and what we mean by it. My noble friend Lord Kamall’s Amendment 141 offers such a definition, but we have tabled the amendment more as an Aunt Sally than anything else, because what matters is how we want the phrase to be interpreted in real-life situations by clinicians and others on the ground.
The concept of serious harm as a determining factor for detention is introduced by Clause 5. Clause 5(2)(b) replaces Section 2(2)(b) of the Act, which refers instead to detention in the interests of a person’s own health or safety, or with a view to the protection of other persons. The new wording is undoubtedly tighter than the old wording and, on that account, it is to be welcomed. However, it is not, as far as I can see, fleshed out by any definition. That could, of course, be deliberate, because, in the end, a decision to detain someone will always be a matter of clinical judgment. Such judgments, though, ought surely to rest on established understandings. Serious harm, as applied to the health or safety of the patient themselves, may be a relatively straightforward clinical judgment to make in many, if not most, circumstances. But what about serious harm as applied to the health or safety of another individual? Do we mean just physical harm or are we talking also about psychological harm? If so, of what kind and to what degree? Detaining someone on the grounds that serious psychological harm may be caused to another person raises all sorts of issues that fall outside a standard clinical judgment about the health and/or safety of a prospective in-patient.
The threshold of serious harm being caused, or at risk of being caused, is of huge significance for different types of patients. One of the really good things that this Bill seeks to do is to keep individuals with autism or a learning disability out of a mental health unit, unless they present with other behavioural symptoms that are treatable. That is because we recognise that not only is there no point in detaining such individuals when they display no treatable symptoms, it is also positively harmful to them to do so. In the same way, I think it is accepted that to detain a child or a young person forcibly in a mental health unit is a very big decision indeed, because what is meant to constitute a therapeutic environment is all too often no such thing. On the contrary, a mental health ward or even an A&E department can often seem both alien and frightening to a young patient, in a way that can exacerbate their acute disturbance of mind.
Nobody wants to see people detained forcibly in a mental health unit unless it is essential and right, but so often the choice is a binary one: to detain in hospital or not to detain in hospital. How much better it would be if, in particularly sensitive cases, there were another option, a place of safety and comfort close by in the community.
That is why I tabled Amendment 139. We know that community-based services can be a significantly positive alternative to treatment in mental health hospitals and secure units. We need to look at affordable ways of creating more, especially for those with autism and learning disabilities and for children where the alternative may indeed be forcible detention under the Mental Health Act.
The King’s Fund reported in July 2024 that
“community health services have about 200,000 patient contacts”
every day. Anxious Minds argues that community-based mental health services provide three key benefits:
“Geographical convenience of mental health facilities”,
the relative affordability of such services and, importantly, culturally sensitive approaches to care
“that appeal to diverse populations”.
Baroness Murphy (CB)
My Lords, as the noble Earl, Lord Howe, has mentioned, we will be talking about risk factors in the next group but one, and I will not go into the statistics and predictions at this point.
As has been pointed out, Clause 4 implies that specific risk factors for detention under Part II are readily identifiable and assessed, but as we will see, predicting episodes of violent behaviour or self-harm is peculiarly difficult to do. The clause suggests that it is not clinicians who will be doing these risk assessments but that the Secretary of State will somehow have some expertise from ICBs in how to do this. Apart from the rather obvious wisdom that the best predictor of future behaviour is past behaviour, I am not sure how these regulations can be drawn up.
I am anxious about the common prejudices around, for example, black patients of African Caribbean descent living in London, who have a higher risk of being detained under Part II than white patients, or Asians of an Indian subcontinent background. Who will draw up this list to say which of these items is going to lead to the risk of detention under Part II?
There have always been opportunities for the Secretary of State to intervene in the detention of patients under Part III of the Act, and some Secretaries of State have been more risk averse than others. I suspect that under this clause we will find some Secretaries of State taking a more hard-line view about who should and should not be detained. That gives cause for enormous anxiety, so I would like to know how the Government intend to devise these regulations to document specific risk factors.
Baroness Tyler of Enfield (LD)
My Lords, this is an important set of amendments, and, as the noble Earl, Lord Howe, said, they are central to decisions about whether to detain people under the Act.
I agree that the definition of “serious harm” is important, and it would be helpful to hear from the Minister what the Government are thinking there, how it will be applied, and how any thresholds will be established.
I endorse what the noble Earl had to say about children and young people, what a huge decision it is to detain someone under 18 in hospital against their will, and how hard we need to work to avoid that, whenever that is safe for themselves and other people.
Finally, and very much linked to that, I strongly support Amendment 139 on the availability of community-based services, which we have already talked about and which we will turn to in subsequent groupings. It is a very good amendment, particularly the provision which states:
“The Secretary of State must publish a report to assess whether there should be more community-based services for community patients in order to prevent”—
I see this as a key preventive measure—
“detention under the Mental Health Act 1983”.
My one point is that the amendment talks about publishing that within two years of the day on which this Act is passed. I personally think that in an ideal world we might see a report a bit earlier than that. However, as I say, Amendment 139 certainly has my full support.
Baroness Parminter (LD)
I am sorry that I did not jump up in time before my Front Bench spoke.
I just wanted to add my voice to support Amendment 139 in the name of the noble Earl, Lord Howe, and the report on community-based services. It is really timely and we need it. The case was made very carefully and well by others, so I will not expand much other than to say that an extensive report was done in November by the leading charity, Beat, which looked at the case for more intensive community care and daycare for people with eating disorders in order to avoid—the very point that the noble Earl, Lord Howe, made—ending up getting to such a point of severity that they need to go into mental health facilities and be detained, which indeed happened to my daughter, as I made clear at Second Reading.
The case has been well made that a report should be made. I agree with my noble friend Lady Tyler that two years seems quite a long time off, particularly as recent work has been done, particularly in the field of eating disorders, to show that you can both reduce the number of patients and reduce the cost if you make the investment up front in community services.
Baroness Watkins of Tavistock (CB)
My Lords, as an ex-community mental health nurse, I wish in particular to support Amendment 139. I am convinced that we need appropriate ratios of such staff to deliver preventive services in the community as well as ongoing support. We need to remember that the NHS rests in the future on preventing rather than treating, and this is an important amendment that acknowledges that.
Baroness Buscombe (Con)
My Lords, I want to add to what the noble Baroness just said. Amendment 139 goes to the heart of the Bill in terms of changing the culture and the way that we treat people. The Bill will become a piece of law that is practical only if we can honestly put hand on heart and say that we will substantially increase community-based services. Without that, it will not deliver that which we all believe will be the minimum to improve people’s lives.
Baroness Berridge (Con)
My Lords, on the amendment outlining the definition of “serious harm”, two situations were raised with us on the Joint Committee. One was that the change in the criteria is the main tool that will help with racial inequalities; I would be grateful if the Minister could outline how she envisages that will work in practice. The second point was about the period during which such serious harm has to be exhibited. We heard numerous times about people with psychosis, many of whom—I think it was over 70%—do not realise that they are getting ill when they are presenting. How poorly do they have to get? Sometimes the intervention might need to be sooner than in the definition we understood of “serious harm”, which was slightly different from that which the independent review had, which I think was of “significant harm”. If the Minister could address those two points, that would be very helpful.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank noble Lords for their contributions to this important debate in which a number of key issues have been raised.
Amendment 23, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, relates to new Section 125D, regarding registers of people with a learning disability and autistic people who are at risk of detention. The amendment would remove new Section 125D(5), which defines
“specified risk factors for detention”.
I heard the noble Earl, Lord Howe, refer to this as an Aunt Sally amendment—I politely have “a probing amendment” here but I hope that we are in the same area—that is intended to clarify the definition of
“specified risk factors for detention under Part 2 of this Act”.
Earl Howe (Con)
My Lords, I thank all noble Lords who have taken part in the debate on this group of amendments. As I trust was clear from my opening speech, all three are intended as probing amendments designed to tease out some key definitions. It was actually Amendment 141, regarding the definition, that I described as an Aunt Sally.
I was particularly grateful for noble Lords’ support for Amendment 139 and for the Minister’s helpful comments. There is very little doubt that, as I think is generally accepted, community services delivered in partnership by local charities and civil society both reduce the cost to the state and carry the benefits I articulated earlier. Without implying any criticism of the NHS, those sorts of organisations will of course know their own communities better than an NHS hospital will.
I am grateful to the Minister for what she was able to say about the definition of “serious harm”. The Explanatory Notes state that a test of serious harm has been introduced
“to provide greater clarity as to the level of risk of harm that a person must present in order to be detained”.
They then state that further guidance on what constitutes serious harm will be set out in the code of practice. So far, so good, and it is welcome that that will be clarified in the code of practice, but one of the issues here is that that will come later. Serious harm is included as one of the two key tests for detention in Clause 5, so what is meant by serious harm will impact on all future decisions made within the scope of the legislation. Therefore, we need maximum clarity from the Government as we debate the Bill.
As regards the “specified risk factors”, I am again grateful to the Minister. I slightly worry that a person’s past history of admission to hospital could constitute a specific a priori risk factor for detention. There is a danger that that may turn into a directly determining factor for detention, rather than a factor to be taken into account in assessing an individual set of circumstances.
As regards drug and alcohol misuse, we need to be careful not to encourage a circumvention of the Mental Health Act, which explicitly excludes drug and alcohol addiction as grounds for detention.
I am once again grateful for the support that noble Lords were able to give to my amendments. I beg leave to withdraw Amendment 23.
Lord Scriven
“125FA Report: sufficient commissioning services for people with autism or learning disabilities(1) Within four months of the day on which the Mental Health Act 2025 is passed, the Secretary of State must lay before Parliament a plan to allocate sufficient resources for commissioning services regarding the treatment and detention of autistic people and people with learning disabilities to ensure operability of provisions in this Act.(2) The plan must include—(a) revised assumptions of the number of autistic people and people with learning disabilities who may require detention under this Act;(b) the actions that the Secretary of State will take to ensure community services are available to meet demand after the 28-day detention period;(c) plans for data collection to support commissioning sufficient services;(d) plans to allocate appropriate resource to ensure operability of services, including, but not limited to, financial resource;(e) plans to ensure that responsible bodies and individuals receive the necessary training to carry out support, diagnostic, and treatment plans.”Member's explanatory statement
This amendment requires the Secretary of State to present a plan within four months to ensure sufficient services, resources, data, and training are in place to support autistic people and those with learning disabilities under the Act.
Lord Scriven (LD)
This group of amendments has to do with learning disabilities and autism, and the implementation of the Government’s recommendations, particularly on the change in detention criteria. My Amendment 33 is probing; I shall come to its details shortly. The Committee needs to look into this subject, because many times before in government policy we have seen a good aim and good intentions of moving care into the community, but all too often the facilities have not been there, and people have ended up in crisis.
I tabled Amendment 33 to probe the Government’s staged approach to ensure that community facilities are in place before the change in detention happens, and to understand their timing. On page 72 of the impact assessment, the suggestion is that the change will not happen until the community facilities are in place. That is good, but that could be five, 10 or 15 years away, so the Committee needs to understand the Government’s approach to timing.
Amendment 34, tabled by my noble friend Lady Barker, and the amendment tabled by the noble Earl, Lord Howe, cover mandatory training for medical staff and others associated with looking after people with learning disabilities and autism, to detect the signs, so that people are not missed and put into detention.
My Amendment 33 would create an obligation for the Government to lay a costed plan for sufficient services before Parliament within four months of the passage of the Bill. The four-month period is important, because we really need to understand the Government’s intentions on timing. The change in detention criteria for autistic people and people with learning disabilities is a vital change in the Bill, to ensure that people are not inappropriately detained but are supported in the community instead.
As I have said, success depends on there being sufficient services in each area across the country to meet the needs of autistic people and people with learning disabilities. Based on the impact assessment, we know that the Government do not plan to enact those, so it is important that when the Minister replies, she lets the Committee know exactly what the timing is and what the Government’s assumed plans are.
In the equality impact assessment, there are dates for both funding and implementation, which seem to be at the same time. As a former NHS manager, I can say that people cannot start a service involving such a change and receive the funding in the same year. There has to be upfront funding to enable people to plan the services over time. Otherwise, the services are not there, and staff run round trying to get services when people are in distress. It is important to understand that.
Additionally, as the NHS long-term plan target to reduce the number of detentions of autistic people and people with learning disabilities has been missed, there are no active targets to get people out of hospitals. My amendment tries to put in targets to hold the Government and the services to account on ensuring that people are not inappropriately detained.
It is important to have a comprehensive action plan, which is what my amendment seeks to do, and to find out exactly how the Government intend to build and fund those community services moving forward. Additionally, this must include new targets to reduce the number of detentions of autistic people and people with learning disabilities. The timelines for building this support will also be crucial if the Government are to meet the expected 2026-27 commencement date for the new detention criteria for autistic people and people with learning disabilities.
I hope that the Minister will fully brief the Committee so we can make an informed decision about not just the thinking of the Government but the detailed implementation around community services with the change of criteria. I look forward to hearing noble Lords speak to their amendments on the provision of training and the appropriateness of medical practitioners’ expert knowledge of learning disabilities and autism. I beg to move.
Baroness Barker (LD)
My Lords, I shall speak to my Amendment 34. As I do so, I extend my condolences to the noble Baroness, Lady Hollins. We miss her very much today. She was extremely helpful to me only a few days ago when we were discussing the subject of this amendment, so I hope I do her a lot of justice with this.
We have heard time and time again that people with learning disabilities and autism find themselves on the wrong end of diagnoses made by practitioners with the best of intent, quite often when people are at points of severe distress, that are inappropriate because the people making them have not perhaps had the degree of experience and knowledge of working with people with learning disabilities and autism as they would otherwise have done.
We started to discuss last week that, while there are mental disorders for which detention in the sorts of facilities that we fund in acute hospitals in the NHS is right and appropriate, there are also some people for whom detention in those circumstances is absolutely not; it is an aggravating factor. Therefore, in my amendment I am seeking to address that issue: not just the competence of the people making decisions about detention and treatment but also the confidence with which they, as professionals, can approach the jobs that they are increasingly being required to do. Knowledge and understanding of learning disability and autism is expanding all the time. We now have a greater number of adults than ever before who, at stages in later life, are being diagnosed as being autistic, and I am quite sure that quite a number of those people have been subject to misdiagnosis.
The particular thing that I want to focus on is training for people who are responsible for detention and high levels of treatment. Noble Lords will be aware of the tragic case of Oliver McGowan, a young man with learning disabilities who was inappropriately treated and died. There has been an amazing campaign by his mother to ensure that that does not happen to other people by making sure that anybody who is involved in the provision of mental health services has undergone appropriate training and understands learning disabilities and autism.
My understanding from Oliver’s mother is that there are three tiers of training. Tier 1 is a level of training which is required for all people who work generally with people with learning disabilities and autism. They need to have this general level of awareness. Tier 2 is for health and social care staff and others with responsibility for providing care and support for a person or people with learning disabilities or autistic people but who would seek support from others in a complex management and decision-making process. They would be part of a team referring up to others. Tier 3 is specialist training for professionals who have a high degree of autonomy and are able to provide care in very complex situations, which might include people with learning disabilities and autism.
The training appears to be sequential. You have to have completed tier 1 training in order to go on to tier 2 and then tier 3. Tier 1 is an e-training module which takes about half a day. As far as I understand it, about 1.5 million people have done that. That is a good thing: we are getting to a greater basic understanding of learning disability and autism by many people across the NHS going about doing their jobs. Tier 2 is a one-day intensive training programme, and that has not gone so well. There have been problems with its implementation, and it is not clear how many people have undergone that training. There are also some quite considerable questions about the quality and scope of that training.
Tier 3 is not part of the Oliver McGowan programme, although it is the most relevant to this Bill. As of December 2024, the Department of Health website makes absolutely no mention of tier 3 training at all. Can the Minister tell us where the development of that training is up to, and who is responsible for ensuring that the content of it is suitable? Is it sufficiently developed for people who are having to make very difficult decisions, particularly around detention of people who are quite often in a state of disturbance at the point at which that decision is taken? If we do not follow up on this tier 3 training, then we are going to carry on in the situation where we are now, where we know that people are being wrongly diagnosed by people who, perhaps, should not be expected entirely to understand them because their professional training up to this point has largely not included such people.
The noble Baroness, Lady Murphy, and I bow to her superior knowledge, very much made the case to us last week that we are talking about different types of mental disorders and very different specialisms across the mental health services. I am therefore asking that anybody who is in a position of making the decision to detain—and let us remember that people are making decisions to detain not just under the mental health legislation but also, at times, under the mental capacity legislation—should be appropriately trained. That is why I put down my amendment which, I admit, is not perfect, but I hope that the Minister might take some of my point and my intent and that we might take this forward together.
Baroness Browning (Con)
My Lords, I shall speak to my Amendment 42A in this group, which follows on from the two previous amendments from the noble Lord, Lord Scriven, and the noble Baroness, Lady Barker, particularly the details that the noble Baroness has gone into about the need for training and expertise for people who are dealing across the piece with those with autism and learning disability and, importantly, when those clinicians take the decision to admit somebody. As we know, one of the problems that is facing us and why it is so important that these issues have come forward in this particular Bill is because there have been so many inappropriate admissions where people have been detained for so long that it has become a scandal.
Lord Beamish (Lab)
My Lords, I will speak to Amendment 33 in the name of the noble Lord, Lord Scriven. If this Bill is a success, we shall, I hope, see fewer people with autism and learning difficulties detained under the Mental Health Act. However, the noble Lord’s amendment goes to the heart of the problem of resources. The current system is broken. It is a market system, which ends up with a lot of people finding themselves detained in facilities far from home, and getting out of that system can be very difficult.
The collection of data will be important: first, to find out how many people are being detained. Having spent 23 years in the other place and having been a passionate advocate for mental health, I always found that data is one thing that is never really kept. It is kept between the Department of Health and various other healthcare providers. Getting that visibility for the numbers we are talking about will be very important.
We need to be honest that, in the entire mental health debate, people with autism and learning disabilities have been overlooked. To get this right, having proper community-based facilities will be very important, but it will be expensive. The market model we have at the moment means that lots of private companies provide care at very high cost, and commissioners tend to have to commission only from certain providers. This leads to a shortage of supply and prices going up. The Minister needs to spell this out.
I understand what the noble Lord said in moving the amendment, but it is important to have visibility of not only the numbers but where the community facilities are going to be. New Clause 125FA(2)(b) in the amendment says the Secretary of State should ensure that community services are available to meet demand after 28 days. If you speak to any commissioner at the moment, they will tell you that that is completely unrealistic. I accept that it was put in the amendment for debate, but that is an aim we should be trying to get to in supporting people in the community. I have seen sad cases of people being stuck in the system. With the best will in the world, and I think there is cross-party support for this, we should not have people with learning disabilities and autism stuck in the system for as long as they are, with no way of getting out. I accept that the Bill aims to give a voice to those individuals, but without the resources to match, they will still go round the merry-go-round of different funders.
Another important issue that we need to highlight is the lack of support staff in the community for dealing with people with learning difficulties and autism. That is not seen as a priority at college. We need to put more emphasis on making it an attractive career and on the fact that it is vitally needed and will make a real difference to the individuals concerned. Training is important, but so is getting people into the service in the first place. I accept that the noble Lord is not going to press the amendment, but it goes to the heart of most of the matters in the Bill. We are deluding ourselves if we think the good and well-intentioned things in the Bill will be delivered without the resources to do so; they will not. The one without the other will lead to people still being detained when, in a modern society like ours, they really should not be.
Baroness Murphy (CB)
My Lords, I give my strong support to the noble Lord, Lord Scriven, asking for a road map, which I think is the political phrase we use now, to get to where we want to be. I remind him that, back when the then Government came in in 1987, we had a documented timetable for closing the learning disabilities hospitals but that never happened; it went too slowly. So, we have left people stranded in various independent sector and NHS facilities, partly, to be honest, because the Department of Health took its eye off the ball as to what was happening to people in long-stay care and just stopped looking. So I agree that we need some kind of timetable; otherwise, the Bill becomes simple aspirations, as we have already said.
Unfortunately, it is not just autism and learning disabilities that require special training. In a lot of areas of mental disorder, people get inadequate training in subspecialties when they are studying the general psychiatric stuff. Psychiatric nurses do not get enough, either. I agree that there are issues here that require a special target, but at the moment they do not get it, so I support that as well.
On the experience of the noble Baroness, Lady Browning, of course it is true that there are an awful lot of bad psychiatrists around. There are bad physicians and bad surgeons—not the noble Lord, Lord Kakkar, before he punches me on the chin. We should not say “bad”; I would say “not the best”. A friend of mine was visited by a community psychiatrist in old age psychiatry about a month ago. I asked his partner how it went, and he said, “Well, he was in and out in 15 minutes. He’d got 10 assessments he was going to do in people’s homes around south Norfolk in that time”. That was a totally inadequate amount of time to get a history from relatives, to get an understanding of what was going on in the home situation and to understand the problems this person was experiencing. I was shocked, but I was told not to be because it happens all the time that there is an inadequate length of time for people’s assessment.
It is hardly surprising that diagnoses are wrong and that people end up with the wrong prescriptions. It is deeply regrettable, but this will happen for as long as community services are underresourced. As we have heard from all around the Chamber, you can put as much in place as you like, but if it is underfunded, has the wrong facilities or is too far away from where people live, it just will not happen. We need a road map, and we need to know when these facilities will be made available, because the rest of it cannot happen until they are.
Baroness Bennett of Manor Castle (GP)
My Lords, I will speak to my Amendment 152. We have already had a rich debate, concentrated on certain areas. This amendment deals with a somewhat different area, which is why I wanted to include it at the end. We have talked quite a bit about training and research and the link between the two. The noble Lord, Lord Scriven, said in introducing this group that it was all about autism and learning difficulties, but this amendment also covers mental health, for the interests of clarity.
This is a probing amendment, but there is an argument for doing what it calls for, which is having a report to Parliament, two years after the Bill is passed and then every three years thereafter, about the provision for and progress in research, and the transfer of research findings, in mental health and autism and learning difficulties. This would enable Parliament to keep a check on how much resource is being put into this area and, crucially, how much knowledge is transferred into practice. It would also be a really useful tool for informing Parliament about what is an extremely fast-changing area.
It is worth noting that mental health and disabilities are areas in which research is not just redefining our understanding but often entirely demolishing old models and forcing a restart from the basics. We are also seeing a change in approach, in which I am very pleased to say that there is an increased focus on ensuring that experts by experience can guide and have input into research directions in a way that certainly was not true in the 20th century.
I note, for example, an interesting study from the University of Stirling last year, which spoke to people in Scotland—though I have no doubt this applies more broadly. It looked at how research in autism currently tends to be directed towards biological studies and a search for treatments and cures, but autistic people said that they would prefer a focus on a good quality of life, and that they should have a real say in the research directions. They were concerned that continuing even now are ableism, objectification, and other othering approaches in research directions. I spoke on the previous day in Committee about the failure to apply the social model of disability to learning difficulties and autism. That is very much the case. I hope that that will change, which would change what we should be researching and how we should be training people.
Moving to perhaps more comfortable ground for many people, I note that there is a replication crisis across many areas of research. That is particularly true in the mental health space, where, unsurprisingly, there has been a recent dawning that conducting a great deal of research on US college students does not necessarily produce findings that can be replicated all around the world in all sorts of different research conditions. For example, with Alzheimer’s disease, are amyloid plaques a cause, a symptom or simply correlated? I have no idea, and I doubt that anyone can say, with their hand on their heart, that they know either. This an area in which the continuous failure of medical trials has shown our lack of knowledge.
Baroness Tyler of Enfield (LD)
My Lords, I want briefly to make a couple of comments on this important group. As everyone has acknowledged, an absolutely vital change to the Bill is that, in the future, people with learning disabilities and autism will not be detained by the Bill and their needs are to be met in the community. I am sure we can all agree on and gather around that.
The noble Lord, Lord Beamish, made the point that, far too often in the past, people with learning disabilities and autism have been overlooked. I see the Bill as a real opportunity to do something substantive about that. That is why I note some of the amendments we have heard about in this group—certainly those in the names of my noble friends Lord Scriven and Lady Barker, and others—about the importance of having properly trained staff with up-to-date knowledge and expertise, as the noble Baroness, Lady Bennett, has just mentioned.
For any of this to happen, it is important that there is a proper plan, that is costed; the resources need to be available, and properly trained staff with up-to-date expertise need to be available in the community. To ensure that there is some sort of accountability around all this, I reiterate the question that my noble friend Lord Scriven asked the Minister: when will we see new targets—we have not got any at the moment—to reduce the number of detentions of people with learning disabilities and autism? It would be helpful to know that those targets will be put in place and that there is some way of monitoring the progress on all the important things we have been talking about in this group.
Lord Patel (CB)
I agree with what has been said: we need a definitive plan for how things will work out. We cannot rely on it being in five or 10 years because, as the noble Baroness, Lady Murphy, said, it then just becomes an ambition rather than a target to achieve.
I support the amendment of the noble Baroness, Lady Browning, which strongly asks that the people who look after children with autism and learning disabilities are properly assessed by properly trained and accredited people. We know that, currently, children are ending up in detention inappropriately because they are assessed to have a psychiatric condition such as schizophrenia—as the noble Baroness, Lady Browning, said—when, although they might have some psychiatric sub-condition, they fundamentally have autism or learning disability problems.
I am sorry that the noble Lord, Lord Adebowale, is not here to speak to his Amendment 150, which asks quite powerfully for a clear plan to be laid out, with resources tied to it, to achieve the ambitions there are in the Bill. I would have supported his amendment probing the Minister as to how resources will be allocated to achieve the ambitions for those targets to be met.
Lord Kakkar (CB)
My Lords, I support Amendment 42A in the name of the noble Baroness, Lady Browning, and I ask the Minister what justification there could be for refuting the amendment. It seems entirely appropriate, and indeed essential, that in taking such an important, far-reaching decision, one of the two registered medical practitioners who is responsible for that decision, taken at one point in the management of the natural history of disease in that individual, has the specialist skills and training to be able to make an appropriate assessment, one that will affect interventions on all future occasions for that individual.
I hope that, in addition to accepting this important principle, the noble Baroness might outline how His Majesty’s Government will go about ensuring that the development of such medical practitioners and their training is adequately resourced to ensure that, in future, as a result of the Bill being enacted, what we have seen in the past, regrettably on repeated occasions, does not remain the norm for managing patients with autism and learning disabilities.
Earl Howe (Con)
My Lords, I shall be very brief, because other noble Lords have already eloquently articulated the arguments that are almost self-evident about the importance of services for people with autism or a learning disability and, in particular, the importance of training all staff who may find themselves working in those fields. I agree very much with the remarks of my noble friend Lady Browning and the noble Lord, Lord Scriven, and I was particularly interested in the research mentioned by the noble Baroness, Lady Bennett of Manor Castle, which brings us into a whole new dimension, I think, in this debate.
The need to train all healthcare staff, no matter what role they perform or which part of the health service they serve in, should surely be taken as read. This should be training both in the initial identification of those with autism or a learning disability and in the skills needed to handle such individuals with the necessary sensitivity and insight. I was interested in what the noble Baroness, Lady Barker, had to say about that. The behaviour of a person who is on the autistic spectrum can be baffling to anyone who has had no experience of it, and because of that it can be open to misinterpretation. A situation of that kind carries dangers, which is why it is so necessary for healthcare staff to know how to react in a way that will make the situation better and not worse.
This is not the first time that we have debated this important topic. I believe we may be told by the Minister that mandatory training in these areas is already provided for in Section 20 of the Health and Social Care Act 2008. The provision reads:
“Regulations under this section must require service providers to ensure that each person working for the purpose of the regulated activities carried on by them receives training on learning disability and autism which is appropriate to the person’s role”.
That broad provision was inserted into the 2008 Act thanks to an amendment which your Lordships approved three years ago, during our debates on the Health and Care Act 2022.
So, a provision on training is already enshrined in law; the problem is that we have no way of knowing the extent to which it is being implemented in practice. Hence, Amendment 145 would require the Secretary of State to publish a review on mandatory training for all persons who treat patients with learning disabilities and autism under the 1983 Act and consult as necessary to determine the extent to which health service staff are actually in receipt of such training. I see this amendment as perhaps a logical partner to Amendment 152 in the name of the noble Baroness, Lady Bennett, and indeed, in his absence, to the amendment of the noble Lord, Lord Adebowale.
While the vast majority of people who provide care to people with learning disabilities and autism do so with compassion and professionalism, we have seen a number of failings in care for people with those conditions. At the same time, detention will continue to be necessary in some cases where a patient with autism or a learning disability is suffering from a separate mental health condition. In all those cases, regardless of the context in which a person presents, we need to have confidence that the people providing care have the training they need to deliver that care sensitively, and above all, capably. I would venture to say that the people who need to have most confidence in the system apart from the person receiving the care are the parents or nearest relatives of that person. Hence, I believe we need more transparency on how well the system is working than we have currently.
Incidentally, one of the things that could come out of a review of training is an opportunity to look at the current processes for whistleblowing. An important aspect of improving standards of care is to have a system of accountability that includes listening to everyone in the sector, from the most senior staff to the most junior. No one should be afraid to speak up when they see something going on that does not look right, and I should be very grateful to hear what the Minister has to say on this whole theme and on the other important issues that noble Lords have raised.
Baroness Merron (Lab)
My Lords, I express my gratitude to noble Lords, not just for their amendments but for the way in which this debate has been conducted. I appreciate much of what lies behind the contributions and amendments today.
I first turn to Amendment 33, tabled by the noble Lord, Lord Scriven, and supported by the noble Baroness, Lady Hollins, and also Amendment 150 in the name of the noble Lord, Lord Adebowale. All of these were spoken to throughout this group, including by the noble Baronesses, Lady Tyler and Lady Murphy. I noticed that Amendment 150 was particularly referred to by the noble Lord, Lord Patel, and the noble Earl, Lord Howe.
On the matter of data collection, I absolutely share my noble friend Lord Beamish’s view on its importance, the need for the visibility of data and the need to find out what is behind detention. However, I can give the reassurance that the data and statistics that were referred to are being collected and published. They will continue to be monitored and published monthly in the assuring transformation statistics for learning disability and autistic people, and I hope that will be helpful to my noble friend.
The amendments I am referring to, which the noble Lord, Lord Scriven, introduced, require the Secretary of State to publish plans within a specified timeframe, outlining the Government’s plan to allocate sufficient resources for the commissioning of services for the detention and treatment of autistic people and people with a learning disability, as well as costed plans which show how integrated care boards and local authorities will ensure provision of adequate community services for these groups.
Baroness Barker (LD)
This is a key point for a lot of the amendments that noble Lords have asked about. Can the Minister write to all noble Lords with more detail of the training programme—its content, the timetable, who is going to be responsible for making sure that it is implemented and reviewed? Will she specifically deal, in that letter, with my question about whether tier 3 training is included?
Baroness Merron (Lab)
I would be very pleased to write to noble Lords, as the noble Baroness suggests.
Amendment 42A, in the name of the noble Baroness, Lady Browning, which the noble Lord, Lord Kakkar, also spoke to, relates to appropriate expertise in learning disability and autism for medical practitioners with responsibility for recommending admission for treatment. We strongly agree with the principle of this amendment. The current code of practice sets out that, where a patient is known to belong to a group for which particular expertise is desirable, at least one of the professionals involved in their assessment should have expertise in working with people from that group wherever possible. The code also makes clear that consideration should be given to any disability the person has in order that the assessment has regard to that in the way that it is carried out.
The noble Baroness, Lady Browning, asked further about how the Bill will make sure that professionals have the right skills and expertise. This whole area rightly comes up repeatedly when we debate.
I accept that it is crucial that those with a learning disability and autistic people are dealt with sensitively and professionally. It is crucial that clinicians are able to make distinctions between a learning disability or autism and any co-occurring mental health disorder—that point was made powerfully. It is a matter for clinical judgment to determine whether a person with a learning disability or an autistic person meets the criteria for detention under Part II, Section 3 due to a co-occurring psychiatric disorder. To assist clinicians in decision-making, we will update the code of practice to provide the guidance that will be necessary, and I hope that that will make a major change.
Baroness Browning (Con)
I am grateful to the Minister and very encouraged by her response. I want to flag up something else that I raised. Occasionally, at some point of crisis for undiagnosed adults, the question is asked: could this be autism? At that point, we need people who have a very good working knowledge for them to raise that question, because it can make a world of difference if they are right. It is not just about somebody who presents with a diagnosis; it is about those who are undiagnosed. I do not know the quantity, but my gut feeling is that there are quite a lot of adults out there who are still undiagnosed. I do not know how the Minister will accommodate that situation.
Baroness Merron (Lab)
The noble Baroness makes a good point. Indeed, not everybody has a diagnosis. I suggest that, when we look at provisions, we should make clear—through the appropriate means and not in primary legislation—how the practice should take account of the point that she made very well. I will be extremely mindful of that.
We believe that the code of practice is the most appropriate place to articulate the type of experience that might be required in this area, through a non-exhaustive list of practical examples, which would avoid the need to define in primary legislation exactly what constitutes sufficient experience. The reason for that is to allow flexibility on the particular needs and circumstances of the individual. As we update the code of practice, we will engage with expert stakeholders to improve practice and to reflect the new Act. The code will be laid before Parliament before its final publication. I thank the noble Baroness, Lady Murphy, for her comments in this area.
The number of long-term detentions was rightly raised by my noble friend Lord Beamish and the noble Baronesses, Lady Murphy and Lady Browning. The number of people with a learning disability and autistic people in mental health hospitals is indeed unacceptable. Too many people are still being detained who could be supported in their communities with the right provision. Work is under way to address this. For example, NHS England has allocated £124 million of transformation funding for services, which includes funding to reduce reliance on mental health in-patient settings. Noble Lords can be reassured that I will take a particular personal interest in this area.
Lord Beamish (Lab)
On that point, I welcome what my noble friend the Minister has announced, but the real problem is about housing, including specialist housing in different areas for individuals leaving secure units. That is not universal throughout this country, as people leaving mental health units are then having to travel long distances. Surely we need local plans, and that money going in locally to provide the housing needed.
Baroness Merron (Lab)
My noble friend makes a good point about housing; we discussed it on day 1 in Committee. We are working with our ministerial colleagues who deal with housing on the need for the right kind of housing to be available. The point was well made and is taken.
Baroness Bennett of Manor Castle (GP)
I understand that the Minister may wish to write to me on this, but I wonder whether there is a real prioritisation of those experts by experience guiding that research, and what input there might be. If the Minister can write to me, that would be fine.
Baroness Merron (Lab)
I would be pleased to write to the noble Baroness.
As I set out in response to other noble Lords, I hope the Committee has heard how much I agree that the adequacy of training is a key issue. We are aware that developments in best practice in caring for people with a learning disability and autistic people need to be reflected throughout. As I set out, the Health and Care Act 2022 requires that staff be given the training appropriate to their role, and we expect that this should be reviewed in line with the up-to-date situation. The CQC assesses staff training as part of its regulatory function. For these reasons, I ask the noble Lord to withdraw his amendment.
Lord Scriven (LD)
My Lords, I thank noble Lords who have taken part in this useful and informative debate, and I thank the Minister for a thorough explanation of what happens. However, there does seem to be a disjoint between what is happening on the ground and what people in an office in Whitehall seem to think is happening. That is why noble Lords have discussed issues to do with data, training, a costed plan, research and development, and the implementation of people who at least have training and an expertise in diagnosis. Something just does not feel right. The Minister has explained what is happening, but without a fully costed plan up front, with targets, accountability and data ongoing, what will happen is what happens now. Things will be diverted and diluted, and we will not be able to hold the plan to account. For that reason, while I thank the Minister for the explanation she has given, I feel that we will return to this issue at a later stage to dig down and get that deliverable framework. In the meantime, I beg leave to withdraw my amendment.
Baroness Murphy
(b) there is a risk of serious harm to the health or safety of the patient or of another person;”Member's explanatory statement
This amendment and others in the name of Baroness Murphy remove from the criteria any mention of “likelihood” or “may be caused” and replace them with wording that allows a clinician to evaluate risk in the individual case and give evidence more straightforwardly and comprehensively without making predictions for individuals about risk.
Baroness Murphy (CB)
My Lords, in this group, we return to the issue of serious harm and risk. Clause 5, on the grounds for detention, implies that the risk factors for detention under Part 2 are identifiable and that risks are readily assessed. A number of clauses in the Bill are all about the same thing, which is why there are so many amendments in this group. They imply, again, that risks are quantifiable and predictable—if only.
Academic research has often stressed how difficult it is to predict episodes of violent behaviour in individuals, because they are rare. Risk assessments given as likelihoods are of limited use when the base rate for violence in a population, particularly serious violence, is low. The same is true, by the way, for suicide and suicidal thoughts.
It has been calculated, using the average of all the current tests and rating scales that have been carefully assessed in research studies, that if 5% of the patient population were in a high-risk category, the tests would correctly identify eight in 100 people who would go on to commit acts of violence, but misidentify as violent another 92 people. In fact, less than 1% of community patients will commit serious violence over the period of a year, which means the tests would correctly identify only three patients out of 100.
Homicides occur at a rate of one in 10,000 patients suffering from a psychosis per annum, which makes prediction more or less impossible. A number of factors are statistically associated with later violence at a group level. Even the most effective predictive combinations of variables constructed by statisticians perform poorly, except at group level. So making statements about individual risk based on the use of these tools is complex, and some would say unsafe and unethical.
Structured risk-assessment systems can be useful in routine clinical practice; indeed, most people use them in day-to-day team thinking about what these risks are. When employed by staff properly trained in their use, they are useful pointers. They perform better than unaided clinical judgment in predicting future violence, but again, at a group level. On an individual level, these checklists need to be part of a detailed understanding of a patient’s mental state, life circumstances and thinking, which is a major contributor to the prevention of harm. This is best achieved, as always, by well-trained professionals operating in a well-resourced environment where staff know well the patient’s history, response to treatment and life circumstances.
The wording of the Bill encourages pseudo exact probabilities and predictions of individual behaviour, which are not possible. This exerts pressure on psychiatrists, particularly at tribunals, to make predictions that may be seriously wrong. Unreasonable expectations of what can be predicted lead to defensive practice—to detaining people where it is not justified by the unreliable evidence. There are several places in the Bill where the impression is given that risks are reliable and predictable, but it is not so. As I say, the same problem arises with suicide and suicidal behaviours.
I ask the Government to look at whether the wording of these clauses is reasonable, given the evidence, and to substitute these certainties with something more flexible, indicating that a more rounded, holistic and comprehensive assessment is necessary. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise to speak to Amendments 86 and 67, in my name, in this group. I put them in that order as Amendment 86 more naturally follows on from—
Baroness Murphy (CB)
I am awfully sorry, but I should have mentioned that I also have almost all the other amendments in this group. They cover the same question—it is just about the wording of these two phrases. Amendment 45, along with one other, is not mine, but most of the amendments are covered by those brief words.
Baroness Tyler of Enfield (LD)
My Lords, I think that I am speaking in the right group. Amendments 45 and 48 are in my name, and although they are in this group, they are of a rather different nature. They are about the framework and definition of “appropriate medical treatment”.
I will briefly outline the overall context and why I thought it important to bring these two amendments forward. I am particularly concerned that many in-patients in mental health hospitals, particularly autistic people and people with a learning difficulty, continue to face detention in hospital settings which can provide little or no therapeutic benefit. The environment of these hospital settings can be incredibly overstimulating and distressing. We continue to hear stories of restrictive practices, including physical, mechanical and even chemical constraint, as well as the use of solitary confinement.
Lord Kamall (Con)
My Lords, given that all those who have spoken to this group of amendments have been brief, I shall try to be brief. Once again, I thank the noble Baroness, Lady Murphy, for discussing with me in an exchange of emails over the weekend the intent behind the amendments in her name.
The noble Baroness, Lady Murphy, makes a reasonable point about clauses in the Bill that contain the phrase “likelihood of the harm” or “serious harm may be caused”, because it is assumed that such risks are quantifiable and predictable. I was struck by her observation that psychiatrists, psychiatric nurses and academics have warned about the difficulty of being able to predict episodes of violent behaviour in individuals because the base rate for violence, particularly serious violence, in the population is low. One of the things that we keep saying throughout this debate is that we need to see the evidence and the data, and that that should drive decisions that are being made. Given that, I am grateful to the noble Baroness for sharing the statistics, which I will not repeat but which reinforce the point that she wanted to make.
Considering those statistics, I am sympathetic to two specific points that the noble Baroness made. The first is that making statements about individual risk based on such statistics is complex and possibly unsafe, and, as the noble Baroness said, may be unethical. The second is that it may be helpful to use structured risk-assessment systems in routine clinical practice, if used by appropriately trained staff, to predict possible violence at a group level. However, given that many noble Lords have spoken about patient-centred care and the importance of understanding the individual and their sensory profile, surely we should be looking at patients as individuals, where the clinician better understands the individual patient’s mental state, relevant history and response to treatment given his or her life circumstances.
I will be interested in the Minister’s response to the amendments in the name of the noble Baroness, Lady Murphy, urging the Government to replace wording such as “likelihood of the harm” or “serious harm may be caused”. These terms are inexact and somewhat ambiguous and do not appear to be driven by evidence. Perhaps there are more appropriate terms for more holistic and comprehensive assessments.
Amendment 45, tabled by the noble Baroness, Lady Tyler, proposes that the definition of appropriate medical treatment includes the setting in which treatment takes place. This takes us back to a point made on the first day in Committee by the noble Baroness, Lady Barker, and just now by the noble Baroness, Lady Tyler, that for those with autism and learning disabilities, being held possibly in noisy, bright, busy settings full of people who may be strange to them, and where they may feel powerless and worry about what will happen next, is likely to affect their mental health and well-being. Therefore, surely it is important that we take account of the points made by the noble Baronesses, Lady Barker and Lady Tyler, particularly in Amendment 45.
On Amendment 48, it is really important that care is led by the level of therapeutic benefit. That should be based on evidence to drive those decisions. Given that, I look forward to the Minister’s response.
Baroness Merron (Lab)
My Lords, I am most grateful for the contributions that have been made and the amendments that have been tabled.
I turn first to Amendments 37A, 37C, 38A, 38B, 42B, 42D, 42E, 42G and 42H, all tabled by the noble Baroness, Lady Murphy, and spoken to by other noble Lords, including the noble Lord, Lord Kamall, regarding the new criteria. Let me say at the outset that the new criteria explicitly require decision-makers to consider the risk of serious harm and the likelihood of those harms occurring in order to justify detention. Clearly, the reason for this is to ensure that any risks to the public and the patient are consistently considered as part of the assessment process, and to protect patients from lengthy detention when these risks are unlikely to occur. I hope that this will be helpful for some of the debate that we have had.
The amendments tabled by the noble Baroness, Lady Murphy, seek to revise the proposed new risk criteria to remove any mention of risk that “may be caused” or the “likelihood” of the risk transpiring. The purpose appears to be to remove any prospective assessment from the detention decision and instead focus on the risk as it can be established at the time. The noble Baroness, in her introduction, asked about the reasonableness of the words in the provisions, and I understand that this is where the concerns lie. I should also thank the noble Lord, Lord Kamall, for his comments on evidence and data and their importance. In answer to the noble Baroness, I should say that the independent review found that the current criteria for detention are too vague and recommended that the Government should update the detention criteria to be more explicit about how serious the harm has to be and how likely it is to occur to justify detention. The intention of the revised detention criteria in the Bill is not to ask clinicians to make predictions but to clarify that they should consider whether a harm is likely to occur, based on their assessment and knowledge of the person—something that the noble Lord, Lord Kamall, focused on—rather than based on risks which may never occur.
Any consideration of risk arguably preserves the need to look at what might happen rather than what is happening or has happened in more concrete factual terms. We think that it is important that the detention criteria allow clinicians to detain based on the risks that they think are likely to happen, rather than just the risks that have already materialised. This enables them to act early to prevent harm to the patient or others. In line with the intention of the noble Baroness’s amendments, this should be based on personalised individual risk assessments and information about the patient’s history and personal circumstances—again, something that I know noble Lords are exercised by, which is about the individual approach to this.
We did engage again on the changes to the detention criteria last summer, in light of the recommendation on this issue by the pre-legislative scrutiny committee, and to assure ourselves that the detention criteria struck the right balance between allowing clinicians to continue to take early action when they are concerned about a patient’s or others’ safety and the independent review’s concerns that people could be detained on the basis of risks that might never occur.
Baroness Murphy (CB)
I thank the Minister for her response. I have to say that psychiatrists remain worried about this and the possibility that they will be expected to make decisions on risks which they are simply not capable of doing. But I would not want there to be a feeling around that we want to discourage people from taking action much earlier than they sometimes currently do, because, in my view, they often leave it too late before they admit somebody—we have seen a number of such cases recently. I reserve the right, perhaps, to come back with some alternative ideas, but I beg leave to withdraw my amendment.
Baroness May of Maidenhead
Member’s explanatory statement
This amendment and others in the name of Baroness May seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.
Baroness May of Maidenhead (Con)
My Lords, the amendments in this group standing in my name, Amendments 37B, 38C, 42C, 42F and 128B, are all intended to widen the definition of those who can attend a mental health incident and act to detain an individual in a variety of circumstances.
It is a pleasure to speak after a number of noble Lords who have a considerable wealth of experience on the issues in this Bill. I can claim no such breadth of experience, but the amendments I have tabled speak to one issue, which I have dealt with in the past: that of who can attend a mental health incident and particularly the attendance of the police at such incidents.
Back in 2010, it became clear to me, as I spoke to more and more police officers in my role as Home Secretary, that there was one issue that was at the forefront of their mind, and it was the problem they had in dealing with people at the point of mental health crisis. Their concern was understandable: they had no training in mental health, they were not professionals in this area, yet they were being called out to situations. They were being expected to determine whether someone was at the point of crisis or not, and what should happen to that individual; more often than not that meant taking that individual to a police cell as a place of safety. For the police officer, there was concern that they were being asked to deal with something for which they had no training or knowledge.
Of course, the police presence was often not good for the individual concerned. Inevitably, it meant they were not being given the healthcare support they needed at that point in time; but more than that, the very essence of a police presence—somebody in the uniform coming to deal with them—could actually exacerbate their mental health situation, and a police cell is not designed to improve somebody’s mental health. Finally, for the police force, of course, it meant that it was taking up resource which could have been used elsewhere, and which was, in many cases, inappropriate; often if somebody was in a police cell as a place of safety it meant that an officer had to sit outside the cell to ensure that they did not harm themselves.
The issue of the use of a police cell as a place of safety is dealt with in other parts of the Bill, but they do not deal with this wider question of the police resource that is being used. Even if the police are lucky enough to get somebody to a hospital, they still could have to have an officer in A&E sitting with the individual to make sure they do not harm themselves or cause harm to others. Indeed, the Metropolitan Police, in its evidence to the Joint Committee on the draft Bill, cited a case study where a patient was required to be guarded by the police in A&E to prevent them becoming a high-risk missing person, and eight Metropolitan Police officers had to attend that individual for over 29 hours. Police officers were worried about the job they were doing, the individual concerned was not being treated or dealt with in the way that was appropriate for their mental health needs, and police resource was used unnecessarily.
Over the years, I and others have tried to address this situation, initially with some success. But what often happens in government, as noble Lords and the Minister will find over time, is that an initial success is turned back because over time people revert to the previous behaviour or mode of operation. That is what we have seen in this case, and it came, of course, to the point where the Commissioner of the Metropolitan Police said that the force would not give an ultimatum and would not turn up to these mental health incidents.
As drafted, the Bill has the capacity to at least maintain, if not exacerbate, this problem, but the Government could accept amendments or amend it in a way that would improve the situation. I should say that, of course, if there is an immediate risk to life or serious injury, the police will always have a role to play; but they are clear that they want to see mental health repositioned as a health matter and not seen through the lens of crime and policing-related risk. This is the position that the National Police Chiefs’ Council took in its letter on the Bill to the current Secretary of State for Health, which said:
“The current position of the law arguably views mental health through the lens of crime and policing related risk, which raises a number of issues including disproportionality in the criminal justice system, discrimination, adverse outcomes for people suffering with poor mental health as well as increasing stigma attached to mental health”.
That concern that the focus and statutory footing of the police as the primary responder to incidents of mental health should be removed from the Bill is what has led to my amendments—it is what they are intended to deliver.
I see similarities between my amendments and Amendment 158 in the name of the noble Lord, Lord Davies of Brixton. If I may be so bold, I think we are both trying to achieve a situation where the expected response to someone in mental health crisis is not limited to police; in other words, “right care, right person”. My amendments are intended to widen the description of those who can attend mental health incidents beyond a constable, but they specify that a police officer—the holder of the position of constable under the Crown—can respond if there is a genuine need for a police presence.
Recognising that we do not want to see healthcare professionals put at risk, the amendments specify that the authorised person attending an individual should have been
“trained and equipped to carry out detentions”
and by carrying out that function should
“not be put at unnecessary risk”.
It is worth noting, perhaps at this point, that the College of Policing’s mental health snapshot 2019 found that almost 95% of calls that police attend that are flagged as a mental health response do not require a police response.
I referred to the reasons behind my amendments in relation to the police, but there is support among healthcare professionals for such changes. In the joint Home Office and Department of Health review of Section 135 and Section 136 powers, 68% of respondents to the survey, alongside the review, agreed that all or part of Section 135 and Section 136 powers should be extended so that healthcare professionals could use them provided they were not putting themselves at risk. Paramedics particularly supported the change, with 93.3% of paramedics agreeing and 61.1% strongly agreeing.
Beyond the interests of the police and healthcare professionals, of course, we must also remember the interests of the individual at that point of mental health crisis. They deserve the right response, the right care, the right person—and I do not believe that that is always a police officer. This Bill should reflect that and enable a wider range of authorised persons to attend mental health incidents. I beg to move.
Baroness Buscombe (Con)
My Lords, this is an area where I feel I have the possibility of a solution or part of a solution, while supporting very much what my noble friend has put forward in her amendment. My solution comes from knowledge that we have gained from the world of palliative care. It is a subject matter that we covered in detail on the joint scrutiny committee, because the whole issue of the police turning up to such an incident where somebody is absolutely in crisis can, in many instances, lead only to an increase in the fear and extraordinary pain that that person is feeling when they are in crisis. It is not the fault of the police; it is just the situation that they find themselves in.
Baroness Barker (LD)
My Lords, in speaking to my Amendment 49A, I thank the noble Baroness, Lady May, for her amendments. Those of us on the joint scrutiny committee spent a lot of time focusing on the fact that, in truth, a lot of what happens to people who are having mental health crises depends entirely on where they are, who is there and who somebody passing in the street and tries to help them thinks is the right person to call at a moment of emergency.
We are all in agreement that the police have for too long been the default answer to a problem but are not the right answer to a problem. The police know they are not the right answer to a problem—I say that as somebody who has lots of police officers in my family. A lot of people having a mental health crisis will end up in A&E just because the lights are on and that is where people go. We are still dealing with one of the problems the Wessely review touched upon, and that is lack of timely access to an accurate diagnosis.
My amendment, which I admit was suggested by practitioners in the field, tries to deal with the fact that we do not have an abundance of consultant psychiatrists who are there at the drop of a hat to make assessments. The amendment probes whether we might help things by opening up the eligibility to make diagnoses under Section 12 to people who are health professionals but not necessarily medical practitioners. Back in 2006-07, we had the massive argument about bringing in approved mental health professionals. That was a big battle and there was a lot of rearguard action on the part of consultant psychiatrists, who saw it as a downgrading. Approved mental health practitioners are now very much part of our mental health services and they are a good part of our mental health services.
The amendment is trying to open up the making of assessments, simply in order to speed up access to appropriate services. We all understand, and are talking about, the fact that, although we can see the effects of waiting lists and so on on physical health services, waiting lists and the lack of access to appropriate treatment in mental health services are much more hidden. People end up in limbo unless and until there is some kind of outrage, or, to go back to the noble Baroness’s point, until they do something sufficiently serious.
We ought to be freeing up the capacity of consultant psychiatrists in particular, because not only is demand growing but there are also particular areas of specialist demand—young people with eating disorders, for example. I frequently hear of worried parents being told that their children are not sufficiently ill to get treatment. They are not alone; there are other people in that same situation. My modest amendment is an attempt to open up and make better use of the skills we have within the NHS workforce.
Lord Davies of Brixton (Lab)
This is the first time I have spoken in Committee on the Bill, so I declare my interest as a member of the advisory panel of the Money and Mental Health Policy Institute. I shall speak to my Amendment 158, which, as the noble Baroness, Lady May of Maidenhead, said, covers essentially the same ground as hers, and they both aim at the same endpoint. Her elegant and compelling speech has left me in the position of just having to emphasise issues; the case made was compelling, and I hope the Committee will agree. In particular, I hope the Minister will be able to make some sort of positive response.
This proposal does not flow specifically from the independent review, but it is in the spirit of what was in that review. The background to the changing nature of mental health services is the significant material increase in the demand for mental health services over the past few years, and the growing number of people on the mental health waiting list or seeking community support.
This unmet need has consequences, which are felt by front-line medical staff. My amendment seeks to address that by giving additional powers to paramedics and appropriate mental health professionals. It would extend the reach of Section 136 of the Act, currently confined to constables—or police officers, as I say in my amendment. As previous speakers have said, that needs to be shared more widely.
The unfortunate reality of the current situation is that those detained under Section 136 get suboptimal care; we just do not have the resources available for them. There is inadequate provision of suites for Section 136 detention, and there are simply not enough clinicians. We all applaud and support the practice of “right care, right person”, but we must acknowledge that that only increases the demands on the service.
The result of all this is that, as we have heard, police officers are taken away from front-line policing duties for many hours. That is bad for everyone involved—for the police officers, for the health service, and particularly for the patients. At the same time, the skills of non-medical health service staff have increased. They are now moving towards the sort of training that equips them to handle such situations. Obviously, giving staff extra powers will not resolve the situation, but we can learn from experience abroad, especially in Australia and New Zealand, where a range of health service staff have a practice called emergency care orders, with the intention of providing greater dignity, removing the sense of criminalisation, and providing appropriate care.
As my noble friend the Minister said, what we are looking for is beneficial interventions at the earliest possible stage. A key element in achieving that aim is extending the powers under Section 136 to wider professions. That is not to say that there is no role for police officers—there will always be occasions when their intervention is required—but saying that the single source of entry to services of someone suffering an acute mental health problem is through the intervention of the police is just wrong.
There have always been concerns when the powers of medical staff are extended, but this will be an issue of training, guidance and codes of practice—clearly, those will have to be provided—so that the additional powers can be used effectively.
To conclude, I emphasise the point that the noble Baroness, Lady May, made in opening the debate. We have moved beyond the point when the powers in Section 136 were essentially about public order—which is, quite rightly, a role for the police. We must ensure that now, commitments under Section 136 are the first stage of a process of medical treatment, in which the unfortunate individual suffering an acute problem with their mental health must be considered first. This is not about public order; it is about appropriate healthcare, where a range of health service professionals can exercise their trained judgment to the benefit of the patient.
Baroness Watkins of Tavistock (CB)
My Lords, I support this group of amendments in principle, but I want to make two points. We talk about powers a great deal, but the therapeutic relationship is not about power; it is about collegiate working with patients and users of the service. I appreciate that there are times when we need to intervene when the patient does not want intervention, but we must be careful about the nomenclature as we redraw elements of the Bill.
In particular, I welcome the phrase that the noble Lord has just used, which is used so frequently in New Zealand and Australia: emergency care orders. We should think carefully about the fact that what we need is emergency assessment and care orders. People who work regularly with patients over a long period are often the best people to recognise a change in a patient’s behaviour earlier.
I fully support the idea that this should be extended beyond police constables, as the noble Baroness, Lady May, outlined, but I also recognise that there will be healthcare professionals, be they psychologists, nurses or social workers, who do not want to take this on. We must make certain that we do not lose some of our valuable team by making it compulsory to take on that extended responsibility.
Baroness Tyler of Enfield (LD)
I shall make a few points in response to the amendments that we have been discussing in this group. The noble Baroness, Lady May, made, very powerfully, an incredibly compelling case. The point she made about police officers sitting in A&E for many hours is so important. Not only is that a waste of police resources, it is often completely inappropriate for the person suffering from acute mental health problems. It can also be incredibly alarming for others in A&E. We all know that, sadly, far too many people are waiting for far too long in A&E, in the sort of environment that is in no way conducive to their overall health, physical or mental. That is my first point.
My second point relates to something that the noble Lord, Lord Davies, said. There will still sometimes be a role for police officers. I know from personal experience how much a police presence can be required when a person suffering a very acute mental health crisis is likely to harm both themselves and others. Those others can often be family members who are trying to support the person suffering from the crisis but are also pretty scared for their own safety. It is important that we are talking about widening the range of people who can be that primary responder, but we are not saying that it should never be the police.
I agree that if we have a wider primary responder, that individual must be prepared to do it, happy to do it and appropriately trained. We heard a lot in earlier groups about the importance of good training. I was particularly taken with the statistic that the noble Baroness, Lady May, raised about the views of paramedics and how many of them support this, because they are the people right at the sharp end. I cannot quite remember the number who support it, but it was very large, and so I think it is something that we should take seriously.
Finally, I want to lend my support to Amendment 49A in the name of my noble friend Lady Barker. Speeding up access to appropriate services is important, as is making the best use of the workforce that we have. For those two reasons, the amendment that my noble friend put forward is important.
Lord Meston (CB)
My Lords, I hesitate to interrupt, but I want to make much the same point that the noble Baroness has made based on my experience of a trip to A&E last year. I mentioned it anecdotally at Second Reading. There was a very disturbed person in A&E when I was having to wait there for some three hours. The hospital staff were struggling to contain the person in one room, as he kept leaving. He was not violent, but he was obviously distracting the hospital staff and worrying the other people present, who included children. As soon as anybody asked the staff what they were going to do, they said that they had to wait for the police. I have no doubt that the whole episode that I witnessed was prolonged by the need to wait for the police. Clearly, if this amendment or something like it is approved, it will widen the range of those who could be called upon to deal with such a crisis.
Earl Howe (Con)
My Lords, there is little for me to do following the persuasive speech of my noble friend Lady May, other than to say how much I support her in putting forward her amendments. I hope that the Minister will approach the proposals my noble friend has made in a receptive and constructive way.
I was struck by the case put forward by my noble friend Lady Buscombe about how technology could assist in the handling of mental health incidents. I hope equally that the Minister will wish to follow up on my noble friend’s suggestions.
The question of whether police officers, and only police officers, should exercise the powers under the Act to remove a person suffering from a mental health crisis to a place of safety is one that, as my noble friend Lady May said, has been simmering in the Home Office and the Department of Health and Social Care for a decade or more. Extending those powers to suitably trained healthcare professionals would be a change that I suggest goes with the grain of this Bill as regards the emphasis that it places on looking after mental health patients in the best possible way. That is not a criticism of the police in any sense. The police do a magnificent job in tackling anything that they are called upon to do, but, as we have heard, the police themselves say that the vast majority of instances in which they are called upon to deal with a mental health incident do not require a policing response.
The issue of risk is important to consider. Statistically, as my noble friend said, most mental health incidents present no risk whatever to the police attending. Admittedly, it is not always possible to tell in advance how risky a particular encounter is likely to be, but I agree with my noble friend that, provided that a paramedic is suitably trained and equipped, they will have the necessary skill set to deal with any risk to their own safety, bearing in mind that if a police presence turns out to be necessary, they can always call for one.
I very much hope that, between now and Report, the Minister will agree to meet my noble friend, if that is what she wishes, to map out a way forward that will lead to a broadening of the Sections 135 and 136 powers.
Baroness Merron (Lab)
My Lords, this has been an interesting debate, with much agreement across the Committee. I noted the support from both the other Front Benches, from the noble Earl, Lord Howe, and the noble Baroness, Lady Tyler, for much of what has been said.
Let me first discuss Amendments 37B, 38C, 42C, 42F and 128B in the name of the noble Baroness, Lady May, along with Amendment 158 in the name of my noble friend Lord Davies of Brixton. I am most grateful to the noble Baroness and my noble friend for bringing this issue before the Committee today. Amendments 37B, 38C, 42C and 42F would add a new category of authorised persons and would provide that police constables and such authorised persons may detain a person under Sections 2, 3 and 5 of the Act.
I share the recognition from the noble Baroness, Lady Barker, of the noble Baroness, Lady May, who I commend for her work to pave the way and dramatically reduce the use of police cells as a place of safety for those who are experiencing a mental health crisis. I listened carefully to the noble Baroness’s words of advice to all government Ministers; all I can say is that I cannot think how much better we could be advised than by a former Home Secretary and Prime Minister.
I thank the noble Baroness, Lady Watkins, for what I might call her notes of caution in respect of extending provisions, and the noble Lord, Lord Meston, for sharing his first-hand experience to add to the debate today.
We understand the broad intention of these amendments and of Amendment 128B, also in the noble Baroness’s name, to reduce police involvement in mental health cases for all the reasons that were said, including the extra distress that an officer may—inadvertently, of course—bring to a very delicate crisis situation.
The noble Baroness, Lady May, asked how the Bill will ensure that pressure is not placed unduly on police resource. I understand that that is very much a driving consideration, so let me say a few things on that matter. We recognise the pressure on the police, who are responding to a very large volume of mental health-related incidents, although—this is not to dismiss the point—detentions under Section 136 have decreased this year by 10%, and we are removing police cells as a place of safety to reduce some of this burden. We recognise, in particular, that police time in health settings should be reduced. I give an assurance that we have committed to look at this issue and to update the code of practice to clarify the handover process between police and health, including in A&E, which the noble Baroness, Lady Tyler, spoke about. We recognise the confusion around the application of the legal framework that can tie up police time when it would be lawful for them to leave a patient with health staff.
Baroness Barker (LD)
I thank the Minister for her characteristically full and attentive response. I understand why she is not too enamoured by my amendment, and I do not intend to push that much further. However, having listened to her response to the noble Baroness, Lady May, I cannot help but arrive at the conclusion that, while we are quite content, because we all agree, to see police officers being taken away, we are not going to change anybody else’s roles or responsibilities to plug what will be an inevitable gap. I return to something I have said today and previously: this will be the only mental health legislation for 20 years. If we let this go through, in the certain knowledge that we are creating a big gap which will not be filled by existing roles or the deployment of people within the NHS, we are being quite negligent. We are consigning a lot of people to finding themselves without appropriate support at moments of distress, and that goes for staff who happen to be around at the same time.
The noble Baroness, Lady May, is a fan of Geoffrey Boycott. I hope that she goes in to bat again and does not give up. There is an enormous gap here and we have just made it worse.
Baroness Merron (Lab)
I appreciate the contribution of the noble Baroness. None of us, including the Government, wishes to create a gap, either intentionally or unintentionally. I should have said in my remarks that the noble Earl, Lord Howe, asked whether I would meet the noble Baroness, Lady May, should she so wish. The answer is yes. I was glad to do so previously with the Secretary of State; it was extremely helpful.
I assure the noble Baroness, Lady Barker, that there is no intention to create a gap, and we would be happy to elaborate further. She is absolutely right to say that we should be cautious and that it would not be good legislation to do that. The challenge is whether the amendments before us are the answer. I hope that this is a helpful comment.
Lord Scriven (LD)
I have listened very carefully to the debate on this set of amendments. Those in the name of the noble Baroness, Lady May, would create a specialism within the relevant professions which is not there at the moment, based on a change of law. The Minister’s response was focused on the skills of people now, based on their generic roles. My question is this: in responding to the noble Baroness, Lady May, did officials and the Minister look at the potential change that would happen to the skill set, and at the skills and professionals that would be specific for this purpose? In practice, if the law changed, that is exactly what would happen to those professions: a subset of skills would develop, which would allow the gap to which my noble friend alluded to be closed.
Lord Davies of Brixton (Lab)
With your Lordships’ permission, I want to respond to what the noble Lord has just said. On the front line in this are the paramedics; they are the ones who will have to deal with this issue, most of the time. They need recognition for the additional work that they are already doing. The noble Baroness referred to the gap—the gap is being filled, but in a very inefficient and unrecognised way. We need to recognise that this is something that needs to be dealt with properly, with the staff involved being given the appropriate powers to deliver.
Baroness Watkins of Tavistock (CB)
To add to that, the key thing about paramedics is that they do not have long-term therapeutic relationships with the people we are talking about. Therefore, an intervention is totally appropriate.
Baroness Butler-Sloss (CB)
I too want to add, equally with great care, to this very interesting discussion. I am concerned about the police. I have not quite understood from the Minister her thoughts on a point that has been made twice now by the noble Lord, Lord Meston about everybody waiting for the police. Are the Government thinking of making it unnecessary for the police regularly to attend?
Baroness Merron (Lab)
I thank noble Lords for their interventions. To the noble and learned Baroness, Lady Butler-Sloss—how can I put this?—I say that the police should be there only when they are needed because they are the police. It is true—the point was made very well in the course of the debate introduced by the noble Baroness, Lady May—that it often goes beyond that. That is why “right care, right person” is something that colleagues are working on with police forces, as well as looking at the whole connection with health services. It is well understood.
I heard the comments of my noble friend, as well as those of the noble Baroness, Lady Watkins, following on from the noble Lord, Lord Scriven. When the noble Lord, Lord Scriven, was speaking, the words that came into my head were “chicken and egg”, about legislation and skills. We looked at skills, but—these are not quite the right words—not at the expense of addressing the question of whether the law is in the right place. They are connected, but I refer the noble Lord to the points made earlier, by me and the noble Baroness, Lady Watkins, about the response we have had from health and care professionals. It is about finding the right way. I take the point that there is a gap now. We do not want to make it worse, and we know that it is not acceptable.
Baroness May of Maidenhead (Con)
My Lords, may I say how grateful I am to all those across the House who have supported my amendments. When the Minister first stood up and started to respond, I got quite excited and hopeful. I thought the points had landed, but then, as she carried on speaking, my hopes were dashed as I realised that, in a very elegant way, she was actually rejecting all the points that I had made in my amendments.
The Minister emphasised the code of practice and dealing with the issue of the handover between police and medical professionals. The whole point of my amendments was to ensure fewer handovers between the police and medical professionals, because there would be fewer times when the police were called as the first responders to a mental health incident. The Minister kindly said she would meet with me, and I hope she might be willing for the noble Lord, Lord Davies, also to be part of that discussion.
The noble Baroness, Lady Barker, referenced my admiration for Sir Geoffrey Boycott. One thing about Sir Geoffrey Boycott was that his centuries tended to come quite slowly. Maybe the response and government reaction to this will be a little slower than I had anticipated; but, on the basis that I anticipate that that reaction may come and the century may be scored, I beg leave to withdraw the amendment.
Baroness Browning
Baroness Browning (Con)
My Lords, Amendment 43 in my name is to a list of grounds under which community treatment orders will be allowed. I have to say that, judging by the Second Reading of the Bill, including my own contribution, community treatment orders have not been a great success. I think that is a general view but here they are, listed in the Bill, and it is incumbent upon us to make them as strong and comprehensive as possible so that they are fit for purpose, if they are to remain.
I felt that there was an omission from the list of grounds in the Bill. I say to the Minister that I put my hand up immediately: I have had this this discussion with her outside the Chamber. This is something that I want to put into the Bill, but I am still not entirely sure that this is the right place for it. I hope she will not bat it out of—I do not know what to say in cricketing terms because I do not have my noble friend’s expertise in cricket. Anyway, I shall quickly move on.
We know the problem: there is a shortage of psychiatrists. In some areas, people are well served but in others they are not. Today’s debate has focused on psychiatrists who have expertise in autism and learning disability.
I am looking at a scenario where a person has autism or a learning disability, as well as a recognised mental health condition, and is discharged into the community on a community treatment order. Despite what I have said about my reservations about them in principle, because there is such a paucity of psychiatrists, particularly those who have expertise in autism and learning disability, once that person is being cared for on a community treatment order—or, for that matter, someone in the community who is not on a community treatment order but is medicated—where are the psychiatrists that they can turn to?
To my certain knowledge, there are around the country some integrated care boards that feel they are serving the autism community well enough if they can identify psychologists with expertise. There is nothing wrong with that, as there are excellent psychologists around the country, but of course, psychologists cannot prescribe. So there is a real challenge for people in that situation who need ongoing medication—the dosage of which may need to be changed, for example—having local access to an appropriate psychiatrist.
I am a bit nervous about the wording of the amendment—it is my wording, but I am still nervous about it—as it includes the word “local”. I assure the Minister that I am realistic enough to know that there is not going to be an appropriate psychiatrist just round the corner, but in many cases, as I am personally aware, there is not even anyone in the county. If someone has been subject to an in-patient stay in a mental health hospital, admitted in an emergency, that does not necessarily mean they are going to be in a local hospital; because of the shortage of beds, they may be quite far from home. So the community treatment order may not be exercised close to where someone has previously been an in-patient.
We also have problems at the borders between Wales, England and Scotland. For mental health services, there are mutually agreed agreements about where patients can be seen, and particularly where hospitalisation can take place. However, if community treatment orders are to be maintained, on discharge they may well be a long way away from where they live. That is why I have added my wording at the end of the list of grounds for community treatment orders.
We in Parliament make a great virtue of saying that decisions are made at local level. That is all well and good, but if the decision made at local level is, “We don’t need a psychiatrist within our geographic area who has that expertise”, that is not much help to the patient. I have shared with the Minister cases involving people who are not necessarily under a community treatment order but who have an ongoing need for medication and cannot access a psychiatrist with that expertise, and who end up having to travel to centres of population and paying very nice fees, thank you, privately because it is not available in any other way. That cannot be right, which is why I have added my wording to the list of grounds for CTOs. If the Minister does not think that that clause is the appropriate place for it, I will understand; but if so, I hope she will tell me where in Bill it should go, because I really believe it should be there.
As a postscript that has nothing to do with community treatment orders, for people with mental health conditions who need medication, people with autism without mental health conditions—I am looking away from the noble Baroness, Lady Murphy, at this point—and people with autism who need ongoing medication for, for example, autism-related anxiety, personalised medicine is going to be a real advantage, enabling them to know exactly the right drug and the right dosage. It is out of reach on the NHS at the moment, but personalised medicine, using DNA testing to get the right dosage, is very good. I hope we are going to see it pretty soon, particularly in mental health. Let us start with mental health. I beg to move.
Mental Health Bill [HL]
Monday 20th January 2025
(5 months, 3 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-II(a) Amendments for Committee (Supplementary to the Second Marshalled List) - (17 Jan 2025)
Lord Scriven (LD)
My Lords, I will speak to my Amendment 44 in this group. Having listened at Second Reading, I was minded to table this amendment based on my noble friend Lady Parminter’s speech giving her real-life experience of the need for community treatment orders. Both the amendments and the Second Reading debate show the wide range of views on community treatment orders, ranging from some who feel they are not needed to those who feel that they are needed and those who feel a review is needed. However, something in the present system is not quite right, so, again, this is a probing amendment to try to understand where the Government’s thinking is.
Given that, even if a review were to take place, CTOs would still exist, my amendment would in principle provide an initial 12-month period for a community treatment order with some very clear provisions. If we are going to have these provisions, they need to be on the face of the Bill rather than in the code of practice—even if they are not the provisions in my amendment. I suggest that the initial order is for 12 months and that, before the order is made, the patient has to be consulted, as well as
“the patient’s nominated persons, and any relevant mental health care professional involved in the patient’s treatment or care planning”.
Importantly, the CTO has to be in line with the necessity for therapeutic benefit, and it has to involve consulting a second medical professional. I understand that the wording of the amendment may not be correct, because a particular type of medical professional, a psychiatrist, would need to be consulted with regards to the community treatment order and whether it will have therapeutic benefit.
I suggest that, at the end of the 12 months, if the clinician feels that an extension is needed, a review takes place, which goes through the process that I have just outlined—to ensure that there is therapeutic benefit, and a second medical practitioner is consulted—and that it is then reviewed after a maximum of six months. That is absolutely right in terms of trying to ensure that the therapeutic benefit is central and a second medical opinion is provided, particularly at the review stage, to ensure that there is a need for the CTO. The reason for this is the wide range of views on CTOs but also the statistics regarding the racial discrimination that there appears to be around their use, which is well documented and well evidenced.
I look forward to the Minister trying to explain the Government’s thinking on community treatment orders and how they need to change. Clearly, something is not quite right in the implementation, the length of time that people are on CTOs and whether CTOs have therapeutic benefit for many of those who are on them.
Baroness Bennett of Manor Castle (GP)
My Lords, I will speak to my Amendments 67 and 86. I think that this is the right place—I apologise for my earlier confusion; I had a problem with the list.
I will start with Amendment 86 because it follows on from the very important contribution from the noble Lord, Lord Scriven. I should preface this by saying that I cannot claim that what I will say originates from me; it is based on the Law Society briefing, which many noble Lords will have received. I saw that nobody else had picked up this amendment, but I thought that it was so important that it should be picked up. As the explanatory statement says:
“The amendment would keep the safeguard of an automatic referral to the tribunal when a patient’s Community Treatment Order is revoked which results in them being detained in a mental health hospital”.
As the noble Lord, Lord Scriven, said, a range of views on CTOs has been expressed in these debates, but the general direction of travel is certainly not to remove safeguards and we should be keeping the safeguards that already apply. I will not claim great expertise on this, but it seemed to me that this is an important issue that we need to discuss in Committee.
Amendment 67 is somewhat different but really important. Later on, we will discuss very important issues, which I have signed amendments about, concerning minoritised communities being potentially overtargeted or subjected more to mental health provisions. This amendment picks up something that no one else has picked up, which is economic and social disparities relating to community treatment orders. I went looking for some statistics on CTOs in disadvantaged communities, but I was not able to split them out; perhaps the Minister has them. However, the charity Rethink Mental Illness talks about the burning injustice of how Mental Health Act detention rates are three and a half times higher in the most deprived areas of England compared with the least deprived. Looking at those figures, I can only see that CTOs must be something very similar to that.
We need to ask a question here, and we need the stats and that is why we should have the reporting. It is probably unclear whether we have a psychiatrisation of poverty, so that when people are living in conditions of poverty, that is seen as some form of mental illness in itself, or a discriminatory application of the law against people living in conditions of poverty. The third possibility is that poverty is making people ill. Either way, we should know about these facts. They should be regularly reported, and we should be able to examine them and check on them.
I was just looking at an issue that will be raised later about debt and mental health, on which I will point noble Lords who have not seen it to a really interesting POSTnote that the Parliamentary Office of Science and Technology produced on that subject last year. It suggests a two-way relationship between financial and mental well-being. People with mental health issues are three or more times more likely to have problem debt.
Some interesting recent research in a study published in Public Health indicates how social conditions are related to mental health. “Sandwich carers” in the UK —the 1.3 million people who have responsibility for caring for children and older parents—have experienced a significant decline in mental health.
These issues around social and economic disparities and the use of community treatment orders are embedded in the community, and it is crucial to see what is happening. Amendment 67 aims to ensure that we get regular reports relating to community treatment orders.
Baroness Fox of Buckley (Non-Afl)
My Lords, I wanted to speak to this group because I made some harsh criticisms, on principle, of community treatment orders at Second Reading concerning their coercive and intrusive nature. Since then, perhaps similarly to the noble Lord, Lord Scriven, I have had cause to think again, not least after speaking to a number of working psychiatrists and taking on board the comments of the noble Baroness, Lady Parminter, at Second Reading, which really had an impact on me. It is quite unusual to change one’s mind in this place—maybe it is just me—so I wanted to note that.
I was reminded of this issue by practitioners—I was once one of those—when they said, “We worry about how many idealistic discussions about mental illness just do not take into account the reality of chronic mental illness”; I thought that was a fair reprimand. There are a group of people who are chronically symptomatic, perhaps some of them may never be well, and CTOs are a way to allow people to leave hospital who otherwise clinicians might worry would be too risky to release.
I have been thinking about this issue and in that sense was happy to see and support Amendment 44 in the name of the noble Lord, Lord Scriven, which sets out time limits. It is useful to think about probing time limits, renewal safeguards and so on, because one does not want automatic continuation and therefore indefinite CTOs on the books, which is what people are concerned about.
I would have been more enthusiastic about Amendment 66, put forward by the noble Lord, Lord Kamall, and the noble Earl, Lord Howe, which calls for a statutory review of CTO use, but the wording implies that CTOs are problematic per se. Perhaps we need a more open-ended review, because one of the reasons why CTOs are so contentious for so many people is their spiralling and increasing use, and we need to understand why that is.
One worry I have about the Bill in general, and not just this group of amendments, is that, because the drivers of the legislation are concerns about inappropriate hospital admissions and wanting to ensure that we have proportionate detention powers which are used only as a last resort, we need to be wary of demonising hospital care and recognise how much good can be done for mentally distressed patients in hospitals, particularly if they are given time and resources and the right kind of medical intervention. But, as with all hospital matters, that is not necessarily what is happening. Many psychiatric wards are under pressure to get people out into the community as soon as possible—in the sense not of them being well, but of freeing up hospital beds. One might wonder whether the CTOs are a mechanism for effectively turfing patients out before they are ready or well enough.
It also seems that CTOs are necessary when community care is under huge strain, because the idea of voluntarily accessing a wide variety of support in the community is a myth in today’s circumstances. All the briefings we have been sent draw attention to this. A range of groups and people have argued—and a number of noble Lords have said this today—that we need more resources, money and staff for appropriate care in the community to really work. That sounds reasonable, but I am concerned that this will miss the target. I want to reiterate the elephant in the room that I mentioned at Second Reading, which I have not changed my mind about: culturally, we are seeing the medicalisation of more and more problems of the human condition. This encourages ever greater numbers of people to view social, economic, educational and personal difficulties through the prism of mental health.
Baroness Berridge (Con)
My Lords, I support Amendments 44 and 66. The Joint Committee on which I serve recommended that community treatment orders be abolished for Part II patients. That recommendation is supported by organisations such as Mind. That is partly due to the awful racial disparity statistics—you are up to 11 times more likely to be under a CTO if you are from a black or Caribbean background—combined with a lack of evidence that CTOs reduce hospital admissions. It took a brave gulp, even as the Joint Committee, to recommend that. The independent review had not gone as far as that, but it was in the report of the Joint Committee.
I, too, like the noble Baroness, Lady Fox, recognise the powerful speech of the noble Baroness, Lady Parminter, at Second Reading. I remember that, because of the extremely tight timetable the Joint Committee was given, it did not have time to consider in detail eating disorders or personality disorders, which was regrettable.
I can see from the reasons the noble Baroness outlined that there may be a case for retaining CTOs, perhaps even just for eating disorders. To quote her words from Second Reading, a CTO
“puts a boundary around the eating disorder … that a voluntary agreement could not, in that it makes it clear what will be the result”.—[Official Report, 25/11/24; col. 555.]
The Bill outlines protocols for specific treatments, such as ECT, so it seems possible in principle to have the law apply to specific disorders.
Most reluctantly, I have not made an amendment in Committee in support of the Joint Committee’s recommendation. But the independent review stated that “action is required”. We must not lose sight of that urgency. There are significant problems with CTOs. The argument that is proffered—that they help and are the least restrictive measure for a very small number of patients—is not a good basis for retaining them, bearing in mind the enormous harm they are doing on the other side. I ask the Minister to look for another way, going forward, to help this small group, and not to ask racialised communities to, once again, pay such a high cost for such a small group of patients.
In the Joint Committee’s report, it seemed that the group of patients we were talking about were unrestricted patients under Part III of the Act. Bearing in mind that 79% of CTOs are under Part II, which is for civilian patients, can we look in detail at the evidence to find out which small group of patients we are talking about? There are particular issues, according to our report, if a restraint or restriction is being used on people when the small group of patients seems to be within the forensic context rather than under Part II.
I ask the Minister to put CTOs where they need to be, as a result of these amendments. The independent review said that they should be in the last chance saloon. We must be careful not to lose the urgency that the independent review gave to these issues. Although I support Amendment 66, tabled by my noble friends, it is the very least we can do. The restrictions outlined in Amendment 44 are about ending them after a certain period, because part of the problem is that they go on and on, rolling over for years and years. That coercive effect on certain communities seems to remain, as the path of least resistance.
Baroness Parminter (LD)
My Lords, I want to say a few things about a couple of the amendments. I thank noble Lords for listening and for recognising the situation. It was powerful to hear that, and I am sure that many in the eating disorder community will be delighted to hear it.
I will not repeat what I said at Second Reading, as there seems no need, but in mentioning that, I want to support the amendment tabled by the noble Baroness, Lady Browning, which picks out the focus on community care and the need for more psychiatrists. I and others have made the case for why CTOs can be valuable for people with eating disorders—and for forensic patients, I understand. The value of the CTO is that the individual is helped to engage in the community with their mental health team. It is a multidisciplinary team, but the anchor is the psychiatrist. The noble Baroness was not sure if this was the right place to put her amendment because it has wider ramifications, but it certainly has value in this debate. CTOs, which I believe should be retained, can work only if there are proper multi-disciplinary teams anchored by a psychiatrist in the community, so that those individuals can be kept out of detained settings and engaged in the community. I thank her for bringing that forward, and I support it.
With regard to Amendment 44, I do not support a maximum duration for a community treatment order, because this is about the individual and what they decide, with their multidisciplinary team. What I like about the amendment tabled by the noble Lord, Lord Scriven, is that it rightly says that we have to review community treatment orders. People’s mental health situations change, and it is important to have step points at which people know they will be reviewed. I do not support a maximum time limit but the break points, which his probing amendment talks about, are worthy of further debate and discussion. I am grateful to him for bringing that forward.
I say with regret that I do not agree so much with the support of the noble Baroness, Lady Bennett, for retaining the automatic referral to a tribunal of any CTO that is lifted. Again, that goes against my sense that CTOs are about what is right for the individual. With eating disorders, there will be cases of CTOs being lifted because the person is no longer able to engage with the community team because the eating order has gone beyond the bounds of the CTO and is compromising their health and putting them, bluntly, at risk of death. I do not see why, in those circumstances, there needs to be an automatic referral to a tribunal. Strengthening people’s rights to go to a tribunal where there is a case for that is right and proper, but, because of my view about personalised care—especially for eating disorders, but this has wider ramifications—I do not support the case for automatic referral.
I know that there are people around the Committee who understand the concerns far better than me, particularly about the high preponderance of people in the black community who are on CTOs. I understand and hear that concern. I tried to get to the bottom of the figures, like the noble Baroness, Lady Bennett, to find out how many forensic patients were on CTOs. Given that you are four times more likely to be in prison if you are a black person than a white person, I tried to work out what the figures were to get the correlation to say whether it is because there are more people in prison that CTOs are preponderantly in the black community. I could not work that out. Equally, I could not work out how many people with eating disorders were on CTOs. I got the Library to try to help me, and it said that the figures are not cut that way and do not work that way. It seems to me that there is an issue about the data that we, and the Minister, are working with to make informed decisions.
I am not sure about the exact terms and conditions of the review that has been proposed by the noble Lord, Lord Kamall, and which in a later group is proposed by the noble Baroness, Lady Tyler, but I think there is an issue about the data out there. It is not helping us, or anyone else, make CTOs work for those where they can work, are working and should work in the future, and is clearly causing a problem. We need to get to the bottom of that.
Lord Kamall (Con)
My Lords, I thank all noble Lords who have spoken on this group. I will speak to Amendment 66 in my name and that of my noble friend Lord Howe. One of the motivations when we were considering amendments from our Benches was not only to respond to concerns raised by stakeholders but to probe the Government on why they did not accept some of the recommendations of the pre-legislative Joint Committee. That is the nature of these amendments. To the noble Baroness, Lady Fox, I say that the amendment is meant as a probing amendment to ask the Government why they have not adopted all the recommendations of the Joint Committee.
One of the things that drives many of us—I feel particularly strongly about this, given my background—is why so many people of an Afro-Caribbean background are being detained or are subject to CTOs. The noble Baroness, Lady Parminter, made a valuable point. One of the reasons I have tabled other amendments along those lines, which will be discussed in later groups, is that, after all these years of saying that too many people from the black community are being detained, if we want to do something about it, we need data, and we need to understand why they are being detained. Without the data, it is left to rumour or speculation, or people make up reasons. Everything needs to be driven by the data if we are to address the fact that a disproportionate number of black people are detained.
We tabled Amendment 66 because the pre-legislative committee recommended that community treatment orders be abolished for Part II patients, those not in the criminal justice system, and wanted a statutory process and timeline to be put in place for the review and potential abolition—I say those words from the Joint Committee’s recommendation very carefully—for Part III patients, those involved with the criminal justice system.
Many noble Lords came to the Second Reading debate wanting to see an end to community treatment orders, and many noble Lords have spoken tonight about this. We were all struck by the words of the noble Baroness, Lady Parminter, and of the noble Baroness, Lady Barker, who very honestly said that, having listened to patients and families, she knows that there is a small group of people for whom CTOs work, are the least restrictive option and are beneficial, and we should therefore keep them. I was particularly struck by that. The noble Baroness, Lady Fox, said that people do not change their mind very often, but the views that we brought to the debate in the first place have been challenged.
The noble Baroness, Lady Barker, made the important point that, while she is reluctant to admit it, she believes that there should be a change in the process around CTOs. That is important. This is why this probing amendment is asking for a comprehensive review of CTOs. We have listed a number of criteria that should be in that review, but I know that many noble Lords have concerns over CTOs.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to noble Lords for their contributions in this important and interesting area. There have been, and to some degree still are, many different opinions across the Committee. This has been one of those rare occasions when parliamentarians may say that they have changed their minds having listened to the debate and looked into things further; that has added to the richness of what we have before us.
Amendment 43 tabled by the noble Baroness, Lady Browning, would require clinicians to ensure that patients had access to a local prescribing psychiatrist when deciding on a community treatment order. I heard the noble Baroness’s comments about the word “local”; I appreciate her drawing the attention of the Committee to that. I particularly heard the support given by the noble Baroness, Lady Parminter.
In the Bill, to put someone on a community treatment order, it must be necessary for the patient to receive medical treatment, which can be provided without detention in a hospital. I think I heard the noble Baroness, Lady Fox, say—I hope she will forgive me for not quoting her directly—that we should not demonise hospitals. She is nodding; I thank her for that. I can assure her that there is no intention to do that; it is about getting a better balance in the interests of getting the right care for individuals. The responsible clinician must consider whether appropriate medical treatment is available. That would, by necessary implication, include access to a local prescribing psychiatrist if it is what the patient needed.
For a CTO to be made, our reforms also require a community clinician with oversight of the patient’s treatment in the community to agree. The Bill therefore already means that, when deciding whether a CTO is appropriate, access to a prescribing psychiatrist will be fully and properly considered if access to medication is required.
I recall that the noble Baroness, Lady Browning, raised an important point about the shortage of prescribing psychiatrists in some areas and the impact that this could have. We intend that the measures in the Bill in relation to dynamic support registers will improve the monitoring of the needs of, and support for, people who may be at risk of going into crisis and being detained under the Act. ICBs and local authorities will be required to have regard to information on the register when exercising their commissioning and—we have discussed this before—market-shaping functions respectively.
I mentioned earlier the requirements in respect of learning disability and autism training, and autism training for psychiatrists. I hope that will help to reassure the noble Baroness.
Amendment 44, tabled by the noble Lord, Lord Scriven, and spoken to by a number of noble Lords, including the noble Baronesses, Lady Berridge, Lady Parminter and Lady Fox, and the noble Lord, Lord Kamall, relates to the review into the extension of CTOs. I completely understand why the noble Lord was inspired to come forward with this, having been inspired, as the noble Lord and the noble Baroness, Lady Berridge, said, by the words of the noble Baroness, Lady Parminter, at Second Reading and the way in which she relayed her personal experience. That kind of contribution and the impact that it has is exactly what we welcome, and I am glad she is pleased that people listened— indeed we did.
The amendment would ensure that CTOs aligned with the statement of principles in the code of practice and could be extended beyond 12 months only under certain conditions, with a review of the ongoing necessity and the therapeutic benefit of the CTO. I strongly agree with the intention behind the noble Lord’s amendment but it is fully supported by existing provisions in the Bill. Alignment with the code and the four principles is already achieved by new Section 118(2D), which requires clinicians before placing someone on a CTO to have regard to the statement of principles in the code. Under Clause 6, the patient can be put on a CTO only if there is a reasonable prospect of it having therapeutic benefit for the patient, and the Bill will mean that a responsible clinician cannot extend a CTO beyond six months unless the conditions, including therapeutic benefit, continue to be met.
The current code of practice states that, before renewal, the responsible clinician should consult the multidisciplinary team, the patient, the nearest relative—or, in future, the nominated person—and an advocate. The Bill adds that the patient’s community clinician must be consulted before renewal. We are therefore increasing the frequency of automatic referrals to the tribunal to ensure that patients can come off CTOs when they are no longer benefiting. Under the new system, a CTO cannot be extended past the 12-month point without a referral to the tribunal. In the current system, the patient can go for three years before a further referral is required.
Lord Scriven (LD)
That is pleasing to hear from the Minister. So what would stop that going in the Bill?
Baroness Merron (Lab)
As we have discussed before, it is about ensuring that we are able to update in line with good practice, and that can be nimbly—if I may use that word—outlined if it is not in the Bill. We are trying to future-proof it, as the noble Lord is aware, and to ensure that our reviews of our practice and so on are continually updated. That is how I would put it to the noble Lord.
Baroness Barker (LD)
Would the Minister reflect on this? CTOs were brought in under the 2007 Act. The then Labour Government went shopping around the world for various different models of CTOs and cherry-picked bits and pieces out of the ones that they liked to come up with the model that they did. CTOs were brought before the House, and we were assured that they would be used sparingly and we would not run into all the problems that people then foresaw about them being used disproportionately against some minoritised communities.
This is the first opportunity we have had to go back to CTOs. In the 20 years since, absolutely nothing has changed in practice. Twenty years on, there is no indication—even though there must be ample evidence, not just in this country but around the world—about how they work in practice and the fact that they have not worked in the way they were meant to when they were introduced. Does the Minister understand why those of us who have been here so often before are reluctant to accept the argument that is trotted out time after time, that Governments need to be flexible and make change, when within 20 years there has been no change in the face of overwhelming evidence that the law is not working in the way that was intended?
Baroness Merron (Lab)
I can understand the frustration that the noble Baroness outlines. It is hard for me to comment on a number of those 20 years. My feeling is that that is why we are here today updating the Bill. Indeed, at the risk of repeating myself—I will try not to—I take the point that she is making, yet I feel there is a need, under the updated Bill, which I hope will become an Act, to review the overall impact of the new provisions. I understand that we cannot be on a hope and a wing and a prayer. That is not the intention. We will keep CTOs under review as we implement changes. I certainly want to keep a very close eye on their impact, as I know your Lordships’ House will. I know that noble Lords will not be shy to raise any concerns that they have.
Amendment 66, in the name of the noble Lord, Lord Kamall, and supported by the noble Earl, Lord Howe, would require the use of community treatment orders to be reviewed within two years of the Act being passed. As a number of noble Lords have said, we believe that CTOs can be valuable for certain patients—indeed, as we have referred to, the noble Baroness, Lady Parminter, spoke about their benefit for eating disorder patients, as she did at Second Reading—but reform is needed so that they are used only when appropriate and for the shortest possible time.
The noble Lord, Lord Kamall, made a couple of points, which I am happy to write to him about, about concerns about resources. He asked about the role of mental health nurses—an important point—and the effectiveness of CTOs. I will write further on those points.
Lord Kamall (Con)
If the Minister and the officials look at Amendment 66, they will see it asks four specific questions. It could include more, but I wonder whether we can understand what the Government understand about each of those four things, including the impact of community treatment orders on people from different ethnic minorities and the effectiveness of the continued use of community treatment orders. I think it would be interesting for noble Lords to understand what the Government currently understand, if that makes sense.
Baroness Merron (Lab)
Yes, it does. I thank the noble Lord for the clarification. I will come to some of those points, particularly on racial disparity, but I just wanted to ensure that I did not miss the points that he made.
The noble Baroness, Lady Parminter, raised how people with eating disorders will be supported on CTOs. To elaborate a bit on what I said previously, for some people CTOs allow them to be cared for in the community with the least restriction, but with the safeguard that they can be recalled for treatment if necessary. That is a very necessary aspect.
I hope noble Lords are aware that I certainly would agree about the importance of the right data being used to inform decisions, trends and reviews. Data on community treatment orders are published as part of the annual Mental Health Act statistics. My officials are working with NHS England and others to understand what additional data should be collected to understand the impact of the reforms—this relates to the points made by the noble Lord, Lord Kamall.
I know that noble Lords more than understand that gathering new data takes time. Therefore, it is felt that a review after two years would be somewhat premature, as it would be based on data from before the reforms were commenced. So, rather than committing to a review in legislation at a fixed date, the Government are committed to ongoing monitoring of CTOs as we implement the changes. This will form part of our overall commitment to evaluate the impact of reform and to consider next steps. I am sure that your Lordships’ House would wish to continue to be involved in this.
I turn to Amendment 67, tabled by the noble Baroness, Lady Bennett, requiring a review of economic and social disparities in relation to CTOs. I agree, as I have many times, that there are significant disparities in the use of community treatment orders, particularly between different minority ethnic groups. This was spoken to by not just the noble Baroness, Lady Bennett, but the noble Baroness, Lady Berridge, and the noble Lord, Lord Scriven. I will make a few points about this. Those who are black are currently seven times more likely to be detained on a CTO—we have discussed this in your Lordships’ House a number of times, and rightly so, in my view. For CTOs, we are strengthening decision-making in three ways: first, by requiring that an individual must be at risk of serious harm to be made subject to a CTO; secondly, by requiring that the community clinician be involved in all community treatment order decisions; and, thirdly, by increasing the frequency of automatic reviews of patient cases by the tribunal. We will work closely to ensure that the Bill’s provisions are effectively implemented, because a main plank of this legislation is to reduce racial disparities in decision-making under the Act. I am sure we will return to this point many times, and rightly so.
Baroness Bennett of Manor Castle (GP)
I have two questions about data, and I entirely understand if this could perhaps be included in a letter. The racial disparities are well known and well canvassed, but I am wondering about disparities of people living in relatively deprived communities—those that used to be described as “left behind”. There seems to be some evidence of disparity between people in those poorer communities and wealthier communities. Also, on individuals living in poverty versus individuals not living in poverty, what difference is there in CTOs—and more broadly, but CTOs might be a particular area of concern? I am interested in what information the Minister can give—not necessarily now—because we need to focus on that as well.
Baroness Merron (Lab)
The noble Baroness makes a fair point. We will certainly cover CTOs in the planned evaluation of the reforms, including consideration of economic and social disparities. I hope that reassures her.
I turn to the noble Baroness’s Amendment 86. The intended effect given in the explanatory statement provided by the noble Baroness is to retain the requirement for
“an automatic referral to the tribunal when a patient’s Community Treatment Order is revoked”.
The amendment as drafted does not achieve this because it amends a different part of Clause 30—
Baroness Merron (Lab)
Indeed the noble Baroness did try, and I have therefore taken its intention at face value.
The Bill removes the requirement for an automatic referral following the revocation of a CTO. This was a recommendation of the independent review which found that, in practice, the automatic referral was an ineffective safeguard, as often the patient is back in the community or back in hospital as a Section 3 patient before the tribunal has had the opportunity to review their case. Therefore, the current process creates a burden on tribunals but does not protect the patient. The Bill improves other safeguards for patients on a CTO, including increased access to tribunals. For these reasons, I hope that the noble Baroness feels able to withdraw her amendment.
Baroness Browning (Con)
My Lords, I am grateful to everybody who has contributed on this group of amendments. Everybody has bought something different to the table. There have been some good things. I think we are all grateful to the noble Baroness, Lady Parminter, who led us at Second Reading to have a better understanding of how CTOs can help with eating disorders. I just think back to 2006 and the pre-legislative scrutiny committee of the previous amendment of the 1983 Act. I think there are three of us in the Chamber tonight who were part of that pre-legislative scrutiny. I think that the noble Baronesses, Lady Murphy and Lady Barker, and I were members and I recall the debate on community treatment orders at that time, 20 years ago, when we had quite a lot of strong reservations about how they would work in practice.
Despite some of the good things we heard tonight on this group, I still sense that reservation. I think that if what we had before us was 20 years of lived experience—practical examples of where CTOs have been good, where they have been bad, where they needed to be amended and where they have been amended—we would feel a lot more confident. Too many parts of this jigsaw still seem to be missing to make what I feel is a substantial change to the 1983 Act 20 years later and know that we have got it right. I always think that when we are in doubt about legislation, there is that old, hackneyed thing: “Suppose this was something in a court. What would they say about this? What was Parliament’s intention at the time?” Can I actually define Parliament’s intention at the time? I am not sure that I can define it in as much detail as I would like, in order to feel we are doing the right thing as far as this legislation is concerned.
I thank the Minister. She has, as always, been as helpful and courteous as she can be with this very difficult issue, but I do not quite feel that we have got there yet. I beg leave to withdraw the amendment.
Baroness Barker
“(c) after subsection (6) insert—“(6A) Any person subject to a community treatment order must be informed orally and in writing at the time of the making of the order of their right to an independent mental health advocate under section 130A of this Act.””Member’s explanatory statement
The amendment would ensure that people who are to be subject to a CTO would receive information about their right to advocacy.
Baroness Barker (LD)
My Lords, I do not want to bore people who were not present 20 years ago when we were discussing the introduction of this measure, but the main focus of our discussion was that CTOs would be a means of enabling people with serious and enduring conditions, such as schizophrenia, to be compelled to take medication in the community. That was as a matter of public safety and protection for those people. Twenty years on, we are talking about people with eating disorders: it is completely different.
The noble Baroness, Lady Browning, is right: the evidence base behind the discussion is woefully lacking. What we do not know—we do not have the evidence for it—is what change has come about on the part of clinicians. It was sold to us that we were going to stop people being held inappropriately in acute services where they did not need to be and where there was not going to be any therapeutic benefit for them. We have never, to the best of my knowledge, seen that there has been change, nor, indeed, that there has been a flow of resources that has enabled those patients who have been on CTOs to leave acute hospitals and not go back. Unless and until we get that evidence base, frankly, we can all come up with our theories about what are the causal factors, but they are nothing more than our own prejudices and theories.
That said, my amendment on CTOs comes from real-life, front-line experience. As the noble Lord, Lord Kamall, read out from the briefing, there are people whose experience of being on CTOs has been so bad that they want to see an end to them; they do not want to see other people being subjected to them, and I have a degree of sympathy with that. Having said that, I accept that there are some people for whom they work.
Baroness Murphy (CB)
I will speak to Amendment 100 in this group, and there are four or five consequential amendments which I have added. Noble Lords will therefore be pleased to know that the group is a lot smaller than it looks.
The purpose of this amendment is, on the face of it, to remove informal patients from qualifying for help from independent mental health advocates, on the basis that, given the resources required, to expand the services for detained patients to all in-patients is impractical, as in the impact assessment done by the Government. There will be some who assume from this amendment that I do not like IMHAs, but nothing could be further from the truth.
On the face of it, one cannot criticise what appears to be an extension of services and automatic referral to IMHA services, for both detained and informal patients. Local authorities, under direction from Schedule 3, will be obliged to provide the service and will need to extend it significantly. There are currently 50,000 new detained patients eligible for the service every year, but this would double to 100,000 people when informal patients are included. The impact assessment for cost to local authorities calculated that these new services will be an extra £571 million over a 20-year period—that is over half a billion pounds, or £81 million or so every year.
One might assume, therefore, that some serious evaluative research had demonstrated what a boon advocates are, as we all hope so, and that patients valued them and that they made a big difference to their outcomes. However, there is just one small UK study, by Karen Newbigging and her colleagues, which, on quality of services, suggested that where they were accessible— and they were not really very accessible in all the places studied—patients found the process was a positive experience, although they had no impact on outcomes of care and treatment. The advocates concentrated on explaining people’s rights but did not advocate more creatively to change decisions on care, which the authors rightly suggested could be an important role.
It is generally thought that, where IMHAs are from the same ethnic community as the patient, this is one step that could be taken to make the service more friendly for black and other ethnic-minority patients. There is better evidence in the States, where it has been demonstrated that independent advocates are central to the success of advance choice documents; patients do not create advance choice documents without a facilitator. A study in North Carolina showed that providing a facilitator in the form of an independent advocate increased the number of people making a psychiatric advance directive from 3% to 60%. Since we hope that these will be increasingly helpful to patients, I can understand why we think it is very important that detained patients should have them.
However, I would suggest that it is a bit of a leap to go for a massive expansion without much more evidence on how best to use these trained advocates and on who benefits the most. In September 2023, there were 28,600 vacancies—19% of the total workforce—in mental health services, including 1,700 medical and 13,300 nursing vacancies. In spite of training more staff, there is ample evidence that the current challenges posed by in-patient environments mean that many services rely on agency and bank staff simply to keep the ward open. The King’s Fund survey of approved mental health professionals found that, to meet the requirements of a 24-hour service, there would need to be a 30% increase in the number of full-time equivalent staff, in addition to accounting for the vacancy rates of over 11%.
Yet here we are proposing that the local authority should spend a huge amount of money on independent mental health advocates, when it does not have a satisfactory number of psychiatric social workers and cannot fulfil its obligations to provide decent social care for older people or protect vulnerable children from harm. If any noble Lords were reviewing their own local authority spending, do we seriously think that expanding IMHA services to informal patients would be high on the agenda? I think probably not, although I believe they will be helpful, especially for patients matched to someone of the same ethnic background. I would like to see more consistent evidence about how best to recruit and train them and develop their skills because it is crucial, if we do fund them, that we get the basics right, so that when they do get appointed, they are doing the right things for the right people. Otherwise, we should be extremely cautious in expanding these services.
Baroness Tyler of Enfield (LD)
My Lords, I rise to speak to Amendments 102, 105 and 106 in my name. These amendments all deal with extending the provision of advocacy services to informal patients below the age of 18. When I read the other amendments in this group, I thought, “Goodness me, this is going to be a bit tricky, isn’t it?”. It felt at one point as if we were diametrically opposed, and that is not a comfortable position to be in against someone with years of expertise who is as distinguished as the noble Baroness, Lady Murphy. However, I have listened carefully to what she has to say and the nub of it is her concern about resources. On that point, I fully get it, about the workforce generally and advocates in particular. I am going to press on with my amendments none the less, because I am trying to deal with the principle as opposed to the resources.
Both the Independent Review of the Mental Health Act and the Joint Committee on the draft Bill recommended that advocacy should be extended to informal patients. Currently, only those detained under the Mental Health Act 1983 have a legal right to advocacy services. The Mental Health Bill introduces a new opt-out scheme, meaning that all detained patients will get an automatic referral to advocacy services. The Bill also extends advocacy to informal patients, but they will not be captured by the new opt-out scheme, meaning that informal patients will still be required to ask for support via an advocate. This is at the very nub of the problem with which I am concerned.
It is crucial that children and young people aged under 18 admitted to mental health in-patient care informally should have an automatic referral to advocacy services, in line with those who are detained under the Act. There may not be very large numbers—that is relevant to the resource concerns—but it is worth remembering that a higher proportion of children and young people are admitted to mental health hospitals informally. Indeed, it is estimated that around 31% of under-18s are admitted to in-patient care this way—namely, on the basis of their own or parental consent. Having access to an advocate automatically will help young informal patients understand and exercise their rights and ensure they have a say in the decisions made about their care and treatment. This could also lead to improved outcomes and prevent young people being kept in hospital for any longer than they need to be—something I am sure we all agree on.
It is worth adding that the lack of access to advocacy for informal patients has been a long-standing concern. There is a real concern that children and young people admitted informally will continue to experience problems accessing an advocate under the new system proposed as part of the Bill. It has been noted that, often, young informal patients do not understand their rights and feel an underlying threat that, if they break the rules in some way, they will be sectioned. We have to take that into account. Despite the concerns about resources, which I fully understand, access to an advocate is crucial in helping children and young people who are informal patients navigate what is a very complex system.
Baroness Berridge (Con)
My Lords, I will speak briefly to support the amendment tabled by the noble Baroness, Lady Tyler. The extension of advocacy services to children and young people is important, because, as she outlined, there is a disproportionate number of children who are voluntary—I think there are just under 1,000 a year—in mental health institutions.
It is also important to recognise that there are other additional rights that children have when they are detained, or when they have agreed and consented to go into hospital. They need to continue their education while they are in there. It is important to advocate for what their entitlement is while they are in hospital—I think we are all used to walking past the hospital school that is within a normal physical illness hospital—thereby enabling them to continue their education and considering what their rights are in that regard. That is obviously so important for them and their recovery, so I support the amendment from the noble Baroness, Lady Tyler.
Lord Kamall (Con)
My Lords, I have a few brief comments on this group of amendments. In response to Amendment 43A, tabled by the noble Baroness, Lady Barker, given that anyone subject to a CTO already receives something in writing, it should not be too difficult for the Government to accept her amendment. Assuming that they have a right to access independent mental health advocates, it seems like a very reasonable amendment.
Like the noble Baroness, Lady Tyler, I must admit that, when I read the amendments tabled by the noble Baroness, Lady Murphy, I wondered—given that the amendments from the noble Baroness, Lady Tyler, and the noble Lord, Lord Scriven, seek to extend access to independent mental health advocates—why she would want to exclude informal patients from access to those advocates. However, as she explained, and as my noble friend Lady Berridge commented on day one in Committee, we have to deal with the world as it is, not the ideal world that does not exist. As the Minister has often reminded us, this will not all happen in one big bang; the Government’s plan is for it to take over 10 years, subject to spending reviews and resources.
In fact, the noble Baroness, Lady Murphy, made what appear to be two valid points. The first is that we need to be realistic about resourcing. As the impact assessment suggests that expanding access to independent mental health advocates to informal patients will cost £81 million every year, we have to ask: is that the best use of that money, if it were available, given all the other demands on it?
On the noble Baroness’s second observation, I thought that the research cited was interesting: that extending these independent mental health advocates from one environment or cohort of patients to another does not necessarily mean that it will work.
Lord Scriven (LD)
I just wonder where this £81 million per annum comes from. I think that there is a total cost of £99 million over the period, but I am not sure where the £81 million comes from.
Baroness Murphy (CB)
It is taken directly from the Government’s impact assessment on the Bill to local authorities, with these particular resources for IMHAs.
Lord Scriven (LD)
I am reading the impact assessment, and the annual amount is between £6 million to £7 million, and not £81 million. Perhaps the Minister could clarify that when she responds, as the impact assessment that I am reading is different from the £81 million that the noble Baroness, Lady Murphy, and the noble Lord, Lord Kamall, are referring to.
Lord Kamall (Con)
I thank the noble Lord, Lord Scriven, for that, as I would not want to be using inaccurate information. Maybe the Minister can check with her officials, thanks to the wonderful use of technology, to ensure that we have an accurate figure by the time that she gets up to respond to our points. Whichever number is accurate for the cost of extension, it does have an impact on how noble Lords may feel if these amendments come back on Report.
The study that the noble Baroness, Lady Murphy, shared with us contained two statements which I picked up on, and which I hope the noble Baroness will correct if I am wrong. First, patients found the process was a positive experience. But, secondly, the study found no evidence that it had any impact on the outcomes of the care and treatment. That is an important point to make. Once again, what is effective, and what works? Sometimes, feeling better and being more positive is part of a treatment, and we should not dismiss that.
I do not want to sound too negative, as I thought that the North Carolina study was very positive, and the noble Baroness and I corresponded about this over the weekend. It was interesting that it found that black mental health patients benefited from having an independent mental health advocate, especially if the advocate was also black, as patients felt better supported, and more confident that they would be listened to by someone. The crucial point was that it appeared to reduce the rate of repeat detentions. This is one of the crucial issues throughout the Bill. This is one of the reasons why my noble friend Lady May asked for the Wessely review.
Baroness Berridge (Con)
I do not wish to interrupt my noble friend’s flow, but this is one of the key things that is evidence-based, and that does reduce detention for those communities, so it is important.
Lord Kamall (Con)
I am grateful to my noble friend for that intervention, because this is something that we could learn from here. Given the point that the noble Baroness, Lady Murphy, made at the beginning, would taking that lesson from the black community in North Carolina work with black communities up and down the country here? I hope it is something that the Government could look into, or respond to, as one of the ways, once we have the relevant data, to reduce the rate of detention and CTOs for people from the black community.
I end by asking the Minister that question: is she aware of whether her department has looked at—was it North Carolina or South Carolina?
Lord Kamall (Con)
I would not want to upset any people from South Carolina. In fact, I did some work in Raleigh and Durham a few years, so I should get this right. Is the department aware of that study, and has there been any analysis of what could be learned from that study which could be relevant to the United Kingdom, especially given one of the main reasons we are here tonight is to reduce the disproportionate detention of people from black communities? I look forward to the Minister’s responses.
Baroness Merron (Lab)
My Lords, I thank all noble Lords who have spoken to and tabled amendments for this important discussion, which, I am sure my Whip will tell me, will be the last one of the evening.
Baroness Merron (Lab)
I have had that confirmed.
I will first address Amendment 43A, tabled by the noble Baroness, Lady Barker. Patients on CTOs already have the right to independent mental health advocate services. Community treatment order patients will be informed of their right to an independent mental health advocate when they are under Section 3, as part of the opt-out approach for all detained patients, as a patient cannot be placed on a CTO without having been detained first in hospital. They will be aware of this right. In addition, the revised code of practice provides opportunities for further guidance on how to improve the uptake of services for CTO patients, and we will consult on this.
Amendment 102, in the name of the noble Baroness, Lady Tyler, was also spoken to by the noble Baroness, Lady Berridge. We appreciate that advocacy plays a vital role in supporting choice and the person as an individual, and that under-18s are a vulnerable group who would benefit from independent mental health advocate representation. I am pleased to say that the Bill already extends the right to an independent mental health advocate to informal patients, and this includes children and young people. It places a new duty on hospital managers to inform them of this right. As we seek to revise the code of practice, we plan to provide further clarity on how to meet the needs of children and young people, including through this increased access to advocacy, so the point is well made.
I thank the noble Baroness, Lady Murphy, for bringing Amendments 100, 103, 104, 108, 109, 110 and 111 before the Committee today, which were also spoken to by the noble Lord, Lord Kamall. Currently, independent mental health advocacy support is available only to detained patients. We want to extend this support to all in-patients, as we believe it is important for all patients to understand their rights and legal status, not just those who are detained under the Mental Health Act. This is in line with the approach already taken in Wales, where both detained and informal patients are eligible.
The noble Baroness, Lady Murphy, and the noble Lord, Lord Kamall, raised points about expanding advocacy and the use of resources. The figures suggested by the noble Baroness, Lady Murphy, overstate the costs that are set out in the impact assessment. Table 7 in the impact assessment shows that the estimated annual cost of informal advocacy would be between £6 million and £7 million a year. I hope that clarifies things for noble Lords.
Baroness Murphy (CB)
I apologise. Obviously, I was looking at another figure from a different bit of the impact assessment.
Lord Scriven (LD)
I think the noble Baroness, Lady Murphy, added up all the years and got to the final cost, and then described it as an annual cost. I think it was a genuine mistake.
Baroness Merron (Lab)
I am sure that what the noble Lord, Lord Scriven, said is absolutely right—and the noble Baroness has absolutely no need to apologise.
We intend to implement these reforms in phases, when funding and system capacity allow, prioritising an opt-out approach for detained patients. We will expand eligibility for independent mental health advocates to informal patients only when we are sure that doing so will not impact on the resource available to detained patients.
Turning to Amendments 105 and 106, tabled by noble Baroness, Lady Tyler, and supported by the noble Lord, Lord Scriven, as I mentioned, the extension in the Bill of the right to an independent mental health advocate to inform all patients does include children and young people. With regards to an opt-out approach to advocacy, we believe that detained patients have a particular need, given that they are subject to greater restrictions and are potentially more vulnerable compared with informal patients. The Mental Health Act, its code of practice and the regulations relating to the independent mental health advocate services set out that local authorities should ensure that independent mental health advocates understand equality issues and that there are enough independent advocates with a specialised understanding of the specific needs of particular groups—for example, children and young people. As we revise the code of practice, we plan to provide further clarity on how to meet the needs of children and young people, including through this increased access to advocacy. I hope that this reassurance will be welcome.
The noble Lord, Lord Kamall, asked whether the department was aware of the North Carolina or South Carolina study. As we have all agreed, it is in respect of the North Carolina study. We are running culturally appropriate advocacy pilots in Manchester and Birmingham which are testing the approaches to delivering improved culturally competent advocacy services that support specific preferences and needs of people from minority ethnic groups. We have also commissioned an independent evaluation of these pilots and will be looking at that alongside the international evidence that has been discussed this evening. I am most grateful to the noble Lord, Lord Kamall, for raising this.
For all those reasons, I hope that the noble Baroness will withdraw her amendment.
Baroness Barker (LD)
My Lords, I thank the Minister very much. I will not delay the Committee for very long, particularly given the time of night and that people are screaming to go home. However, there are two or three important points that we need to make. First, on community treatment orders, let us remember that it is compulsory treatment in the community. It happens in people’s own homes or wherever they live, but it is compulsory treatment. We are in danger of forgetting that. Secondly, the Minister said that the intention was to ensure that all detained patients have access to an advocate. Advocacy services are in the acute hospitals. They are not out in the community, yet the treatment which is happening in the community is compulsory treatment.
Both of those two points flag up something that a lot of us mentioned at Second Reading. We have taken the 1983 Act and patched it up, and bolted things on and taken things off so many times that we are now at the point of squeezing stuff in and shoving it around, and we no longer have a basic legal framework which is fit for purpose. We are not talking about building seamless community and acute services which people pass through, get better and come out; we are now in Heath Robinson territory. That is why we are in danger of missing some tricks.
The organisations that came up with my amendment are made up of the people who work, day in and day out, to try to build a proper service, as opposed to episodes of care. They are saying that people who are subject to compulsory treatment are not getting advocacy because of the way that the services are set up. I hope that the Minister might take that on board, but at this stage and time of night, I beg leave to withdraw my amendment.
Mental Health Bill [HL]
Wednesday 22nd January 2025
(5 months, 3 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-III Third marshalled list for Committee - (21 Jan 2025)
Earl Howe
“(iii) seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma;”
Earl Howe (Con)
My Lords, as well as moving Amendment 46, I will speak also to Amendments 47, 53, 54 and 95 in this group. These amendments have one central aim in common, which is that of maximising the therapeutic benefit of being cared for in a secure mental health unit. That aim should be common to all mental health patients, young or not so young, but it is largely the concerns of younger mental health patients which have prompted these amendments.
Blooming Change is a small independent charity whose membership is comprised of children and young people who have experienced detention in mental health in-patient units in England as children. It is at their urging that I have tabled Amendments 46 and 47. I have done so after hearing some first-hand accounts of incidents in which children in mental health settings have been treated in a fashion that is the very opposite of therapeutic, by which I mean treated with a lack of understanding, with an obvious vindictiveness, sometimes, and sometimes even with outright cruelty.
It is perhaps hard to imagine this happening when we know how professional and caring most staff in mental health units are, but I am absolutely persuaded that it does happen, and not just rarely. Medical interventions such as nasogastric feeding or sedation are threatened and used as punishments. Patients who have raised concerns with their parents have been silenced by their parents being told by staff that they should take no notice of the concerns, because the child was either unwell or lying.
One young person reported as follows: “Young people on section were essentially incarcerated, yet still not able to voice views or share how they felt or generally engage with their treatment. This would lead to overuse of medical interventions or the threat of this, leading to young people living in fear and not having a way to raise concerns. Many of these things had a long-lasting impact on me. Had this coercion not occurred and medicalisation not been used as punishment, I would have been able to access treatment and recover, instead of the treatment compounding my illness and in many ways contributing to me being stuck in the cycle”.
Blooming Change has pointed out the significance of childhood trauma as a factor underlying a large number of mental health admissions involving young people and the challenging behaviour that they then exhibit. The problem is that, all too often, the link between childhood trauma and the way that a patient behaves is not recognised or understood. As a result, someone with autism or a severely troubled and traumatised young people person going into meltdown —as was well described, incidentally, by my noble friend Lady Browning during our first day in Committee —is simply viewed as wilfully disruptive or downright disobedient, with punishments doled out in response.
Baroness Tyler of Enfield (LD)
My Lords, my Amendments 50 and 51 are both about the importance of non-drug-based interventions. As the noble Earl, Lord Howe, said, this group is all about maximising therapeutic benefit. I am very supportive of all the amendments in this group and my amendments are complementary to those just introduced very powerfully by the noble Earl.
I am the first to admit that I am not a clinician, and it is, of course, vital that individual decisions about treatment are made by qualified clinicians. But I am firmly of the view that, in the right circumstances and where clinically appropriate, non-drug-based interventions can be highly beneficial.
New Section 56A establishes a clinical checklist. An approved clinician will be required to go through this checklist when making treatment decisions to ensure that any given treatment is appropriate. Amendment 50 would make it clear that non-drug-based interventions are included in the alternative forms of medical treatment available, which must be identified and evaluated as part of the checklist. In short, it will establish beyond doubt that clinicians must consider and evaluate the use of non-drug-based interventions when they make decisions about treatment.
Non-drug-based interventions can cover many things, such as psychological and talking therapies, counselling, occupational therapies, art and creative therapies, physical exercise, physical activities—the list goes on. It is vital that evidence-based non-drug-based interventions are thought about, identified and considered equally when treatment decisions are made.
As I said in our discussions on Monday—this point was also just made in the introduction to this group—autistic people and people with a learning disability are too often overmedicated in hospital settings. Again, although medication may be appropriate in many places, people cannot and should not be left on their wards with little to no other meaningful therapeutic input other than that medication.
People must be seen as human beings in the round when these treatment decisions are made. That should be reflected in the type of treatment offered, including non-drug-based interventions, such as talking therapies, which are adapted to the individual and have a real prospect of offering therapeutic benefit, either in place of or in addition to medication. I readily acknowledge that treatment can involve either. That judgment is for a clinician to make.
I was very encouraged that the Joint Committee on the Bill recognised in its report the importance of non-drug-based treatment and recommended that the code of practice makes clear that appropriate treatment includes non-drug-based treatment. However, to ensure the Bill aligns with the principle of therapeutic benefit, it is important that this emphasis on non-drug-based interventions is reflected in the Bill.
It is well known that the transition from children’s services to adult services can be particularly difficult when it comes to overmedication and failing to adequately deliver non-drug-based interventions. This has included cases where young autistic people on children’s wards have been provided with some level of speech and language therapy, arts and crafts, and general help with establishing a routine. However, when the transition is made to post-18 adult services, the quality of care can drop off markedly, with no non-drug-based therapeutic treatment delivered, leading to a decline in well-being. In many ways, as has already been said, this is little different from being held in a cell.
Having a wide range of these interventions means that in-patients can have greater choice and control over their care—another key principle of the Bill. The use of non-drug-based therapies in hospital is important, not only to provide a therapeutically beneficial environment during detention but to ensure some essential continuity of support after discharge.
My Amendment 51 differs from Amendment 50 in that it would apply only to autistic people and those with a learning disability detained under Part III. It would ensure that the clinical checklist is followed when treatment decisions are made when making those decisions includes specific consideration of whether non-drug-based interventions are more appropriate in place of, or in addition to, medication.
As we have already discussed, one of the most significant changes in this Bill is the change to the detention criteria in Part II, Section 3. This means that autistic people or people with a learning disability cannot be detained under Section 3 unless they had a co-existing psychiatric disorder. However, this is not being applied to Part III patients—that is, those detained through the criminal justice system. This means that autistic people and people with a learning disability can continue to be detained for “treatment” in mental health hospitals under Part III, even if they do not have co-existing psychiatric disorders. One of the concerns about the Bill, as we have heard, is that a consequence of poor implementation could mean that more autistic people and people with a learning disability are diverted into the criminal justice pathway to get round, frankly, the new detention criteria for Section 3.
It could well be the case that Part II patients who are autistic or have a learning disability will exhibit behaviours that challenge, for which certain psychotropic medications can be prescribed. These medications can include anti-depressants, anti-seizure or anti-psychotic medications, sedatives or stimulants. NHS England’s website states:
“People with a learning disability are thought to be 16 times more likely and autistic people 7 times more likely to be prescribed an antipsychotic than the general population”,
despite existing guidance that people should be given psychotropic medication for only the right reasons, in the lowest dose and for the shortest time.
I simply conclude by saying that the focus on non-drug-based interventions in these amendments is not about saying that medication should not be used. Indeed, it can be highly beneficial in many cases. It is about ensuring that other factors that contribute to therapeutic benefit are always considered and put on an equal footing.
Lord Crisp (CB)
My Lords, I will speak to Amendment 148, which is in my name and that of my noble friend Lady Hollins. I also support all the amendments in this group. Indeed, on the ones introduced by the noble Earl, Lord Howe, I very much support the stories that we have heard and which he spoke about at Second Reading. I also note the points made by the noble Baroness, Lady Tyler, about non-drug therapies, which relate very much to what I will talk about.
I will make one general point: a generational change in the whole field of mental health is happening globally, with a shift towards more social interventions and preventions. This wider context needs to be recognised a bit more in the Bill. Amendment 148, which is about withdrawal from dependency-building drugs, is part of that context. I also agree very much with the point that the noble Baroness, Lady Tyler, just made that drugs are needed, and with the powerful points raised by the noble Baroness, Lady Fox, in the last day in Committee on the real pressures and problems that people within the NHS and beyond face in working with some of the people they end up having to work with, and on the conditions that they are working in. This emphasis on social interventions, therefore, is not at the expense of other aspects of mental health.
Some of these interventions do harm. I will come on to the point about withdrawing from drugs. On reducing prescribing and supporting withdrawal, I do not understand why this Government, through the Bill or otherwise, are not making changes that could help to reduce costs and improve services, which would take pressure off all services and, indeed, improve people’s economic position by enabling them to be fit to work.
Lord Mawson (CB)
I support Amendment 148 from the noble Lord, Lord Crisp. I have just arrived back from a three-day event with Professor Brian Cox in Northern Ireland, where we had been bringing together the NHS, schools, the business community and the public sector around a whole programme on innovation and how we think about the future with regard to these matters, taking the principles that we originally developed at the Bromley by Bow Centre in the East End of London, now nationally across the country.
If I look like I am in recovery, it is because I am—I have literally just landed trying to get back here. I apologise that I could not take part in the Second Reading, because being a working Peer, sometimes it is not very easy to fit all this into the diary. One does one’s best.
I am very aware of the questions that the noble Lord, Lord Crisp, is raising. Indeed, I tabled a number of Written Questions this week about this very matter. I support the amendments because we have a very serious problem out there. My GP colleagues are telling me, as the noble Lord, Lord Crisp, has said, that one in five adults in England is on antidepressants; it is one in four in Scotland. This is a really serious problem.
As a country, we need to return to a discussion and a conversation, as the Health Secretary—I hope, in the spring—prepares to help us rethink the future of the NHS. We need to return to the question that we asked 40 years ago in the East End of London, the fundamental question: “What is health?” What we see happening here is serious for hundreds of thousands of people and is driving a culture. We also need to start to worry about what is happening within the machinery of the NHS and the state, as it drives these sorts of cultures.
Finally, as I put down in one of my Written Questions, we need to be asking, practically, “How much is it costing the taxpayer to drive these kinds of cultures?” It is serious, but the problem is also an opportunity, if interest is raised in the work of those of us who have been doing stuff on the front line for many years with our GP colleagues. I see the noble Lord, Lord Clement-Jones, there: we have rebuilt a street together, with a £40 million school, a £60 million health centre, 600 homes and now a primary school, exploring this, in what when we began was a dysfunctional housing estate.
There is a real opportunity out there, but we now need to get real about antidepressants.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have some points I would like to probe in this group.
I especially welcome Amendment 95 and the proposed new clause:
“Ascertaining and learning from patients’ experiences of hospital treatment”.
The noble Earl, Lord Howe, made very powerful and moving points; we could really take those on board. I have some reservations, however: we live in a complaints culture. I am concerned that this important notion of learning from patients’ experiences does not become a way of stigmatising hospital staff and psychiatrists, with people queueing up to point the finger. There are many people I know who have experiences of hospital who will, at a particular time, tell you it was a terrible experience, and then, at another time, acknowledge that it saved their life. It depends on what phase they are in, in relation to their illness, in some ways—it is about their perspective. So I both welcome it and challenge it.
I am very keen, as we all are, that treatments are taken seriously, whether administered in hospital or in the community. As the noble Lord, Lord Crisp, and the noble Baroness, Lady Hollins, note in Amendment 148—for me, the most important amendment in this group—we need to be alert to when, for example, the use of psychiatric medication as a treatment creates a problem of dependency. We all know that this is a growing problem. We must consider that.
On the tenor of Amendments 50 and 51 from the noble Baronesses, Lady Tyler and Lady Bennett, on non-drug-based forms of medical treatment, I am less convinced by the emphasis here. I am worried about simply giving a wholly positive view of psychological and therapeutic treatments, because it perhaps misses some of the changes in today’s culture that lead to the overprescription of, for example, antidepressants.
When I was working in community mental health many moons ago, the fashion among progressives in the therapeutic community was often anti-psychiatry, anti-hospital and most definitely anti-pharmacological interventions, with a huge hostility to the pharmaceutical industry. I did not always go along with it, but that was the kind of mood. Peculiarly, I would argue that, today, it is therapeutic experts, counsellors and psychological practitioners who, by becoming diagnostically trigger-happy in labelling people as ill, are creating a huge demand both for third-party interventions, as I have discussed in previous speeches, and for treatment. That often leads to a clamouring, especially among younger people, for pills to help them to cope with the travails of life, and it has been egged on in some ways by therapeutic practitioners.
I had my attention drawn to this when, at the Academy of Ideas, I organised a debate on young people, mental health and those kinds of issues. The audience was largely young people, who said that the problem was that psychiatrists, GPs and doctors would not listen to them and would not believe that they were mentally ill. They demanded treatment and were quite aggressive. It was young people saying, “Where are my tablets?”, and I thought, “Oh, life’s changed slightly”. The psychiatrists in the room were trying to hold the line and gently suggest that maybe they were not ill, but that led to an even more hysterical reaction: “How dare you say I’m not ill?” They went on to explain how they had had a chat with their school counsellor, and they were sure they were ill, and they wanted the tablets.
If we can take a popular example that I appreciate might get me into the heart of an argument that I do not want to be in regarding the slippage between autism and mental illness, I am going to talk about ADHD. ADHD is the fashionable disorder of the day. Huge numbers of students and school pupils are demanding that their neurodevelopmental disorder is recognised and catered for. In my view, it is often diagnosed promiscuously and that is leading to huge demands that are detrimental to education and likely to make councils go bankrupt and schools collapse—but that is for a different debate and a different Bill. ADHD is also leading to a demand for tablets.
I go along with those who were warning about overdiagnosis. The Times reports that 278,000 people in England are on central nervous system stimulus to treat ADHD, and there was an 18% hike in prescriptions for ADHD drugs between April 2023 and March 2024. In the US, the figures are startling, and we should be wary of them, with 7 million American children who are said to have ADHD. As the New York Times has said, there is a danger that we are using stimulants to suppress
“all spontaneous behaviour in normal children”
by pumping them with Ritalin and other calming drugs and sedating normal children. In a broad sense, that is a worry.
Talking of treatments, I think the noble Lord, Lord Crisp, made the point that a social problem is being created of people feeling that if they are ill, they cannot go to work and of over-giving them drugs. All sorts of problems go along with that. Is it not tragic that so many people want to have these drugs, either for themselves or for their children, in order to feel that they can cope, when they are really not that ill or not ill at all, but they have the label? I am wary of inappropriate treatments, but perhaps the problem needs to be looked at differently, as stemming from inflated and expansive diagnostic criteria often deployed from within the therapeutic community rather than psychiatry.
We should not be naive in thinking that non-drug-based therapeutic interventions are virtuous per se. Counselling, for example, has extended its reach into British society so much that it is now a rare family that has no experience of the phenomenon. I am sure that we all know that going to a therapist or counsellor is, to say the least, a mixed bag when, ironically, they end up saying that you need to have third-party intervention or medical intervention. It is bad for the nation’s health.
Baroness Bennett of Manor Castle (GP)
My Lords, I will be brief, but in following the noble Baroness, Lady Fox of Buckley, I have to note that I do not believe that a complaints culture is a problem in the contexts covered by this Bill. There is, perhaps, a lack of listening to patients and those affected, and a lack of action rather than a problem with listening to complaints. In that context, I commend the noble Earl, Lord Howe, who cited extensive testimony from Blooming Change. One thing that struck me when looking back over the previous days of Committee was that it would have been good to hear, perhaps even more than we did, direct testimony and the voices of those who are experts by experience. The phrase “nothing about us without us” really stuck in my mind and it is important that we keep that in mind throughout Committee. Again in response to the noble Baroness, Lady Fox, I think it is important not to seek to downplay the mental health crisis that we are seeing across our society. There is a huge shortage of services meeting people’s very clear and acute needs, and acute needs are what we are largely covering in this Bill.
I attached my name to Amendments 50 and 51 tabled by the noble Baroness, Lady Tyler of Enfield, which address non-drug-based interventions. In essence, I agree with everything the noble Baroness said; I just want to stress her points. When we talk about non-drug-based therapies, we are tempted to think we mean talking therapies and psychological therapies. Those are tremendously important, but this is where we also need to take the broader public health context. I mentioned on an earlier group digital treatments such as Avatar for those who hear voices. They are the kind of new, different ways of looking at things that people may not have been trained in, and it is important that they are considered. I also talked a fair bit about the gut-brain axis and dietary interventions such as green prescribing, in which we have seen great advances across the medical fields in recent years—exposure to green spaces and the chance to get exercise in green spaces. That makes me think that we need to think about facilities and how we make sure there is provision within them, which, in some ways, this amendment would help to cover.
As a noble Lord said earlier, we are talking about making sure we are treating the whole person and not a condition with a drug. I thought the contribution from the noble Lord, Lord Crisp, was very important, as is his amendment. I am not sure whether it needs to be in the Bill, but it would be interesting to have the Minister’s comments on making sure that consideration of withdrawal symptoms is part of prescribing practice. That is absolutely key and central. I note a report from the universities of Berlin and Cologne out last year which showed that the second-most prescribed antidepressant in the UK, venlafaxine, also has the second-highest rate of problem withdrawal symptoms. We need to make sure that is carefully considered pre-stage—before we get to the withdrawal stage, are we going to create that problem? I do not know whether it could be incorporated in the amendment, but it is something to think about anyway.
The other amendment—slightly oddly—in this group in my name is Amendment 154, which again, as on a previous group, I put down at the request of the Law Society. It is about mental health tribunal pilots for challenges against treatment decisions. To some degree, we have already discussed this in the earlier group, but I would be interested in whether the Minister has any comment on the amendment. I think that it is fairly self-explanatory, so I will not go through it further.
Lord Scriven (LD)
My Lords, I shall speak to Amendments 54A and 54B in my name, which are on a very narrow part of the treatment plan for individuals. Before I do that, let me say that I support the amendments in this group, particularly the general thrust of what been said; that is, that the automatic medical model must no longer be the default position and a much more social model must be added on to the medical model so that they complement each other.
Having said that, I listened very carefully to the noble Baroness, Lady Fox, but found it very difficult to understand what was required. She argued against the use of medication but then argued against quite a lot of the non-medicated issues. Her intervention was a bit confusing in terms of understanding what the importance was.
My amendments are predominantly about Clause 18, which is about the use of ECT. The clause allows for the emergency use of ECT based on a second medical opinion. The element I wish to speak to is the very wide Henry VIII power that the Government wish to give themselves in regulations to do away with the second medical opinion in an emergency. The Bill says:
“The appropriate national authority may by regulations amend this Act to provide for circumstances in which functions of a second opinion appointed doctor in relation to treatment falling within section 62ZA(1) may or must be carried out instead by the approved clinician in charge of the treatment in question”.
New Section 62ZB(3) then says:
“Regulations under this section may make … (a) provision subject to specified exceptions; (b) different provision for different cases; (c) transitional, consequential, incidental or supplemental provision”.
That is quite a wide Henry VIII power.
To prove that I really am Billy No-Mates and do not get out often on a cold night, I read the wonderful 10th report of this Session from the Delegated Powers and Regulatory Reform Committee, which makes exactly the same points but in more eloquent language. This is a very wide Henry VIII power, and the committee does not really understand why the Government are seeking—even though it is through the affirmative procedure—such wide powers in such broad language.
The committee said that it would expect the power to be drafted with significant limitations and a framework for when it could be used. My amendment seeks to do exactly that. It would not prevent the clinician in change from using ECT in an emergency case without referring to a second practitioner in certain circumstances, but the regulations would be within a framework laid out in Amendment 54B, that
“the treatment is immediately necessary to save the patient’s life … obtaining a second opinion would cause a delay that places the patient at a significant and imminent risk of death or serious physical harm, and … the treatment is reversible”.
The regulations would have to be written so that
“Any amendment made under subsection (1) must specify the exceptional nature of the circumstances in which the second opinion may be dispensed with”.
A report to Parliament on subsection (1) dispensations would also have to be made.
I believe, from reading the wise words of the Delegated Powers and Regulatory Reform Committee in its report, that it is important that the regulations have a framework, so that the Minister still has flexibility but is constrained by what is in the Bill. That is why I have spoken to this amendment.
Baroness Murphy (CB)
My Lords, I feel I must poke my nose in on these of amendments, even though I do not have an amendment. I support the noble Earl, Lord Howe, and his various amendments. I particularly like the amendment that would require children and their families to be asked the month after how it all went.
We are hearing described the appalling nature of many mental health services. It is not just children’s services. Although they may be a very good example, as many of them are not fit for purpose, we would get the same complaints and the same appalling state of affairs if we went around other mental health services across the country. It is heartbreaking. I truly believe that services have deteriorated since I practised in hospitals. People, including my former colleagues who are still practising, say that services are completely disorganised and not fit for purpose. We have known for 50 years that the social model of care was an appropriate model, and that you need psychological and social psychotherapeutic interventions, as well as any drugs that might be helpful. They are not going on because there is no availability anywhere.
We have known since at least the 1960s that patients with schizophrenia, for example, can benefit by being taught, one-to-one, about how to interact with people when they are recovering from an episode. That never happens, because we do not employ teachers in the NHS—we just do not do it. We do not employ the right sort of people and we do not have the right sort of facilities. When people are employed, there are so few of them that it is simply impossible to do what is necessary. I am not defending this, because there are some very good units—I am sure that there are some very good children’s and young people’s units—but they are not the norm anymore, and that is a very sad state of affairs.
Sadly, legislation through mental health Bills will not, unfortunately, solve the problem. What we are talking about is not only a fundamental change of culture and getting on with all the things that we know should be done; there needs to be investment and a totally different approach to mental health. All the things that we know should be done cannot be delivered by mental health legislation alone. I say that because we are trying to shove too much into the Bill and hoping for the best, but I do not think that it will work.
Later in the debate on these amendments, noble Lords moved away from talking about people who were very unwell and who need in-patient care to talking about this vast mass of people who are diagnosed with conditions where they cannot work. That is a whole new ball game. I agree with almost every word that the noble Baroness, Lady Fox, said, because there is no doubt that there is a massive overdiagnosis of things that are called “mental disorder”, when they are in fact distress and need a different sort of approach.
A young friend of mine—a gentleman who is now in his final years training as a maxillofacial surgeon—had a period of great distress because of family circumstances. He sat down on his own one evening and went to a website, “Diagnose yourself”. He rang me and said, “I’ve been diagnosed as having ADHD”. I cannot imagine anybody who is less likely to have ADHD than this young man, who is the most socially competent young man I know. This morning, my husband and I had a go on the website together—he did one test and I did another—and we both came up with the same result: “You probably have ADHD”. Well, maybe I am, folks, but I am not going to go on the Ritalin yet. There are a lot of websites that are utter rubbish and encourage people to pay money to see psychotherapists and other counsellors to see what the matter is with them, so that other people can put money in their pockets for doing not much.
That is the different end of the spectrum. When we are thinking about these things, we have to think about what the patient has. Is it something that can be diagnosed—heaven knows that colleagues here were very keen that we should have a diagnosis—or something at the other end of the spectrum? With the Mental Health Bill, we are talking about when you can detain people, take away their rights and say, “We are detaining you”, to treat them, and protect them from wrong treatment, bad doctoring and bad staff. That is what the Mental Health Act is for.
But I am afraid that it is not to do with any of this other stuff. We have to think through what really has to be in the Bill to protect the patients and the staff and what cannot go in there because it is not relevant to these issues.
Baroness Fox of Buckley (Non-Afl)
I want to ask the noble Baroness a question. I agree that this Mental Health Bill should be confined to and is about the people who are very poorly and could be in danger of being detained—I understand that. However, all the time when we have these discussions, we are talking about a problem with a lack of resources. In the noble Baroness’s experience, is the broader mental health crisis taking away resources and focus, not in this Bill but in society, from giving that acute mental health care the resources that it needs—because it is being spread far too thinly across ever greater numbers?
Baroness Murphy (CB)
Yes, I would say that indeed it was. That year when they gave an extra £400,000 to spreading psychotherapy around was the same time when we were having incredible crises in acute hospital services, and I thought that it was not justified. But the mental health crisis that we have in this country is the same one that they were complaining about in 1860, 1870 and 1880; every generation believes that it is worse off than the generation before, but there is not much evidence that it is.
Baroness Butler-Sloss (CB)
My Lords, having just heard the noble Baroness, Lady Murphy, I shall be extremely cautious about what I look at on the internet. I want to say just two or three words. I have experience from my own family and from my friends of two sets of drugs—anti-depressants and Ritalin—and they really should be used a great deal more cautiously.
Baroness Barker (LD)
My Lords, now is not the time to have the extensive debate that the noble Baroness, Lady Murphy, has opened up. I said right at the outset that we are talking about legislation that comes into play when a person is going to be detained because they are very ill and at risk of harming themselves or somebody else. But I would say to the noble Baroness that the Wessely review looked at this issue at considerable length, and I was among the Peers who listened to Sir Simon Wessely when he came to present his findings. One thing that has stuck with me is the person who gave evidence to his review who said: “I was very ill. I had to have treatment. Why did it have to feel so awful?”—I am using parliamentary language there. Does the noble Baroness accept that mental health legislation debates such as this might be limited, but they do an important thing in sometimes challenging the prevailing orthodoxy among the professions, and they are an occasion where the experience of patients, which have built up over many years, gets a chance to change practice? That is why we should look at all the amendments in this group, and in particular those of the noble Earl, Lord Howe.
Baroness Murphy (CB)
I agree with everything that the noble Baroness, Lady Barker, has said. She is absolutely right that professions should be challenged, and that is partly what legislation can do, particularly in debates such as this. But we are losing the very important amendments from the noble Earl, Lord Howe, about young people and what we can do to improve circumstances through the Bill, and I want not to lose them, because they are very important.
Lord Stevens of Birmingham (CB)
Very briefly on the question that the noble Baroness, Lady Fox, raised, the notion of supply-induced demand is a well-known phenomenon across health services. However, I have to say to her that I think that we are a long way off that being the problem that is principally confronting children and young people’s mental health services. We have a massive gap between the need for effective therapies for children and young people and their availability.
When the process of trying to expand children and young people’s mental health services kicked off several years ago, the goal was that we would get to a situation where one in three children and young people with a diagnosable mental health condition would get some form of specialist mental health support. That number has now been exceeded. I was just looking at the stats published last week and, although I do not see the most up-to-date number for it, I would be surprised if more than one in two are currently getting specialist mental health support for a diagnosable mental health disorder, not just distress. So, we are a long way off confronting this problem of supply-induced demand, whatever broader cultural or therapeutic labelling questions that she rightly points to may be in the ether. Fundamentally, we are going to need more services to benefit the children and young people who need them, not pretend that this is somehow all vapourware, imaginary or a cultural deformity, unlike our predecessors in the Victorian era.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
I thank noble Lords for their contributions on this important set of amendments. I say at the outset that I note the various observations that are outside the Bill, as the noble Baroness, Lady Barker, pointed out, but I have noted them and I am sure we will discuss them on a number of occasions.
First, I turn to Amendments 46 and 47, tabled by the noble Lord, Lord Kamall, and the noble Earl, Lord Howe. I have heard how many noble Lords are in support not just of those two amendments but all the amendments in the group. I am sure noble Lords will not be surprised to know that I understand where people are coming from and I will be pleased to go through the response to them.
The noble Earl, Lord Howe, spoke about “troubling and sensitive matters” and about being inspired by testimonies that came through the charity Blooming Change—I express my thanks to that organisation for the work it does. Officials in the department have met the group and it made a very helpful contribution. Hearing from those with lived experience is crucial to making sure that this is the best Bill, and I know that many noble Lords have done that, so I thank the noble Earl for bringing that into these amendments.
Amendments 46 and 47 would change the definition of appropriate medical treatment to include treatment which
“seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma”.
Childhood trauma can of course have a devastating impact on psychological well-being. Effective and compassionate in-patient care must be informed, as I have said, in co-production with people with lived experience and be trauma informed. NHS England’s Culture of Care Standards for Mental Health Inpatient Services certainly underlines this.
The noble Earl, Lord Howe, and other noble Lords raised concerns around in-patient settings and how appropriate they are, which I understand. I hope it will be helpful to say in answer that the new definition of “appropriate medical treatment” introduces the requirement that treatment has to have a reasonable prospect of benefiting the patient. We would expect the setting in which someone is going to be detained to be considered as part of this. Of course, I am more than aware—without wanting to go into the generics in this group or any other group—that the place in which we start, in terms of the suitability and availability of the right settings, is not where I am sure any of us would want to be.
We also know that the sensory environments in settings can cause difficulties for people with sensory sensitivities. To support NHS services to address sensory aspects of the environment, which the noble Baroness, Lady Bennett, referred to, NHS England has published a sensory-friendly resource pack, which outlines 10 principles to improve the sensory environment and signposts other resources.
The clause in the Bill that defines “appropriate medical treatment” already requires decision-makers to take into account the nature and degree of the disorder and all other circumstances, which could include childhood trauma, when considering whether medical treatment has a reasonable prospect of therapeutic benefit. The definition of medical treatment is unchanged and is indeed broad, including nursing care, psychological therapy and medication. All these interventions could include an overall aim to minimise distress and promote psychological well-being.
Amendments 50 and 51, tabled by the noble Baronesses, Lady Tyler and Lady Bennett, aim to ensure that the clinician considers non-drug-based interventions as part of the new “clinical checklist”. The checklist requires clinicians to identify and evaluate alternative forms of medical treatment when deciding whether to give a particular medical treatment to a patient. As I have already mentioned, the definition of medical treatment under the Act is broad. As well as non-drug-based interventions, it includes specialist mental health rehabilitation and care. On the point raised by the noble Baroness, Lady Bennett, which is an important one, it does include the therapeutic environment or setting. This requirement, as outlined, would apply to all patients falling under Part IV of the Act. It includes patients with a learning disability and autistic patients who are detained for assessment under Section 2 and patients detained for treatment under Part III.
With specific regard to those with a learning disability and autistic people, I recognise the concern that they are more likely to be prescribed an antipsychotic than the general population. I emphasise that psychotropic medication should only be given for the right reasons, in the lowest dose, for the shortest time. NHS England has a national programme of work to stop overmedication and the inappropriate prescribing of these medications, which is aimed in particular at people with a learning disability and autistic people. Noble Lords will be aware of the STOMP programme. Alongside it is a national supporting treatment and appropriate medication in paediatrics programme called STAMP—the two are not to be confused. These programmes work particularly closely with those with lived experience, families and carers organisations, and a wide range of health and social care professional bodies.
Amendment 53, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, would require the approved clinician to offer a patient any treatment that is appropriate, having applied the new clinical checklist. The reference to medical treatment in that checklist should already be read in accordance with Clause 8, which inserts a new definition of appropriate medical treatment to enact the principle of therapeutic benefit.
The clinician must also support the patient to participate in decision-making to make sure that they do not simply offer their preferred treatment to the patient, with no discussion or consideration of alternatives. The Bill also requires clinicians and, where relevant, the second opinion appointed doctor to provide a written record that the treatment being administered meets the definition of appropriate medical treatment. Therefore, it is felt that the Bill already meets the intention of this amendment. Furthermore, if the intention is to ensure that a range of treatments is being considered by the responsible clinician, I can reassure noble Lords that this is already the case, because, as I have said, the definition of medical treatment is broad.
Lord Scriven (LD)
The Minister has reeled off a very good list of what is already in place. Have the Government done an assessment to see exactly how that learning is ingrained and how effective it has been in changing mental health provision and mental health services? If not, could she please go back to her department to try to find that, and write to Members of the Committee so we can see that in writing?
Baroness Merron (Lab)
I would be very pleased to look into it further, but, as I have described, this is a rolling programme. I emphasise that the CQC has that duty both to monitor but also to make the relevant bodies subject to sanctions if needed—in other words, more immediately. So I am concerned that through this amendment we could be creating a structure which is actually less flexible and responsive than the one we have now.
Amendment 148, tabled by the noble Lord, Lord Crisp, and the noble Baroness, Lady Hollins, would impose on integrated care boards—ICBs—a legally binding duty to provide local, in-person, specialist withdrawal treatments for patients on psychiatric medication prescribed during the course of their treatment by services under the Mental Health Act. In addition, there would be a duty on each ICB to send to the Secretary of State an annual report on the availability, uptake and outcomes of this support. Under this amendment, the Secretary of State would be obliged to lay these reports before Parliament. ICBs would also be subject to a requirement to provide a 24-hour helpline and online platform to support patients to receive withdrawal treatment.
Let me say at the outset that I recognise the difficulties that withdrawal can pose. I recall that the noble Lord, Lord Crisp, spoke on this very point in the Chamber last month and was also good enough to speak directly to me. It is, I agree, an issue that will not go away and, per the noble Lord’s request, I would be happy to arrange a meeting. I feel there is a whole area here to which we today, considering amendments, cannot do justice, so I would be pleased to do that. To the noble Lord, Lord Mawson, who has tabled Written Questions, I say that I look forward to answering them, and I hope that he will look forward to reading my Answers.
Where relevant, we would expect the patient’s statutory care and treatment plan to include a tapering plan and put in place whatever additional support is needed to enable a patient’s recovery and effective discharge. On the requirement to provide support in the community and report on availability, this is the responsibility of local health commissioners. In 2023, NHSE published a framework for ICBs and primary care boards on how to optimise personalised care for patients prescribed medicines associated with dependence or withdrawal symptoms. With regard to the requirement in the amendment for a 24-hour helpline, this would not seem proportionate, given the relatively low numbers of people who might need this service, who should already have a support plan in place, including access to relevant local support services.
Finally, Amendment 154, tabled by the noble Baroness, Lady Bennett, would allow the Secretary of State to make regulations giving people detained in hospital and those subject to community treatment or guardianship orders the ability to have certain care and treatment matters considered by a mental health tribunal.
This is a very complex area, as I am sure the noble Baroness is aware. The amendment seems to draw on the recommendation made by the independent review to give patients a new right of appeal to a single judge of the mental health tribunal regarding compulsory treatment. I recall that the previous Government publicly consulted on this new right, and the majority of respondents raised major concerns in this regard. The consultation was followed by further long and careful consideration with stakeholders, which led the then Government to the conclusion that this safeguard is just not viable. A solution could not be found that provided an efficient and effective route of appeal for patients while avoiding the risks of the tribunal intervening in clinical decision-making, alongside significant resource burdens. Many of these concerns were reflected in the report of the pre-legislative scrutiny committee, which also acknowledged the complexity of the issue.
We believe that the other provisions in the Bill will better achieve the same objectives of providing patient choice and autonomy, so while we do not support introducing a new role for the tribunal, I assure your Lordships that the emphasis on therapeutic benefit within the detention criteria will mean that whether care and treatment are proving effective will play a role in the tribunal’s consideration of whether or not detention should continue to be upheld. With these explanations, I hope that the noble Earl feels able to withdraw his amendment.
Earl Howe (Con)
My Lords, I am very grateful to all noble Lords who have contributed to this debate in such compelling ways, and I think we can see that when it comes to the experiences of children and young people in mental health units, we are dealing with a story that is a lot more substantial than mere anecdote. From briefing I have received, I am afraid I have been left in no doubt that the therapeutic environment in a number of mental health hospitals around the country—not all, of course—is, to put it mildly, a lot less than optimal.
Clearly, it is unacceptable for any patient, of whatever age, to be detained compulsorily without being offered treatment. It is unacceptable that drugs or restraint should be used as punishments. Challenging behaviour can be difficult to deal with, but staff should be trained to deal with it in a way that demonstrates that they understand the root causes of the behaviour. Those causes can be extremely complex.
To pick up another strand of the debate, I am in no doubt that medication has a place in mental health therapy. It can often be the treatment of choice. It is one tool in the toolbox. However, I very much agree with what the noble Lord, Lord Crisp, and the noble Baroness, Lady Tyler, had to say about social prescribing. It can not only be clinically effective but save costs if it is delivered, for example, by local charities that work in the fields of music, drama or art. Incidentally, it can help budding musicians, actors and artists in their downtime to train as music, art or drama therapists, which is an added bonus.
Baroness Tyler of Enfield
“(7) In section 24 of the Mental Capacity Act 2005 (Advance decisions to refuse treatment: general), after subsection (5), insert—“(6) For an “Advance decision” in relation to a treatment for a mental disorder under the provisions of the Mental Health Act 1983, a person may make a decision once they have reached 16.””Member’s explanatory statement
This amendment extends advance decisions to those who are 16 and over.
Baroness Tyler of Enfield (LD)
My Lords, in moving Amendment 55 I will speak to Amendment 136; both are in my name. This is another very important group, about children and young people’s competence and decision-making. Amendment 55 is about extending advanced decisions to those who are aged 16 and over. I recognise that there is also an important amendment from the noble Earl, Lord Howe, about advanced decisions—a similar issue, but perhaps taking a different approach.
The Bill will give legal weight to advance decisions within the Mental Health Act, which I very much welcome. Adults will be able to record their advance refusal of a particular treatment if they lose capacity. An advance decision will have the same effect as a refusal of treatment made with capacity and will ensure that the individual can access enhanced safeguards before the treatment can be given. Although advance choice documents, where advance decisions will be recorded, will be available to adults of all ages, the Bill as drafted does not permit under-18s to make advance decisions. As such, someone aged under 18 could say in an advance choice document that they refuse a particular treatment if they would not want it, but that would have limited weight. Specifically, it would mean that, if the child or young person lacked capacity or competence to consent to treatment when it was offered, their advance refusal would not give them access to the enhanced treatment safeguards that are available to adults, including tribunal appeal.
This means that, rather than being on an equal footing, children and young people would be disadvantaged compared with adults. Therefore, I see this very much as part of parity of treatment between children and adults. I am strongly of the view that the safeguards that flow from advance refusals of treatment should also be made available to young people. This is what my Amendment 55 is designed to do.
I add one more general point. We still have work to do in Committee to strengthen safeguards and protections for children and young people in mental health in-patient care. There should be a general principle of parity of treatment between children and young people and adults. Of course I recognise that some distinctions have to be made due to the legal status of under-18s, but I said at Second Reading, and it remains my view, that this Bill was never really designed with children and young people in mind, yet it can affect them greatly. In responding, can the Minister set out how much input DfE Ministers and officials have had on the drafting of the Bill?
It will probably help if I explain that Amendment 136 is closely related to Amendment 147, tabled by the noble Lord, Lord Meston, whom I have had the opportunity of corresponding with. I do not want, in speaking first, to pre-empt what the noble Lord will say, but I need to reference his amendment to explain mine. I share the concern that the Bill does not include a test to determine the ability of children under the age of 16 to make decisions—in other words, whether they are competent. Without such a test, this age group will not be able to benefit fully from the rights and safeguards included in the Bill; the question is how we best get there.
Under-16s are currently at a disadvantage. Whereas all those aged 16 and over are presumed to have capacity to make decisions for themselves unless evidence shows otherwise—in which case the Mental Capacity Act kicks in—under-16s are presumed to be unable to make decisions for themselves unless they demonstrate that they are competent to do so. There is also no clear and consistent approach for determining whether a child is competent. Although the concept of competence is generally understood, how to assess a child’s competence is not.
That is why I have a lot of sympathy with the amendment tabled by the noble Lord, Lord Meston, which would insert a test for determining the ability of someone aged under 16 to make decisions under this legislation. His amendment explicitly limits this test to decisions made under the mental health legislation and is explicitly focused on the criteria with which to determine whether a child is competent. No doubt he will explain his amendment far more eloquently than I could ever do. My amendment would require the Secretary of State to review whether a statutory test for under-16s would be expedient for the purpose of this Act and for mental health legislation more generally. It is very much a stepping stone towards that position and, I hope, supports change in this area.
Such a review is important because it could address some of the concerns that have been expressed in this area. It could include whether such a test should be in the Bill or in a code, how best to make it clear that a test will be specific to the scope of legislation rather than having wider application, and how such a test would help with the successful implementation of the Bill. It could help to establish that the test is specific to whether a particular child can make a particular decision at a particular time, and set out what information is required.
I am aware that, in some of our broader discussions, concerns have been raised about the possible unintended consequences of such a test in relation both to parental responsibility and to a child being seen as Gillick competent—that is, they have the ability to understand the decision. I feel that a review would be helpful in looking at these issues and addressing those concerns head-on. In that way, we would make important steps in ensuring that the whole of the mental health reforms work properly and fairly for all children and young people. I beg to move.
Lord Meston (CB)
My Lords, as the noble Baroness has just said, my Amendment 147, which deals with competence and decision-making, would provide what I suggest is a necessary statutory test to determine the decision-making competence of children under 16 years of age in all matters under this legislation for which such a determination is required. The Joint Committee on the draft Bill pointed out, echoing what was said in the independent review of the 1983 Act, that attempts both to protect and to empower children have produced a complex mixture of statute and case law with no single method of assessment and no consistent criteria to establish either capacity or competence. This is a particular disadvantage for children and young people, who do not have the benefit of any statutory presumption of competence such as that which applies to adults.
Importantly, the amendment, although offering a test, does not create any presumption of capacity in a child. Moreover, the reason for the child’s inability to decide is irrelevant. It would, however, require that those determining whether a child is competent must give reasonable grounds for reaching that conclusion. It is important to emphasise that this amendment is concerned only with how to assess whether a child is competent and not with the consequences of any determination that a child is competent.
This Bill has been produced with numerous references to capacity and/or competence in various contexts, including consent to CETR meetings, “disclosure of information”, “consent to treatment”, making advance choice decisions,
“terminating the appointment of a nominated person”
and involving “mental health advocates”. However, the Bill is currently silent on what is meant by “competence” and how it should be determined.
The existing statutory test in the Mental Capacity Act does not apply to those under 16. The separate concept of Gillick competence—it is derived from the pivotal case of that name, decided in 1986—requires inherently subjective assessments of the child’s understanding and maturity. I speak with some experience of having to decide whether or not a child is competent to participate independently in court proceedings concerning them. That exercise sometimes feels rather paternalistic and is, as has been pointed out, really subjective, with the test in Gillick offering no guidance on the extent to which adjustment should be made for factors such as peer pressure, drug and substance abuse, family stress, emotional disturbance or illness.
More recent case law shows that the Mental Capacity Act can be used to inform an assessment of child competence, but it is not mandatory to do so. The factors set out in this amendment to indicate a child’s ability to decide are the features carefully identified by Mr Justice Cobb, as he then was, in a case decided in 2017 concerning the difficult question of whether or not a girl under 16 had the capacity to consent to her child being adopted.
I therefore suggest that there is now a need for clearer and more rigorous guidelines—structured guidelines that are not just mechanistic checklists—for mental health and legal professionals to work with. The assessments that have to be made of a child’s ability to understand and weigh relevant information need to be decision-specific, child-specific and time-specific, and they have to recognise that competence can fluctuate as well as evolve. These are not straightforward assessments and are certainly not a mere formality.
A statutory test would be welcomed by practitioners and the courts. This is too important to be left to the code of practice; such codes are intended to reflect and supplement the law, not to create law. A clear test in the statute would only be of assistance to practitioners and would allow children to benefit from the safeguards within the Bill.
Baroness Browning (Con)
With the wealth of his experience in dealing with children, could the noble Lord give the House a feel for whether, when assessing the competence particularly of children from a younger age group, there are cases where they understand the situation that is explained to them but, when a decision is subsequently required, there is less clarity on how to make it themselves? I ask that because I know that, often, certain adults on the autism spectrum in a similar situation can fully comprehend a situation that is explained, if necessary, and have capacity, but making the decision between one, two or more choices is much more problematic.
Lord Meston (CB)
My Lords, I understand the dilemma. The point I emphasise is that, in deciding this, one has to be clear that the child has a proper explanation of the ultimate decision that has to be made. It is to that end that the competence has to be assessed.
Lord Stevens of Birmingham (CB)
For those of us who are not anywhere near as legally expert as the noble Lord whose wise deliberations we have just heard, could he clarify the amendment that talks specifically about ring-fencing this new test for the Mental Health Bill? To what extent would that be consistent or not with, for example, the ruling of the Court of Appeal in Bell v Tavistock—the NHS trust—in the case of puberty blockers, which concerned the interpretation that the High Court had given to the Gillick test?
Lord Meston (CB)
I am tempted to say that I really do not know. That was a faster ball than I expected to receive. I think the answer is that the case law would be consistently applied, even as it stands now, but would undoubtedly be aided by a statutory test. Whether it would apply in cases such as that which the noble Lord just mentioned, I do not know. The purpose of the amendment is to provide a test for decisions that have to be made consequential upon this legislation, not other situations.
Baroness Butler-Sloss (CB)
My Lords, I entirely agree with what the noble Lord, Lord Meston, just said. The two interjections were very interesting but they do not really affect the guidance. That is crucial. The question asked by the noble Baroness, Lady Browning, as to whether you can understand it but cannot make a decision, may well affect how the person applying the guidance does so. That would be one of the issues for whoever has the uncomfortable task of making the decision.
I think the noble Baroness, Lady Tyler, is too cautious. If we go back to the Mental Capacity Act 2005, there is clear explanation and guidance in primary legislation as to how anyone who has to judge capacity is to do it. What we are talking about here—incompetence—is quite simply capacity. For some reason, which I find quite difficult, we seem to think that children under 16 have competence or do not, but over-16s have capacity or do not. It would have been far more sensible to use the same word for every person who will, in fact, be judged on whether they do or do not have capacity to make a decision of great importance, as it would be, in relation to mental health issues. I find it very odd.
However, and equally importantly, if it is in primary legislation for over-16s, why on earth would it be in guidance for under-16s? If it is good enough for over-16s, why is it not good enough for under-16s? The way the noble Lord, Lord Meston, has set this out seems admirable. It is very close to the Mental Capacity Act. I take and entirely agree with the point made by the noble Baroness, Lady Tyler, but the Government seem to have ignored children to a very large extent, although children are a very important part of this Bill. I do not blame the Minister, because she did not draft it, but she has to bring it to us. I tabled a lot of amendments about parents and people with parental responsibility because they are largely ignored; I will speak about that later. But where we are dealing with children aged under 16, it is essential that they are treated in the same way as everybody else and that has to be in the Bill—in primary legislation.
Young people have had to deal with these issues ever since Lord Denning was presiding in the Court of Appeal in Gillick, but he did not help us at that stage as to how actually to deal with it. Like the noble Lord, Lord Meston, I have also had to make decisions as to whether under-16s were giving me advice that I thought was really worthy of listening to. Children of five can give extraordinarily good explanations, though I do not expect them to give them on mental health issues. I urge the Minister: it is crucial that everyone whose capacity is a matter at issue has it treated in exactly the same way. Therefore, to put it into guidance really will not do.
I will also speak on Amendments 55 and 56. I am very concerned about children. Bear in mind, however much we treat children aged over 16 with respect and as having the capacity to make decisions, and however much we listen to them, as we should listen to all children, there are stroppy teenagers—we all know about them—who, for one reason or another, will not do what adults tell or advise them. I am very concerned, and I am not quite sure about this because I am no expert on mental health legislation, that if a 16 year-old has the right to make advance decisions and they just say, “I do not want any injections, I do not want any pills, I absolutely refuse to have any treatment”, then unless there is an ability to override them they will have capacity and cannot be ignored. One has to view advance decisions for 16 to 18 year-olds with some degree of care. I am not saying that they should not happen, but I am not happy about them being universal and without some ability for them to be overridden.
Baroness Berridge (Con)
My Lords, I have put my name to Amendment 147. I find myself in agreement with much that has been said. It has been a consistent recommendation to His Majesty’s Government since the independent review that there should be a statutory test of competence or capacity for those aged under 16. Of course, that means it should be in the Bill. This has been supported by the Children’s Commissioner of late and by the Children and Young People’s Mental Health Alliance.
Therefore, I was disappointed to see the code of practice solution outlined in the Minister’s policy paper that we received yesterday. As the noble and learned Baroness, Lady Butler-Sloss, outlined, in the Mental Capacity Act, which applies to over-16s, there is a functional capacity test followed by the secondary mental impairment test. I also agree with the noble Baroness, Lady Tyler, that under-16s are presumed to lack capacity, so you start from the opposite premise of the Mental Capacity Act for over-16s, who are presumed to have capacity. That puts them at an advantage: it has to be taken from them, rather than being given to under-16s.
I agree with the comments of the noble Lord, Lord Meston. Great work is being done by clinicians up and down the country to apply Gillick competence tests, but throughout my time on the Joint Committee we did not seem to know whether there was any review or assessment as to how and when it is applied in hospitals and healthcare settings up and down the country. I fail to understand the Government’s reluctance to put this test in the Bill. How is such a reluctance compatible with one of the four guiding principles—to treat the person as an individual? Perhaps the Minister could outline the reasoning for this omission.
I also want to point to the problem of relying on the code of practice made under Section 118 of the Mental Health Act. On page 13 of the code of practice, there is a very clear description of the code and its legislative function:
“Whilst the whole of the Code should be followed, please note that where ‘must’ is used, it reflects legal obligations in legislation, (including other legislation such as the Human Rights Act 1998) or case law, and must be followed. Where the Code uses the term ‘should’ then departures should be documented and recorded”.
It then refers to explanatory paragraphs and continues:
“Where the Code gives guidance using the terms ‘may’, ‘can’ or ‘could’ then the guidance in the Code is to be followed wherever possible”.
In the Minister’s policy statements, there is often the use of “will”, which, as far as I understand, is a “must”. Bearing in mind what I just read, unless something is in the Bill then even putting this test into the Bill will mean that it is only, at the very best, a “should” and can be departed from. Obviously, that applies across all of the places in which the Minister relies on the defence of, “We’re going to put it in a code”. I note that it is a code that we have not seen and will be consulted on only after the passing of the legislation.
Dealing again with the amendment, it is important to determine capacity and, as Mind has said in its excellent briefing, the question of whether a person has capacity or competence to make the relevant decision is fundamental to the operation of key rights and safeguards. To build on the point from the noble Lord, Lord Meston, as I understand it the Bill contains 13 references to competence. It deals with such important matters as the appointment of their nominated person and, if you are under the age of 16, your freedom to choose someone other than the person with parental responsibility depends on your having competence. There is also the ability to refuse medication. To deal with the point made, I think, by the noble Lord, Lord Stevens, who was concerned about leakage across, this is a very particular piece of legislation with such coercive power, as I am sure he is aware, that the case for putting the test in the Bill to open up those safeguards for young people is very important.
The Government’s response to the consultation stated:
“We are committed to ensuring that children and young people benefit from the reforms we plan to introduce”.
Will the Minister therefore explain again how the lack of a statutory test is consistent with maximising that choice and autonomy?
Baroness Bennett of Manor Castle (GP)
My Lords, I rise briefly having attached my name to Amendment 147, to which the noble Baroness, Lady Berridge, was just speaking so powerfully. I will not repeat anything that people far more expert legally than me have already said, but will just make a couple of small points.
Baroness Barker (LD)
My Lords, I make two specific points in response to what the noble and learned Baroness, Lady Butler-Sloss, said. The amendments refer to Section 24 of the Mental Capacity Act, but if one goes on to Section 25 of that Act, there are a number of conditions that have to be fulfilled in order for a record of an advanced decision to be deemed valid. I think it is worth pointing out subsection (5) to noble Lords, which states:
“An advance decision is not applicable to life-sustaining treatment unless … (a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and (b) the decision and statement comply with subsection (6).
Subsection (6) states that it must be,
“in writing … it is signed by P or by another person in P's presence and by P's direction … the signature is made or acknowledged by P in the presence of a witness, and … the witness signs it, or acknowledges”
it to be true.
I am trying to convey to the noble and learned Baroness that these are very formal procedures. They are not taken lightly. That applies to somebody who is 18 and one day, and I think it should be applied to somebody who is younger than that with as much seriousness.
Noble Lords and others have referred to these decisions as advance decisions to refuse treatment. Advance decisions can also be for treatment. People can say in an advance decision, “I know that when I am in an episode of illness, I may be saying that I do not want medication. At this moment in time, when I have capacity, I wish it to be put down in writing that if I do that, you are to ignore it”.
I would like us to have a fuller appreciation of what it is we are talking about, although I do not detract from any of the considerations that people want to bring in about young people.
Earl Howe (Con)
My Lords, I venture to say that all the amendments in this group approach similar issues in not dissimilar ways. The most compelling point that perhaps should be underlined in relation to them all is that implied by the amendments in the name of the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston: that there is no earthly reason why the law should prohibit a young person with sufficient decision-making competence recording a valid expression of their wishes and preferences around their own mental health care, and the logical consequence of that is the need for a competence test, or a capacity test for child patients.
My Amendment 56 seeks to address an issue allied to those addressed by the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston. As it stands, the Bill does not permit a 16 or 17 year-old to make a valid advance decision about their mental health care. An advance decision has the same effect in practice as a capacity decision to refuse a particular treatment. It is important to understand that under the Mental Health Act, making an advance decision does not give someone an unfettered right to refuse that treatment. Treatment can still be administered notwithstanding the advance decision, albeit only if certain strict conditions are met. Nevertheless, an advance decision made by an adult patient carries a huge amount of weight, and placed within or alongside an advance choice document, which enables a patient to outline their treatment preferences, it does a great deal to ensure that the patient is placed genuinely in the driving seat when it comes to their mental health care and treatment.
Under the terms of the Bill, young persons aged 16 and 17 will be able to execute an advance choice document, but what they cannot do is to make an advance decision to sit alongside it. That means that an advance choice document that purports to include an advance decision made by an under 18 year-old is likely to carry a good deal less weight than such a document executed by an adult. My amendment invites the Government to put this right.
An associated but distinct issue arises in relation to children under the age of 16. I will not repeat the excellent arguments for a competency test put forward by the noble Lord, Lord Meston, and the noble Baroness, Lady Tyler, but I agree entirely with what they have said. The point that resonates most with me in the context of a Bill that places great emphasis on patient empowerment is that in the absence of a statutory competence test to determine a child’s decision-making ability, it will, in practice, be impossible for someone under 16 to execute an advance choice document and then expect professionals to take due notice of it.
Amendment 147, tabled by the noble Lord, Lord Meston, seems to me to be as good as it gets in articulating the key requirements necessary to establish decision-making competence in a child. My only hesitation about his amendment is that it invites us to place the terms of a competency test in the Bill without further ado. For a measure of this significance, I tend to feel that any final formula for a competence test merits a prior consultation exercise, and then encapsulation in regulations approved by Parliament. I fully agree with my noble friend Lady Berridge that relying on a code of practice in this context would be wholly unsatisfactory. For what it is worth, I suspect that a consultation would be likely to throw up some further considerations that would need to be factored in to the formula. That aside, I very much hope that the Minister will be receptive to the arguments she has heard. If we can deliver this added empowerment to children and, as regards advance decisions, to 16 and 17 year-olds, the prize will be very great, and I hope she agrees that the challenge is one we must address.
Baroness Butler-Sloss (CB)
My Lords, if the noble Earl is suggesting that the provisions in the amendment of the noble Lord, Lord Meston, should go either to consultation or to further consideration, will we not end up in a situation where this Bill becomes law and nothing is done to advise anyone, on the face of the legislation, how to deal with those under 16, although it is there for those over 16? Why should, in this particular instance, those under 16 basically be discriminated against? Whether or not they have capacity is the point of the amendment.
Earl Howe (Con)
I am grateful to the noble and learned Baroness. I hope it was implicit in what I said that I would look to this Bill to include an order-making power that would enable regulations to be laid in due course that would cover not only 16 or 17 year-olds but also those under 16, and Parliament would then approve them. No doubt this is a matter that we can discuss further after this, but I hope that the point of principle is clear, which I fully support, that this issue needs to be sorted through this Bill.
Lord Scriven (LD)
I have listened to the noble Earl’s argument carefully, and in principle I support what he is trying to do. The only problem with leaving the matter to a statutory instrument, rather than putting it on the face of the Bill, is that it is far easier for the Secretary of State to change that, even despite the will of Parliament, based on the way that Parliament works. Why could it not be on the face of the Bill, to give absolute certainty, rather than in a statutory instrument, which normally gives flexibility and powers to a Minister?
Earl Howe (Con)
There are two answers to that. First, it is generally unthinkable for a Government to lay regulations without first having consulted the relevant parties. Secondly, if we are honest, putting something on the face of a Bill is not the whole story; there would need to be proper clinical guidance published alongside that for practical purposes for hospitals and elsewhere.
Baroness Merron (Lab)
My Lords, I thank all noble Lords for examining the important issues that have been raised in this group of amendments.
Amendment 55, in the name of the noble Baroness, Lady Tyler, supported by the noble Lord, Lord Scriven, seeks to change the Mental Capacity Act to allow young people aged 16 or 17 the ability to make a binding advance decision to refuse medical treatment for mental disorder. I shall set out some concerns about the amendment that may be helpful.
First, the amendment would mean that a young person who is not detained under the Mental Health Act could refuse a mental health treatment, even if it was life-sustaining. While the Mental Health Act and the Bill currently provide safeguards that enable a person’s advance decision to be overruled, detention under the Act may not always be appropriate. For example, if a 16 year-old is left very unwell following an attempted suicide, then currently they may be given treatment on the basis of what is in their best interests, under the Mental Capacity Act, if they lack capacity to consent at the time. However, under the amendment, if the 16 year-old had made an advance decision to refuse treatment necessary for their recovery or to sustain their life, then they might need to be detained under the Mental Health Act simply so that their advance decision could be overruled. This is important in terms of timely access to treatment and to avoid loss of life, of course.
Baroness Bennett of Manor Castle (GP)
What the Minister has just said is complex, but it strikes me, listening to that situation, that this might be a matter of hard cases making bad law. Could we be denying lots of people the chance to have a say because of the risk in a small number of cases? How would she respond to that?
Baroness Merron (Lab)
The overall concern is as I have identified. Yes, indeed, as always, it is a complex area that we need to unpick, but our main concern has to be for the welfare of the young person. The concern about the amendment is that, inadvertently, it would work in the opposite direction.
To finish on Amendment 55—this might also be helpful to the noble Baroness, Lady Bennett—we are of the view that the Bill strikes the right balance between self-determination and responding to the needs and vulnerabilities of children and young people. For example, in the clinical checklist, many of the new treatment safeguards and provisions around care and treatment planning apply equally regardless of age and aim to ensure that treatment is more patient-led.
Amendment 56, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, is somewhat similar to Amendment 55 in seeking to change the Mental Capacity Act to provide a mechanism by which children and young people can make an advance decision to refuse medical treatment for mental disorder. However, under Amendment 56, the child or young person’s advance decision would have legal weight only if they were detained under the Mental Health Act. As I have already discussed, while we recognise the principled position to extend the rights of adults to children, giving under-18s the right to make an advance decision to refuse treatment would conflict with a long- standing legal principle established by common law in the courts and codified in the Mental Capacity Act and would, therefore, mean that the amendment would not achieve its desired effect. This principle recognises that, in some serious cases, the courts, parents or those with parental responsibility may overrule the refusal of a child or young person, especially in cases where the child’s life is at risk.
I reassure noble Lords that we are nevertheless committed to giving children and young people a voice as far as possible when it comes to decisions about their care and treatment. I refer again to the example of the clinical checklist, which requires consideration of a patient’s wishes and feelings, including those expressed in advance.
Lord Scriven (LD)
What legal status does the checklist that the Minister keeps referring to actually have?
Baroness Merron (Lab)
I will come back to the noble Lord on that, and I thank him for asking the question.
I was about to refer to the noble Baroness, Lady Tyler. I may not be doing so in quite the right place, so I hope she will forgive me, but I do not want to lose this point. She asked what engagement we have had with the Department for Education. Our officials have engaged with DfE officials on the development of the Bill, including on the interaction between the Bill and the Children Act, which I know is of quite a lot of interest to noble Lords. We have also discussed questions around the statutory test with both the DfE and the Ministry of Justice, given that competency tests apply in wider children’s settings than mental health. I hope that is helpful.
Amendment 136, tabled by the noble Baroness, Lady Tyler, would require the Government to hold a review of whether a statutory test of competence should be introduced into the Mental Health Act for under-16s within a year of the Bill being passed. While we recognise that there are competing views about Gillick competency, it is nevertheless the established framework for determining competency for children. To introduce a statutory test for under-16s only under the Mental Health Act is likely to risk undermining Gillick, which remains the accepted competence test for under-16s across all settings, including reproductive health and children’s social care, and the wider legislative framework on matters related to children.
Baroness Butler-Sloss (CB)
The trouble with Gillick is that it does not provide, for those who have to make the decision, how to do it.
Baroness Merron (Lab)
I appreciate the point that the noble and learned Baroness has made. As I said, I know there are competing views about its application. I reiterate the observation that it is the current established framework, but I hear what she is saying about what she believes are the implications of that.
Baroness Berridge (Con)
The Minister’s own policy document says that this test should be in the code of practice. How does that not also contribute to the undermining of Gillick that the Minister refers to?
Baroness Merron (Lab)
Actually, my feeling about the code of practice is something that I wanted to bring up, because it has come up quite a lot. The code of practice is statutory and aimed at practitioners, and it allows nuance and so on, but Gillick is in case law and it guides us throughout. The point I am trying to make is that if it is changed in respect of this Mental Health Bill then that has implications across the wider question of competency for younger people, and that is of great concern.
Baroness Butler-Sloss (CB)
I apologise for interrupting the noble Baroness again, but the fact is—I speak as a former lawyer and judge who applied Gillick—it does not actually give guidance. All it says, as I understand it, is that under-16s have to be listened to. That is great, and I totally agree. What it does not do—but the amendment of the noble Lord, Lord Meston, would—is set out the guidance that those who make the decisions need to have.
Baroness Merron (Lab)
Obviously, I am listening closely to the noble and learned Baroness’s experience and feeling on the matter, and I will certainly be pleased to reflect on the points that she and the noble Baroness, Lady Berridge, have made.
If I continue, that may be of some assistance—we will see. It is of concern to me that the possible creation of two different tests will potentially cause further confusion and uncertainty on the ground. We are therefore not in a position to welcome a statutory test of competence in the Mental Health Act.
Before I continue to Amendment 147, I will come back to the good question raised by the noble Lord, Lord Scriven, about the legal status of clinical checklists. Because they are in the Bill, they are a statutory requirement for clinicians, to be followed in respect of all patients. I hope that will be useful.
Lord Scriven (LD)
It is useful, but it is therefore contradictory to what the Minister has just said. If the checklist is statutory and it is legally binding that it has to be followed, how would a young person in that checklist having a view about their care be different from an advance directive? That is the issue. The Minister said the other alternative is that a person under 18 or 16 can make a decision in relation to the medical checklist, and she has just said that the decisions are legally binding. Alternatively, is it that carrying out the process is legally statutorily binding but the views of somebody who is 16 on that list are not?
Baroness Merron (Lab)
I was referring more to situations, of which I know the noble Lord is aware, where there is a need for intervention. I think I used the word “overruling”, and I used some examples where there was a risk to life. So it is about application in that regard. I will look at that question in greater detail when I reflect on this area of debate and, if there is more that I can add to assist the noble Lord, I will be pleased to do so.
Amendment 147 is in the name of the noble Lord, Lord Meston, supported by the noble Baroness, Lady Berridge, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Bennett. It would create a statutory test of competency for children in respect of decisions under the Mental Health Act. Under that test, competence for under-16s would be defined by reference to the functional test of capacity established in the Mental Capacity Act but without the diagnostic test, and by having due regard to the UN Convention on the Rights of the Child.
The courts have already made clear that the approach of the functional test is not suitable for children. We do not think that the functional test is appropriate or compatible with the UN Convention on the Rights of the Child, which the amendment itself makes reference to. The amendment, as drafted, is therefore not considered to be in line with established case law.
The noble Baroness, Lady Berridge, asked about the justification for not including a test in the Bill. As I have mentioned, Gillick is established in case law, not statute, and the code explains how the Gillick decision is to be applied. But this does not mean that the House of Lords decision is not mandatory. There is a duty to follow case law. It is not discretionary, as I know noble Lords are aware.
Baroness Tyler of Enfield (LD)
My Lords, I thank the noble Baroness for that response. One thing we can all agree on from this discussion is that these are complex issues and people sometimes have rather different understandings of what certain things might say or mean.
Having said that, I would just like to say where I think we are on the two issues. First, on advanced decisions, I have a strong view that children and young people aged 16 and 17 should have choices that are made available to adults extended to them. As I think the noble Baroness, Lady Bennett, said, it is about having a sense of agency and autonomy and feeling that their wishes and feelings are being respected. It may be that I did not draft it very well, but I was not suggesting that everyone was going to be forced to do it. It is there as an option, and that is a really important point that possibly did not come out sufficiently in the debate. The fault for that is mine. It may be that the approach that the noble Earl, Lord Howe, was suggesting is a better way forward. I do not know; I do not mind. I just feel that, because to me this is so fundamental and a question of human rights, we will need to return to this on Report.
I turn with some trepidation now to the statutory competence test for under-16s. I have been accused of being too cautious. That is fine. I understand where noble Lords were coming from. I did not say it when I introduced it, because I thought it would be a bit to odd to say it, but I was seeing my amendment as a bit of a backstop. In other words, if the Government are not minded to accept that recommendation, at least something would happen and at least there would be some sort of progress. As I said, I was very sympathetic to the test and the way that the noble Lord, Lord Meston, set it out. It had a fair amount of support, of course, across the Chamber, but the debate also showed that there are still some quite tricky issues that need to be teased out. I do not think it was quite as clear-cut as perhaps was being suggested, not least about issues around the consistency or otherwise of the application of Gillick.
It may be that, again, I did not get the wording right when I talked about a “review”. I accept that. Reviews can be kicked into the long grass and you never see anything again. But I thought the idea of a consultation was very important and, in fact, I think it would be quite difficult, having listened to this debate carefully, to move straight to having something in the Bill without having some sort of consultation first. It might be that you would want to take some sort of powers that would enable such a thing to be put in place after that consultation had happened, but to me it just felt that some issues still needed to be teased out.
Perhaps my initial amendment was not completely ludicrous, but it has been a really good and interesting debate—
Baroness Tyler of Enfield (LD)
Probing, absolutely. Thank you. And again, on this issue I sense that we will be returning on Report. But, having said those things, I thank all noble Lords who participated in this debate and thank the Minister for her responses. I beg leave to withdraw the amendment.
Lord Meston (CB)
My Lords, I do not want to prolong this, but I have to say that, although I am disappointed and a little surprised by the response from the Government, the intention is to align the Mental Capacity Act and Gillick. It is frankly not correct, if I understand the situation, to say that it is not based on case law. I referred to a specific case in which the judge formulated, essentially, the test that appears in my amendment. As I say, I do not want to prolong this but, if necessary, I can refer the Government to that case.
Baroness Merron (Lab)
Perhaps I can just say to the noble Lord that, when I reflect on the discussions on this group, as well as all the others, it may be helpful to discuss this further.
Lord Kamall
“(ba) is a patient who has been informally admitted to a mental health unit in accordance with section 131, or”Member’s explanatory statement
This amendment would ensure that patients who are admitted informally to a mental health unit will also benefit from a care and treatment plan.
Lord Kamall (Con)
My Lords, Amendment 57 stands in my name and that of my noble friend Lord Howe. The amendment is an attempt to ensure that patients who are admitted informally to hospital for a mental health disorder are also able to benefit from a care and treatment plan. As noble Lords will be aware, the Bill introduces statutory care and treatment plans but, as drafted, extends that right only to a select group of patients. As per the new Section 130ZA(2) of the Mental Health Act, patients who will be eligible for these plans are those who are formally detained under that Act, those who are subject to guardianship under the Act and those who are under a CTO.
I do not think there is any disagreement that these patients rightly deserve access to a care and treatment plan. But what about informal patients who voluntarily admit themselves for treatment? The Explanatory Notes explain that the purpose of putting these plans on a statutory footing is
“to ensure that all relevant patients have a clear and personalised strategy in place describing what is needed to progress them towards recovery”.
They also detail some of the possible inclusions in that care and treatment plan.
I note, however, that the exact inclusions in the care and treatment plan are to be made by the Secretary of State by regulations at a later date, possibly due to consultation. So, although we may have some idea of what might be included, it would be helpful if the Minister could confirm to your Lordships what the Government envisage will be included or could be included. I am not wanting to put the noble Baroness too much on the spot here.
As many noble Lords might well know, care and treatment plans have been part of the package of mental health treatment in Wales since June 2012 under Section 18 of the Mental Health (Wales) Measure 2010. Those regulations specify that the areas that must be included in the patient’s care and treatment plan include
“finance and money … accommodation … personal care and physical well-being … education and training … work and occupation … parenting or caring relationships … social, cultural or spiritual … medical and other forms of treatment including psychological interventions”.
Can the Minister confirm whether the care and treatment plans in England will follow the same format or possibly be inspired by the same format? Will there be differences? Are there England-specific issues?
I hope the Minister will understand that I have a few more questions. How will the Secretary of State decide what to prescribe in these plans? What level of consultation will there be? Indeed, what level of consultation has there been to date to inform this, particularly with the clinicians who will be responsible for drawing up the care and treatment plans?
One of the things that many noble Lords have discussed during this debate is the fact that we want to see evidence-led practices. We know that, particularly in mental health but also in physical health, these can help to inform care and treatment plans that have a positive impact on clinical outcomes and therapeutic benefit, because they are based on treatments unique to the patient’s needs.
A meta study in 2023 in the United States found that evidence-based practices
“improve patient outcomes and yield a positive return on investment for hospitals and healthcare systems”.
I note the Minister has referred a number of times to the Government making and implementing these changes when resources allow.
The Social Care Institute for Excellence has also highlighted the importance of person-centred care, writing:
“Research on mental health and wellbeing demonstrates that involvement leads to improved service outcomes and enhances mental wellbeing”.
The institute argues forcefully that care plans for mental health patients should include active involvement from the patient. It is therefore vital that care and treatment plans are not developed in a silo; they should be developed in conjunction with the patient. Given the benefits that access to care and treatment plans should bring patients with a mental disorder, it would be more than appropriate for informal patients to be included as well.
If anyone actually listened to what I said in the debate on our second day in Committee, they may be aware that I had some sympathy with the point made by the noble Baroness, Lady Murphy, who is not in her place. She argued that she did not want to extend the independent mental health advocates to informal patients, possibly because of resource constraints but also because of limited evidence on their therapeutic benefit. I could be accused of being inconsistent, but I would say that, for care and treatment plans, the issue is rather different.
The clinicians will draw up these plans. The Bill states that it is the “appropriate practitioner” who will already be treating that patient, so it may not be the same issue of resources. Perhaps it will take extra time, and I understand that time adds up the more you require of a clinician. But, given that the informally admitted patient will already be being treated by a clinician, we would not necessarily be adding much resource or burden on to the clinician, in the same way as if we had extended the IMHAs, as in the argument made the other night.
Therefore, I hope this amendment will extend provisions that will benefit informally admitted patients, as they will benefit the patients already decided upon in the Bill. I beg to move.
Baroness Browning (Con)
My Lords, I have added my name to this amendment. I will not detain the Committee long, but I support the amendment and I want to flag the point my noble friend made about Wales and England. To my certain knowledge, when people living further north around the Shropshire border, for example, are admitted, they will almost certainly be offered placements in north Wales. It is important that there is some harmony in these regions; otherwise, it will cause additional problems. I hope my noble friend will press his amendment in due course to make sure that that harmony exists.
Baroness Butler-Sloss (CB)
My Lords, I will speak to Amendment 61. I recognise that the purpose of the Bill is to give children and those under 16 greater rights and opportunities to be heard. I entirely agree with that; it is absolutely sensible. But there is a danger of ignoring the fact that parents are basically not considered anywhere in the Bill. They are not in the contents of the Bill or any of the schedules.
Most parents are suitable; some parents are not. It may be that my amendment should perhaps be put in slightly different way, as the noble Baroness, Lady Berridge, has done. I recognise that there is a small percentage of parents who may not have total parental responsibility or, if they do have it, they are in the situation of one parent having what used to be called custody and the other having what used to be called access. For most parents, they care about their children. As far as I can see, they are completely ignored, but they do have something to contribute.
I am not suggesting for a moment that parents should make the decisions. What I am asking the Minister to do is to give them the chance to be heard; that is all I ask. They really should, throughout the Bill, be consulted where that is appropriate, but they are not put in for consultation, as far as I can see, in any part of the Bill. This is one place where that really will not do.
Speaking as a parent and grandparent, I would be extremely upset if my child was about to be detained and everybody was discussing what should happen to my child, but nobody asked me. At the moment, as far as I understand, the Government do not seem to think that parents, special guardians or anybody else who happens to have parental responsibility need to be consulted.
Baroness Watkins of Tavistock (CB)
My Lords, my amendment is very closely aligned to the amendment just moved by the noble Lord, Lord Kamall, but it is in relation to children. This is an issue that I raised at Second Reading. A number of children and young people are admitted to mental health settings informally on the basis of their own consent or parental consent—notwithstanding what was just said by the noble and learned Baroness, Lady Butler-Sloss.
Research from the Children’s Commissioner for England suggests that around one-third of in-patients aged under 18 are informal. However, NHS Digital does not publish data on the number of young people admitted informally so it is impossible to accurately track the total number of young people in hospital or to identify trends. Concerns have previously been raised, particularly by the Children and Young People’s Mental Health Coalition, that young people who are informal patients are often under exactly the same conditions as those who are detained but without access to the safeguards that children formally detained have. Many children and young people who are informal patients are also often unaware of their rights and, as has already been acknowledged, do not feel that their voices are listened to.
The coalition believes that it is crucial that informal patients aged under 18 have the same safeguards as those detained under the Act. There are two key provisions in the Mental Health Bill that can be strengthened to improve care for children and young people admitted informally. The most important, the coalition argues, is extending care and treatment plans to informal patients aged under 18, which is what my amendment is designed to do.
The reason for that is, if you manage to get somebody who is under 18 to accept informal care, they have no mental health formal record for their future. Most of us who have worked with young people under 18 bust a gut to get them to accept an in-patient admission if it is really necessary—I am talking about families as well as professionals—in order to ensure that they get treatment.
If that treatment is not guaranteed on discharge through a care and treatment plan, in the way that it would be for a detained patient, can your Lordships not see that families would be put in such difficult positions? They would ask, “Would it be better if my child is sectioned and detained in order for them to get long-term care?” This brings me back to my continued, impassioned plea that we need to think about proper standards of elective care for people with mental health problems, most importantly for those under 18.
Lord Davies of Brixton (Lab)
My Lords, I remind the Committee of my entry in the register of interests that I am on the advisory board of the Money and Mental Health Policy Institute. I mention this particularly because the three amendments in my name, dealing with the financial implications for people who struggle with their mental health, have been based on the work of the institute.
As I have reminded the House on many occasions, these amendments speak to the undeniable but all too often overlooked fact that our mental health and money are closely linked. When someone is hospitalised for a mental health crisis, bills still need to be paid and debts can mount up, resulting in financial difficulties that greatly damage people’s prospects of recovery.
It is worth focusing on the numbers. In 2022-23, almost 90,000 adults were admitted to hospital for a mental health problem. The Adult Psychiatric Morbidity Survey indicated that around one-quarter of people experiencing a mental health problem are also in problem debt. The rate of problem debt is undoubtedly higher among people experiencing a mental health problem, which leads to hospitalisation. An earlier study from 2008 found that one-third of all people with probable psychosis are in problem debt.
The three amendments dealing with the link between finance and mental health deal with different aspects of the problem, and they are, quite rightly, being considered in turn in relation to the relevant parts of the Bill. Today, we start with my Amendment 59, and I thank the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger, for their support for it. Like the other amendments in this group, it deals with care and treatment plans. Later, we will come to the implications of advance choice documents, which is currently in group nine, and then provision for mental health crisis breathing space, which is currently in group 17.
The Mental Health Bill provides an important opportunity to tackle the vicious cycle of poor mental health often leading to financial problems, and financial problems often leading to poor mental health. We must break that cycle and ensure that people’s financial needs are addressed as part of a supported recovery from a mental health crisis. That focus is missing from the Bill in its current form, and my amendments seek to address that gap.
As I have already indicated, these amendments are informed and supported by the independent charity, the Money and Mental Health Policy Institute, which has done considerable and excellent work in this area. They are small changes designed to improve the Bill and the outcomes for those it aims to help, by ensuring that a person’s financial situation is routinely considered and acted on as part of their treatment and recovery from a mental health crisis. Addressing a person’s finances is one of the many factors that mental health practitioners must consider in their assessment and care planning.
However, services cannot rely on patients to tell them when they are facing financial difficulties. The experience is that people rarely take the initiative to tell mental health professionals about money problems, often because they are too unwell or because the stigma around both mental health and financial problems acts as a barrier to disclosure. Adding an explicit prompt about people’s financial situation in care and treatment plans will ensure that this is routinely and consistently considered by healthcare professionals and will open up more opportunities to safeguard patients from financial harm.
There is a precedent for this. In Wales, “finance and money” is already included as a section in the care and treatment plan template. That does not mean that busy healthcare professionals are required to support people with their money in a way that they are not trained or intended to do. Rather, this is a case of empowering them to identify those in need and refer them to the relevant welfare adviser in their service, so that healthcare professionals can focus on medical care. Ultimately, that could free up time for health professionals, as well as improving outcomes for patients.
I will illustrate the need for this proactive inquiry with testimony from someone with lived experience of money and mental health problems, as they do it so much more powerfully than I can. A participant in Money and Mental Health Policy Institute research shared:
“I didn’t realise how much my mental health affected my finances and vice versa. I lived for years in shame and horrific anxiety about money which caused my mental health to spiral. I thought there was no help out there for me and I didn’t want to be alive, as I couldn’t see a way out of my money troubles”.
Legislating to include a consideration of people’s finances, when they are in a mental health crisis and throughout their recovery, will help prevent further illness, support recovery and reduce waiting lists, and will help people return to daily life, including work, more smoothly.
I can imagine what my noble friend the Minister’s response will be, because she has already written to the institute. She said in her letter: “We intend to set out in secondary legislation the required contents of the statutory CTP. However, we plan to further consult stakeholders to make sure that the CTP covers all the information that is critical to an individual’s recovery and timely and effective discharge from the Act”. I hope that she does not mind me taking the opportunity to stress the importance of this issue. Does she agree with that, including the importance of its place in treatment plans?
Baroness Neuberger (CB)
My Lords, I will speak to Amendment 59, in the name of the noble Lord, Lord Davies of Brixton, to which I have added my name. I must declare rather a lot of interests. I am chair of the University College London Hospitals NHS Foundation Trust and of the Whittington Health NHS Trust, which provides child and adolescent mental health services. I was also one of the vice-chairs of the independent review of the Mental Health Act in 2018, which feels like a long time ago.
I am keeping my comments in Committee fairly short and sparse, because I feel that I have had quite a lot of say already, having been involved in that review. However, I want to speak about the issue of financial difficulties and mental health problems, because we should have looked at it in greater detail when we were conducting the review. It was an omission on our part, as we did not focus on it in any detail. The noble Baroness, Lady Barker, cited one of the people who spoke incredibly movingly to our review and who talked about how awful it is to be an in-patient. She said that she recovered and was given the care she needed, but she asked why it had to be such an awful experience.
One of the things that is becoming clearer—the noble Lord, Lord Davies, alluded to it—is that when you have had a mental health crisis and your finances are in an absolute mess, because you did not get it together to do anything about them, why does your recovery have to be so awful because nobody helped you and gave you the advice you needed at the time? That is why this is so serious. If you are in hospital, you may not even get access to your computer, you may not be using your mobile phone all the time, you may be in something of a mess and your cognition may be severely affected. If that is the case, you will not be paying your bills, claiming your benefits or paying your rent. When you recover, it will take you ages to get into a situation where you can live a normal life again and not be hugely in debt.
I was going to cite some of the experts by experience—the quotations have been given to me by the amazing Money and Mental Health Policy Institute, to which I am extremely grateful. However, since I do not want to take much more of your Lordships’ time, I shall just say that, although NICE stipulates that assessments in care and crisis plans at present should consider patients’ holistic social and living circumstances, which would include things such as housing and finance, mostly, in normal circumstances, the issues are too great. Often, the mental health needs are at crisis point and it just does not happen, and the same will happen with care and treatment plans unless we put this in the Bill.
I ask the Minister—I have already heard what the noble Lord, Lord Davies, has said—whether she will think quite hard as to whether this could be in the Bill, along with parental involvement. I agree with all the amendments in this group. There are some things that need to be in the Bill that would make sure that, when we see treatment in place—and I see a lot of it in what I do in the other part of my life—those things are taken into account. If it is in secondary legislation, it is much harder and much less likely.
Mental Health Bill [HL]
Wednesday 22nd January 2025
(5 months, 3 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-III Third marshalled list for Committee - (21 Jan 2025)
Baroness Barker (LD)
My Lords, I will speak briefly to Amendment 60A. At this time of night, I do not intend to make a very long or detailed speech; I simply wish to make two points. Previous speakers, such as the noble Lord, Lord Davies of Brixton, talked about factors that should be included in care and treatment plans and often are not, for a variety of reasons. But they are crucially and directly important to the health and well-being of an individual.
I wish to talk about the inclusion of housing, for two reasons. First, housing is a source of anguish and mental strain, full stop. It does not matter whether people have mental health problems, but if they have and they find themselves in an acute hospital, either detained or as a voluntary patient, I am sure that, when they come back, there will be a very high incidence of them losing their tenancy and then being unable to find suitable accommodation, particularly if they are young.
Members of your Lordships’ House have already spoken about the fact that there are very few treatment centres dotted around the country for young people with eating disorders—here in the Bill we are talking about England. That therefore means that young people are having to go very long distances for treatment, which can have a significant disruptive effect on their living circumstances.
The other reason I thought it was worthwhile to table this amendment and have the debate was that the other day, we had a wider debate about care and treatment plans. The one question many of us were trying to ascertain the answer to was: who is responsible for them? Who is responsible for drawing them up and implementing them? Crucially, who is responsible if they are not implemented and there is a consequence to that for an individual? If we cannot focus our minds on that now, given what has been going on in the country, we never will. The only thing I could take away from our discussion the other day was that nobody is responsible for it at all; nobody is going to carry the can.
When we are talking about people who have been in acute care, very little attention is paid to their housing needs, because that is not the duty of that service provider, whose focus is on acute care. We know that local authorities are already required to provide aftercare and advice to individuals, but advice in the face of a bailiff turfing you out of your house is frankly of limited use. So, I would like the Minister to please consider this amendment and give assurances that, when we ever get to the bottom of who is responsible for these care and treatment plans, this is on the list of things for which they can be held accountable.
Baroness Tyler of Enfield (LD)
My Lords, I will speak to Amendment 62 in this group, which is in my name, and I will try to be as brief as possible. This group is all about the statutory care and treatment plans, and I very much welcome them. They are a very positive part of this legislation and should help patients achieve recovery and hopefully discharge from mental health in-patient units as quickly as possible.
My amendment seeks to ensure that individuals who are turning 18 during a care and treatment plan have their plans reviewed to ensure that there is continuity of care when transitioning from child to adult services. I spoke earlier about the tricky issue of transitioning from child to adult services. It is important for three reasons. Young people aged 16 to 25 experience high rates of mental health problems but are less likely to access the support they need; young people often experience tricky transitions, meaning that too often they fall through the gaps—we have heard so many stories about in this Chamber in the past; and, again as we have said earlier today, young people really should have a say in their care and treatment.
We know that there is a high level of mental health need among young people in the 16 to 25 age group and that it is going up. I have no wish to return to the earlier debate about whether that rise is real, but the numbers according to NHS Digital are very much on the increase. So, while 16 to 25 year-olds are experiencing high levels of need, they are often having real difficulties accessing support. It is sometimes talked about as the treatment gap, which is what the noble Lord, Lord Stevens, talked about earlier on, and it is far wider here than for other age groups.
These poor transitions between CAMHS and adult services are generally the problem because, after someone reaches their 18th birthday—which is the upper limit for CAMHS—young people too often face a real cliff edge when trying to access mental health support. They are no longer in the age range for CAMHS and simultaneously may not reach the threshold for adult services. Effectively, it leaves young people in limbo, with no access to the mental health support they require.
There is a range of reasons for these challenges, including poor information and, very importantly, a difference in treatment models. While children’s services are generally seen as more nurturing, with a focus on treating developmental and emotional disorders, adult services in contrast focus on treating severe and enduring mental illness, meaning that young people with these diagnoses are less likely to be accepted. Just as I have mentioned, the high thresholds for support often result in young people being told that they are not ill enough for the services they need, so unfortunately things get worse and they end up being detained. Without that support during transition, young people can experience all sorts of worsening symptoms and other life outcomes. That is the rationale behind my Amendment 62.
I will mention another couple of amendments in this group that have my strong support. Amendment 64, in the name of the noble Baroness, Lady Keeley, from whom we have still to hear, really emphasises the critical importance of ensuring that, where young carers are involved in a family situation, they are identified, particularly by adult mental health practitioners, who may not have them in mind first and foremost, that people proactively look for them, and then that the young carers—who are often hidden, with their needs only identified when there is a crisis—are supported. That amendment has my full support.
Lastly, I support Amendment 59, in the name of the noble Lord, Lord Davies. At this point—because I have not done it yet—I refer to my interests in the register, both as a member of the Financial Inclusion Commission and president of the Money Advice Trust. I absolutely support what the noble Lord said about the importance of these plans, including matters to do with finance. The links between money problems and mental health are now well proven and this legislation should reflect them. The Bill provides a once-in-a-generation opportunity to ensure that people’s holistic needs, including finances, are considered as a key part of supporting recovery from a mental health crisis.
Baroness Keeley (Lab)
My Lords, I rise to explain the significance of Amendment 64 in my name, which aims to cover the situation of both young carers and young children in a family where a care and treatment plan is being prepared for their parent. I thank the Carers Trust for suggesting this amendment and providing a briefing on this issue. I also thank the noble Lord, Lord Young of Cookham, for his support for the amendment and, of course, the noble Baroness, Lady Tyler, who has just spoken of her support for it.
Briefly, the amendment adds the requirement that a practitioner preparing or reviewing a care and treatment plan must ask whether there are children in the family and take actions to respond if the children need help or protection from harm. This amendment would, as I said, cover young carers, but it would also cover young children where there may be safeguarding concerns—a topic which the Child Safeguarding Practice Review Panel highlighted as a theme in its latest annual report.
As the noble Baroness, Lady Tyler, just touched on, young carers are so often hidden, and often their needs are identified only when there is a crisis. Even then, the extent of their caring role and the impact it has on the child’s development may not be recognised quickly or fully assessed. This amendment would help to ensure earlier identification of children who might be in need of information, support or protection from potential harm. It would mean staff asking the right questions early on to ensure that the right information is recorded and actions taken. It would help with adequate signposting of information and a chance to offer appropriate support to avoid a crisis or manage it appropriately.
The amendment also mirrors the new wording in the Working Together to Safeguard Children statutory guidance, which covers adult social practitioners:
“When staff are providing services to adults, they should ask whether there are children in the family and take actions to respond if the children need help or protection from harm. Additional parenting support could be particularly needed where the adults have mental health problems”.
There is evidence that having a parent with a mental health problem is one of the biggest risk factors for a first episode of major depressive disorder in children and adolescents.
This is not inevitable. Research suggests that intervention can enhance parenting skills in households affected by parental depression, and it can change the way that children cope. In turn, this can reduce the risk of children internalising problems that may threaten their life chances. The amendment is designed to enhance the ability of agencies working individually and together to identify and respond to the safeguarding needs of families. It is about supporting the challenging work of finding out what is happening to children and anticipating risks and harm, of knowing when action is needed. In most cases, children receive the support, help and protection they need, but sometimes children are seriously harmed or, worse, they can die because of neglect.
Policy initiatives in recent years have called for a wider family focus on safeguarding children so that all staff recognise that meeting the needs of family members who may put children at risk benefits the child, the adult and the family as a whole. This amendment would support those efforts. The amendment is in keeping with guidance from the Social Care Institute for Excellence to “Think child, think parent, think family”, to ensure that the child is heard and their needs are met.
The Carers Trust believes that the amendment would unlock additional support from mental health professionals to work with parents and children to enable the child to have age-appropriate understanding of what is happening to their parent and information about what services are available for them in their situation and how they can access them.
To illustrate the need for the amendment, I have two short case studies. Aidan was four when his mother was first sectioned under the Mental Health Act. Throughout his childhood, Aidan’s mother was regularly sectioned and would sometimes be in hospital for a number of months. There were many occasions when the police were involved because his mother had disappeared, which was particularly scary for Aidan. In his words:
“To me, you only ever saw the police if you’d done something wrong, so I remember when they turned up at our house, I thought mum was in trouble”.
Seeing his mother being taken into hospital on a regular basis meant that Aidan had lots of questions and worries. In his words again:
“There were so many times where I wondered whether mum would ever come home. I knew she’d been sectioned but I had no idea what that actually meant or if she would ever get better”.
Staff at the hospital who were treating Aidan’s mother would regularly see him visiting. Despite this, none of the staff there told Aidan or his father about support that might be available or asked whether Aidan might need any help. It was only when Aidan was 12 and his attendance dropped at school that he was identified as a young carer.
The second case is Vamp’s story. This is a pseudonym chosen by her family. The case study is taken from a recently published child safeguarding practice review which found that a 13 year-old girl died as a result of taking drugs sold to her in a park. It was identified that her mother had had a period of serious mental illness, and that illness was identified as the catalyst for things deteriorating for the young person. Tragically, two years on, the young person had died. This is taken from the relevant extract from the child safeguarding practice review:
“Vamp’s mother did not feel that her daughter had been a young carer … as the mental illness was short term. However, Vamp’s sister described the situation as being so difficult for both. When their mother was discharged home from hospital, it was only Vamp and her mother at home. Vamp’s sister was only a young adult, and with her own baby to care for. She … said she felt that no one checked in on their mother. Vamp’s sister … said that professionals expected her mother to manage to parent Vamp, which she was not able to do alone, she needed professional help”.
This is a simple but important amendment to protect young carers. I urge my noble friend the Minister to consider it, and I commend the amendment to the House.
Lord Young of Cookham (Con)
My Lords, I have added my name to Amendment 64, in the name of the noble Baroness, Lady Keeley, and shall speak briefly in support. I have not contributed to this Bill before, but I have sat through many of the debates. Without sounding pompous, it struck me that this was our House at its best, dealing with a complicated Bill in a sensitive and non-partisan way and drawing on the unique expertise we have in our House.
As I listened to the earlier debates on detention and community treatment orders, I asked myself how the children in the families concerned would be informed and what the impact on them would be. We have just heard from the noble Baroness, Lady Keeley, the impact on Aidan when his mother was sectioned. By definition, the people covered by the Bill are vulnerable people; many of them will have carers, and many of those carers will be young carers. As the noble Baroness has just said, this amendment simply helps improve the earlier identification of children of parents being detained under the Act and to ensure that they have access to support, if they need it, and are safeguarded where necessary.
The 2021 census showed that there are 50,000 young carers caring for over 50 hours a week. An astonishing number—3,000 of them—are aged between five and nine. The Carers Trust has shown that those young carers at school are at risk of a poorer attendance record, lower academic achievement and more liable to social isolation and, sadly, bullying, if they are not identified early. As the noble Baroness, Lady Keeley, just said, having a parent with a mental health problem is actually one of the biggest risk factors for depression in children and adolescents. But it is not inevitable: research suggests that intervention can reduce that risk and change the way that children cope.
As a vice-chairman of the APPG on Young Carers, I know that we took evidence last year from young carers, and we heard that on average it takes three years for a young carer to be identified, with some of them taking over 10 years before being identified. Improving early identification is one of the top priorities of the all-party group, so that they can access support and not be negatively affected by their caring situation.
This amendment will help to tackle the issue, which is reported by young carer services, that many potential young carers are not identified by adult mental health services. For example, one young carers service, the Young Carers Alliance, reported that 20% of the young carers it supports are supporting a parent with a mental illness, yet they did not receive a single referral from the adult mental health services in the space of an entire year.
In our inquiry, we also heard from the charity Our Time how, when it comes to identifying young carers by mental health professionals, we are way behind countries such as the Netherlands and Norway. Both those countries have introduced requirements for health professionals to consider whether adults with mental health problems have children. This referral may not be a one-way process; if the child is a carer, he or she may have an insight into the events that trigger an episode in the parent and may actually help the professionals to identify an appropriate treatment pathway.
A final benefit of this amendment is that it would help adult mental health in-patient units ensure that they are complying with the duty under Section 91 of the Health and Care Act 2022 to consult with any carers, including young carers, before discharging an adult from hospital. Again, last year, we heard of patients being discharged without the young carer being informed, often where they were the principal carer. For these reasons, I hope that the Government can support this amendment. I look forward to the Minister’s reply.
Baroness Berridge (Con)
My Lords, I add my support for Amendment 58, tabled by the noble Baroness, Lady Watkins, and to which I have added my name. Briefly, given the time, the care and treatment plan is a major plank, a pivotal safeguard of the Bill. The safeguard is not open to voluntary patients. As the noble Baroness outlined, we want to encourage many young people to voluntarily enter a hospital to get the treatment that they need. A 2021 UCL research project found that only 23.6% of young people were detained involuntarily. The large cohort would be those who have consented by parental consent and those who voluntarily entered the treatment. As such a high proportion of the under-18 population are entering voluntarily, it is imperative that they also have a care and treatment plan.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank noble Lords for the pertinent points that they have made.
I will start with Amendments 57 and 58. There is no doubt that all patients who are in a mental health hospital for care and treatment should have a care plan, whether or not they have been detained under the Act. This is already set out in guidance for commissioners and in the NHS England service specification and care standards for children’s and young people’s services. In line with the independent review’s findings and recommendations, care and treatment plans for involuntary or detained patients are statutory. This is because such patients are subject to restrictions and compulsory orders, including compulsory treatment, which places them in a uniquely vulnerable position.
Rather than bringing voluntary patients into the scope of this clause, we feel it is more appropriate to use the Mental Health Act’s code of practice to embed high standards of care planning for all patients—voluntary and involuntary. Specifically with regard to children and young people, any provisions that are relevant to voluntary patients are already met by existing specialist care planning standards and the NHS England national service specification for children’s and young people’s services, which providers are contractually obliged to follow. NHS England is already in the process of strengthening that current service specification.
Regarding points raised by the noble Lord, Lord Kamall, and my noble friend Lord Davies on the contents of the care and treatment plan and patient discharge plan, as my noble friend Lord Davies kindly set out for me, which I appreciate, the Government have consulted on the required contents of the care and treatment plan, as originally proposed by the independent review. The expected contents of the plan are described in the delegated powers memorandum, which has been published online. I understand the points that my noble friend made; we will return to them regarding what we intend to include in the patient discharge plan.
I turn to Amendment 59, tabled by my noble friend Lord Davies and supported by the noble Baronesses, Lady Tyler and Lady Neuberger. The plan needs to include details of interventions aimed at minimising financial harm to the patient where this is relevant to their mental health recovery. My noble friend asked for my agreement on this point. I hope that he will take that in this way. We intend to set out in regulations, rather than in primary legislation, what that plan must include. We will consider personal financial matters that are relevant to a number of the elements that we intend to require in regulations, such as the services that a patient might need post discharge. My noble friend’s point, and that of the noble Baronesses, is very well made and is taken on board.
Turning to Amendment 60A, tabled by the noble Baroness, Lady Barker, I confirm that the Bill sets out who is responsible for the statutory plan. For in-patients, this is the clinician who is responsible overall for the patient’s case. The quality of plans for detained patients is monitored by the CQC. Any housing, accommodation or wider social care needs that are relevant to the patient’s mental health recovery are already captured within the scope of the statutory care and treatment plan. We intend to require in regulations about the content of the plan that a discharge plan is a required element of the overall care and treatment plan—which noble Lords rightly have pressed the need for. Existing statutory guidance on discharge sets out that a discharge plan should cover how a patient’s housing needs will be met when they return to the community. Currently, where a mental health in-patient may benefit from support with housing issues, NHS England guidance sets out that this should be offered, making links with relevant local services as part of early and effective discharge planning.
Where a person is receiving housing benefit or their housing is paid for via universal credit, there are provisions already in place that allow them to be temporarily absent from their property for a limited duration. We know that the vast majority of people entering hospital will return home before the time limit expires, therefore avoiding a negative impact on their living situation.
We intend to use the code of practice to clearly set out expectations on mental health staff around care planning, including consideration of accommodation and housing needs, and also to highlight existing provisions that protect a person’s living arrangements while they are in hospital.
On Amendment 61, tabled by the noble and learned Baroness, Lady Butler-Sloss, we of course recognise the importance of involving parents, guardians and those with parental responsibility in decisions around care and treatment. We have already provided for this in the clause by stating
“any … person who cares for the relevant patient or is interested in the relevant patient’s welfare”.
The clause seeks to include also carers and other family. As I said last week, this is consistent with existing established terminology used in the Mental Capacity Act and the Care Act.
The amendment would also make this a requirement for all patients, not just children and young people. We do not think it is appropriate here to give an automatic right to parents to be involved in an adult patient’s care. However, we have made provisions to ensure that anyone named by an adult patient, including parents, are consulted where the patient wishes them to be.
Baroness Browning (Con)
On that last point about adults, I realise this is a more difficult area, but we have debated in this House reports from the charity Mind about adults, and young adults at that, who, when they have been admitted not just to mental health hospitals but to general hospitals and have had difficulty communicating —I go back to autism, but it might not be uniquely autism—hospital staff have said, “They are over 18, so we’re not listening to you, mum”, while standing by the bedside asking why a person is not eating, when there is probably a very good reason why not. We have recorded deaths of young adults because the parents of people over 18 have not been listened to. It is a mantra that I have heard many times, in many situations: “They’re over 18, it’s up to them”, when, in fact, quite clearly, their lives could be saved, or their health improved, if hospital staff had listened to mum or dad at the bedside. That is on the record and we have debated it in the past, so I wonder how the Minister thinks we can resolve it as far as mental health patients are concerned.
Baroness Merron (Lab)
The noble Baroness is right to raise that point. This is the difference between legislation and practice, and we have to bridge that gap. We are very alive to the point she makes, but the important point about this amendment is that we are trying to include all those whom the patient wants to be involved, not just restricting it to parents. I take the point she has made and will, of course, ensure that we attend to that. I would say that that is, as I say, more a case of how things are implemented.
On Amendment 62, in the name of the noble Baroness, Lady Tyler, and the noble Lord, Lord Scriven, it is important that the transition of a young person to adult services is planned and managed with the utmost care by the clinical team. This is reflected in existing care standards and guidelines, which set out what should be met, what relevant teams should meet and how to provide specific support where a young person’s care is being transferred to adult services. This should take place six months prior to the patient turning 18 years of age. On reviewing the patient’s statutory care and treatment plan when they reach adulthood, in Clause 20, subsection (5)(d) of new Section 130ZA already sets out that that plan must be reviewed following any change in circumstances or conditions. We think that turning 18 and transitioning from children and young people’s services to adult is a significant change and absolutely requires review of the plan. We will make this explicit in the code of practice.
Finally, I turn to Amendment 64. I thank my noble friend Lady Keeley for sharing the reality of how this manifests itself by sharing with us individual circumstances. I also thank the noble Lord, Lord Young, whose work on young carers is well known and respected. We support the intention to ensure that children are properly safeguarded. If a person is known to services, immediate safeguarding needs to form part of the planning by approved mental health professionals on behalf of the local authority and others involved in the Mental Health Act assessment before bringing a person into hospital. If a person is not known to known to services, the professionals should work with the relevant agencies to make sure the necessary steps are taken. The statutory guidance Working Together to Safeguard Children sets out how all practitioners working with children and families need to understand their role in this regard.
Baroness Keeley (Lab)
I just want to reflect that the noble Lord, Lord Young, said in his speech that young carers services almost never receive any referrals from adult mental health services, despite the provision that already exists and has done for a number of years in codes of practice. This is a difficult thing—I tried to bring in legislation for that in the other place on a number of occasions. I just thought that was worth pointing out.
Baroness Merron (Lab)
I thank my noble friend for pointing that out. On the points raised about protections for young carers, the code highlights that children who are caring for parents with severe mental illness are entitled to request a young carer’s needs assessment under the Children Act. It goes on to cover the information that young carers should be offered to help navigate such a challenging time.
Returning to the guidance about which I was speaking, as has been identified, it already outlines the responsibility of multiagency safeguarding partners. Protecting children at risk of abuse and stopping vulnerable children falling through the cracks is very much at the heart of the Children’s Wellbeing and Schools Bill, which was introduced to Parliament last month.
Baroness Watkins of Tavistock (CB)
I thank the Minister. I want to raise the issue that so many children and adolescents are placed for care out of their area, which makes the subsequent treatment plan hard to manage. Can the Minister at least look at whether the code of conduct needs strengthening on that issue? For example, it could include a recommendation that a local team visits the person in the hospital before they are discharged. Of course, I would like to see more beds closer to home, but we have to face the reality.
Baroness Merron (Lab)
I appreciate that point, and I certainly would be happy to have a look at that.
Lord Kamall (Con)
My Lords, I thank all noble Lords who took part in the debate on this group. In responding to the Minister, I will touch briefly on some of the other amendments, but particularly on Amendment 57 in my name and that of my noble friend Lord Howe. I thank my noble friend Lady Browning and the noble Baroness, Lady Tyler, for adding their names to it.
On Amendment 61, I agree very much with the noble and learned Baroness, Lady Butler-Sloss, on the importance of parents and guardians, not only in respect of this amendment but all throughout the Bill and in the subsequent amendments that she tabled. It is very important that we do not forget that point and that we keep coming back to it.
On Amendment 58, in the names of the noble Baronesses, Lady Watkins, and my noble friend Lady Berridge, we are very sympathetic to the idea of extending this to under-18s. We have to reflect and may come back to this on Report.
The noble Lord, Lord Davies, and I were fortunate enough to have a conversation about his Amendment 59 during the dinner break. It is on a fundamental issue and we need to raise awareness of the link between finance and mental health. One can lead to the other: you might start off with financial difficulties and then find yourself with mental health issues, or mental health issues make it far more difficult to manage your finances. Frankly, when there are banks that do not necessarily understand the individual circumstances or are moving toward semi-automated decision-making, this is a whole minefield that we ought to tackle as soon as possible and not wait 20 years for the next mental health Bill.
On Amendment 62, in the name of the noble Baroness, Lady Tyler, continuity of care is absolutely important, and not just for mental health; I have been in debates in this House where it is really important for allergies or diabetes. When children are treated for a condition by children’s services they then worry, when they transfer to adult services, about whether they will continue to receive the same level of care, particularly if the clinician is different when they move over. They may well have had a very good relationship with that clinician as a child, but then they feel that they have to explain everything all over again, even though there are patient records.
Amendment 64, in the names of the noble Baroness, Lady Keeley, and my noble friend Lord Young, seems eminently sensible. It almost seems obvious; I was surprised that it does not happen at the moment. I take on board what the noble Baroness, Lady Keeley, said about previous attempts to put it into legislation; it must be fiendishly difficult.
One of the points that the Minister made was that young carers are entitled to some of the things that the noble Baroness was asking for. How do they know they are entitled to them? It is all very well to be entitled to them, but how do they know? This is true for physical health as well, but given it was raised on this specific issue, I would be interested in the Minister’s response. If she is not able to give that response, thanks to technology, over the airwaves to the iPad then perhaps she could include it in her letter to noble Lords afterwards.
The noble Baroness, Lady Barker, made an important point about Amendment 60A and housing. Housing, like finance, is one of those things that could lead to mental health issues, or having mental health issues makes housing much more difficult. The lack of adequate accommodation could lead to readmission, when we think about discharge afterwards, suitable accommodation and suitable circumstances.
I should be positive. I am grateful to the Government for the care and treatment plans in the first place. I think they are very sensible, which is why many noble Lords want them extended to not just that cohort of patients. I understand that sometimes we have to roll things out and learn from experience, and perhaps that can feed into future rollout—I understand sometimes not going for the big bang, as it were. On Amendment 57, I will read Hansard carefully and reflect on what the Minister said. I particularly thank her for the reference to the link to see what is being considered for inclusion in the care and treatment plan. I beg leave to withdraw my amendment.
Baroness Whitaker
Member’s explanatory statement
The appropriate practitioner must provide culturally appropriate information when preparing or reviewing a care and treatment plan.
Baroness Whitaker (Lab)
My Lords, I have apologised that I was not able to be at the Second Reading of this most welcome Bill. I declare interests as a former member of the Tavistock and Portman NHS Foundation Trust board and various positions in Gypsy, Traveller and Roma organisations as set out in the register. I read the Hansard record of the Second Reading debate and was particularly heartened by my noble friend the Minister’s acknowledgment of previous legislation’s lack of attention to racial disparities.
This deficiency is especially applicable to the situation of Gypsy, Traveller and Roma people, which Amendments 63, 101, 107, 113, 116 and 124 address, but I warmly support the other amendments in this group. The communities I speak of are usually airbrushed out of consideration of race discrimination. That is partly because their numbers have been small when national surveys have been made in the past, even though the proportion within their populations who suffer the multiple effects of discrimination is larger than in any other recognised minority-ethnic group, and perhaps partly because they are not distinguished by colour.
I am grateful to the Traveller Movement for detailed briefing and to the noble Lord, Lord Bourne of Aberystwyth, and the noble Baroness, Lady Bakewell of Hardington Mandeville, for their support. The amendments I speak to are all intended to probe how this Bill can avoid the same cruel mistake of omitting ways to deal with the mental health effects of discrimination against these communities. Basically, they stipulate that mental health practitioners must be trained and obliged to ensure that the care, treatment, advice and information they give are attuned to the culture of the people they are looking after. In healthcare generally, almost one-third of respondents to a Traveller Movement survey said that they experienced discrimination. These are the voices that the noble Baroness, Lady Bennett, referred to, and I thank her for adding her name to one of my amendments.
There is reason to believe that this discrimination experience applies significantly to mental ill-health because this is not a familiar concept to some in the more traditional communities. Most of the rare, targeted provision has come from the voluntary sector. ONS research, which has now begun to put right the gap in our knowledge, shows that mistrust and fear of discrimination have delayed them seeking help. We do, however, still need its data to be disaggregated with regard to Gypsies and Irish Travellers, which are very different communities. Incidentally, the NHS data dictionary is not collecting such data at all, so the full picture may be even worse.
Amendment 63 applies the principle of cultural attunement to care and treatment plans. Only then would new subsection (6), which requires consultation to establish the patient’s wishes and needs, be properly fulfilled. This will mean taking account of possible mistrust, literacy rates, digital exclusion and any language barriers, because although Romani Gypsies and Irish Travellers have been in the UK for centuries, there may also be new arrivals from the Roma communities of east and central Europe.
Let me quickly sketch in the context. At present, one survey found that 66% of domestic abuse service providers—professionals—did not know how to engage with Gypsy, Roma and Traveller people. There is in particular a fear on the part of those communities that their children may be taken into care if they seek support for acute mental health problems, and some cases of suicide have thereby resulted. In fact, suicide is, tragically, much more common in these communities than in other groups. The NHS’s own research, carried out by the University of Worcester, cites an estimate that suicide is seven times more likely. It makes recommendations mandating specific cultural training in all aspects of healthcare. Research by Friends, Families and Travellers has found that lack of support from mental health and other public services is specifically mentioned by those affected to be one of the causes, together with cultural stigma. Anxiety is three times more likely and depression over twice as likely. The Roma Support Group also picks out cultural stigma as one of the barriers to effective treatment for mental illness, as well as lack of knowledge on the part of practitioners about the background of Holocaust survival experienced by older members of the Roma community, and often transmitted over the generations. Where literacy is low, it has been found that there is little understanding of mental health and insufficient access to services; and 46% from these communities reported that they had no access to digital primary care services.
Amendments 101 and 107 apply the same principles of trained cultural access to the provision of an independent mental health advocate, as does Amendment 112 to giving information about the complaints procedure. Amendment 113 brings in the providers of information on complaints for community health patients, and Amendments 116 and 124 do the same for advance choice documents in England and in Wales.
Finally, the Women and Equalities Committee pointed out in 2019:
“Despite the fact that information and guidance has been available to frontline healthcare staff for some time, discriminatory practices are more widespread than they should be”.
Apart from the new, most welcome planning policy, very little has changed since then, no doubt because the committee’s other recommendation, that there should be a cross-departmental strategy to tackle the overlapping inequalities faced by these communities, which have resulted in the worst health outcomes for any minority-ethnic group, was never developed by the previous Government despite the initial steps taken by the noble Lord, Lord Bourne, when Minister for Communities. The Minister has cited the NHS role in a
“wider equality monitoring review programme”
in a Parliamentary Answer. Can she tell the House how this will cover access to mental health services? The present lack of engagement is why cultural understanding, created by specific training, must be in the Bill. These amendments would help the Bill realise its ambition of fully informing patients of the choices available to deal with serious mental ill-health, strengthening their voice and improving their involvement in their own care. I beg to move.
Baroness Tyler of Enfield (LD)
My Lords, Amendments 65 and 133, in my name and that of my noble friend Lord Scriven, are both about tackling racial injustices in the operation of the Act. I am sympathetic to the amendments that we have just heard about from the noble Baroness, Lady Whitaker, who set them out eloquently. I also strongly support Amendment 138, in the name of the noble Lord, Lord Kamall.
As I have said in previous debates, a primary driver of the review of the Mental Health Act was the shocking racial injustices in the use of the Act, and we need to have that front and centre in our minds as we work our way through the Bill. Addressing racial inequalities is one of the key issues identified in the 2018 review, and there remain concerns that the Bill still does not go far enough to address that deeply entrenched inequity. As I set out on the first day of Committee when introducing my amendment on including equity as an additional principle in the Bill, black people are more than three and a half times more likely to be detained under the Mental Health Act than white people and over seven times more likely to be placed on a community treatment order. I make no apology for repeating those figures because I think they are scandalous.
Evidence shows that, on average, people from racialised communities experience greater difficulty accessing mental health services and have poorer experiences and outcomes, and we have heard examples of that. For example, black or black British people are more likely to be detained for longer and to experience repeated admission. They are also more likely to be subject to police powers under the Act and experience higher levels of restraint. It is worth noting that the noble Lord, Lord Darzi, in his recent report on the NHS, said the use of restrictive interventions in in-patient mental health settings had continued to rise, and the most recent data shows that people from a black or black British background are still significantly more likely to be subject to restrictive intervention.
I readily acknowledge that there are some measures in the Bill that should have a positive impact for people from racialised communities—for example, the introduction of the advance choice documents that we were talking about earlier, which I very much welcome—but, in my view, the Bill in its current form still only scratches the surface, really. It does not take on many of the recommendations in this area from both the independent review of the Act and the pre-legislative scrutiny committee. Can the Minister explain why those recommendations were not taken on board?
I turn to my amendments. Amendment 65—and I thank the noble Baroness, Lady Bennett, for adding her name—is a probing amendment designed to understand better the Government’s thinking on how they intend to address racial disparities in the use of community treatment orders, which we debated at length on Monday. I do not want to repeat that, save to say that community treatment orders have been used more widely than anticipated and disproportionately on individuals from particular ethnic backgrounds. It is vital that this is closely monitored to ensure that the disproportionality in use is tackled head on. We must not focus just on reductions in the overall numbers of CTOs. Does the Minister agree that that should include collecting evidence on the effectiveness of NHS England’s patient and carer race equality framework and its approach to reducing the overrepresentation of people from black and minority ethnic communities?
Just to show that, rather like my noble friend Lord Scriven, I do not get out enough, I noticed that page 88 of the lengthy impact assessment talks about 13 pilots—trusts that have already started to make changes as a result of this anti-racism framework. Can the Minister update the House on their progress? If she cannot do so now, perhaps she could write to me.
We know that people from these racial backgrounds may also be reluctant to seek help from formal services, based either on previous negative experiences or in some cases because of social stigma attached to mental health issues within their own community. Amendment 133 would require mental health units to appoint a responsible person to address and report on racial disparities and other inequalities relating to the use of the Act. This is really important and it is vital that a new responsible person role is introduced at hospital level to oversee race equality and address inequalities in the operation of the Act.
The responsible person would be responsible for publishing a policy on how that unit plans to reduce racial and other disparities which are based on protected characteristics in that unit or community mental health service. They would have responsibility for monitoring data on equalities as well as overseeing workforce training and policies and drawing up policies to address bias and discrimination. In my view, the creation of a responsible person role at local level would materially help us to move forward to a more transparent and accountable mental health system, and this accountability would be reinforced and amplified by the responsibility this amendment also places on the Secretary of State to report on progress made on reducing inequalities at national level. That is set out in proposed new Section 120H.
I really believe that such a dual-pronged approach to clear and transparent accountability could make a tangible difference in this critical area of public policy, and I look forward to the Minister’s response.
Baroness Bennett of Manor Castle (GP)
My Lords, as has already been acknowledged, I have put my name to Amendment 63, tabled by the noble Baroness, Lady Whitaker, and Amendment 65, tabled by the noble Baroness, Lady Tyler. Both of them have done a comprehensive job of introducing the amendments so I will be extremely brief.
The noble Baroness, Lady Whitaker, is well known in your Lordships’ House for championing the many issues affecting Gypsy, Roma and Traveller people. I particularly wanted to sign Amendment 63 because it is a very broad-ranging amendment—it is crucial that everybody gets culturally appropriate forms of explanation. It struck me as we were debating that we are focused now on mental health, but I think this probably would also apply right across the NHS to physical health because there are, of course, cultural differences in understanding our bodies, et cetera.
If we imagine the case, perhaps, of a refugee who suffers mental health difficulties, having fled their home country, where they were subject to abuse by the authorities. It is important to make sure, if they are to be sectioned, that that is carefully explained to and understood by both the patient and potentially the patient’s family. There needs to be an extra level and a sensitivity to that person’s circumstances. We will all have different circumstances, but it is important to look at it in that broad frame.
On Amendment 65, we have already canvassed quite extensively the way in which minoritised communities are currently seeing significant disparities in the way they are treated under the law in the area of mental health, particularly in community treatment orders. The noble Baroness, Lady Tyler, described this as a probing amendment. Whether this is the exact means or not, it is clear that we have to have much better data and to make sure that as soon as trends and patterns emerge in that data, they are acted on. It is encouraging to hear that this is being piloted and work is being done but it is crucial that this becomes standard and that is why it is tempting to feel that it really has to be in the Bill.
The Lord Bishop of Manchester
My Lords, I support all the amendments in this group. I also want to communicate the support of my right reverend friend the Bishop of London, who apologises that she cannot be in her place this evening.
Turning to the amendments led by the noble Baroness, Lady Whitaker, on culturally appropriate care, I appreciated the noble Baroness’s references to the Gypsy, Roma and Traveller community. I have worked with that community much over many years and very much enjoyed my interactions with it.
These amendments highlight issues that my right reverend friend has spent a lot of time considering, particularly from a faith perspective. I do not think we have heard that in the debate so far tonight. It is sometimes hard to grasp just how differently our health, especially our mental health, is culturally understood across different communities and faith groups. While our ability to discuss our own and others’ mental health may be generally improving—I think it is—it remains an extremely difficult discussion point for many cultures and many communities.
When you combine that with the extensive inequalities of outcomes that we find, and many people’s experiences of culturally inappropriate care in mental health and other settings, it is inevitable that many people are reluctant to engage with preventative services. It was said at Second Reading that minoritised communities are likely to engage at a crisis point rather than seek early interventions. My wife worked for many years as a maths specialist in the home and hospital tuition service of a large urban authority. She regularly found that she was working with pupils whose mental health needs had been picked up late, if at all, because the culture of the parental home saw mental health issues as shameful, and not something you could raise with external service providers. So culturally appropriate care is a crucial step if we are to build the trust that is ultimately vital to reducing health inequalities.
In order that culturally appropriate care is deliverable, training on faith literacy, as well as different cultures and beliefs, will be crucial. Again, I have found that myself; I have been working with my fellow faith leaders in Greater Manchester, including the excellent Caribbean and African Health Network. I make no apology for banging on about religious literacy in your Lordships’ House on yet another occasion: it does really matter. Service providers in all sectors do us a huge disservice when, through their own faith illiteracy, they operate with a presumption that religion matters only in the realm of private affairs. Getting it right in this Bill will of course necessitate additional resource. In supporting these amendments, I hope that sufficient resources will be allocated to this work.
I turn finally to Amendments 65, 133 and 138, in the names of the noble Baroness, Lady Tyler, and the noble Lord, Lord Kamall. I am a statistician by background. We know the importance of good and useable data to ensure that we have an understanding not just of the gulfs of inequality of outcomes but of the more nuanced and complex patterns that lie underneath them. Amendment 133 recognises the need for regular training and has a consultation element as part of the policy. I hope this will be taken up and I hope that will include consultation with faith groups. We must commit to work with such groups to build trust with communities that service providers are wont to call hard to reach. I do not believe we should call any group in our society hard to reach. What we do have, all too often, are service providers who just do not make enough effort to reach. So instead, let us work with organisations such as CAHN, which I mentioned earlier, to ensure earlier interventions than those we often see.
I also warmly welcome Amendment 138, which, as others have said, highlights an appalling scandal in our society. I thank the noble Lord, Lord Kamall, for tabling that amendment.
Lord Davies of Brixton (Lab)
I know the hour is late, but I want to note the irony that the issues covered by these amendments are central to the whole process of why we have arrived at this Bill. In a sense it is unfortunate that, because of the hour, there are so few of us present. I want to stress that we cannot assume it is job done. It is really important to keep this whole area under review, whether we do it precisely in the terms of the amendments before us or not. I urge my noble friend the Minister to give an assurance that this issue will not be left for another 17 years before we decide that we have got it right, and that the workings of the Bill in this central area will be kept under close and continued review.
Baroness Berridge (Con)
My Lords, I will speak briefly in support Amendment 133. I know the hour is late. As I asked the Minister, why is it that issues relating to this focus, which was the focus of the Bill, seem always to end up at the end of our debates? I am not sure why, but they are some of the most important issues. I reflected at Second Reading and earlier in Committee on the Joint Committee’s work and our concern about the strength of civil society and media focus on this issue. Although what we saw seemed expert, we then saw a comparison with what I would call Premier League—which was learning disabilities and autism in terms of that focus.
I turn to new Section 120H, which the noble Baroness, Lady Tyler, mentioned, and the statistics I cited before. The right reverend Prelate mentioned the importance of data. It is very concerning that, when we talk about the data on under-18s, we are not quite clear about what is going on in relation to it. The data on under-18s that I mentioned has three subgroups: those who are detained, those who are in the cohort because their parents have consented and those who have consented themselves. It is imperative that we know exactly which subgroup is which in the under-18s group—which, thankfully, is a small group of about 1,000.
Even in the data I cited from the UCL study, of the 23.6% of under-18s that were detained, three times as many black young people were detained as their counterparts. That issue is starting early. What is happening even at that early stage—the disproportionate number detained under the Act—was also reflected in the data on the lack of parents consenting to children going into hospital for the treatment that they need.
Lord Kamall (Con)
My Lords, during the debates on this Bill—and throughout my time in this place—I have learned that there are specific topics about which other noble Lords are passionate. For example, the noble Baroness, Lady Hollins, who is not in her place for sad reasons, is passionate about many issues; but, in the context of this Bill, she has long championed issues around the detention of those with autism and learning disabilities, as has my noble friend Lady Browning. My noble friend Lady Berridge is very passionate about children and young people and about tackling racial discrimination, and the noble Lord, Lord Davies, is very passionate about the link between finance and mental health. Many noble Lords are passionate about specific issues. For me, Amendment 138, in my name and that of my noble friend Lord Howe, goes to the heart of an issue in which I very strongly believe, based on my own experiences of racism while growing up in Britain.
Before I go into that, I will touch on the amendments from by the noble Baroness, Lady Whitaker. In one of my first work experiences—in Chase Farm Hospital many years ago—I got to know and speak to a young patient from the Traveller community. He told me about the problems that the Traveller community had in getting access to medical care, and how members of the community were always treated with suspicion and not in the same way. So I am very sympathetic to those amendments.
To get back to my own experience, the Britain of recent years, which my children grew up in, is much less racist than the Britain that I grew up in the 1970s and 1980s, when it was common to be called offensive names or to be chased by skinheads, sometimes actually with weapons and knives. But my experience was a lot better than the racism that my father faced when he came here in the 1950s. There are horrendous stories that he told my siblings and me when I was younger. I believe that we can be proud of that progress, as a country and a society.
When I was a Member of the European Parliament, I used to chat to the taxi drivers in Belgium and France. I would tell them that I was from London, and not all of them but many of them would say how lucky I was, since they had a friend or relative in London and they thought that London was incredibly diverse and tolerant compared with where they lived. That was very touching to hear—but I have to admit that that is my experience, and some will have had different experiences. Even my experience does not mean that the battle against racism and racial disparities is over. As many noble Lords, including the noble Lord, Lord Davies, the right reverend Prelate and my noble friend Lady Berridge, have rightly said, we have to be vigilant on this.
As the noble Baroness, Lady Tyler, said, one reason for the review and this Bill is because my noble friend Lady May commissioned the Wessely review due to the disproportionate number of black people being issued with community treatment orders or being detained; noble Lords have referred to this. We have known about that issue for a long time. Although politicians in the other place and many noble Lords here have raised the issue many times over many years, we do not really seem to have grasped the issue or to be on top of it. When I ask colleagues and medical experts about the disparity, I get a variety of answers. In the absence of any widely distributed and comprehensive study, the vacuum is filled by anecdotes or assumptions, sometimes racial stereotypes. One of the most common responses I have heard is that it is complex or multifaceted.
I remember when I did not initially get into the local grammar school, despite having the best grades in the class—better than some of the white pupils who got into the school; it also happened the previous year, in the year above me, when one of my friends who was black, an Afro-Caribbean, topped his class and did not get into the local grammar school—and my mother challenged the decision and asked for the reason, she was told “It’s complicated”. Fortunately, she persisted, and I got my place thanks to the help of my local Member of Parliament, who later became the late Lord Graham of Edmonton, may he rest in peace.
So when I hear the response, “It’s complicated”, I hope noble Lords will understand that I am simply not satisfied with that answer. It is just not good enough any more. The purpose of my amendment is to probe the Government to understand what they know and what research they are aware of, so we can understand the reasons for these racial disparities and put in place measures to tackle them. If it is complicated, can the Government or NHS list the various reasons and say what they are going to do about it? As noble Lord after noble Lord has said, we need the data.
The noble Baroness, Lady Barker, who is not in her place, reminded noble Lords that many of the answers from the Minister sound similar to the responses from 20 years ago. That is not a political point. I suspect that the answers given by the Minister, who is well liked and respected, would not be very different from the answers prepared by officials for any Health Minister of any party. Some of the answers are probably very similar to answers that I gave when I was a Minister. That is not to disrespect the diligent civil servants in the department, who work really hard, but we need answers to the following questions.
What studies are the Government, DHSC and NHS aware of? What do we understand from the various studies? What secondary data do we have, and what are the known unknowns? What do we know that we need to know more about? Has there been any attempt from that secondary data to generate the questions for the primary research so that, once and for all, we can understand why a disproportionate number of black people are subject to community treatment orders and to being detained? Do the Government, DHSC or the NHS, if they have the data, know how to use it to reduce those disparities? If so, when will they begin to reduce these disparities?
I was very pleased to hear a reference to some of the pilot schemes. Perhaps the Minister can refer to some of those schemes, and maybe that would be helpful. But I have to say that if the answers that we receive to these questions, either tonight or when the Minster writes to noble Lords between now and Report, are not adequate, I suspect that noble Lords will have to send the Minister back to the department to kick the tyres and get a better answer. It is as simple as that; otherwise, I am afraid that we will return to this issue on Report. If it comes to that, I hope that we will not see a Government urging noble Lords from the governing party to vote against an amendment that would seek to tackle these huge racial disparities in a methodical way and with an evidence-led approach. I look forward to the Minister’s response.
Baroness Merron (Lab)
I thank noble Lords for the points they have made. I shall start with those from my noble friend Lady Whitaker regarding Amendments 63, 101, 107, 113, 116 and 124 and immediately address the point about the limited available data on Roma communities.
I absolutely acknowledge that the data on Gypsy, Roma and Traveller communities is indeed very limited. I emphasise that I say this not as an excuse; it is just what I have discovered. This is largely due to lower numbers, but we are working with NHSE to improve ethnicity reporting for all patients. More broadly, the Office for National Statistics is working with a range of government departments to undertake research into the barriers and enablers for this community in accessing a range of public services, including mental health services. Findings are expected later this year. I know my noble friend has been very active in pursuing this point and I am grateful to her for doing that. I hope that will be a generally helpful response.
I add to all noble Lords that I absolutely agree that information, communication and support should be provided in a culturally appropriate manner. However, we do not believe that the amendments would achieve that aim, nor are they necessary. The duty to take cultural differences into account in how services are delivered is already enshrined in the Equality Act 2010. These existing duties are the legal basis for ensuring that services are culturally appropriate. That said, we absolutely acknowledge that, in practice, many services still fall short, but that is the position that we find ourselves having to tackle. This is where we need to strengthen guidance. The patient and carer race equality framework is already in place to strengthen the application of these principles, and we will strengthen guidance in the code to ensure that duties under the Equality Act are embedded in practice. We therefore believe that these amendments would not have any additional benefit above what is already in place and what is planned.
On Amendment 65, tabled by the noble Baroness, Lady Tyler, we recognise that there are very significant disparities in the use of community treatment orders between different groups. This data is published as part of the annual Mental Health Act statistics. As the noble Baroness said, in 2023-24 it certainly was the case that patients from black and black British ethnic groups were around seven times more likely to be placed under a CTO than those from white groups. I add that patients from all minority ethnic groups are more likely to be subject to the use of a community treatment order than patients who are white. These disparities are explored in the impact assessment.
The noble Lord, Lord Kamall, drew on his personal experience, for which I thank him. I am sorry that he has to bring that personal experience here, but of course it is the case that the battle against racism and racial disparities is far from over—I completely agree. I am sure he will have noted the commitments made by this Government to tackle racism and racial inequalities, particularly in the NHS and social care.
The reality is—many noble Lords have spoken about this—that we are in a position where we have less data on outcomes and patient experience of being subject to community treatment orders. Officials are now working with NHS England and system partners to understand what additional data it would be wise and helpful to collect. We will cover CTOs in the planned independent evaluation of the reforms but, as ever, I have to share, in honesty, that it will take time to gather new data. A review after 12 months would be premature, not least because it would mean it was based on data from before any reforms commenced. I do not feel that that would be helpful. I assure noble Lords that, rather than committing in legislation to a review at a fixed date, we are committed to keeping existing and additional future data under review.
Lord Scriven (LD)
I think one of the reasons why people are asking for an open and transparent review—and, in some cases, one that reports back to Parliament—is that this is about not only the data but accountability for carrying out actions and implementation. That is the bit that is missing. Everything I have heard from the Minister on this subject so far—maybe she is coming on to say something else—suggests that without accountability, and overview and transparency of that accountability, the guidance is not going to work. Believe me, as somebody who used to work in the service: if you know that the Government were looking at this and that it was going to Parliament, it sends a powerful message for action to be taken in each individual unit. That is what is required, and I do not see that coming from the Minister’s answers. Can she tell me where that accountability streak will be, and how we, in this House and the other House, can put pressure on if the guidance is not being followed, based on the process she has outlined?
Baroness Merron (Lab)
I understand the point the noble Lord makes. However, it does not lead me to accept the amendments. I understand the intent and I am sure noble Lords realise how sympathetic I am to it, but I repeat the point I made earlier: if one looks at what the amendment actually does, it will not serve that purpose. I take the point about transparency and accountability, and I hope the noble Lord has heard many times that that is very much the mode of direction. Perhaps it will be of some assistance to say that the PCREF will improve data collection on racial disparities over the coming year, and the CQC has existing duties to monitor and report on inequalities under the Act. We will continue to monitor racial disparities in the use of CTOs. That situation will be ongoing. If it is not doing the job that it is meant to do, we will not be complacent and will seek to act.
We agree there is a need to improve organisational leadership—
Baroness Berridge (Con)
Just before the Minister talks about that point, I understand her concern about the 12-month time limit, because it would be before the reforms are introduced. However, is she satisfied that there will be a robust baseline before the reforms are introduced so that we know what we are measuring against? Otherwise, in a few years’ time, we could be asking whether the reforms have worked, but we would not know because we did not have the baseline data. That is the starting point.
Baroness Merron (Lab)
The noble Baroness is quite right: one has to be able to compare, and that baseline will be in place. You could collect all the data you like, but it has to be meaningful. Her point is well made.
There is a need to improve organisational leadership to improve data collection and change culture across the mental health system. Again, this is exactly what the PCREF is designed to do and something we want to embed further through the revised code of practice.
The creation of a responsible person was an additional recommendation from the pre-legislative scrutiny committee, and it is one we have considered in some detail. However, ultimately, we think that the role is not necessary, because it would duplicate existing roles and duties. There are already duties on providers of mental health services to identify and address inequalities relating to protected characteristics under the Equality Act 2010 and specifically the public sector equality duty. CQC already has a duty under the Mental Health Act to monitor as health services exercise their powers and discharge their duties when patients are detained in hospital or are subject to CTOs or guardianship. It publishes an annual report, Monitoring the Mental Health Act, which includes detailed commentary on inequalities. The PCREF is now part of the NHS standard contract. It has created new contractual obligations on providers to ensure that they have a framework in place to record and address racial inequality in mental health systems and to look at training and other policies to address racial disparities. Ultimately, we do not think that a responsible person is necessary to achieve all the aims, which are understood, set out in the amendment.
Finally, I want to turn to Amendment 138 tabled by the noble Lord, Lord Kamall, and supported by the noble Earl, Lord Howe. We recognise, as I have said, that there are significant inequalities in the use of detention under the Mental Health Act and of CTOs between different minority-ethnic groups, and in particular the overrepresentation of black men. We monitor those inequalities through routinely published data and are improving this data through the PCREF. The CQC, as I have mentioned, reports on inequalities in its annual report under existing duties, but we agree that we lack robust evidence on what drives those inequalities, and that has been a matter of considerable debate in your Lordships’ House. We need to conduct research into this, and we are exploring with experts, including academic researchers, the best way to tackle it.
I am concerned that two years is not enough time to scope and commission the report, collect and analyse new data, and form meaningful recommendations. Additionally, we hope that through improved decision-making under the reforms we will see a reduction in the number and proportion of black men who are subject to the Act and a reduction in racial disparities more generally. It is a major driver of why we introduced the Mental Health Bill. A report after two years feels premature, because it would be likely to be based in reality on data from before the reforms were commenced.
Lord Scriven (LD)
I am grateful to the noble Baroness for giving way and sorry for interrupting her flow again. The point about having a staging report after two years is to get ahead and upstream of what is happening rather than retrospectively being able to do stuff after it has gone on. Two years in management terms to be able to determine trends of intended or unintended consequences and then put different things in place is really important. I believe that this amendment, with a report back to Parliament, would send a very strong signal and allow the Government, the department and NHS England to pick up trends, even if it was not the total picture, which would determine different policies and practices and potential changes in the code as well as management action. I think that is what lies behind the noble Lord’s amendment.
Lord Kamall (Con)
I am sorry to interrupt at this time. I note that the noble Baroness thinks that 12 months is too short, and many noble Lords can perhaps see the point that two years is too short. Does the department have any idea of what a reasonable timeframe is? There has to be some accountability, as the noble Lord, Lord Scriven, said. We could accept the warm words and the intentions of the Minister here tonight, but what happens if nothing changes? Where is the accountability? Can the Minister think about asking the department whether there is a reasonable timeframe for some meaningful research? I have supervised academic theses over time. You can have the one-year and then you go on to the three-year for PhD, and sometimes that is quite comprehensive data. There might be a meta study that could be done of lots of existing studies. First, what is a reasonable time? The noble Baroness does not have to answer now; it can be in writing. Secondly, if we let this go, how do we make sure there is accountability? How do we come back to this in three years or four years or five years? I look forward to the answer.
Baroness Merron (Lab)
I was about to say that I do understand the need for pace, but I know that noble Lords understand the need to get this right and I know they are not suggesting that we should get it wrong. I will certainly be glad to look at the points that have been raised. I assure noble Lords that I do not want this to be warm words and I understand what noble Lords are seeking. I want to ensure that it is right and that the pace is right. I will look at the points raised because—although I do not think anyone is accusing me of this—it is the exact opposite of avoiding accountability and transparency; it is just about dealing about what is in the amendments.
The noble Lord, Lord Kamall, asked me a number of very pertinent questions and to do justice to them I will write to him. In conclusion, I hope that noble Lords—
The Lord Bishop of Manchester
Before the noble Baroness sits down, could I tease out from her a few words about the religious literacy point that myself and the noble Baroness, Lady Berridge, raised earlier? While we have rightly focused much on race and ethnicity this evening, which is important, I find that sometimes people take a pride in being religiously illiterate and in not paying attention to somebody’s faith in a way that they would probably not take a pride, as a professional, in not attending to somebody’s ethnic background. Does the Minister have a little word to say about that?
Baroness Merron (Lab)
I suspect that the right reverend Prelate knows where I would be coming from on this. He and the noble Baroness, Lady Berridge, are quite right that consideration of one’s religion and religious practices and not making assumptions about them are absolutely crucial.
Baroness Whitaker (Lab)
I thank my noble friend for her understanding of the crucial meaning of the data shortage and for her very helpful account of further work. The problem with relying on Gypsy, Roma and Traveller being covered by equality legislation guidance is that, unless they are specifically named as what they are, lots of people have no idea that they are there, that they are subject to an appalling level of discrimination and that they need a targeted response, directed—as it would be with a faith community or other community—at the reason they are so discriminated against.
But, on the whole, I am glad that the Minister has got the point about so many things and I sense that she has sensed the depth of feeling raised in this very short debate. I will thank very briefly everyone who joined in. The noble Baroness, Lady Bennett of Manor Castle, quite rightly pointed to the range of cultures that are potentially alienated by not being understood at all, as well as the need for data. I was very grateful for the support of the right reverend Prelate the Bishop of Manchester, because what he says is based on his real experience. I am very glad that my noble friend Lord Davies went on about the centrality of this issue; it is not a marginal add-on, it is part of our society. Of course, the plea of the noble Lord, Lord Kamall, for more research and proper data is really essential. I enjoyed his note of hope and I hope very much that we will be able to continue it and increase the progress. I had better withdraw my amendment for the time being, but we may need to return to this.
Mental Health Bill [HL]
Monday 27th January 2025
(5 months, 2 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-IV(Corrected) Fourth marshalled list for Committee - (23 Jan 2025)
“30AA Overruling a nominated person(1) The appropriate tribunal may, on application made in accordance with this provision, make an order overruling a decision of a nominated person.(2) An order under this section may be made on the application of—(a) the patient,(b) an approved mental health professional,(c) any person engaged in caring for the patient or interested in the patient’s welfare, or(d) any person with parental responsibility for the patient.(3) An application for an order under this provision may only be made on the grounds that—(a) the nominated person unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient,(b) the nominated person has, without due regard to the welfare of the patient or the interests of the public, exercised the power to discharge the patient under this Act or is likely to do so, or(c) the nominated person unreasonably objects to the making of a community treatment order in respect of the patient.(4) In this section “patient” includes any person by or for whom a nominated person is appointed.”Member’s explanatory statement
This amendment would give the Mental Health First-Tier Tribunal the power to overrule decisions of a nominated person.
Baroness Bennett of Manor Castle (GP)
My Lords, I shall also speak briefly to the other amendments in this group. I warn those who are planning to speak after me that I will be brief, because this amendment is self-evident and set out in our papers. I begin by reflecting on the fact that I think there is universal welcome for the creation of the nominated person situation. This is a good step forward and widely welcomed. What your Lordships’ Committee is trying to do is perhaps to fulfil its traditional role to make sure that it is set up in as watertight, practical, useful and effective way as possible.
This amendment did not originate with me; it originated with the Law Society. It provides for a mental health First-tier Tribunal to overrule the power of the nominated person. I note that the next amendment in the names of the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, suggests not the county court but the Court of Protection. I do not have any particular position on any of these things. It is useful for us in Committee to discuss this in detail. People far more expert than me will outline that, so I shall not go on at length.
I will note for the Committee’s understanding that my Amendment 71 was withdrawn, because it was doubled up with someone else’s but was put in a different place. It was just one of those technical juggles that happens. With that very brief introduction, I beg to move.
Lord Meston (CB)
My Lords, I shall speak to Amendment 69, which would replace the reference in the Bill to the county court with reference to use of the Court of Protection to deal with applications to terminate appointments of nominated persons. The single reference to the county court, currently in Schedule 2, is the only place where the county court is given jurisdiction to do anything in this legislation, which I suggest makes it something of an anomaly as well as an anachronism.
The reference to the county court simply carries forward the use of the county court from the 1959 and 1983 Acts, which provided for that court to deal with applications to displace nearest relatives. When I was first appointed a judge, I well remember being presented with an urgent application to displace the nearest relative, of which I then had no experience and in which I had never had any training. In the days before judicial computers, I had no access to anything but out-of-date and very limited books in the small court, no longer in existence, where I was then sitting for a few weeks and without help from any legal representatives. Few learning curves have been more rapid.
Since then, I would like to think I developed some expertise, but my later experience of those applications has led me to question whether the modern equivalent in this Bill concerning nominated persons would be better dealt with elsewhere. Such applications can involve detailed understanding of psychiatric reports and of the family dynamics for the patient concerned, particularly if the nominated person is unco-operative or disengaged. At the time when the earlier legislation stipulated the use of the county court, there was neither a separate family court nor the Court of Protection, which was created by the Mental Capacity Act 2005.
Of course, I do not suggest that county court judges could not deal with these applications—my life with my present and former judicial colleagues would probably not be worth living if I did so. A judge has to be prepared to turn his or her hand to whatever comes their way. However, I do suggest that the Court of Protection is now better equipped to deal with these applications with its specialist expertise and specifically nominated judiciary.
Baroness Berridge (Con)
My Lords, I shall speak to Amendments 77, 82 and 84 in this group. I am grateful to the noble Lord, Lord Meston, for mentioning my amendments in advance. I am adding the other choice for His Majesty’s Government, which is the mental health tribunal, on the basis that the Court of Protection deals with the Mental Capacity Act and, obviously, at the moment, the mental health tribunal deals with claims under the Mental Health Act.
However, there are one or two points of clarification on the process on which it would be useful to hear from the Minister. As I understand it, for the county court to take an application to displace the nearest relative involves means-tested legal aid, whereas the mental health tribunal, I believe, has Legal Services Commission funding—I am talking in old money here—so it is non-means-tested. I am not aware of what the situation is with the Court of Protection. However, an important concern of people making these applications is whether their legal representation is funded. I expect they are in a situation similar to that outlined by the noble Lord, Lord Meston, when he spoke of getting one of these applications for the first time; for many people making these applications, it will be their first time not only making such an application but being in front of any kind of court or tribunal, and at a time of great distress with a relative detained under the Mental Health Act.
Given that the policy document disclosed last week references this process as the solution to certain situations, could the Minister please outline, either today or in a letter, how many county court applications there are, how long people wait for such applications and what the rate of success is? How many of those who go to the county court currently get legal aid?
Is the Minister satisfied that the county court can act swiftly enough to remove a nominated person who is a risk to the patient? An example given, I think either in the review or in the response to the White Paper, is that, if you have a coercive, controlling boyfriend of a 17 year-old girl as the nominated person, or someone who is suspected of having trafficked that young person to the UK, then time is of the essence for practitioners to have that person removed—on evidence, obviously—from having such powers as, for instance, to apply to discharge the patient from hospital.
At this stage, it might also be appropriate to ask the Minister what is meant in the policy document by the concept of “temporary” nominated persons? We had interim nominated persons in the review, but there is no concept that I have seen in the Bill of temporary nominated persons.
Finally, Amendment 82, although it may be in the wrong group, talks about parental responsibility. We have had other discussions in Committee about this, and I think it was in the review; we must make sure, at the very least, that appropriate people with parental responsibility have the relevant information. That is a baseline. Whether we go on to consultation or being able to apply to remove a nominated person, I would submit—and Amendment 82 outlines this—that they should have all the relevant information. I have exempted the person with residual parental responsibility under a special guardianship order. This reveals some of the complications of the Children Act. In this type of situation, the child has been removed to live with someone else; it is similar to a care order, in that the people with parental responsibility remain there, unless there is an adoption order. One has to be careful even about the rights to information, and who with parental responsibility receives that.
Baroness Butler-Sloss (CB)
My Lords, if I may, I shall start with the amendment tabled by the noble Lord, Lord Meston. I agree with almost everything that the noble Baroness, Lady Berridge, has said. I will talk first about which court it should be in. I agree entirely with what the noble Lord, Lord Meston, had said. Oddly, the county court was one of the only courts in which I did not sit, but I have never heard a circuit judge who was very keen on dealing with these particular applications.
Judges of the Family Division sit in the Court of Protection. As I would hope noble Lords would agree, they are somewhat expert in family law, and they do a great deal of mental care and medical cases. As president of the Family Division, I spent probably 50% of my time doing one sort of medical case or other, quite a lot of them mental health cases. The Court of Protection is probably the best court to deal with this. I do not feel very strongly against the mental health tribunal—I just do not think it would be quite as good. Legal aid is an issue, and I assume that it probably would not be automatic in the Court of Protection.
I turn to my Amendment 70. I entirely share what the noble Baroness, Lady Berridge, has just said. The law is that, until the age of 18, one is a child, regardless of the Gillick case, regardless of being 17 and very nearly grown up. Until a person is 18 they remain, technically, in law, a child. I am very concerned about a child of any age, living at home with parents, who has a mental health problem sufficiently serious to require attention and a nominated person, who is at odds with the parents or guardian and chooses somebody who is totally unsuitable. The noble Baroness, Lady Berridge, pointed out that this could be someone who might be trafficking, or an unsuitable boyfriend.
The one group of people not included in new Section 30B(2) in Part 1 of Schedule 2 where it says that, to discharge a nominated person,
“An order under this section may be made on the application of…”
is anybody who has parental responsibility for the child. This means that when a child who is at odds with their parents goes into hospital, when those parents know the boyfriend and that he is unsuitable, those parents have no voice whatever in saying that he is not suitable to be a nominated person. Subject to the important points that the noble Baroness, Lady Berridge, has made, it seems that there are certain cases where, in what used to be called a custody order or a special guardianship, the parental responsibility of the natural parents is limited.
I would have hoped that the Government would see that, however much they want to empower children, including children under the age of 16, they cannot take away 100% the responsibilities of parents. Under Section 2 or 3 of the Children Act, parental responsibility is defined as having rights as well as responsibilities. I am really talking about the responsibility whereby parents may really want to be able to tell someone, “Look who my daughter is going out with”, but under the Bill they have no right do so, and as far as I am concerned that is utterly wrong.
Baroness Buscombe (Con)
My Lords, perhaps I may quote from our report on the draft Mental Health Bill on this point, while agreeing 100% with both previous speakers. During our evidence sessions, we heard from a number of people who had real concerns about the issue of nominated persons for young people. We heard
“that choosing a Nominated Person outside of the family can put pressure on family relationships. Respondents also noted the importance of ensuring that the families and carer are still given a voice in a patient’s treatment even if they are not chosen as the Nominated Person. This is particularly important for children and young people. Additionally, one respondent who identified as a carer of someone with a mental health condition expressed their concern that not all nominated people may know the patient well enough to assist in making decisions in their best interest … Another respondent noted that, for those under 18, there may be overlap between the rights of those with parental authority and those of the Nominated Person”.
Our belief during that whole process was that this all seriously needs to be clarified, either in law or in the code of practice. I remember that one respondent was very concerned that young people would assume that a nominated person could be a friend and that the friend would really understand their role, but in some cases that just was not happening.
Baroness Butler-Sloss (CB)
My Lords, I hope I may be forgiven for getting up again, because I completely forgot to refer to Amendment 76. It would come in under paragraph 3(2) in Part 1 of new Schedule A1, where the parents and any person with parental responsibility are not even consulted on the appointment. That is exactly the same point as I made earlier.
Earl Howe (Con)
My Lords, with this group of amendments, the noble Baroness, Lady Bennett, my noble friend Lady Berridge, the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, have exposed a crucial set of issues: in my judgment, one of the two or three most important issues that we shall be dealing with during our debates on the Bill. At their heart, I suggest, is the conflict, or perhaps I should say the high risk of a conflict if nothing is done, between the arrangements that the Bill seeks to put in place for the creation of nominated persons on the one hand and, on the other, the law of the land as set out in the Children Act 1989.
Both this group of amendments and those in the next group in the name of my noble friend Lady Berridge focus on matters of the highest significance for child protection and child safety in all its aspects. The assumption inherent in the Bill’s provisions for nominated persons is that the process for appointing a nominated person is rigorous enough to ensure that someone unfit to be appointed to that role will not in practice be appointed, or that, if they are, the system will find them out. I believe that it is evident from what we have heard in this debate that that assumption is a highly dangerous one.
A nominated person will be someone in a position of considerable power. They will be able to exercise all the functions exercised currently by a nearest relative, as well as availing of additional powers as set out in the Bill. Children and young people under 18 will be able to appoint a nominated person. That person will be someone of their own choosing. It could be a parent or someone other than a parent, but the principal qualification for such a person is that they must have the child’s best interests at heart.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank noble Lords for an extremely helpful debate. I want to say how much I understand the concerns around the nominated person regarding children and parents, and the great need to get this right in the way that noble Lords have rightly unpicked today.
It is very important that parents are involved in a child or young person’s care. I say to noble Lords, as this has come up before, that we do not intend or wish to undermine the rights or responsibilities of parents. In the vast majority of cases, the nominated person for a child or young person will be their parent or whoever has parental responsibility, either because they have decided that themselves, with the relevant competence or capacity, or because they are appointed by the approved mental health professional.
For under-16s the Bill sets out that if they lack competence to make this decision, the approved mental health professional must appoint a parent, or a person or local authority with parental responsibility. The Bill aligns with the Mental Capacity Act on decision-making capability, with young people aged 16 and over considered to have the capacity to make relevant decisions. We think it is important, as I know noble Lords do, that children and young people have the right to choose a nominated person, and I understand the need to get the nominated person right. Some 67% of over 1,200 respondents to the White Paper consultation supported extending this right to under-16s.
We must have the right processes and safeguards for all patients, and additional protections for children and young people. These safeguards will cover the nomination process and the ability to overrule the nominated person or remove someone from the role if they are not acting in the patient’s best interests. The noble Baronesses, Lady Bennett and Lady Berridge, and the noble Lord, Lord Meston, have all put forward amendments to give responsibility to the tribunal or the Court of Protection in these matters. The county court already has a role in displacing the nearest relative. We believe that it has the expertise, procedural tools and legal framework to handle sensitive disputes involving external parties, such as conflicts of interest or allegations of abuse. I emphasise the word “sensitive”. I believe that the debate today has acknowledged that we are in very sensitive territory and that we need to get this right.
The noble Lord, Lord Meston, mentioned the training of judges. I can confirm that we will be working with the county court to ensure that it is aware of and can fulfil the requirements of the new provision.
The noble Baroness, Lady Berridge, asked for figures on county court applications, and I will be very glad to write to her and answer her fully. Similarly, I will be very pleased to write to her in detail on the matter of legal aid.
The Act and the Bill allow for someone who is not acting in the interests of the patient to be overruled or removed from this role. On Amendment 68 specifically, the Bill enables the responsible clinician to overrule the nominated person on the grounds included the amendment, so I am grateful for its being brought before us today. This will be quicker and will avoid burdens on the tribunal.
On Amendment 69, transferring the role of the nominated person to the Court of Protection would expand the court’s remit to under-16s. Currently, the court can deal only with the financial affairs of under-16s. The Court of Protection makes decisions for those lacking capacity, but patients need to have capacity to have appointed their own nominated person. Where they lack capacity or competence, the approved mental health professional will appoint, and the Bill sets out the grounds for them to terminate the appointment.
On Amendments 77 and 84, the noble Baroness, Lady Berridge, asked about the concept of a temporary nominated person. This is in recognition that such an appointment by an approved mental health professional is only until the person concerned has the relevant capacity or competence to choose their own—that is what is meant by the word “temporary” here.
The First-tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales are focused on reviewing detention under the Mental Health Act. The provisions of the amendments would add additional burden on that tribunal. My concern is that it would risk undermining its core function and delay detention reviews, which I know is not something that noble Lords would wish.
Amendment 70, tabled by the noble and learned Baroness, Lady Butler-Sloss, would specify that parents, guardians and anyone with parental responsibility can apply to the court to displace a nominated person. The Bill already allows anyone involved in the patient’s care or welfare to apply to the county court to terminate the appointment of a nominated person. This includes parents, guardians and anyone with parental responsibility, as her amendment seeks.
On Amendments 72 and 73, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, I wholeheartedly agree that the law has to prevent exploitation and manipulation. The nomination process is indeed intended to ensure that the decision is the patient’s own. I recognise the circumstances that the noble Earl, Lord Howe, and other noble Lords described as possibilities. We have to consider all the potential scenarios, which are very real challenges to us. A health or social care professional, or an advocate, must witness the nomination and confirm in writing that the nominated person is suitable and that there has been no fraud or undue pressure. On the point the noble Earl raised, the code of practice will include guidance on how to determine this.
Amendment 76 was tabled by the noble and learned Baroness, Lady Butler-Sloss. We understand the desire to involve parents in the decision, and for the vast majority this will be appropriate. We are concerned that the amendment’s requirement to consult a parent, guardian or someone with parental responsibility could risk undermining the principle of giving children and young people a choice. It could also, in a different way, pressure the child into choosing the parent, in circumstances that might be far from desirable. Although we do not think that we should require consultation with the parents in all circumstances, we would expect the witness to discuss the nomination with parents and others with interest in the welfare of the child as part of the assessment of suitability. We will consult on guidance in the code on how practitioners should encourage the child or young person to involve their parents, even if they are not the nominated person, unless it is inappropriate.
On Amendment 82, tabled by the noble Baroness, Lady Berridge, I agree that parents and carers are to be given information about the care and treatment of their child. If a child nominates a person other than their parent as their nominated person, their parents retain legal rights under parental responsibility. These rights include the right to be consulted on certain decisions and to receive information about the child’s care. The Bill also introduces a duty on the responsible clinician to consult with people involved in the child’s welfare on care and treatment planning, which includes parents and carers.
With those comments in mind, I ask noble Lords not to press their amendments.
Baroness Bennett of Manor Castle (GP)
My Lords, I thank the Minister for her careful and detailed response to an important group of amendments. It may affect only a small number of cases, but they are cases where we really need to get this right. Those two adjectives apply very well to this whole debate.
I will make a couple of comments in response. We have had three suggestions about where the applications to remove the nominated person should be. Personally, I do not have a strong view. I thought the point from the noble Baroness, Lady Berridge, about legal aid was important. Justice unfunded is justice denied, so it really is important that there is that full and necessary support, wherever they end up.
With that, I pick up the important point made by the noble Earl, Lord Howe, about the witness being such an important person to ensure that this process goes well. The noble Earl talked about making sure the guidance is right. I add that we have to make sure that the resources are there, thinking about our overstretched mental health services. We need to ensure that the person who will be the witness has the time to put in the resources to ensure that they can properly be a witness. It may not be a subject of law, but it certainly needs to be thought about.
Baroness Berridge
“(3) Regardless of whether a person is appointed as a nominated person, if they have parental responsibility that person must be given appropriate and relevant information about care and treatment of a relevant patient.(4) Subsection (3) does not apply to persons with residual parental responsibility for the relevant patient when the patient is subject to a special guardianship order under section 14A of the Children Act 1989.”Member’s explanatory statement
This amendment, along with another amendment in the name of Baroness Berridge, seeks to ensure that regardless of whether persons with parental responsibility are appointed as the nominated person, they should have access to the appropriate and relevant information about care and treatment of the relevant patient (unless a Special Guardianship Order has been made).
Baroness Berridge (Con)
My Lords, Amendment 74 properly sits alongside Amendment 82 in the previous group, so I rise to speak predominantly to Amendments 75, 78 and 79A to 81. This group seeks to ensure that the expansion of choice and autonomy for children and young people under the Bill sits consistently with the child protection law of the Children Act, which I believe the noble and learned Baroness, Lady Butler-Sloss, was involved in creating.
This is not a new issue. The independent review way back in December 2018 stated:
“There needs to be careful consideration of how the powers and rights of the NP”—
the nominated person—
“will interact with other areas of the system, including care orders, guardianship and child arrangement orders, where the overlap with parental responsibility is particularly important”.
Parental responsibility has been dealt with in a series of amendments by the noble and learned Baroness, Lady Butler-Sloss, so I will not address that. It is regrettable that over six and a half years later, we still have not sorted this matter and there is no draft code of practice for noble Lords to refer to.
However, I am grateful for the meetings the Minister has had with colleagues, and for the policy document disclosed last week, which made small steps. I hope the Minister can confirm that she has met the Minister for Children and Families and DfE officials regarding this matter, as they hold responsibility for the Children Act. I am also grateful that the Children’s Commissioner has now stated her concerns in this aspect, as well as for the excellent work of the Children and Young People’s Mental Health Coalition.
To avoid this being dry law, I will give two quick examples that illustrate the conflict remaining between the proposed reforms and the protections under the Children Act.
First, a 15 year-old child is Gillick competent but still does not quite understand why she has not had any contact with dad. However, there are days of evidence in the family court showing that dad is violent, controlling and coercive; a child arrangements order was made, giving him only what is called letterbox contact. The child appoints dad as the nominated person, and dad of course now has contact. Cannily—these people are canny—on the Thursday before a bank holiday weekend, he applies to have the child discharged. The 72 hours to bar this application pass by the locum’s staff, et cetera—we can all imagine the inquiry—and dad has now taken the child and disappeared. I leave it to the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, to outline what mum, who has parental responsibility under this Bill, knows is going on. Children and young people should of course be given choice and autonomy—my amendments do not seek to undermine either that or Gillick competency—but surely we must consider circumscribing that when the family courts have, for child protection reasons, restricted the role of adults who should normally care for and love that child or young person.
I turn to the second scenario. A 17 year-old lacks the capacity to appoint so the AMHP is making the decision to appoint the nominated person. However, the 17 year-old is under a special guardship order—maybe they ran away from the special guardian—and was picked up by the police while trying to find dad, whose address they had on them. Dad still has parental responsibility, of course, so the AMHP contacts him and appoints him as the nominated person. Again, he applies for discharge. The child tries to return to the special guardian, who has no idea that the child is about to return home, so no one is there to receive them. The child leaves in distress and harms themselves.
The AMHP can be forgiven for thinking that child special guardianship orders end at 16 years old, as I cannot find them mentioned at all in the Bill. The same scenario would apply to a child in care as paragraph 9 of Schedule 2 to the Bill is blissfully unaware that 16 and 17 year-olds can be under a care order. The AMHP, according to the Bill, is under no duty to appoint the local authority for a 16 and 17 year-old under a care order or a special guardianship order in this scenario.
The solution to the second scenario is in Amendments 79A and 80A; I am grateful that the noble Baroness, Lady Tyler, has added her name to the latter. Where any person under the age of 18 is being detained—that is about one-third of young people—the AMHP is given a list of people who must be the nominated person, not just those with parental responsibility and the local authority in relation to care orders, as in the Bill and as outlined in the policy document.
Dominic Marley, the co-chair of the AMHP Leads Network, has written to me. He says that he
“fully supports the amendment … In its current form, the Bill conflicts with other legislation affecting children, such as the Children Act 1989. The Bill fails to consider the various orders relating to parental responsibility as outlined in the Children Act 1989”.
He goes on to say:
“This is a deeply concerning omission and is likely to give rise to confusion and uncertainty in practice. We believe the amendments you have tabled will provide clarity in this regard, clarity which should be provided by primary legislation”.
My final point on this second scenario is that the Minister’s policy document states that, for under-16s who lack competence, as in this scenario, the AMHP will appoint the special guardian as the temporary nominated person. Can the Minister explain why the Bill says that the AMHP must choose the local authority if there is a care order in place, but not if there is a special guardian? I repeat the point made in the previous day in Committee: the mental health code cannot create a “must” unless it is included in the Bill or secondary legislation.
The solution to my first scenario is more difficult, and I accept that it is less likely to occur in practice. Most of the one-third of young people who are detained under the Act will lack capacity by the time they are detained but, if we want to maintain as much of a child’s or young person’s choice and autonomy when they have capacity, we must act when they have capacity. Amendments 75, 78, 80 and 81 disqualify certain people, such as the no-contact parent under a child arrangements order or the residual person with parental responsibility when a special guardianship order has been made. The amendments also mandate certain people who have to be chosen, such as special guardians.
I accept that that is a very clunky way of doing it. Another option is for His Majesty’s Government to forbid certain people rather than mandating anyone. Another option would be to give the job of disqualifying people to the family court by amending the Children Act. Therefore, the court, on making a care order, a child arrangements order, or a special guardianship order—for which it often hears evidence—would name certain people as being disqualified from acting as a nominated person.
So I hope the Minister can clarify her policy document, as it includes the child-in-care scenario where the nominated person is a parent—usually where the child resides—who has their parental responsibility limited. It states that the witness—the person involved in the process—
“would assess the appointment of such an individual as unsuitable due to the potential risks to the child and therefore prevent this”.
Is that mandatory language? If it is, why not use “must” and put it in the Bill? Are the Government actually giving the AMHP, the young person or that witness the ability to go behind the care order of the family court? If the Mental Health Act code says that the witness just has to document that, if it is “should” rather than “must”, do we really want to enable that?
The policy document then immediately says:
“We will set out in the Code of Practice considerations for the witness to make beyond those set out in legislation”—
I am not sure that makes sense—
“including how to make these judgements”.
That now seems to be truly discretionary language. I again outline the three categories from the code: “must”, “should” and “may”. Which one is this? If this is “should” then, as I say, the child can go behind the family court order as long as the witness writes down the reasons. I expect the Minister to be very clear in her response, if we are undermining the authority of the family court.
Amendment 79 is a quick clarification of whether the child or AMHP can appoint more than one person as the nominated person. Amendment 85 adds the grounds of
“not acting in the best interests”
so that the AMHP can remove the nominated person—for instance, if they discover that they have trafficked the child to the UK. That is not just for children and young people but for all patients.
I return to the risks to children and young people in both the scenarios I have outlined. These are not triggered by the AMHPs, and they will not be triggered by poor training, a lack of resources or levels of staffing—nor triggered by those who the family court said could pose a risk to the child or young person. These would be triggered by how His Majesty’s Government currently propose to change the law. In the worst-case, but sadly foreseeable, scenario where a child dies at the hands of a nominated person who had already been known to be a risk, as outlined by the family court, I expect that the Chief Coroner would need informing of your Lordships’ debate. Otherwise, professional and other staff might take all the blame. Also, would the Secretary of State for Education in fact still be able to do a serious case review of the death of that child, or would she not be conflicted? A dangerous person got access to a child because the nominated person process was a backdoor to the Children Act. So can the Minister outline whether the nominated persons part of the Act will be enforced before the consultation on the code of practice she is so often relying on?
Finally, I quote from the policy document again:
“We appreciate that there are complications inherent in the complexity of modern family structures, (e.g. separated parents) in addition to the existing system around children’s legislation (e.g. special guardianships, child arrangement orders). These are not complications which have been created by the Nominated Person policy and they exist in the context of Nearest Relative as well”.
Yes, of course the current situation is complex, but this view in the policy document is not shared by the independent review, by the response to His Majesty’s Government’s White Paper—where these concerns were also raised—or by the Joint Committee, civil society or the Children’s Commissioner. The Minister is alone in this view. I know that, in your Lordships’ House, we are not entitled to see legal advice that His Majesty’s Government obtain, but I hope the Minister can assure the Committee that Treasury counsel with specialisms in the Children Act and mental health have been asked to give an opinion.
The child protections that the Children Act has upheld for decades are so vital. I hope we will come back to this on Report, when I hope the Secretary of State for Health and Social Care and the Secretary of State for Education will lay the necessary government amendments. I beg to move.
Baroness Tyler of Enfield (LD)
My Lords, I will speak briefly to Amendment 80A, to which my name has been added.
I did not intervene in the first group but I share the general view expressed, which is relevant to this group of amendments, that not enough thought has been given to the interaction between the Mental Health Bill and other key legislation, particularly the Children Act 1989. That concerns me, because that is where really key and important child protection sits. That is a general concern I have.
Lord Meston (CB)
My Lords, I support the amendments in the name of the noble Baroness, Lady Berridge. Indeed, we should be grateful to her for exposing the complexity and variety of situations which may arise and of which mental health professionals must be made aware, so that the decisions they have to make are properly informed by knowledge of the operative orders and the terms of any orders made by the family court. That seems absolutely fundamental. It reinforces the point I wanted to make at the end of the last group before I was very properly curtailed. It applies not only to the county courts if they are to retain some jurisdiction in this area but to the family court. Some serious thought must now be given to judicial training.
Has the Minister considered an approach to the Judicial College with a view to ensuring that both county court and indeed family court judges will be properly trained with regard to the obligations that will arise under this new legislation?
Baroness Butler-Sloss (CB)
My Lords, for the reasons that have been given I also support the amendments of the noble Baroness, Lady Berridge. Just to add to what the noble Lord, Lord Meston, said, I respectfully point out to the Minister that if she does get in touch with the Judicial College, which I think would be a very sensible move, she should also let the President of the Family Division know.
Earl Howe (Con)
My Lords, in this group of amendments my noble friend Lady Berridge has raised an armada of issues which I think it is clear to all of us cannot be ducked. These issues, as she said, were examined at length both during the independent review and by the Joint Committee, but it has to be said that in both instances it proved too much of a challenge to identify a satisfactory resolution to them. For that reason, as we observed in our debate on the previous group, the weight of these matters now rests on the shoulders of this Committee and of the Government.
In summary, we need arrangements that are robust enough to ensure that a nominated person’s appointment can be effectively challenged, and that, in certain circumstances, where necessary, the exercise of their powers can be legally contested and blocked. Without those measures, we shall leave an unacceptable lacuna in the law and, more pertinently, run a high risk of exposing children to personal danger.
My noble friend is to be thanked for assisting this Committee’s deliberations with the clear way in which she has set out the challenge, and I hope and trust that the Minister will wish to grip the challenge with her usual vigour.
Baroness Merron (Lab)
My Lords, like the noble Earl, Lord Howe, I am most grateful to the noble Baroness, Lady Berridge, for introducing an appropriately wide range of scenarios, questions and testing. That is important for the Committee but also for our ongoing work. As the noble Baroness, Lady Tyler, said, to describe this area as complex is to use too small a word, and I think we are all wrestling with that to get it in the right place. I know that noble Lords are aware that the work is ongoing, and I thank them for their engagement and interest in this issue. As I said previously, I very much understand the need for a robust process to keep children and young people safe and ensure that only appropriate individuals can take on the role of nominated person, while giving children and young people that right to choose.
I will respond collectively to the amendments put forward in this group. As I set out earlier, we agree that in the vast majority of cases there is an expectation that a parent or whoever has parental responsibility would take on this role, and that would include consideration of special guardians and child arrangement orders. We also agree that, where parental responsibility has been removed due to care proceedings, in the vast majority of cases it is unlikely to be appropriate for such a person to take up this role. My reference to this being a complicated area—
Baroness Merron (Lab)
Perhaps the noble Baroness will let me make a bit of progress.
Baroness Berridge (Con)
I think I need to clarify a point of law—I am looking to the noble Lord, Lord Meston. In care proceedings, is parental responsibility removed? I do not believe it is; it remains with the parents. That is very important.
Baroness Merron (Lab)
I thank noble Lords for that exchange, which brings me to my repeated point about the complicated area in which we are treading.
As was highlighted by the pre-legislative scrutiny committee, we will set out our expectations in the code of practice as to whom approved mental health professionals would appoint, or the witness would confirm suitability of, in a range of circumstances, including in the more and most complex cases. We will consult on this to ensure that we cover as many scenarios as we can.
I can confirm to the noble Baroness, Lady Berridge, that we are working with NHS England, the Department for Education, the Association of Directors of Children’s Services and others to ensure that our policy and guidance reflect what can be a very complex arrangement for some children under the Children Act.
The Bill is clear that where an approved mental health professional is appointing a nominated person for an under-16 they must appoint someone who has parental responsibility, and the amendments extend this approach to all under-18s. As I said previously, we are allowing more flexibility for 16 and 17 year-olds rather than prescribing in legislation who this must be.
While the amendments put forward a wide range of circumstances, we all know—and the noble Baroness, Lady Berridge, demonstrated this—that there will be nuanced and complex cases, especially for 16 and 17 year-olds. Someone outside the proposed list, such as a step-parent, may be the most appropriate person, or a kinship care arrangement may be in place. These amendments propose regulatory powers in recognition of this but we feel that updating statutory guidance will allow us to keep this up to date and in review as new policy is implemented.
The noble Baroness, Lady Berridge, asked about differences between special guardian orders and special care orders. The Bill says that the approved mental health professional must appoint the local authority or anyone else with parental responsibility as the nominated person. The special guardian, as someone with parental responsibility, would be appointed if a special guardianship order was in place. In relation to the proposal for two people to take on this role, as the nominated person exercises specific statutory functions under the Mental Health Act, we feel it is right that only one person has these limited powers, to avoid the potential for disagreement and confusion about who can exercise the relevant power.
We recognise that there will usually be more than one person with parental responsibility and that the approved mental health professional will need to determine who should be the nominated person. Under the current system, this would be the older parent, which we do not think is necessarily appropriate. We will provide guidance for approved mental health professionals in the code of practice. This may include which of the parents is recorded as the child’s next of kin, who the child lives with and who is accompanying the child.
The noble Baroness, Lady Tyler, helpfully inquired about the status of the nominated persons paper that was sent out in an attempt to be helpful. It was developed very much to support the debate, which it certainly has done, and we intend to develop it further. I very much welcome the further engagement from Peers and we will continue to formally consult as part of the code of practice so that it is an aid to the considerations of noble Lords. I hope it is doing that.
In the current nearest relative provision, only one parent will hold this role. As I mentioned in the previous debate, this will not exclude the other parent from being involved in their child’s care. Whether or not they are the nominated person, parents and carers should be given information about the care and treatment of their child, unless it is inappropriate. This is reflected in the Bill. We absolutely agree that someone should be removed as the nominated person if they are not acting in the interest of the patient. Criteria are included in the Bill for when an approved mental health professional may terminate an appointment, one of which is when the person is
“otherwise not a suitable person to act as a nominated person”.
On the points made by a number of noble Lords, suitability includes whether there is any risk to the patient. This may include if the person is behaving in a way that indicates they are unsuitable for the role; for example, if they are exercising their powers without due regard to the welfare of the person.
Baroness Browning (Con)
Reflecting on what the Minister has just said, would that close the Bournewood gap, which we tried to close in earlier legislation, where a professional carer cared for an autistic man who was not able to articulate for himself, but was overruled by the clinician? I am just trying to get my head round what she has just said because that was the Bournewood gap and, as the Minister will know, it ended up in the European Court before it was resolved.
Baroness Merron (Lab)
We need to be considering that as one of the scenarios and I would certainly be very glad to give the noble Baroness and noble Lords a more considered response to the very important point that has just been raised.
Under this policy, an approved mental health professional would terminate their appointment if the nominated person is not acting in line with the patient’s interests. I really wish to emphasise this.
For all these reasons and the responses I have given, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Berridge (Con)
My Lords, I am grateful to noble Lords who have spoken and for the considered nature of the response and the clarification regarding the special guardianship. However, as we have outlined, other people remain having parental responsibility and it seems that under the Bill, as it is only one person, it could be that the residual person still has parental responsibility. It could just be that person under the Bill and not, in that situation, who is appointed.
I am concerned, not only by the outline at the beginning in relation to parental responsibility being removed. I just feel that there is a lack of understanding—with all due respect to the Minister’s diligence, thoroughness and engagement with colleagues—about the depth of the issue that we have here. She mentioned “would” appoint. That seems something that can be under the Mental Health Act code—“would” seems to be that as long as you document your reasons for that, you can move. It seems that from the situation I have outlined, in which the 16 or 17 year-old has been removed from the dad’s care because he has been shown to be, and proven by the family court to be, a danger, he could be appointed as the nominated person. Then we are relying on a speedy process in the county court—which we are not sure we always get legal aid for—to remove him. I am concerned by phrases such as “more flexibility for 16 and 17 year-olds”. Does that include the 16 and 17 year-olds who are under special guardianship or where there is a care order?
It seems that there is a conflict, based on what the co-leader of the AMHPs is saying, what the review has said and what the response says. We have a conflict between two pieces of legislation that we must continue to grapple with. On phrases such as “working with the DfE”, I asked specifically whether there had been a meeting with the Minister for Children and Families. The responsibility for a serious case review sits with that department. If we are to some extent right, this risk to children will manifest itself in an imperfect system. Obviously, there are professionals and clinicians, but we all know of cases that have gone wrong and ended up in inquiries.
I remain concerned by the lack of clarification on legal advice. Legally, in some ways this is fascinating—but it is not fascinating because it involves child protection. I welcome the engagement and I am sure that we will meet again in regard to this, but the severity of the risks that we are exposing, and allowing young people and AMHPs to go behind findings of fact in the family courts made under the Children Act is an incredibly serious issue. I hope that the Minister will be furnished with that kind of geeky legal advice, because for the children’s sake we need that.
However, I am grateful for the manner of her engagement and of course beg leave to withdraw the amendment.
Baroness Merron
Member’s explanatory statement
This amendment, my other amendments to Clause 31 and my new clause inserted after Clause 31 would provide for commencement two months after Royal Assent of provisions about tribunal reviews concerning patients subject to conditions amounting to a deprivation of liberty.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Baroness Merron
“References: restricted patients not subject to deprivation of liberty conditions(1) The Mental Health Act 1983 is amended as follows.(2) In section 71 (references by Secretary of State concerning restricted patients), for subsection (2) substitute—“(2) The Secretary of State must refer to the appropriate tribunal the case of any restricted patient detained in a hospital if—(a) the patient’s case has not been considered by the appropriate tribunal within the last 12 months, whether on the patient’s own application or otherwise, and(b) there is no pending application or reference to the appropriate tribunal in relation to the patient’s case.” (3) In section 75 (applications and references concerning conditionally discharged restricted patients)—(a) before subsection (2C) (as inserted bysection 31(3)(a)of this Act) insert—“(2B) Where a restricted patient has been conditionally discharged, is not subject to conditions amounting to a deprivation of liberty and has not been recalled to hospital, the Secretary of State must refer the patient’s case to the appropriate tribunal on the expiry of—(a) the period of two years beginning—(i) in the case of a patient who has previously been subject to conditions amounting to a deprivation of liberty, with the date on which the patient most recently ceased to be subject to such conditions, and(ii) in any other case, with the date on which the patient was conditionally discharged, and(b) each subsequent period of four years.”;(b) in subsection (2D), after “subsection” insert “(2B) or”;(c) in subsection (2E) omit “, is subject to conditions amounting to a deprivation of liberty”;(d) in subsection (2F), after “subsection” insert “(2B),”;(e) in subsection (2H), after “subsection” insert “(2B),”;(f) in subsection (3), after “subsection”, in the second place it occurs, insert “(2B),”.(4) The amendments made by this section apply in relation to any person who is a restricted patient within the meaning given by subsection (1) of section 79 of the Mental Health Act 1983, or is treated as a restricted patient as a result of that subsection, whether the person became such a patient (or treated as such a patient) before or after the coming into force of this section.”Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Baroness Murphy
Member’s explanatory statement
The purpose of the amendment is to query the necessity of expanding on “appropriate medical treatment”.
Baroness Murphy (CB)
My Lords, noble Lords will be pleased to know that this is a very small, probing amendment, on a matter that was brought to my notice by some forensic psychiatrists. One of their responsibilities is to train young psychiatrists in the use of the Mental Health Act as it relates to patients who have been engaged in criminal proceedings. In this group of amendments, we are talking about transfers between hospitals and prisons and the use of Sections 47 and 48.
Amendment 96 concerns Section 47 removals from prisons to hospitals. The original Act was very straightforward, stating that
“the said person is suffering from mental disorder; and that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and that appropriate medical treatment is available for him”.
The new version expands the clause by stating that
“treatment can be given for the relevant disorder from which the person is suffering”.
This is repeated in Clause 34(3).
My immediate thought on reading this was, “What else can an appropriate treatment be except one for the relevant disorder from which the patient is suffering?” Also, why is it necessary to expand this clause at all, on the basis that we should be as straightforward as we possibly can, particularly with people who are using this on a day-to-day basis? If the patient is suffering from another disorder, or the patient is not suffering, how could the treatment possibly be “appropriate”?
I understand from the Explanatory Notes, and from what Ben Coffman, special adviser to the Minister, told me about what the Bill team is trying to achieve, that Sections 47 and 48 are generally interpreted to mean that hospital managers are not formally required to provide evidence that a hospital place is available. If an order is made, the hospital specified is under a duty to admit the patient.
However, there was an immigration case, R (ASK) v SSHD, in which the Court of Appeal ruled that, because specialised provision is required for restricted patients, a physical hospital place must be identified for the detention criteria to be met. This did not reflect the government position at the time, which was that “available treatment” should be interpreted to be the same for all Part II and Part III patients. Therefore, the Government are now changing the wording of this to ensure that a physical hospital bed does not need to be identified. This is how “available” treatment is currently interpreted for the detention criteria across the rest of the Act.
With these few words, therefore, Clause 34 aims to correct the divergence in the detention criteria, as opposed to creating one. Well, I must say that I still do not understand why these few words change the detention criteria. They just add more complexity to the wording. I do not understand why they have the effect that the Explanatory Note says they do. I am asking for greater guidance, because I just do not get it. I wrote to my colleagues saying, “This is the answer I’ve got, so maybe this doesn’t need to be asked”. I got a single line back, saying “What?” They simply did not understand the response. So I am asking again.
Those are all my questions on Sections 47 and 48, relating to Clause 34. There are other amendments in this group to which I will say something, in the interests of not having to bob up again. The noble Lord, Lord Stevens, has two important amendments on the reciprocal nature of transfers between prison and hospital. If what is good for the goose is good for the gander, and if we are going to make it a lot easier to transfer people from prison to hospital, which I very much hope we will, we must be able to transfer people back in the other direction.
I know that this was an issue very close to the heard of the noble Baroness, Lady Watkins, who is not able to be in her place today. She has run wards where that very frustrating situation arises where you have somebody desperate to come into the ward from a prison who has been identified by the consultant, but no space can be made available because somebody is blocking that place. I will therefore be giving my support to the noble Lord, Lord Stevens, on those amendments. I beg to move.
Lord Bradley (Lab)
My Lords, I shall speak to Amendments 96A to 96C and 163A in my name in this group. They deal with the transfer of prisoners from prison to hospital in a specified timeframe of 28 days. I am obviously pleased that this has been included in the Bill under Clause 35, but I briefly give some background.
I first recognised a need to incorporate a time limit in legislation in my independent report to government in 2009. At that time, the Department of Health had piloted a 14-day waiting limit with strong support from stakeholders to roll this out nationally, and I recommended this in my report. Although it was accepted in principle, it was not implemented. However, Sir Simon Wessely’s review picked it up again with a more realistic 28-day time limit, which was then included in the draft Bill and now in this Bill, ensuring a statutory requirement rather than relying on good practice guidance.
My amendments are therefore probing amendments to understand how the 28 days will work in practice—essentially, when does the clock start? First, Amendment 96A would replace the words “As soon as practicable” with
“No later than two days”.
HM Inspectorate of Prisons found that one factor contributing to delay was confusion around when the 28-day transfer period starts, with 34% of patients not referred on day zero of the 28 days. This amendment would ensure that the referral notice is made no later than two days after an initial request, therefore clarifying on what day counting begins.
Secondly, Amendment 96B would change “must seek to ensure” to “must ensure”. The scrutiny committee, of which I was a member, heard that “seek to ensure” is quite vague and open, and therefore recommended this amendment. I believe, as do many organisations such as the Prison Reform Trust, that the inclusion of “seek to” in the current wording of the Bill implies only an attempt to successfully transfer within the 28-day time limit, rather than it being the guaranteed outcome, save for exceptional circumstances. It would provide a clearer, more definitive commitment to adhere to a 28-day time limit for referral.
Amendment 96C would require that a specified, accountable person be appointed by the relevant referring body to ensure that the specified 28-day transfer period is met. While there are many agencies involved in arranging prison transfers, I am concerned that there should be a person to whom accountability is assigned. As it stands, the Bill lists in new Section 48A(3) the persons to whom the referral notice must be given—the notified authorities—but there is no person, agency or authority assigned, either with overall accountability or accountability for each part of the process. I believe that there is significant merit in creating a single role to help increase and assure accountability—for example, a dedicated official whose primary function would be to ensure efficient transfers with the ability and power to liaise and intervene at the most senior level where necessary.
The amendment would clarify accountability and support the desire expressed in the impact assessment to increase,
“accountability for all agencies involved in the transfer process to meet”
the deadline. This was supported by Sir Simon Wessely’s independent review, which stated that it would help
“unblock the institutional barriers and … give … the teeth it needs to push the transfer through”.
I absolutely agree with this, and I hope that the Minister will too in his conclusion to this debate.
Finally, Amendment 163A would require the Government to publish guidance on what counts as “exceptional circumstances” specified in new Section 48A(4) and (5), as inserted by Clause 35. That provision provides for a 28-day transfer period for acutely mentally ill patients held in prison to be transferred to hospital. Examples are given in new subsection (5) of what exceptional circumstances are not, for example:
“a shortage of hospital accommodation”
or
“a shortage of hospital staff; unless occurring as a result of other exceptional circumstances”.
This amendment would provide an opportunity to clarify what does constitute exceptional circumstances. This would help to avoid doubt, confusion and subjective judgment over what may or may not be an exceptional circumstance and to help ensure smooth and efficient transfer. Again, I hope the Minister will be able to respond positively to that, perhaps with examples of what are exceptional circumstances.
Finally, I just note that, for transfers to be successfully completed in the 28-day time limit, the Government must ensure that appropriate bed provision in psychiatric intensive care units and secure care settings in every geographical area of the country is developed, together with a skilled workforce. I am sure that we will return to this topic at a later stage in our debates.
In conclusion, as I mentioned earlier, it is 16 years since I made my proposals on transfers, and I hope that that they are now coming to fruition. I am grateful to the Government for that and for not trying my patience any longer.
Lord Stevens of Birmingham (CB)
My Lords, like the noble Baroness, Lady Murphy, and the noble Lord, Lord Bradley, I too support the aim behind Clause 35, which is to ensure the speedy access to specialist mental health support for people in prison. Like the noble Lord, Lord Bradley, I also think that there is great merit in his Amendment 163A, which seeks to ensure that the Secretary of State produce statutory guidance on the definition of what will count as exceptional circumstances for the reasons that the noble Lord has given.
The Explanatory Notes give examples of what might count as an exceptional circumstance where the 28-day standard would not apply: prison riots, hospital floods or exceptional clinical reasons. Those are three examples, but it would be good to see more precision on this question because, as the Government’s Delegated Powers Memorandum says, the meanings of these words will be litigated. They will show up in judicial review and private law action. Therefore, the clearer the Government are prospectively, the less frictional cost and time there will be through the justice system and health system in giving effect to the new standards that are set out here in what hopefully will become the Act.
However, having supported the noble Lord, Lord Bradley, on that amendment, I will disappoint him now by just injecting a note of caution on his Amendment 96B. As we have just heard, it would leave out “seek to” in respect of delivering on the 28-day standard; excising those words, as he said, would in effect make it an overarching requirement—a “must”—even if there is a shortage of hospital accommodation or no staff available.
If the thought behind this is that the principal drivers of delays are essentially administrative processes then a “must” on 28 days can, in a sense, be given effect without a downside. But I wonder whether we actually have sufficient evidence to know that that is the root cause of such delays as occur. As I understand it, about four-fifths of the transfers from prisons to our specialist mental health facilities in the first half of the current financial year were to psychiatric medium-secure units and psychiatric intensive care, both of which are in very high demand and incredibly expensive resources, with highly constrained supply.
The impact assessment rather glosses over this question. When describing whether this new standard for transfers to hospital from prisons might introduce additional cost, it says at paragraph 169:
“Costs for the measure have not been monetised because they are principally driven by wider systematic changes which are supported by the legislation”—
that is, its administrative friction. It goes on to say something which I do not quite understand. I would be grateful if the Minister could interpret for us what the department meant when it wrote that an additional reason the costs were not being monetised was to ensure that
“resources are available to achieve transfers within the time limit in a greater proportion of cases”.
What are these “resources available to achieve transfers”? Are they additional or substitute resources? What is the scale of them? What was meant in the drafting of that paragraph?
My hypothesis is that this is not just about administrative friction. It is actually due to constraints on the supply in expensive and specialised mental health services, and therefore the unintended consequence of mandating, through excising “seek to” and making 28 days a trump card for people coming from prisons, would be one of three consequences.
Prisoners with severe mental health needs would find themselves in unsafe and poorly staffed facilities; or, by virtue of being in prison, you would displace a non-prison-based mental health patient who might have higher needs, as that is what the statute requires; or, under the Clause 49 powers, you would, effectively, see the Department of Health using the Henry VIII power, which it has in this Bill, to quickly rewrite 28 days and make it 180—or something else—because, as the delegated powers memo said, it might do so in that circumstance
“where insufficient beds are available to meet demand over a sustained period of time”.
For all those reasons, there may be unintended consequences of Amendment 96B which require further scrutiny.
However, in the spirit of wanting to make this work practically, I have laid down Amendments 97 and 98, which, essentially, as the noble Baroness, Lady Murphy, said, look to reciprocate the 28-day requirement. If you are aiming to get prisoners transferred to mental health facilities in 28 days or, similarly, when their treatment is complete, one should expect that the Prison Service or Immigration Service will ensure the return the prison estate to free up those scarce and specialist beds for other prisoners or patients who require treatment.
In a way, my amendment is a very gentle one. All I suggest is that if there are people stuck in specialist mental health beds who ought to be being returned to prison, that would constitute an exceptional reason for being unable to accept new intakes of prisoners being transferred. The reason this is such a gentle amendment is, of course, that the Government pray in aid the June 2021 best practice guidance for the transfers, which says that, although it should be a 28-day standard for moving from prison to mental health facility, it should be 14 days if moving back the other way to free up the bed. I have not proposed a 14-day requirement on the Prison Service, just the reciprocal 28 days, so, in that spirit of joint working, I hope these amendments will find wide support.
Baroness Fox of Buckley (Non-Afl)
My Lords, briefly, I am with the noble Lord, Lord Bradley, as opposed to the noble Lord, Lord Stevens, on the “seek to” question. When I read Clause 35, I was very excited about what it promised; I thought that, at last, this was being taken seriously. I talked to a range of people who worked in criminal justice, and they said: “Oh, it is not going to happen; what are you excited about?”—they just did not believe it. At Second Reading, I cited Richard Garside from the Centre for Crime and Justice Studies saying that Clause 35
“while welcome, feels aspirational rather than practically implementable in the current system”.”.—[Official Report, 25/11/24; col. 549.]
I started to look at it again and thought that the danger for those of us who are following this debate is that we get bought off by this aspiration, and that, in practical terms, it will not mean what we all thought it was meant to. I am quite keen that we toughen up the statutory requirements.
Baroness Tyler of Enfield (LD)
My Lords, I will just add a couple of brief points. This is a really important set of amendments and the issue of making it easier to transfer people between prisons and hospitals is critical. If you like, it is at the heart of some of the reforms that we are looking at. I have a lot of sympathy for the amendments put forward by the noble Lord, Lord Bradley. I am also aware that he has waited a very long time. Did he say that it was 28 years?
Baroness Tyler of Enfield (LD)
Just the 16. Anyway, it is a long time to wait.
The amendments aiming to make it clear, as the noble Lord said, when the clock starts ticking are really important, so that there is real accountability injected into the system. Often, when things go wrong it is where no one really feels responsible for something, so it does not happen. I will also be interested to hear what the “exceptional circumstances” do and do not include—I hope we will get some examples—because if they include just things such as shortage of staff or beds, we will not get very far at all, given the current state of mental health beds.
I understand the rationale behind the amendments tabled by the noble Lord, Lord Stevens; the reciprocity is a really important point to make. I just have slight concerns that we might be saying that this cannot happen in the way that the noble Lord, Lord Bradley, wanted to see, because we know that we have not got the scarce and specialist beds. They are just not available; it is very important to be practical about it.
It comes to the heart of the matter of this whole Bill: we know that, unless proper resource is put into the implementation of the Bill, it is not going to work at all. We know that, with mental health provision, particularly a secure unit, particularly with the state of the estate, the shortage of staff and all of that, there has to be wholesale investment in it for these things to work. I think the time has come. I simply add my voice to others to say that I hope the noble Lord practises patience—but I think he has waited long enough so I hope his patience will not be tested any longer.
Lord Kamall (Con)
My Lords, I thank all noble Lords who spoke to the amendments. I also thank the Government for allowing the Minister for Prisons, Probation and Reducing Reoffending to reply to this group. That is very much welcomed by the Committee. I think it was the noble Lord’s father who once said, “Kindness is good for business”. In this case, he might find that kindness is good for his noble friend the Minister. Given how hard she has been working on the Bill, I think she deserves some respite, so I am sure that that is very welcome.
So far, we have debated the importance of limiting detentions for those with autism or learning disabilities without co-occurring mental disorders. We have also debated the community treatment orders. But until now, we have not covered the provisions of the Bill relating to this new statutory 28-day time-limited period for transfers from prisons to hospitals. As the noble Lord, Lord Bradley, has said, he has been very patient. Therefore, the Government enshrining this target in law is welcome. Unfortunately, progress towards the goal of 28 days, as set out in the 2021 guidance and the White Paper, has been slower than anticipated.
His Majesty’s Inspectorate of Prisons, in its 2024 report The Long Wait—I am sure the noble Lord is aware of this—said that
“people linger in prison for weeks, often months and even, in the worst cases, for more than a year waiting for their transfer to be completed”.
Unfortunately, even though the 28-day guidance was there from 2022-23, only 15% of patients in that period were transferred to hospital within that timeframe. Sadly, the average wait was 85 days, and one prisoner was identified as waiting 462 days for transfer to hospital.
These Benches welcome the 28-day limit being put on a statutory footing, but, as other noble Lords have said—not only on this group of amendments but on others—once again, there is an issue of implementation here. Just because it is in legislation does not mean it will deliver the improvements that are necessary.
The noble Lord’s colleague—the noble Baroness, Lady Merron—has been very candid with noble Lords, saying that not everything in the Bill will be delivered now, and that there is a 10-year timetable for implementation. Given that, will the Minister say, at this stage, whether the 28-day limit is an aspiration or something that could be delivered immediately? If, at this stage, it is an aspiration and—understandably so—awaiting future spending reviews, is he able to give an indicative timeframe? Is the hope for the next 12 months, the next five years or, perhaps, up to 10 years? That information would be very welcome to noble Lords. Many noble Lords have been asking this throughout this debate. We understand that not everything is going to be solved overnight, but it would be good if we could have as much information as possible on the Government’s intentions and aspirations, including indicative timetables, where they are possible. We also understand that not everything is going to be clearly tagged at this stage.
Another finding from the prison inspectorate’s report was that there were serious flaws with the data held on patients who were awaiting transfer. I understand that there is no publicly available data describing the access and waiting times for beds. The Minister might be able to correct me on that. Some of the data on the numbers of prisoners awaiting transfer obtained from providers had significant gaps, due to a lack of consistent and accurate reporting, and some data contained errors and unreliability. This might also impact on Amendments 97 and 98 from the noble Lord, Lord Stevens.
The noble Baroness, Lady Merron, may well tire of hearing me repeat the importance of collecting accurate and complete data, but, as I and many other noble Lords have said on many occasions, we really cannot solve many of the problems we face without data that is as accurate and timely as possible. Therefore, I urge both Ministers to take up the issue of data reporting for patients awaiting transfer from prison to hospital with their respective departments.
Turning to Amendment 96C in the name of the noble Lord, Lord Bradley, which creates an accountable person who will be appointed to oversee the transfer process and ensure that the statutory 28-day limit is completed, I think this, once again, speaks to the point of implementation. This could be a sensible way of holding providers to account and working with them to address the shortcomings in patient transfers. Given the Government’s 10-year timeframe for implementation, noble Lords have raised the importance of oversight and accountability. Therefore, in the remarks from the Minister and in any subsequent letter, I hope that the Government will be able to address the issue of implementation and to give an indicative timetable. I look forward to the Minister’s response.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, this is the first time that I have helped take a Bill through Committee, so I am grateful to noble Lords for bearing with me while I acquaint myself with the procedures. I appreciate the questions and suggestions from noble Lords because this is a subject that is very close to my heart, as someone who has recruited many of the people whom we are talking about, over many years. I have always thought it was very sad when colleagues whom I had recruited often had to leave because of their mental health problems and other complexities that they then found themselves in within the system.
Amendment 96, tabled by the noble Baroness, Lady Murphy, would remove the change to the detention criteria in Clause 34, provided for prisoners who become mentally disordered in prison and require transfer to hospital. This would mean that a physical hospital place must be identified before the detention criteria are met for transfer from prison to hospital under the Act. This differs from how “available” treatment is interpreted across the rest of the Act, and therefore risks delaying access to treatment. It would also affect the implementation of the statutory time limit in Clause 35, as the Secretary of State would not be able to issue a transfer warrant until a bed is identified, regardless of the patient’s needs.
Clause 34 aims to correct a divergence in the detention criteria, as opposed to creating one. I appreciate that the noble Baroness is seeking further clarity on how Clause 34 will operate and the intention of the wording. My officials would be happy to hold a teach-in with the noble Baroness on this. I therefore ask the noble Baroness to withdraw her amendment.
I turn to Amendments 96A to 96C, tabled by my noble friend Lord Bradley. We have known each other for nearly 10 years, six years after the important topic came on to his radar. Amendment 96A would place a legislative time limit on the referring body to issue a referral notice within two days of receiving a request for an initial medical report to assess whether an individual meets the criteria for transfer. The timing of the statutory referral notice being issued will not impact when the time limit begins. This starts from the day that the healthcare team requests the assessment, referred to in the Bill as “the initial request”. This amendment would therefore not benefit transfer timeliness. Additionally, placing a statutory time limit on the healthcare team in a detention setting to issue a referral notice would not be operationally viable, because not all services operate seven days a week. The current wording of “as soon as practicable” accounts for this and encourages the referral notice to be issued at the earliest point for each case.
Amendment 96B would place a duty on all relevant agencies to ensure, as opposed to “seek to ensure”, that the transfer is completed within 28 days. Due to the multiagency co-ordination required in the transfer process, there is no one body that could ensure punctual transfers. This is why we softened the duty, so that those in receipt of a referral notice must seek to ensure that the patient was transferred within 28 days. Having consulted with relevant agencies, we are confident that this is appropriate, given the complexities in the transfer process.
Amendment 96C, also mentioned by the noble Lords, Lord Kamall and Lord Bradley, would introduce a “specified accountable person”, appointed by the healthcare provider for the relevant place of detention, who would be responsible for ensuring that people are transferred within the 28-day time limit in Clause 35.
Lord Stevens of Birmingham (CB)
Can I just make sure I heard the Minister correctly? I think he said the that one of the reasons it would not be appropriate to do as the noble Lord, Lord Bradley, suggested—that is, to set out a statutory definition—was because it would take too long to do it and would delay implementation of the 28-day standard. I think he now just said it is intended that that will come into force in 18 to 24 months, the implication being that he thinks it would take 18 to 24 months to produce a piece of statutory guidance about what constitutes an exceptional circumstance. Is that correct?
Lord Timpson (Lab)
Having been in discussions with colleagues over the past couple of weeks on this point, I tested with them the processes involved in making sure that we can make this as robust as possible. One of the issues surrounding exceptional circumstances is the need for flexibility so that some of our professionals do not unwittingly break the law in exceptional circumstances. I am happy to write to the noble Lord with further details.
Lord Bradley (Lab)
Before my noble friend completes his summing up, I welcome him to his first Committee session. He kindly offered to meet me to discuss the accountable person for the process of transfer. Can he assure me that that meeting will take place well before Report?
Lord Timpson (Lab)
I will very happily meet as soon as possible and well before the next stage.
Baroness Butler-Sloss (CB)
I appreciate that this is this Minister’s first time, but I would like to speak to his team in the department through him. I find it very difficult to understand why the Minister’s team thinks it is necessary or, indeed, appropriate to invite my noble friend Lady Murphy for a “teach-in”. Does the Minister really mean that? It seems to me utterly inappropriate, and my noble friend could not say it.
Lord Timpson (Lab)
I thank the noble and learned Baroness for her comments. I hope the noble Baroness accepts my apology for the way it was phrased. As this is my first Committee, I have been getting a number of messages from officials, and I was trying to work out what I said at which point. I apologise. I will very happily meet the noble Baroness.
Baroness Buscombe (Con)
At the risk of giving the Minister a rather hard time on his first outing in Committee, on the point made by the noble Baroness, Lady Fox, about people saying that it will not happen, is he not fearful, as I am, that, given the way life is, if we do not rid ourselves of words such as “as soon as practicable” and “seek to”, as suggested in Amendments 96A and 96B, in practice it really will not happen?
Lord Timpson (Lab)
I thank the noble Baroness for the question. One of the questions that I have been asking colleagues is on exactly this point around whether this will happen. I have been reassured by asking policy colleagues many probing questions that the points in the Bill make it as tight as possible without conflicting professionals in the way they are going about their role.
Lord Scriven (LD)
I welcome the Minister to his first Committee. Clearly, a lot of work has been done on this to work out within 18 months what is required. Will the Minister let the Committee know what the gap is between existing provision and what would be required in terms of beds and staffing for this 28-day provision to come into force? That is an important piece of information that the Committee needs to understand to see whether it is just an aspiration or there are the resources needed to make it real.
Lord Timpson (Lab)
I will ask officials to get me that information and to pass it on.
Baroness Murphy (CB)
My Lords, it is my great pleasure to respond to the Minister. I will keep it brief. I have been using this Act for 40 years since 1983, and I assure the noble Lord, Lord Timpson, that this is the only clause which is interpreted, before the amendment, as somebody can apply for transfer and you have to find a bed. It is only the very new immigration Act that has led to this extraordinary transfer of information that has enabled somebody to put in these extra words, but they do not relate in any way to the immigration Act on which the amendment is based; in other words, it seems to me that we should just stick with what we have. I was trying to say that in as easy a way as I possibly could. It just seems to me that it is making it complex at a time when we need to be simple. There is a lot to learn in this Bill. There is a lot to be done. Nevertheless, if the Minister would like to give me a “teach-in”, I shall be delighted. I beg leave to withdraw the amendment.
Lord Kamall
“Duty to record patients not in the criminal justice system escorted to hospital by police(1) The Secretary of State must by regulations make provision to require the police and hospital trusts to record the number of patients who are not in the criminal justice system but are escorted to accident and emergency departments in hospitals by the police for treatment for mental disorder.(2) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Lord Kamall (Con)
My Lords, I beg to move Amendment 99 in my name and to speak to my further Amendment 137; both are also in the name of my noble friend Lord Howe.
Our Amendment 99 places a duty on the police and on hospital trusts to record the number of patients not in the criminal justice system who are escorted to accident and emergency departments by the police for treatment for a mental disorder. The reason behind this amendment is that a number of people are taken into accident and emergency by the police because they exhibit behaviour that is a cause for concern, resulting from a diagnosed, or even an undiagnosed, mental disorder or learning disability. These patients are not necessarily placed under arrest, since they may not have committed any crime, but they are escorted to hospital by police.
Once in A&E, it is quite common that they could wait for six, 12 or even more hours before they see a clinician. This is obviously not an efficient use of police time; I know that my noble friend Lady May spoke to this earlier in Committee. More importantly, a police officer escorting a patient who is demonstrating challenging behaviour could exacerbate the problem. Also, a patient who arrives with or without a police officer may behave in a way that is seen as threatening by other patients, which could lead to their being arrested, as they are seen as at risk of harming themselves or others. The patient then finds themselves in the criminal justice system.
To avoid situations such as this, we are probing the Government to try to understand how often the police take patients into hospital for treatment for a possible mental disorder when they are not under arrest. This data should help us to understand how much police time is being spent accompanying these patients. This is not to take a particular view one way or the other; rather, it is to say that we need to have this information available so that we can fully assess the situation.
Our Amendment 137 states that the Care Quality Commission
“must publish a report on the efficacy of systems designed to prevent the introduction of illegal drugs into mental health units”.
Hospitals are entitled to prohibit patients from misusing drugs or alcohol on their wards, but what they can do to enforce those requirements is less clear, especially with detained patients. We accept that informally admitted patients can be asked to leave by hospital managers or even escorted off-site by security if they do not abide by a hospital’s rules on illegal drug use. However, patients detained under the Mental Health Act cannot be forced off premises for violating these rules.
The risks of illegal drugs being used in mental health units are obvious and severe. There is a possibility of those drugs interfering with prescribed medication, which could make that medication ineffective or even harmful to a patient’s physical or mental health. Further risks include the effects—such as psychosis or aggravating effects—of certain drugs, which could potentially lead patients to become more violent and cause harm to themselves or to staff. Whatever the result, the use of illicit drugs in mental health hospitals does not contribute to the treatment or therapeutic benefit of patients; I suspect that is a British understatement.
Much of the information and literature on substance misuse in in-patient mental health settings seems to be out of date. The major studies that we looked at were conducted in the early 2000s; these included a paper published by the Psychiatric Bulletin in 2000. I am happy to be corrected if there is more up-to-date data, but it seems that we do not have enough adequate and up-to-date data available concerning the prevalence of illegal drugs in mental health units. Can the Minister tell us whether the department has up-to-date figures? If not, does it have any intention of collecting these figures? Once again, this would help us to understand the scale of the problem.
Whether or not we are fully aware of the prevalence of illegal drugs in mental health units, there must be adequate safeguards in place to ensure that their use is as limited as possible. This amendment probes the Government for some answers on how they are trying to achieve this. By requiring the CQC to publish an annual report on this matter, we hope that a fuller picture could emerge, which would, we hope, inform the development of procedures and processes to reduce the harms related to illicit drug use. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, I shall speak to Amendment 151 in this group, which is in my name. It is a slightly diverse group, in that the noble Lord, Lord Kamall, has just set out his two amendments, which are very focused on specific areas, while mine is a very general one. However, they fall under the grouping as provided to us by the Whips; they are about monitoring and reporting, so there is some kind of sense here.
I start with the words of the noble Baroness, Lady Tyler, who in the previous group said that, without proper resources, this Bill is not going to work at all. That is what this amendment aims to address. I think the reason why it was regarded as within the scope of the Bill without any wrestling from me is that, specifically, the aim of this Bill is to have fewer people sectioned and fewer people under compulsory treatment orders. It aims to reshape and have earlier interventions, so that we do not see problems get so bad that we get to that point.
Baroness Barker (LD)
My Lords, this is an interesting collection of amendments. I suggest that they are all slightly flawed but with good intent behind them.
In relation to Amendment 99 in the name of the noble Lord, Lord Kamall, as members of the scrutiny committee will know, we spent a long time talking about what happens in A&E departments. Our committee was very lucky to have Rosena Allin-Khan as a member; she is not just the MP for Tooting but a practising A&E doctor at St George’s Hospital. When we were wandering off into theoreticals, she managed to drag us right back to what actually happens.
The key issue that we returned to, as a committee, was that no matter what the police’s formal position is about their involvement in mental health crisis treatment, they will be there. First, people will go to A&E because the lights are on and, secondly, some of them will be very distressed, so members of the public and members of staff will expect the engagement of police officers. A lot has been said about the particular legal status of somebody who is detained in hospital. They are not technically detained, because they are not in a mental health facility. Yet we know that there is a need for spaces within A&E that are properly built and staffed as safe havens for a time, so that somebody who arrives in a state of distress can be in an appropriate place where they can become calm and, therefore, not be taken off inappropriately into the criminal justice system.
I can see what the noble Lord’s amendment is getting at. It deals with it in a very partial way. Following our discussions, and the discussion we had the other day with the noble Baroness, Lady May, on her amendment about police involvement in crisis moments for people with mental health problems, I hope that we might be able to come up with an amendment which is a bit fuller than the one which the noble Lord has put forward.
Amendment 137, the second in the name of the noble Lord, Lord Kamall, is about monitoring what is being done about the use of illegal drugs and substances in mental health services. I listened carefully to what he said. Does he think that this does not happen already? I have been to a number of acute mental health services in London. It is clear that staff have to deal with very difficult situations. This cannot be an issue that does not happen; it must be part of the daily risk assessment of anybody working there. Does the noble Lord think that it is extensive enough to warrant this kind of reporting and is this another legal duty that we want to put on staff? Is it the best use of their time, compared to other things? I am in no way against getting good data out to solve problems, if that is the best way to do it, but I am not entirely sure that his amendment does that.
The noble Baroness, Lady Bennett of Manor Castle, is absolutely right to focus us again on a question that we have never had answered since 1983, about which resources go into acute services and which into community services. When we have a legal change, as we did in 2006 with the move to community treatment orders, what happens to the flow of resources? Crucially, what is the impact? We just do not have the answer. We have a health system which is very good at delivering itemised care. I suggest that it does not actually deliver that many care pathways. Even when it does, I have never seen any clear evidence that patient information and money flows are sufficiently sophisticated to explain to us whether any of the policy intents that we want to see—that all noble Lords who have ever spoken on mental health in this place have wanted to see—will come about. Her amendment may not be perfect either, but I certainly support the noble Baroness and her intent.
Lord Stevens of Birmingham (CB)
My Lords, I also support Amendment 151 from the noble Baroness, Lady Bennett. Whether such reporting should be specifically confined to community mental health services or be more expansive than that is obviously for debate. Whether it should be bi-annual or more frequently, or once a Parliament, does not really matter. The point is to try to continue to put a spotlight on the gap between need and availability in mental health when, for all the reasons that we have talked about, there is sometimes a tendency to downplay that aspect of health and what the health service does.
As the noble Baroness said, if we cast our minds back to last Wednesday when we had that debate about whether the apparent increase in demand for children and young people’s mental health services was real or not, it was paradoxical that, later that evening, the embargo dropped on the Lancet Child & Adolescent Health paper on mental health. It showed that there had been a genuine and unparalleled increase, particularly in younger women’s needs for specialist eating disorder services. Having young people who are severely ill is not an artefact of culture.
Having those kinds of data brought together in one place and published with the imprimatur of the Government would be helpful, rather than as a sort of periodic post-election exercise of the sort that the noble Lord, Lord Darzi, provided. He, of course, also drew attention to the gap that exists between need and the availability of mental health services. I think he used a figure from April 2024 to point out there were more than a million people waiting for mental health, learning disability and/or autism services, of whom 345,000 referrals had waited longer than a year and 109,000 of those were for children and young people under the age of 18. There is a real gap here and a need to continue to put the spotlight on it, to mobilise attention and resource. I welcome the spirit behind Amendment 151.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have spoken a lot about the dangers of medicalising ordinary life and giving it a mental health label. The contribution I made in the previous Committee day on ADHD managed to get picked up by newspapers and generally cited as, “Cruel Baroness hates everybody that says they have ADHD”, so I have become even more infamous.
I welcome the call by the noble Baroness, Lady Bennett, for a review, because the more information and data we have about what is available in the community, the better. My only word of caution is that we should also recognise that, although we need more data, sometimes that data can be used as part of an advocacy for more resources and that data can be unreliable. My only caveat is that whatever the review does, it should not just take superficial headlines or self-diagnosis and self-ID as the truth, and that we should have some scepticism in that regard. We are going to have to understand the implications of this Bill when it is enacted for community care and provision. Therefore, I would welcome any attempt at getting to grips with the reality of that.
Lord Meston (CB)
My Lords, I briefly want to support Amendment 151 in the context of the delays experienced by CAMHS—delays in obtaining appointments and assessments, and in getting treatment. When I last had to look at this, only recently, those delays were still very serious. They are distressing for the children concerned and for their parents. They are also frustrating for local authorities, social workers and the courts, which need to make informed decisions but are unable to do so because they are still waiting to understand what CAMHS have to say about a particular child’s problems.
Baroness Merron (Lab)
My Lords, I thank all noble Lords for their amendments and considerations, including the noble Baroness, Lady Barker, for her observations on the group before us.
On Amendment 99, tabled by the noble Lord, Lord Kamall, services already capture data on instances of police using relevant powers to take patients to emergency departments. The Home Office collects national policing data on detentions under Section 136 of the Act and removal to a place of safety, including the number of times that A&E has been used. NHS England’s emergency care dataset includes data on mental health, including how patients are referred to hospital and their conveyance methods. I understand the points that the noble Lord was seeking to probe, but we feel that it is not necessary to create a new legislative requirement.
My response to Amendment 137, also tabled by the noble Lord, Lord Kamall, will focus on the position in England, because I imagine that that is what the noble Lord is particularly interested in, and of course different arrangements apply in Wales. We recognise the importance of preventing illegal drug use in mental health units and take the issue extremely seriously. All units must have robust policies in place to prevent the introduction of illegal drugs. To pick up the point that the noble Lord put to me about the recording of drug-related incidents, I assure him that such incidents would be recorded as a patient safety incident. While published data does not break down the nature of an incident to get an aggregate view at national level, details of incidents will nevertheless be shared with NHSE and the CQC to allow appropriate action then to be taken.
As I have referred to, providers must inform the CQC of certain events affecting their services. Inspectors review all reported concerns, as I have said, and that is important to determine the necessary follow-up actions. Issues that relate to the introduction and use of illegal drugs in an in-patient setting would be reflected in the CQC’s regulatory inspection findings where concerns have been identified, with potential consequences for ratings and for regulatory sanctions. We believe that there are already processes in place for the CQC in England to receive information about drug-related incidents. We feel that this is a better use of the capacity—which is not infinite, as the noble Lord knows—of the regulator, rather than having a national report on the overall efficacy of the systems that are in place.
Amendment 151 was tabled by the noble Baroness, Lady Bennett of Manor Castle, and spoken to by a number of noble Lords, and I am grateful for their input. A number of other amendments have called for statutory reports on current community services. As I have said previously in response to those debates, we recognise that reducing detentions cannot be achieved by legislation alone, and will absolutely depend on the right services in the community. The CQC publishes an annual survey on community mental health support, and we will be publishing a 10-year plan for the NHS later this year. Progress in community mental health services is already being made. In the last 12 months, more than 400,000 adults have received help through new models of care, which aim to give people with severe mental illness greater choice and control over their care. However, we recognise that more needs to be done.
I want to pick out a particular focus on innovation in this amendment. The noble Baroness, Lady Bennett, referred to the fact that the impact assessment does not include costs for community services. That is not quite the case. There are significant costs associated with the changes to learning disability and autism, which are included in the impact assessment. I agree that wider reforms in community mental health services are needed for the reforms to achieve their intended benefits in full, but they are not a direct consequence of this Bill. That is why they are not costed in the impact assessment. I hope that will be a useful clarification for the noble Baroness.
As I mentioned last Monday, NHS England is already piloting the 24/7 neighbourhood mental health centre model in England, building on learning from international exemplars, some of which have been brought to the attention of your Lordships’ House by various noble Lords, and I have welcomed that. Six early implementers are bringing together their community crisis and in-patient functions into one open-access neighbourhood team that is available 24 hours a day, seven days a week. That means that people with mental health needs can walk in, or self-refer, as can their loved ones or concerned professionals. We are currently commissioning an evaluation of these welcome pilots, which is due to report in June 2026.
The noble Baroness, Lady Bennett, referred to reports last week of an increase in the number of young people admitted to general hospital wards with mental health concerns. NHS England is in the process of developing a new model for specialised children’s and young people’s mental health services, supported by a new service specification and quality standards. That new model would support the delivery of specialist services in the community and in-patient settings to ensure that children and young people are treated in age-appropriate in-patient environments, as well as the least restrictive environment close to the child’s or young person’s family and home. The noble Baroness’s point is well made, and I hope that will be helpful.
Baroness Bennett of Manor Castle (GP)
I welcome what the Minister has said about the pilots and the significant changes being made to existing mental health services. Short of someone putting down an Oral Question or securing a debate, how will Parliament be able to monitor that? We know that, in the health service and more broadly, successful pilots happen but then disappear without trace and never get implemented. How will Parliament be able to assess progress from the pilot stage to implementation, along with broader changes? What mechanisms are there?
Baroness Merron (Lab)
The noble Baroness makes a fair point, and that is something I shall return to later in Committee. I am keen, as I hope noble Lords know, to speak in your Lordships’ House about progress that is and is not made, and I will continue to do that.
Overall on this group, given the amount of plans and reporting already in place, we do not think that additional statutory review, particularly in relation to Amendment 151, is necessary. For all the reasons that I have put to the Committee, I hope noble Lords will be good enough not to press their amendments.
Lord Kamall (Con)
My Lords, I thank the Minister for her response and thank all noble Lords for their contributions to this group. I should have also mentioned that I am very sympathetic to the intention behind Amendment 151 from the noble Baroness, Lady Bennett. Noble Lords throughout this debate have been speaking about community resources and accountability for those resources; indeed, I have a related amendment in the seventh group. In some ways, the Minister has partly answered that probing amendment.
I am grateful to the noble Baroness, Lady Barker, and will reflect on the points she made. As the noble Baroness, Lady Tyler, said previously, this was a probing amendment to see what data was being collected. Noble Lords will understand that, if we want to improve a situation, we need to collect data. It may not be perfect, and perhaps we can have some conversations between now and Report about that. I am very grateful that the Minister said that this data is collected. I wonder if she could write to us with links to where it can be found. That could address some of the concerns raised by stakeholders who wrote to us, which led to this amendment being tabled.
I remember that, when I read the work of the pre-legislative scrutiny committee, the Metropolitan Police service’s submission said that, in 2021, for the first time more patients were conveyed to a health setting in a police vehicle than in an ambulance. I wonder if that is still true or if that situation has been reversed. The purpose of these amendments was to seek what data was available, so that we can address the problems that Amendment 99 and 137 sought to address. With those comments, I beg leave to withdraw the amendment.
Earl Howe
“(1) An eligible patient shall have a right to create an advance choice document.(1A) For the purposes of this section, an “eligible patient” is a patient who—(a) has previously been detained under Part 2 or Part 3 of this Act, or(b) has been diagnosed with a mental disorder which may lead to the possibility they will be detained under this Act in the future.(1B) NHS England and each integrated care board must make such arrangements as it considers appropriate for—(a) ensuring that all eligible patients for whom it is responsible for the purposes of this section are informed of their right to create an advance choice document, and(b) helping an eligible patient to create an advance choice document.”Member's explanatory statement
This amendment gives all eligible patients the statutory right to create an advance choice document if they so wish.
Earl Howe (Con)
My Lords, Amendment 115 takes us to one of the features of this Bill which has been universally welcomed: the creation of advance choice documents or ACDs. An ACD is a means by which a person can record in writing their decisions, wishes and feelings about their treatment, should they be admitted to a hospital or a mental health unit as an in-patient, whether informally or detained compulsorily.
On that account, ACDs are a major component part of one of the Bill’s key strands, which is to give mental health patients better control over their own care—which, of itself, carries a therapeutic value. Giving that element of extra control also reduces the risk of discrimination creeping into any decisions about care and treatment.
The Explanatory Notes say that the people most likely to benefit from an ACD are those who may be detained in a mental health unit or who are likely to be hospitalised at some point in the future. This is because research has shown that ACDs have the potential to reduce time spent in hospital and, significantly, to reduce compulsory detention rates by up to 25%. So the creation of ACDs carries enormous potential.
Clause 42 sets out the duties of NHS England and integrated care boards in making the necessary arrangements for facilitating ACDs. Each of them is required to make information about ACDs available to the people for whom it is responsible, as defined in the clause, and to help such of those people as it considers appropriate to create advance choice documents.
Baroness Barker (LD)
My Lords, Amendments 117 and 125 in this group are in my name. I tabled them in part to reflect what happened during the work of the scrutiny committee. We had long discussions about the benefits of ACDs, which were originally brought in under the Mental Capacity Act. I speak as the person who spent an awful long time trying to get them into that Act. They were brought in in the face of some resistance from practitioners. In fact, they have worked extremely well. It has been helpful to both patients and practitioners to know in advance, particularly for people who may have fluctuating illnesses, what it is that they want to do.
I point out yet again to the Committee that often, these are referred to as a decision to refuse treatment, but they are not always that. In the case of some advance choice decisions, people may say to their healthcare providers, “At the moment I am well. I know that, when I am ill, I may try to refuse treatment, but I want you to override that; I want you to carry on the continuity of my care”.
My amendment reflects something we were told. It will be no surprise to people that the noble Baroness, Lady Finlay, drew attention to the work that has been done in palliative care not only to make sure that people are aware of their right to make an advance choice decision about what they may wish to happen to them as their care continues, but to make it electronically. That was found to be one of the biggest barriers for practitioners, who would say, “We were in a crisis, and we couldn’t see it”. A lot of work has been done within the palliative care world to bring in new standard ways of doing things electronically. There is a pilot going on with the assistance of a private company, Thalamos—I think King’s has been trialling it—and it has so far been found to be extremely successful.
On a very prosaic level, the noble Earl, Lord Howe, is absolutely right that the more that patients feel empowered, particularly in mental health care, the better they do. There are also rather simple things: it takes a lot less time on the part of staff to read the stuff and not to be for ever filling in endless bits of paper. There are time and money efficiencies that can be put into front-line care.
All I ask is that, in addition to what the noble Earl, Lord Howe, said, we go one stage forward. Let us be honest: some mental health patients can have quite chaotic lives and they might not be the most tech savvy, but they need the same opportunities as anybody else to get on to a system that we know works and which needs to become the default position for all practitioners, rather than, as it is at the moment, an aspiration.
Lord Stevens of Birmingham (CB)
I strongly support the amendments in this group, particularly that in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall. I share the concern, as I think I mentioned at Second Reading, that as currently drafted this proposition could amount to an unenforceable, verging on vacuous, set of requirements, be it noticeboards or helplines. I very much hope that, between now and Report, Ministers will look to adopt the alternative proposition that the noble Earl, Lord Howe, has put forward. If, for whatever reason, that is not the case, I hope that collectively we might return to the question.
I have two small further points. I think I am right in interpreting the Bill as saying that guidance will be issued as part of a Section 118 code of practice which will give clarity on the duties of ICBs and NHS England in relation to the ACD part of the new Bill. I hope that that will, among other things, specify in more detail the categories of people who must be offered an ACD in accordance with the new statutory right which we will, I hope, have created; by whom the offer may be made; the fact that it should be recorded digitally, for the reasons that the noble Baroness, Lady Barker, has set out; and a number of other elements. Expecting individual ICBs to figure it out is a recipe for a subtherapeutic dose, shall we say.
My third and final point is that early evidence suggests that if the benefits described in the impact assessment come to fruition in the real world then there will be a positive impact, including on reduced compulsory admissions. Admittedly these are small and non-UK studies, as the material makes clear, but there is nevertheless a case for getting on with ACDs at scale, if the benefits that are hypothesised might actually be obtainable. It is therefore surprising to see in Annex C III of the impact assessment the suggestion that ACDs will not actually come online until 2029-30. It will take relatively marginal additional staff costs and time to do this, for a relatively small number of people. The suggestion is that it will be a surprisingly precise 55,071 people who might get a new ACD in 2029-30 and about 8,000 people who will get an updated one. These are not huge volumes, and we may be under-egging the pudding, but if the benefits are potentially there to be had, why on earth should we assume that we do not get going on this until 2029-30?
For all those reasons, I support the amendments in this group, particularly that from the noble Earl, Lord Howe, and the noble Lord, Lord Kamall.
Lord Davies of Brixton (Lab)
My Amendment 121 seeks to add financial circumstances to the advance choice documents. I spoke in the last session of the Committee about the importance of the link between financial problems and mental health problems. I draw attention again to work that has been undertaken by the Money and Mental Health Policy Institute, which suggested this amendment, and declare that I am a member of its advisory committee.
It is very welcome to see, in Clause 40, that health commissioners will have a duty to ensure that services inform people about advance choice documents. I listened to the speeches of the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, about extending the reach of these documents. I very much look forward to the reply from my noble friend the Minister, because they sounded pretty convincing to me.
Ensuring that everyone has access to an advance choice document is something that the Money and Mental Health Policy Institute has called for previously. We believe that this clause must go further to advance a specific prompt about people’s financial situation. It may seem a small matter, but for people who have been detained under the Mental Health Act, who are possibly too unwell to keep themselves safe, finances are understandably often the last thing on their mind. As I mentioned in a previous session, this does not stop bills needing to be paid, debts mounting and collections activities being escalated. Including a section on money in the document would help people have greater choice and control over their finances when they are in crisis.
A person recalling their experience of receiving treatment for their mental health shared this comment with the Money and Mental Health Policy Institute:
“I was never asked if there was anyone who was opening mail and keeping on top of my day-to-day living stuff … It’s always the same. I go in for treatment and come out to find my financial world is in a bigger mess than when I went in. The resultant terror, shame and guilt undoes all the work of the treatment and I am back in crisis again”.
This section should include explicit prompts which encourage people to reflect on and stipulate their preferences around finances. That can include consideration of how priority bills will be paid; preferences around access to credit; and advance planning to identify and empower a third party to manage their finances on their behalf, such as a lasting power of attorney or third-party mandate.
By including a systematic consideration of finances in ACDs and offering explicit prompts, people can be supported to have greater control and choice. It would better enable healthcare professionals, as well as the individual concerned, to put in place preventive measures to safeguard individuals from the financial harm that can be caused by, and exacerbate, mental health crises.
As mentioned previously, this is not about requiring healthcare professionals to support people with financial advice, or to deal with issues they have neither the expertise nor the capacity to deal with. It is about empowering them to identify people in need and refer them to the appropriate existing support.
Baroness Browning (Con)
My Lords, Amendment 122 is in my name and that of the noble Lord, Lord Patel. When I read through the Bill initially, it concerned me that there was no mention of lasting power of attorney, which, of course, is a legal document under the Mental Capacity Act. A registered lasting power of attorney for health and welfare will appoint attorneys chosen by the patient—the donor—at a time when they had capacity, to speak and act on their behalf if they lose capacity. This is particularly important for people who may periodically lose capacity due to mental disorder. The attorneys, of course, could also provide information about the patient, which is essential in distinguishing behaviours that may be associated with autism or learning disability but are not mental disorders. This does not, of course, apply to children, who cannot make lasting powers of attorney, but it would be remiss of me not to raise it with the Committee, because I have become rather concerned.
Baroness Tyler of Enfield (LD)
My Lords, I will very briefly underline my very strong support for Amendment 121 in the name of the noble Lord, Lord Davies. I remind noble Lords of my relevant interests in the register.
The noble Lord set it out very clearly so I do not need to add to what he said, other than to say there is a great opportunity for us to ensure that, for the first time in legislation, finances are considered a key part of supporting recovery from a mental health crisis. I am aware of far too many stories of people suffering from severe mental health crises or who are detained whose finances go into complete and utter freefall. It is so difficult for them then to recover their finances. That often means, in turn, that they have further mental health problems. That is all I wanted to say. I support the noble Lord, Lord Davies, very strongly.
Baroness Butler-Sloss (CB)
In the absence of the noble Baroness, Lady Murphy, I will just say that I support all these amendments. I expressed concern about under-16s and those aged 16-18, but that does not stop me thinking that these advance choice documents are an excellent plan. However, I am concerned about the point that the noble Baroness makes with Amendment 120. An independent mental health advocate would be extremely helpful, because there may be quite a lot of people who really would not know how to make an advance choice document, would be very concerned about it and might write down some really not very sensible things, when they could have help as to what they really wanted. I strongly support the noble Baroness’s amendment.
Baroness Merron (Lab)
My Lords, I am grateful for all the contributions in this group. I will start with Amendment 115, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall. Under the Bill, services should not only offer individuals who are likely to benefit from making an ACD information and support to do so, they should proactively support such individuals. This is functionally equivalent to a right to request an advance choice document.
The amendment applies to large groups. We have concerns that, for example, it may be practically challenging or sometimes inappropriate to contact people who were detained some time ago. We intend to identify groups in the code of practice that services should target; it can then be updated in response to changing best practice and emerging research.
On the point raised by the noble Earl, Lord Howe, and referred to by the noble Lord, Lord Stevens, and the noble Baroness, Lady Browning, about how advance choice document information is made available to patients, we will set out in the code of practice detailed guidance on how services should discharge their duties under the Bill to inform and support individuals to make an ACD. Any failure to implement the duty in this aspect of the code could ultimately be challenged in the courts. I hope that gives some indication of the strength of that provision in the Bill.
The noble Lord, Lord Stevens, raised the implementation timeline, as outlined in the impact assessment. We want to ensure that there is appropriate resource in the system before ACDs can be brought in. I am sure noble Lords understand that this is critical, for ACDs to have the right level of impact. For example, the effect of ACDs is dependent on the expansion of the second opinion appointed doctor service. In the meantime, services can, of course, progress with putting ACDs that deal with patient needs and wishes overall should they become detained. That would very much build on the work that South London and Maudsley, and others, have done.
I turn to Amendments 117 and 125 in the name of the noble Baroness, Lady Barker. I confirm that we are committed to mitigating the barriers that get in the way of creating an advance choice document. The code will make it clear that commissioners should provide accessible information in response to individual needs, with flexibility around how individuals make their preferences known—the point that the noble Baroness raised. We plan to create a standard advance choice document template for people to complete, with supporting guidance. That should prompt thoughts about the things that an individual may wish to consider and decide before they become unwell. I can assure noble Lords that the template will be available digitally as well as in hard copy. Our intention is that a digital version of the document will be created for easy access by professionals as needed.
Amendment 120, tabled by the noble Baroness, Lady Murphy, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, has the stated intention that mental health in-patients create an ACD. While the Bill does not prevent this, in most cases it will not be the best time, as patients may be very unwell and lack capacity. Insights from the South London and Maudsley NHS Foundation Trust with King’s College London suggest that encouraging people to create an advance choice document after discharge—when their health has improved and the support network can help—can be useful. The person’s community mental health team is best placed to provide support, rather than an independent mental health advocate whose role is to support people who are detained. The duty on commissioners in the Bill is intended to focus on the community and other contexts outside of hospital. We feel that this is more likely to increase the uptake of advance choice documents.
Baroness Barker (LD)
The crucial question that the noble Baroness is asking is around which staff can access this information and where. That means that the information in the ACD has to be always available to whoever is seeing the patient, wherever they happen to be. Does that mean that, as in palliative care, the ACD will become part of an electronic patient record, and that there will be an expectation that all practitioners, wherever they are, will refer to it all the time?
Baroness Merron (Lab)
The noble Baroness makes a good point. I am sure she is aware that one of the main pillars of change as we move towards the 10-year plan is shifting from analogue to digital. I am sure that this will be part of those considerations.
I now turn to Amendment 121, tabled by my noble friend Lord Davies of Brixton and supported by the noble Baronesses, Lady Tyler and Lady Neuberger. The noble Baroness, Lady Tyler, spoke to this very amendment. We know that financial problems can worsen or trigger mental illness. We agree that individuals should be encouraged to include in their ACD any care and support to help them manage their financial circumstances when unwell. The code of practice will include guidance from professionals on this point, while the template will prompt people to consider financial matters.
On Amendment 122, tabled by the noble Baroness, Lady Browning, and supported by the noble Lord, Lord Patel, it is important for practitioners to be aware of, and, where applicable, to consult with, the person’s attorney. However, we do not agree with requiring people to include all of the information contained in the lasting power of attorney in their ACD. The document is owned by the individual, who should be free to include what matters to them. Some of the information in a person’s lasting power of attorney may not be relevant, and copying over its contents may introduce inaccuracies due to human error. We intend to encourage service users to include the existence of an LPA where applicable in their advance choice documents, and practitioners can then be made aware and take the relevant steps.
On Amendment 123, tabled by the noble Baroness, Lady Browning, we agree with the aim that is stated here. The code of practice will set out all of the groups which services should proactively target to make an advance choice document, including people on the dynamic support register. The code can be updated in line with emerging research and best practice, as I have said a number of times before, and can include detail and nuance that is not possible in primary legislation.
With those remarks from me in mind, I hope that noble Lords will feel able not to press their amendments.
Lord Scriven (LD)
I have one very quick question. Throughout the whole of Committee, since day one, the Minister has referred to the code of practice being updated. Can she tell us the date by which it will have been updated? It is quite important for implementation and some dates that the Minister keeps referring to. If she cannot let us know now, she could write to the Committee.
Baroness Merron (Lab)
I would be very glad to share the date if I could put a date on it. It will be after Royal Assent, and I will keep noble Lords updated.
Earl Howe (Con)
My Lords, I very much appreciate the support from around the Committee for my Amendment 115. I support all the other amendments in this group, each of which is designed to bolster the rigour and thoroughness of the advance choice document process.
It is good to hear from the Minister that the code of practice will include guidance on how information on ACDs will be made known to relevant would-be patients. I shall need to reflect on this, but I confess I retain a worry in this area. The CQC in its annual report of 2020-21 on monitoring the Mental Health Act reported that many patients do not have their rights explained to them during their treatment. This is despite the existing requirement in the Mental Health Act code of practice for hospital managers to provide information both orally and in writing. Clearly, if someone without an existing ACD is admitted to a mental health unit for treatment, it will be too late for them to execute a valid ACD during that episode of care. The time to be informed that an ACD could be an appropriate thing for them to draw up is once they are discharged, to cater for possible future contingencies.
I suggest that the CQCs finding is still relevant, its point being that the NHS is not all that good at providing information to patients in a timely or appropriate way. Therefore, I think that creating a duty to do so would add value—perhaps not in the precise terms I have used in the amendment, but in similar language. That could, incidentally, be achieved quite easily if mental health patients were automatically invited to complete a debriefing report following discharge from hospital in the way that I suggested in an earlier amendment.
The prize, let us remember, could be significant. I refer noble Lords back to remarks by the noble Baroness, Lady Murphy, in an earlier debate, where she indicated that independent advocates have been proved as central to the success of advance choice documents—a facilitator, in other words. She referred to a study in North Carolina that showed that providing a facilitator in the form of an independent advocate increased the number of people making a psychiatric advance directive from 3% to 60%. That is a very powerful set of figures.
I hope the Minister will be open to further discussion on this and the other amendments in the group between now and Report. Meanwhile, I beg leave to withdraw my Amendment 115.
Baroness Merron
Member's explanatory statement
See the explanatory statement for my amendment to Clause 4, page 5, line 20.
Mental Health Bill [HL]
Monday 27th January 2025
(5 months, 2 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-IV(Corrected) Fourth marshalled list for Committee - (23 Jan 2025)
Baroness Browning
“Power of Tribunals to require a reportIn section 72 of the Mental Health Act 1983 (Power of Tribunals), after subsection (7) insert—“(8) The Tribunal may require a local authority, or an NHS body, to arrange for a report regarding such matters relating to a patient as the tribunal may direct to be made—(a) by one of its officers or employees;(b) by such other person as the authority, or the NHS body, considers appropriate.””Member's explanatory statement
This amendment would recreate the powers the Court of Protection has under section 49 of the Mental Capacity Act 2005, in section 72 of the MHA 1983 to assist discharge.
Baroness Browning (Con)
My Lords, Amendment 128 is in my name. A person with autistic spectrum disorder or a learning disability may be stuck in hospital for years; we know that they often are. We sincerely hope that matters will improve dramatically when this Bill is enacted, but we should not be so optimistic as to think that will happen in the near future. However, when somebody is in hospital that long and no longer needs clinical supervision—some in the autistic and learning disability community, for example, never needed to be in there at all—parents become extremely stressed and frustrated. There may be long periods when a close relative, often their adult child or a younger child, is stuck in these hospitals and the parents cannot get them out.
We heard in debate earlier this evening of the differences between the county courts and the mental health tribunals; of course, there are also people who sometimes resort to the Court of Protection. Although I heard noble and learned Lords giving their different views on these, most seemed not to regard the county courts as the most appropriate course. It is a fact, though, that the Court of Protection has had some success in getting out people who have been unduly held in mental health hospitals.
Amendment 128 proposes that mental health tribunals are strengthened to give them the same opportunity as the Court of Protection to make progress in releasing people from long stays in hospitals. If they are to do that, the mental health tribunals need to have more powers, particularly to require local authorities and the NHS to provide a report to enable discharge for a person who no longer clinically needs to be in hospital. This would give tribunals the same powers that the Court of Protection has under Section 49 of the Mental Capacity Act, because there has been some success.
The Court of Protection has been able to secure discharges because it is able to call for reports from local authorities and health services to put the case that it feels confident that it would be safe to discharge somebody. Parents who do this very often have to fund it themselves. Strengthening the tribunal cases, in line with the sort of powers that the Court of Protection has in getting information collated, to make sure the discharge package is sound is very important. This approach would be stronger and more effective than the Government’s proposal that tribunals make recommendations on Section 117.
That is what the Government propose, but I hope that the Minister will look carefully at this amendment. It would enhance mental health tribunals, increasing the number of people who have proper discharge packages through these tribunals. I do not see this as a competition between the Court of Protection and tribunals. Both have a place, and this will be important if we are to achieve what this Bill wants to achieve: to make sure that people do not stay in health mental hospitals a moment longer than they absolutely have to. I beg to move.
Earl Howe (Con)
My Lords, I believe we would all accept—and, personally, I am in no doubt—that my noble friend Lady Browning possesses a breadth and depth of experience in matters relating to autism and learning disability. By that, I mean that she has not just a familiarity with the day-to-day challenges of life for individuals with one or more of these conditions but a knowledge of the practical frustrations and hurdles that often have to be overcome if the best interests of such individuals are to be properly defended.
It is amply clear from what my noble friend has said that, if this amendment were inserted into the Bill, it would have the potential to make a material and beneficial difference to the process of discharging certain patients from a secure mental health unit in particular types of situations. As my noble friend said, and as we all know, there have been many instances where autistic patients have been detained inappropriately and for long periods under the Mental Health Act and where families have struggled to secure their relatives’ release.
I cannot see a logical reason why a mental health tribunal should not be placed on an equal legal footing with the Court of Protection in this very limited respect. I hope the Minister will agree.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to the noble Baroness, Lady Browning, for tabling Amendment 128 and for her contribution, along with that of the noble Earl, Lord Howe.
On the proposals in Amendment 128, I can tell your Lordships that, under the current tribunal procedure rules, the tribunal can direct responsible authorities, which could be a local authority or an NHS body, to provide evidence. The practice directions that apply in mental health cases place a requirement on the responsible authority to provide reports and records relating to the patient’s detention treatment and any after-care plans. The tribunal can use these reports to decide whether the detention criteria are being met. Therefore, it appears that the tribunal has extensive powers to require responsible authorities to provide the information to support its decision on whether to discharge a patient. I hope that the noble Baroness will be satisfied with this response and will withdraw her amendment.
Baroness Browning (Con)
My Lords, I am grateful to my noble friend for his support from the Front Bench and to the Minister for her reply. Although it was very reassuring, could I ask her to clarify something? Has the level of information leading to a proper discharge plan under the existing powers of tribunals been set in primary legislation, which is what I am asking for under this Bill, or is it in secondary legislation or guidance?
Baroness Merron (Lab)
I am happy to confirm that to the noble Baroness. The important thing for me is that we make sure that, as always, we can move with best practice and keep up with what is needed. With that in mind, I will confirm that later to the noble Baroness to ensure that I am correctly answering her detailed question.
Baroness Browning (Con)
I am grateful to the Minister, as always. She is always helpful with these difficult points. I will just flag up that if the tribunal power to get that information in order to encourage more discharges is not in statute, then perhaps we will return to it at a later date. I beg leave to withdraw the amendment.
Lord Bradley
“Implementation report: removal of police stations and prisons as places of safety(1) Within 6 months of the day on which this Act is passed, the Secretary of State must publish a report on how they will effectively implement the provisions contained with section 46 (Removal of police stations and prisons as places of safety) within the time limit specified by section 53(3A) (Commencement).(2) The report must include an assessment of—(a) how His Majesty’s Government will provide alternative places of safety with adequate capacity and geographical distribution,(b) the availability of remand to hospital under section 36 of the Mental Health Act 1983 (Remand of accused person to hospital for treatment) and,(c) any plans to extend section 36(1) of the Mental Health Act 1983 to Magistrates’ courts.(3) The Secretary of State must lay a copy of the report before Parliament.”Member’s explanatory statement
This amendment (connected with another in the name of Lord Bradley) seeks to ensure that the Secretary of State must publish a report on how they plan to implement the provisions contained within Clause 46 in an effective and timely manner.
Lord Bradley (Lab)
My Lords, my Amendments 128A and 163B concern the banning of prisons and police cells as places of safety. By way of background, in my report in 2009, which I have previously referenced, I recommended that discussions should immediately commence to identify suitable local mental health facilities as the places of safety, ensuring that police stations should no longer be used for this purpose at that time. That sat alongside the development of mental health and learning disabilities liaison and diversion teams based in police custody suites and the courts, particularly to support the police in dealing with people with these issues. There is now 100% geographical coverage of the country with those teams. A crucial further element was the development of what was called street triage, where mental health nurses sat alongside the police in emergency control rooms or in police vehicles around local communities, again to support and assist the police.
The recent policy, “right care, right place”, is rightly based on the same principles debated on Amendment 37B, moved by the noble Baroness, Lady May. Again, at that time there was growing concern that A&E departments were, and still are, a default position as places of safety, and therefore the need to develop alternative facilities, often located close to A&E departments, often called crisis care units, should be pursued. There is an agreed protocol with the police to hand over the patients for care and assessment to NHS staff in the way advocated now by Amendment 128B, which has already been debated and is a model that I believe should be replicated across the country.
My amendments today are an attempt to galvanise the Government into action to achieve that. Amendment 163B to Clause 53 would require that Clause 46 came into force no later than 12 months after the passing of the Act. Amendment 128A to Clause 46 would require that the Government must publish a report on how they would ensure effective implementation of that section within the timeframe specified. I am again concerned at the lack of clarity in the timeline for the implementation of provisions in this clause. The impact assessment currently does not show an estimated commencement date for the provision in Clause 46, stating instead:
“Departments are working together to ensure there are clear pathways and provision in place to safely enact these reforms and the timeline for implementation will depend on the conclusion of this work”.
Amendment 163B would require Clause 46 to come into force within 12 months of the passing of the Act.
Amendment 128A would require the Government, within six months of the passing of the Act, to publish a report assessing: how they will ensure effective provision of alternative places of safety with adequate capacity and distribution across geographical locations; the availability of remand to hospital under Section 36 of the Mental Health Act 1983; and any plans to extend the use of Section 36 of the Mental Health Act 1983 to magistrates’ courts. Such a report will be crucial to the successful implementation of Clause 46.
Further—and this replicates concerns already expressed in Committee—I am concerned about the lack of reliable data on the use of prisons as a place of safety. The impact assessment references this, noting that there is no
“reliable data on the number of people in prison as a place of safety”.
Without knowing how many people are being held in prison as a place of safety, it would be difficult to ensure adequate alternative provision is in place. This data should be recorded and made available to inform effective implementation of this clause. Perhaps the Minister in response might be able to assure us that this information will be made available to the Committee.
Taken together, the removal of police stations and prisons as places of safety can be successfully introduced in a timely way, which many organisations, such as the Centre for Mental Health—for which I am an ambassador—and the Prison Reform Trust, have a long advocated. I hope the Minister will agree.
Lord Kamall (Con)
My Lords, I welcome the amendments from the noble Lord, Lord Bradley. As usual, he has been very sensible and measured in the amendments he has tabled. As the noble Lord reminded us, he has been very patient on many of the measures he is proposing.
I will speak to Amendment 140, which is also in the name of my noble friend Lord Howe, and hopefully touch on some of the amendments from the noble Lord, Lord Bradley. On a positive note, I will say how much we welcome Clause 46 and its removal of police stations and prisons as places of safety under the Mental Health Act. I think that noble Lords across the Committee welcome that, and the Government are to be congratulated on it.
The Wessely review stated:
“Far and away the best way to improve the care and outcomes for those with the severest mental illnesses is to provide more and better alternatives to detention”.
It also remarked that, all too often, opportunities for early intervention were missed. The report noted that this means that the first contact a patient often has is with the police, rather than with a mental health professional. I know we have discussed this and the overall involvement of police a number of times in Committee. I am sure we may come back to this on Report, but all noble Lords are aware that this must be addressed. Clause 46 is therefore very important in implementing that recommendation from the Wessely review.
I want to focus on a sentence that comes after the recommendation in the Wessely report:
“That means that, where they do not currently exist, health-based places of safety will need to be commissioned”.
I think this goes to the heart of the issue the noble Lord, Lord Bradley, was talking about—implementation but also data. Amendment 140 attempts to probe the Government. It would require the Secretary of State to publish a report on alternative places of safety for patients who are liable to be detained, particularly focusing on community care. We need to know this; as the noble Lord, Lord Bradley, said, we need the data.
Noble Lords have raised many times that we know that everything is not going to be done overnight. We understand that. We know there is a 10-year timeframe. We want a better understanding of what will be delivered when. Some of it will be subject to spending reviews, but some of it will be delivered whatever the result of a spending review. It is all very well saying that police stations and prisons and cannot be used as places of safety—no disagreement there—but this will mean that patients have to be placed elsewhere. Clause 46(2)(a) states that a place of safety for an adult is
“any hospital the managers of which are willing temporarily to receive that person”.
So far, the Bill seems to say—the Minister may correct me—that the only place of safety is a hospital. If I have misunderstood, I am prepared to be corrected, but as all noble Lords will know, that is not always ideal. Capacity in hospitals is in short supply. What will happen if a place of safety is needed but there are no appropriate hospitals nearby that are willing to receive that person, for lack of available space or staff? That is why this amendment places a focus on community-based alternatives for places of safety. If we can shift some of the burden here away from hospitals and into the community, part of the problem might be alleviated.
On an earlier amendment, Amendment 151, the noble Baroness, Lady Bennett, said that we all know that capacity in the community is currently quite limited. The report required by my amendment would enable the Secretary of State and the Department for Health and Social Care to consider and create a plan to develop greater capacity in the community for this purpose. We understand that not everything can be delivered now, but we would like to see a plan so that we can understand the Government’s intentions, their own timeframe and how they intend to roll this out. The amendment once again aims to probe the Government on their implementation plan.
I thank the Minister for meeting my noble friend Lord Howe and me to discuss appropriate places of safety. In that meeting, the Minister mentioned the community crisis houses that the noble Lord, Lord Bradley, alluded to, and said that her department was investigating how these might be used as alternatives to hospital or, indeed, police stations. As Mind says on its website, crisis houses provide
“intensive, short-term support to help manage a mental health crisis in a residential setting, rather than in a hospital”.
They can vary; some may simply provide temporary overnight accommodation to ensure that those experiencing mental health crises have a safe space away from other areas of their life, while others may provide treatment as well. Many of these crisis houses are operated by voluntary and civil society organisations.
One of my great passions in politics is to champion the role of local community civil society groups, so that we do not always have to look to the state to provide all the solutions. I think that there is some real promise here, and the Government are to be congratulated on it, for the provision of community crisis houses to be expanded, so that they can act as health-based places of safety, as the Wessely review recommended.
The questions I have at this stage for the Minister are in the nature of a probing amendment. What progress has the department made in exploring these community crisis houses and, indeed, other community-based places of safety, as alternatives to police stations and prison cells? Can the Minister tell us, when the Government are implementing the provisions of Clause 46 and commissioning health-based places of safety, whether they will include discussions with local civil society organisations and charities about how best to implement them, perhaps in partnership? I am sure she will recognise that their expertise will be highly beneficial and that they often know their local community much better than officials do, whether those be national officials or sometimes even local government officials. I appreciate that the Minister will not necessarily have all the answers tonight but, if not, I look forward not only to her comments but to the letter that she will promise to write to us afterwards.
Baroness Merron (Lab)
My Lords, I thank my noble friend Lord Bradley for his contribution and for Amendments 128A and 163B. I also thank the noble Lord, Lord Kamall, for speaking to Amendment 140 in his name and that of the noble Earl, Lord Howe. We are committed to implementing these reforms as soon as is it safe and practical to do so. We will return to this matter on the next day in Committee.
As I have said before—I know that noble Lords have heard this—we are reluctant to commit to enacting single provisions or publishing single plans or reports at specific times, given their dependence on so many other developments, particularly spending reviews. Removing police stations and prisons as places of safety under Section 55, and removing police stations under Sections 135, 136 and 136A will, as noble Lords suggest, require making sure that viable alternatives and clear pathways into support are fully established and in place. Commencing by regulations enables the reforms to be enacted once this is the case.
I know that my noble friend Lord Bradley is aware of this, but I will repeat it in respect of these amendments. Officials from my department, the Ministry of Justice and the Home Office are working with health and justice partners across government to develop the necessary plans to ensure that sufficient resources and the right processes are in place, and to establish clear timelines for implementation.
Lord Bradley (Lab)
My Lords, I am grateful for the Minister’s response and pleased that progress is being well made to develop alternative facilities to ensure that the use of prisons and police stations as places of safety is banned as soon as possible. The purpose of my amendments was to keep momentum behind that programme. I hope we can properly implement these provisions in a timely way, because that would be to the greatest benefit of people affected by mental ill-health or learning disabilities who find themselves up against or in the criminal justice system. On that basis, I beg leave to withdraw my amendment.
Lord Bradley
“Implementation report: mental health care for bailed defendants(1) Within six months of the day on which this Act is passed, the Secretary of State must publish a report on how they will effectively implement the provisions contained within section 47 (Remand for a person’s own protection etc) within the time limit specified by section 53(3A) (Commencement).(2) The report must include an assessment of how His Majesty’s Government will ensure appropriate care and support for defendants with mental health conditions who, under the provision in section 47, cannot be kept in custody for their own protection.(3) The report must review—(a) the extent to which services providing such care and support have adequate capacity, and(b) their geographical distribution.(4) The Secretary of State must lay a copy of the report before both Houses of Parliament.”Member’s explanatory statement
This amendment (connected to another in the name of Lord Bradley) seeks to ensure that the Secretary of State publishes a report on how they plan to implement the provisions contained within clause 47 in a timely manner, and in a way which ensures that bailed defendants with mental health conditions (who can no longer be remanded for their own protection) receive appropriate care and support.
Lord Bradley (Lab)
My Lords, in moving Amendment 128C I will speak also to Amendment 163C in my name. These amendments relate to Clause 47, “Remand for a person’s own protection etc”, and Clause 53, “Commencement”. I will speak very briefly, because the purpose of these two interlinked amendments is substantially the same as the ones we just discussed: Amendments 128A and 163B. However, they stress that remand should always be part of our deliberations when we are talking about people who may find themselves in the criminal justice system.
Amendment 163C would require that Clause 47 comes into force no later than 12 months after the passing of the Bill. Amendment 128C would require the Government to publish a report on effective implementation of Clause 47. These two amendments encapsulate the need to make really rapid progress to ensure that there are adequate community alternatives and community health-based provision to support people who may be placed on remand, where the sole concern is the defendant’s mental health.
We have to ensure that these facilities are geographically spread across the country. We also have to ensure that we can see bail being used in a way that is commensurate with people who may have found themselves going to a place of safety, but with the same support required for their continued treatment as if they were already within the criminal justice system.
With that, I am happy to listen to a positive response from the Minister. I beg to move.
Lord Scriven (LD)
My Lords, I will be very brief because of the time. As with the previous group of amendments from the noble Lord, Lord Bradley, we are very supportive of the intention to try to tease out of government what the implementation plans are. It is really important to understand that being supportive of Clause 47 does not necessarily mean that we believe it will come into implementation in a timely fashion.
By supporting the noble Lord’s amendments, we wish to tease out of government the exact timing and resources that have been allocated; the planning the Government will have to do in terms of the number of provisions that will be required to implement this clause; the gap between the number of those facilities in place and those needed; and the estimate the Government have of when they would seek to put those facilities in place.
As the noble Lord, Lord Bradley, said, the location of those facilities—where there are gaps geographically and where they need to be filled—is very important. It is important that the Government furnish the Committee with those details so that we can fully understand not just the intention of implementation but the scale of the implementation plan required for this clause.
Lord Kamall (Con)
My Lords, just like in the last group, I will speak to and support the amendments in the name of the noble Lord, Lord Bradley. They follow the amendments in the previous group.
These Benches welcome Clause 47—another positive move—which addresses the issues arising from the current situation. As the noble Lord, Lord Bradley, said, bail can be refused solely on the basis of a mental health condition where it might otherwise have been granted.
In simple terms, as the noble Lord, Lord Scriven, said, this amendment returns to the theme that he, and many other noble Lords, have pushed the Government on—and I like the words used by the noble Lord—to “tease out” the plan and timetable for implementation from the Government, since it requires the Secretary of State to prepare a report on how they plan to implement these changes within the time period proposed in Amendment 163C.
We have to remember that the impact assessment states, in regard to the changes to remand for a person’s own protection, that:
“Departments are working together to ensure there are clear pathways and provision in place to safely enact these reforms and the timeline for implementation will depend on the conclusion of this work”.
That has been manifested this evening with the presence of a Minister from the Department of Health and Social Care and a Minister from the Ministry of Justice. However, there is currently no set date for the commencement of Clause 46, so it is all contingent on internal departmental assessments. We all understand how government works—how long it takes for things to happen, to get write-round and to get support across government—so I gently suggest to the Minister that the 12-month implementation timeline would be a useful target for the Government to work towards. It could help them to answer some of the questions that many noble Lords have asked in Committee on the plans for, and stages of, implementation. That is not to force the Government to move faster than they want to go, but just for us to understand the various milestones along the way in developing what is in the Bill.
It would also be helpful if the Minister could set out how much progress has been made both in the Ministry of Justice and the Department of Health and Social Care on establishing the pathways and processes to enable these remand reforms to go forward. This is especially true since the impact assessment also states—this is quite an interesting point—that:
“We expect the number of people on remand solely for mental health reasons to be low and therefore health and justice costs relating to this change are likely to be negligible, and therefore have not been monetised”.
We understand the challenges that the Government are often talking about—they have to wait for spending reviews, et cetera—but the impact assessment states that the number of people affected will be low. Can the Minister say whether either his department or the Department of Health and Social Care know what that means and how many people that will be? Does he know how many will be impacted by this change? If he accepts what is in the impact assessment—that the costs will be negligible—this could be a quick win for the Government in relative terms, depending of course on what other processes he feels have to be put in place before they can deliver this. I hope that the Minister can be a bit more helpful on his noble friend’s amendments, given that the costs are low.
We look forward to the Minister’s response, and I would be grateful if he could give an indicative timeframe or an indication of when a timeframe will be in place.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, I am grateful to my noble friend Lord Bradley for bringing this discussion before the Committee. These amendments would require the Secretary of State to publish a report on the implementation of Clause 47 within six months of the date on which the Bill is passed and that the reform comes into force a maximum of 12 months after the date on which the Bill is passed.
We are committed to implementing our reform to the Bail Act as soon as is practicable and as soon it is safe to do so. However, before moving to amend the legislation to embed these changes, we will need to make sure that viable alternatives are properly established and clear pathways to the right support are in place, whether in hospital or in the community. Commencing by regulations enables the flexibility to implement the reform at whatever point the necessary alternatives and pathways are safely in place.
I reassure my noble friend Lord Bradley—just as the Minister, my noble friend Lady Merron, did in relation to the previous groups of amendments—that my officials are working with colleagues across government to develop this and to ensure that sufficient resources and processes are in place. This includes the work of the north-east health and justice hub, which seeks to improve the way that courts, health services and prisons work together at a local level to smooth pathways into care, alongside the pilot team collecting data. That will help us better to understand the number of people remanded for their own protection solely on mental health grounds to inform planning.
The reform is currently due to commence by regulation, so we have the flexibility to implement it at whatever point the necessary alternatives to the pathways are in place. The rollout of the bail information service will be completed by autumn this year. This will help the courts to have the information they need to make decisions on bail for this cohort. However, we need to make sure that we have the reliable data on the number of people remanded for their own protection, because if this is rushed, it could create knock-on impacts for health services.
Lord Scriven (LD)
The noble Lord, Lord Kamall, quite rightly pointed out that the impact assessment says that the Government have already said that the numbers will be small and the costs negligible. Upon what data were those assumptions from the impact assessment made? If the Minister cannot give me the answer to that at the moment, could he provide the Committee with the detailed figures and data used to present that within the impact assessment?
Lord Timpson (Lab)
I thank the noble Lord for his question. I will be delighted to get the correct information, so that we get it exactly right. We will get it to him as soon as is practical.
Lord Bradley (Lab)
I am again grateful to the Minister for his response and pleased that he will provide that information, because it is fundamental to effective implementation of this policy. I also look forward, hopefully before Report, to visiting the north-east health and justice hub to see for myself what model it is developing, how applicable that could be across the country and at what cost. There is lots to do but, on that basis, I wish to withdraw my amendment.
Mental Health Bill [HL]
Monday 24th February 2025
(4 months, 2 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-V Fifth marshalled list for Committee - (20 Feb 2025)
Baroness Tyler of Enfield
“Cost and implementation reporting(1) The Secretary of State must lay a report before Parliament four months after the passage of the Act, and annually thereafter, assessing the costs and implementation dates of provisions in the Act.(2) The report must include details on—(a) the monetised and non-monetised costs to the health and social care system;(b) the monetised and non-monetised costs to the justice system;(c) costs associated with additional training for NHS staff responsible for treatment provisions;(d) costs related to community care services and infrastructure;(e) costs for additional training for approved mental health practitioners and independent mental health advocates;(f) additional costs incurred by local authorities;(g) housing and care-related costs for individuals with autism or learning disabilities; (h) additional costs incurred by the Care Quality Commission;(i) costs for training responsible clinicians and other relevant parties involved in patient care.(3) The report must also include a monitoring and evaluation strategy for the reforms introduced by the Act, including—(a) commencement timelines for the Act’s provisions;(b) an assessment of the Act’s impact on patient outcomes including user feedback; (c) relevant data to evaluate whether the reforms are being delivered as intended;(d) assessments of the impact of new safeguards and support mechanisms on patient and carer experiences.(4) Following the publication of the first report, the Secretary of State must arrange for the tabling of—(a) a motion for resolution on the report in the House of Commons moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of the report moved by a Minister of the Crown.(5) If the report is rejected by the House of Commons, the Secretary of State must deliver a statement to Parliament within a period of three months which addresses the contents of the report.(6) Subsequent reports are not subject to the provisions of subsection (4).”Member’s explanatory statement
This amendment requires the Secretary of State to present a report to Parliament detailing the costs and implementation assessments of the Act after one year, and annually thereafter. The first report published under this provision must be subject to a resolution motion in both Houses of Parliament.
Baroness Tyler of Enfield (LD)
My Lords, I rise to speak to Amendment 130 in the name of my noble friend Lord Scriven, who is unable to be in his place today. On these Benches, our view is that this amendment is essential to the success of reforms proposed in this Bill. It would ensure not only accountability but the continuous assessment of costs and implementation timelines related to the vital provisions of the Bill. In short, it is a costed plan. It is grouped with various other important amendments, some of which I strongly support.
The issue we have repeatedly encountered in both mental health policy and community care is that we end up with community but very little actual care within it. This gap leads to preventable health crises, placing individuals and services under immense strain. Therefore, we must do everything to avoid this outcome. Yet so far in Committee we have not heard the necessary reassurances that adequate provisions will be in place nor that they have been properly costed and strategically planned for community care.
At its core, this amendment champions the need for transparency in the investment and execution of mental health care, specifically within community settings, where the demand will be greatest when the changes in legislation are brought forward. We cannot afford to enact these mental health reforms without a clear understanding of their financial and structural impact on the health and social care system, the justice system, local authorities and, most importantly, the lives of those who rely on these services.
In short, the amendment would require the Secretary of State to lay a report before Parliament within four months of the passage of the Bill and annually thereafter. The report would provide a detailed assessment of both the monetised and non-monetised costs associated with the provisions of the Bill. Specifically, it would outline the financial commitments necessary for the training of NHS staff and approved mental health professionals, the expansion of community care services and the provision of adequate housing and care for individuals with autism or learning disabilities. Furthermore, the amendment would ensure that the Care Quality Commission was adequately resourced to uphold the highest standards of mental health provision. These are fundamental requirements, because without a clear cost framework and implementation plan, we risk leaving individuals in crisis without the support they need.
However, it is important to say that the amendment is not simply about numbers; it is about real lives. The monitoring and evaluation strategy included within this proposal would ensure that reforms were not just theoretical but delivered tangible improvements in patient care. It would require the Secretary of State to assess patient outcomes, collect user feedback and measure the effectiveness of new safeguards and support mechanisms.
If we fail to scrutinise and report on the costs and impact of this legislation, we risk underfunding critical services, delaying implementation, and ultimately failing those who are most vulnerable. Mental health services, particularly those delivered in the community, are a necessity and not a luxury. They prevent hospitalisations, support recovery and uphold the dignity of those living with mental health conditions. This amendment would ensure that these services were not only established but were adequately funded, effectively implemented and continuously improved.
I turn briefly to Amendments 163 and 164 from the noble Lord, Lord Stevens, which I see as complementary and mutually reinforcing to Amendment 130. In particular, Amendment 164 would ensure that mental health funding was not cut as a share of overall health service funding until this Act was fully implemented. The amendment supports the principle of parity of esteem by putting a floor under the aggregate mental health service funding share in England; in essence, enshrining the mental health investment standard in law, something that we very much support. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, in speaking chiefly to my Amendment 153, I shall say briefly that I very much agree with what the noble Baroness, Lady Tyler, just said and support, as does she, the related amendments that come after this. They interrelate with an amendment of mine that was discussed earlier in Committee about the funding of community services. Funding is the great issue right across the board, and it is essential that there is something in the Bill that addresses that. My amendment, although it looks somewhat different from the others in this group, is closely related to them, because, as the noble Baroness said, we have to be concerned about the implementation of the Bill and not just its nature.
My amendment says that for-profit companies should not deliver under the Bill. It does that in two ways. It says:
“Any new facilities or organisations created to deliver the provisions of this Act must not be operated by for-profit companies”.
It then says that within five years of the day on which this Act is passed, the Secretary of State must ensure that what is now for-profit in this space is transferred to not-for-profit. Why is that essential to implementation? I shall put it into three categories.
The first is the cost of paying profits from what should be money for the provision of services. The second is quality issues associated with for-profit companies; after all, their directors and management have a duty to maximise the return to shareholders. That is the way that for-profit companies are set up in this country. The third is that there are issues of stability.
Lord Stevens of Birmingham (CB)
My Lords, building on many of the important points we have just heard, I will speak to Amendments 163 and 164 in my name. I thank the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger, and the noble Lord, Lord Kamall, for their support for these two modest proposals, which are parsimoniously drafted but nevertheless potentially impactful if adopted.
The first amendment quite simply says that we will do away with “mañana, mañana” when it comes to implementing this Bill, which we have all spent so much time on and which the patients and advocates are so keen to see adopted, by putting a five-year backstop from the date on which the Bill becomes an Act through to commencement. Commencement of all its provisions must happen no later than five years after the Bill receives Royal Assent. The logic for that is that we all believe that, on balance, by the time the Bill has worked its way through Parliament, it ought to be an injection of improvement for mental health services, so why would we want to delay?
Of course, part of the answer is that there are some rate limiters, which are described elsewhere, including in the impact assessment. If we go through the impact assessment and say, “All right, what are the specific things that it suggests won’t be possible or won’t have got going until year 6 after Royal Assent?”, we will find it is a relatively modest number. For those who want to take a look, it is in table 1 of the impact assessment, at page 17. There are some changes to the second opinion doctor, to the CTOs, to the CTPs and so on, but both the pound note impact and the extra staffing at year 6 and beyond are incredibly modest compared with the overall size of mental health spending that we will incur. The incremental costs beyond year 5 are somewhere between £15 million and £25 million, on a budget that runs to billions. I believe that, in the real world, if we strain every sinew, it will be possible to get this thing done within five years.
There is another reason for thinking that it is useful to have a statutory backstop to implementation in the Act itself: the unfortunate tendency that we have seen in various other pieces of legislation that, when push comes to shove, the decision is made just to kick the can down the road a little further. I think it is fair to say that both principal parties have criticised the other for doing so with legislation that has passed. I think we had some measures in the health Act that the noble Lord, Lord Kamall, steered through on obesity and junk food. They never quite saw the light of day, despite Parliament deciding that they would be a good thing. The then Government were criticised for that. Likewise, we put the time in to create the Higher Education (Freedom of Speech) Act. I think the Opposition criticised the Government for delays in implementing it, despite the fact that Parliament had passed it. Of course, the cause célèbre is social care reform, where we have been happily kicking down the track legislation that has seen dither and delay for over two decades. That should not be the fate of this legislation. Therefore, this simple amendment would put in a backstop to save us from ourselves. Parliament is sovereign. If we want to get the job done, there is no reason to think that we cannot make these changes in less than the time it took this country to fight and win World War II. That is the rationale for Amendment 163.
Amendment 164 simply says that, during the intervening period while this Act is being implemented, it would be unreasonable to shrink the size of the slice of the pie going on mental health services, for all the reasons that we have heard throughout Committee. To make sure that there can be no argy-bargy on how the drafting is laid out, we have lifted the wording exactly from the health Act as it currently is on the statute book around the proportion incurred by NHS England and ICBs that, taken together, relates to mental health. It says that it
“must not fall as a share of their expenditure (taken together) on all health services”,
with a little kicker: to stop the Department of Health and Social Care marking its own homework, the National Audit Office will do a review after each year and provide a report that we can all scrutinise.
Here are some reasons why the Government should not object to this. First, it does not tie their hands on the overall sum of funding allocated to the National Health Service. That is a decision for the Executive and negotiated each year; nothing here would constrain the ability of the Government to increase or cut expenditure on the National Health Service. Nor would it constrain the ability of each integrated care board to make a judgment on its own priorities. It simply says that, in the round—taking the 42 ICBs and NHS England together—it would be unreasonable to think that the share of health service spending on mental health will go down at a time when there is an incredible gap between need and treatment, and when we are trying to implement this legislation.
Fortunately, just before Christmas the Secretary of State, Wes Streeting, signalled his support for the mental health investment standard. This is the opportunity to provide legislative cover for that very welcome announcement. It is possible that the current Secretary of State will not be the Secretary of State for the totality of this Parliament—nobody has a crystal ball. Looking out five years beyond Royal Assent, it is also possible that year 5 will be the first year of a new Parliament. So it is entirely reasonable for Parliament to support the Secretary of State’s intent by legislating in the way set out in Amendment 164, not least because there are some concerning signals from around the NHS that, for the first time since the mental health investment standard was introduced, it is possible that the share of funding on mental health will go down, not up, when taken in the round. We have not yet seen the figures, but perhaps the Minister can confirm whether that is correct. In any event, that simply serves to underline the acute importance of this safety net provision to ensure that the financial firepower is there to get this Act done.
Baroness Hollins (CB)
My Lords, I apologise for my absence from earlier debates in Committee. I will speak very briefly in support of these amendments. My noble friend said that we need to save ourselves from ourselves. Actually, we need to raise aspirations to change the culture of believing that it cannot be done and thinking that it will cost too much to take a more preventive approach, to care properly for people in the community and to achieve parity for mental health outcomes. These amendments are really important to try to achieve that, so I support them.
Baroness Neuberger (CB)
My Lords, I will speak very briefly in support of Amendments 163 and 164, to which I have added my name, and particularly about the length of time, the five years.
We first started talking about the reforms to the mental health legislation eight years ago, when we set up the review of the legislation under Sir Simon Wessely, and I was the vice-chair. It reported in 2018—seven years ago—and it was not even a very radical rethink of our mental health legislation. Yes, it will make a lot of difference to a lot of people—service users are very keen for this to come about, and they certainly do not want to wait longer than five years to see all the measures come into force—but this is relatively gentle stuff. At some stage we will need a much more radical rethink of our mental health legislation. Five years is quite a long time, so I rather hope the Minister can give us some comfort by saying that most of it will be done in two years, or perhaps three years at the outside.
Baroness Fox of Buckley (Non-Afl)
My Lords, first, I support Amendment 130 in the name of the noble Lord, Lord Scriven. I have been concerned, as we have discussed this Bill, that costs are likely to spiral. I am not objecting to that, but it seems to be the elephant in the room. Unless we know, the Bill will become a white elephant because people will just say that we cannot afford to do it. It is far better to have transparency, as has been argued.
Secondly, I oppose Amendment 153. For a number of reasons, I do not think we should prohibit for-profit entities being involved in this endeavour. The suggestion is that if we remove the profit motive, all will be well. A word of caution: not-for-profit organisations are not necessarily the most efficient, virtuous organisations, as we might imagine. In the charitable sector there are some worrying trends of money being spent, rather self-indulgently, on staffing and on all manner of extraneous and sometimes politicised endeavours.
We have seen the emergence of EDI—equality, diversity and inclusion—policies, which the Health Minister, Wes Streeting, has worried about happening in the state sector, and we have seen them become absolutely rampant in the charitable and not-for-profit sector. I want us to concentrate on the people the Bill is designed to help and therefore not to have our own political idea that only the state can deliver well—I just do not believe that is true.
For example, I have done work in prisons over a period of time—that also relates to the Bill—and have worked in both private and state-run prisons. Some private prisons are awful and some state-run prisons are worse—and, by the way, I have worked in some brilliant state-run prisons and some brilliant privately run prisons. We should judge on the basis of the quality of the care or the service that they provide, not some prior presumption that because they make profit they might be useless, somehow evil or not attending to their core mission.
Earl Howe (Con)
My Lords, I am right behind the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, in their Amendment 130. We know, and I believe that by and large we accept, that the Bill is not intended by the Government to hold out the prospect of instantaneous changes to the delivery of mental health care. It offers a series of measures that, over a period of years, should make a material difference to the well-being of a wide range of mentally ill people who require treatment, whether in a secure mental health setting or in the community.
The Minister has spoken of the need to view these measures in the broader context of the NHS 10-year plan and, certainly from the Government’s point of view, that is a perfectly reasonable position to take. However, if that is the Government’s policy, it begs a whole mass of questions around implementation and funding. For example, what do the Government see as the immediate high-priority measures that they wish to introduce? Which measures do they propose to defer, and for how long? What are the costs associated with these changes, both to the NHS and, as the noble Baroness, Lady Tyler, pointed out, to the justice system and local government? Bearing in mind Treasury constraints, when realistically do they believe a clear timeline for change will emerge? We have the impact assessment, but how far can we rely on that?
If those questions for the time being have to remain hanging in the air, as I suspect they will, I share the view of the noble Baroness, Lady Tyler, that Parliament, in the not-too-distant future, needs to be given an account of what the longer-term future looks like in a way that reflects not only the Government’s current thinking but, as time goes on, how their thinking evolves, as it surely will. There is therefore a strong case for a report to Parliament sometime in the next few months and on an annual basis thereafter, making clear both the timeline of ambition and the timeline of what in reality is being delivered.
I am conscious that we all need to keep our remarks succinct and to the point, so I will comment only briefly on the other amendments in this group. I am afraid I cannot support Amendment 153 in the name of the noble Baroness, Lady Bennett. I have always believed that what matters most in healthcare is not whether a service is delivered by a public or a private organisation but rather the quality of care to patients and whether good outcomes are achieved at acceptable cost.
Finally, my noble friend Lord Kamall has added his name to Amendments 163 and 164. These amendments stand absolutely four-square with the theme of Amendment 130, and on my noble friend’s behalf I express my warm support for them. The noble Lord, Lord Stevens, has said it all.
Just as we accept that we will not get any instant changes arising from the Bill, by a corresponding token, the Government cannot take that as a free pass from Parliament to defer implementing its provisions sine die. We cannot have a situation in which, prior to implementing the provisions, the principle of parity of esteem is quietly put to one side. I hope the Minister will have reassuring words to say on those very important points of principle.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to noble Lords for their contributions to this first debate today, and I start by saying how glad I am—I am sure other noble Lords will say this too—to see the noble Baroness, Lady Hollins, in her rightful place. I certainly heard her support for the amendments that we are discussing.
Before I turn to the amendments, it may be helpful to your Lordships’ Committee if I briefly set out some of the high-level plans for implementation of these reforms. I am grateful for the understanding—the noble Earl, Lord Howe, made this point—that time is required. I also understand the emphasis that noble Lords are putting on pace and, of course, we try to match those two things together, but I know we are all agreed on the need to get the Bill in the right place and the Act delivering.
The first priority after Royal Assent will be to draft and consult on the code of practice, and we will be engaging with people with lived experience and their families and carers, staff and professional groups, commissioners, providers and others to do this. The code will be laid before Parliament before final publication, and I am committed to working with noble Lords to ensure that we get this crucial piece of work absolutely right. We expect that this process will take at least a year.
Alongside the code, we will be developing secondary legislation, which will also be laid before Parliament, with more detail on areas such as statutory care and treatment plans. We will then need time to train the existing workforce on the new Act, the regulations and the code. This will likely be in 2026 and 2027, and we intend to commence the first major phase of reforms in 2027.
Of course, some reforms are going to take longer, as noble Lords will appreciate. The noble Baroness, Lady Neuberger, tempted me to go even further than five years, and I thank her for the temptation, but I know I will not be able to please her on this occasion. Of course, it takes time to train new second opinion appointed doctors, judges and approved clinicians, so, as set out in the impact assessment, we believe it will take 10 years to fully implement the reforms, but I emphasise that these timelines are indicative, and we will iterate these plans as we get more certainty on future funding and the wider workforce plans. Of course, I fully appreciate the importance of parliamentary scrutiny and accountability of this work, which is crucial, and I am committed to updating the House throughout the implementation period.
Turning to the amendments, I will start with Amendment 130 in the name of the noble Lord, Lord Scriven, kindly introduced by the noble Baroness, Lady Tyler. I say in response that any implementation plan, as proposed in the amendment, which would be published four months after Royal Assent, would be very unlikely to contain any more detail than is already in the impact assessment. It is important to prioritise drafting the new code and the secondary regulations after Royal Assent. I also confirm to your Lordships’ Committee that we will commission an independent evaluation of the reforms, alongside existing monitoring and reporting by the CQC.
As I have said, I fully expect to update the House during the planning and delivery of the reforms. However, a requirement in primary legislation to publish annually, and within four months of Royal Assent, would be premature.
Amendment 153, tabled by the noble Baroness, Lady Bennett, would prohibit for-profit companies from delivering provisions of the Act. I listened closely to the concerns raised by the noble Baroness, but I do not share the view that a ban on for-profit providers is the right approach, for the reasons that were set out by the noble Earl, Lord Howe, and the noble Baroness, Lady Fox. Our focus should indeed be on ensuring that we have high-quality and good value-for-money services. However, I assure the noble Baroness, Lady Bennett, that we are already investing in a significant quality transformation programme and piloting new models of care to ensure that care is focused on the individual, with maximum therapeutic benefit. That is where our priority lies and for that reason we are resisting this amendment.
Turning to Amendment 163, I am grateful to the noble Lords, Lord Stevens and Lord Kamall, and the noble Baronesses, Lady Tyler and Lady Neuberger, for bringing this issue before the Committee. As I said in my opening remarks, I too want to see the benefits of these reforms coming into play quickly and effectively. We intend to commence the reforms in phases, because some can be implemented more quickly than others, which need more time. This is not just about money but about building system and workforce capacity. For example, the impact assessment estimates that we need over 400 additional second opinion appointed doctors and over 300 additional approved clinicians. Many of these will be consultant psychiatrists, who would already need to have commenced training prior to the legislation for us to fully implement the Bill within five years, as required by this amendment. Rather than having a fixed deadline, as is proposed, we intend to monitor the impact of investment and test readiness to commence new powers on an ongoing basis, commencing each phase when we are confident that it is safe and effective to do so.
Finally, I turn to Amendment 164, tabled by the noble Lord, Lord Stevens, and supported by the noble Lord, Lord Kamall, and the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger. I associate myself with the comments about the commitment to treating physical and mental health equally, in line with this Government’s manifesto commitments. The mental health investment standard requires ICB spending on mental health to grow at least in line with overall recurrent funding allocations. Based on total planned spend for 2024-25, we expect all ICBs to meet the standard in this financial year.
There are already mechanisms to ensure that spending on mental health is prioritised. I refer noble Lords to Section 12F of the NHS Act 2006, which requires the Secretary of State for Health and Social Care to lay before Parliament an annual document setting out whether they expect NHS England and ICB spending on mental health to increase in the next year. The Secretary of State will publish this statement before the end of this financial year.
As several noble Lords said, funding for mental health spend goes beyond the scope of the Mental Health Act, which aims to improve the care and treatment of individuals who have a mental illness and need to be detained in hospital or subject to restrictions in the community. Therefore, I respectfully suggest that the Act is not the appropriate mechanism for holding the Government to account on mental health spend. I ask the noble Baroness to withdraw the amendment.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her very comprehensive response and all noble Lords who have spoken. It was very helpful that the Minister started by setting out some of what I think she called the “high-level” plans for implementation. It was good to hear about what is going to happen with the code of practice and about plans to bring forward secondary legislation. I hope I heard correctly that it will be 2027 when we see the first major stage of these reforms starting to happen on the ground. That is the good side of this debate; it is incredibly important, because this is one of those issues where the implementation is as important as the policy, and that is why it is right that we are having this discussion.
Baroness Tyler of Enfield
“Mental Health CommissionerAfter section 142B of the Mental Health Act 1983, insert—“Mental Health Commissioner
142C Independent Mental Health Commissioner: establishment(1) There is to be an office known as the Office of the Mental Health Commissioner.(2) The Office in subsection (1) must be established by the Secretary of State three months after the day on which the Mental Health Act 2025 is passed.(3) The Office of the Mental Health Commissioner will be led by an individual appointed by the Secretary of State titled the “Independent Mental Health Commissioner”.(4) The role in subsection (3) is referred to as the “Mental Health Commissioner”.142D Functions of the Commissioner(1) The Mental Health Commissioner is responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under the provisions of this Act and the Mental Health Act 2025, particularly regarding the provision of treatment, care, and detention of people with a mental disorder.(2) The Mental Health Commissioner is also responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under this Act which relate to the Mental Capacity Act 2005 and the Mental Health Act 2007.(3) The Mental Health Commissioner must publish an annual report on the use of functions discharged under this Act, which must assess—(a) the quality of mental health care treatment provided by relevant services;(b) the accessibility of mental health care treatment services;(c) the relationship between mental health and the criminal justice system;(d) inequalities of mental health care provision regarding protected characteristics under the Equality Act 2010; (e) the use and effectiveness of detention measures under this Act, including but not limited to Community Treatment Orders, for the purposes of therapeutic benefit outlined in section 1(2B);(f) challenges surrounding stigma of mental health conditions;(g) the accessibility of advice and support to mental health service users, their families and carers on their legal rights;(h) other issues deemed appropriate by the Mental Health Commissioner.(4) In fulfilling their duties under subsection (1), the Mental Health Commissioner may review, and monitor the operation of, arrangements falling within subsection (1), (2) and (3) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the principles in section 118(2B) of this Act.142E Appointment and tenure of officeThe Secretary of State may make regulations which make provision as to—(a) the appointment of the Mental Health Commissioner (including any conditions to be fulfilled for appointment);(b) the filling of vacancies in the office of Commissioner;(c) the tenure of office of the Mental Health Commissioner, including the circumstances in which they cease to hold office or may be removed or suspended from office.142F Remuneration of roleThe Secretary of State may—(a) pay the Commissioner such remuneration and allowances, and(b) pay, or make provision for the payment of, such pension or gratuities to or in respect of them, as may be provided for under the terms of their appointment.142G Appointment of staff(1) The Commissioner may appoint any staff they consider necessary for assisting in the exercise of their functions, one of whom must be Deputy Commissioner.(2) During any vacancy in the office of Commissioner or at any time when the Commissioner is for any reason unable to act, the Deputy Commissioner may exercise their functions (and any property or rights vested in the Commissioner may accordingly be dealt with by the deputy as if vested in them).(3) Any member of the Commissioner's staff may, so far as authorised by them, exercise any of their functions.(4) The duties of the Deputy Commissioner must be determined by the Commissioner.(5) Regulations may provide for the Commissioner to make periodic or other reports to the Secretary of State relating to the exercise of their functions and may require the reports to be published in the manner required by the regulations.142H Examination of cases(1) The Secretary of State may, by regulations, make provision for the examination by the Mental Health Commissioner of the cases of those who are detained under this Act receiving treatment by authorised mental health care providers.(2) The regulations may include provision about—(a) the types of case which may be examined; (b) the circumstances in which an examination may be made;(c) the procedure for conducting an examination, including provision about the representation of parties;(d) the publication of reports following an examination.(3) The Secretary of State may, by regulations, provide for the Office of the Mental Health Commissioner to access and examine relevant data on mental health treatment provision held by NHS England and any other authorities the Secretary of State considers appropriate.(4) In cases under subsection (3), reasonable steps must be taken to ensure that data provided to the Office of the Mental Health Commissioner is anonymised.(5) Regulations may, for the purposes of enabling the Mental Health Commissioner to examine or determine whether any recommendation made in a report following an examination has been complied with, make provision for—(a) requiring persons to provide the Mental Health Commissioner with information, or(b) requiring persons who hold or are accountable for information to provide the Mental Health Commissioner with explanations or other assistance, for the purpose of an examination or for the purposes of determining whether any recommendation made in a report following an examination has been complied with.(6) For the purposes mentioned in subsection (3), the Mental Health Commissioner has the same powers as the High Court in respect of—(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad), and(b) the provision of information.(7) No person may be compelled for the purposes mentioned in subsection (5) to give any evidence or provide any information which they could not be compelled to give or provide in civil proceedings before the High Court.(8) The regulations may make provision for the payment by the Mental Health Commissioner of sums in respect of expenses or allowances to persons who attend or provide information for the purposes mentioned in subsection (5).142I General powers(1) Subject to any directions given by the Secretary of State, the Commissioner may do anything which appears to them to be necessary or expedient for the purpose of, or in connection with, the exercise of their functions.(2) This may include—(a) collaborating with health services, public authorities, charitable organisations, and other entities deemed necessary by the Mental Health Commissioner that are responsible for the provision of mental health care across the United Kingdom, including, but not limited to NHS bodies, the Care Quality Commission, and the Parliamentary and Health Service Ombudsman;(b) making recommendations to the Secretary of State regarding treatment and detention provisions contained in this Act;(c) ensuring that authorities and public bodies with responsibilities for enforcement under the Mental Health Act 1983 have the necessary capacity and resources to undertake duties; (d) promoting mental health wellbeing;(e) ensuring access to treatment;(f) safeguarding the rights and welfare of patients;(g) other duties deemed to be necessary by the Secretary of State.142J Accounts(1) The Mental Health Commissioner must keep accounts in such form as the Secretary of State may determine.(2) The Mental Health Commissioner must prepare annual accounts in respect of each financial year in such form as the Secretary of State may determine.(3) The Mental Health Commissioner must provide copies of the annual accounts to the Secretary of State and the Comptroller and Auditor General within such period after the end of the financial year to which the accounts relate as the Secretary of State may determine.(4) The Comptroller and Auditor General must examine, certify, and report on the annual accounts and must lay copies of the accounts and of their report before Parliament.(5) In this paragraph “financial year”, in relation to the Mental Health Commissioner, means—(a) the period beginning with the date on which the Mental Health Commissioner is established and ending with the next 31st March following that date, and(b) each successive period of twelve months ending with 31st March.142K Regulations(1) Regulations under section 142E or 142H are to be made by statutory instrument.(2) A statutory instrument containing regulations under section 142E or 142H may not be made unless a draft of the instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.””
Baroness Tyler of Enfield (LD)
My Lords, I am sorry, it is me again. My Amendment 131 would establish a mental health commissioner for England as a new statutory office within government. I am quite conscious that it is a rather long and detailed amendment, but to my mind that reflects the importance of it to the successful implementation of the overall Act and the pivotal role that a commissioner would play. I am very grateful to the noble Lord, Lord Bradley, and to the noble Baronesses, Lady Murphy and Lady Bennett, for adding their names to my amendment, which gives a sense of strong cross-party support.
The Joint Committee recommended the creation of a statutory mental health commissioner to help drive the ongoing process of system reform and ensure accountability for implementation—I always felt that that was one of its seminal recommendations. I believe a mental health commissioner would provide sustained leadership for mental health, complementary to the existing roles and structures that we have, as well as monitoring the effective implementation of the Act. The commissioner would operate inside government and in the wider public sphere, giving the role real teeth.
Yes, the commissioner would have influence within government and the NHS, but they would also have the freedom to speak out when they considered it necessary to lead public debate, challenge stigma and break down boundaries and taboos. They could help galvanise action across departments and systems to improve population mental health and ensure that people living with mental illness are treated fairly and equitably in every sphere of life. In short, the commissioner could bring about a much-needed transformation in our mental health services. By establishing the role in statute, we would ensure that mental health would no longer be a topic that waxed and waned in its profile and importance within government and was reliant on either short-term interest or sometimes very hard-won attention.
Reflecting on the very important debate we had on reducing racial inequalities, I would consider that both assessing and taking action on inequalities in mental health would also be a critical role for the commissioner. Such a commissioner would be well placed to take responsibility for the oversight of a new responsible person role for addressing and reporting on racial disparities in mental health units at local level, as we discussed earlier in the debate on my Amendment 133.
We have an excellent example and model to follow in the way the Children’s Commissioner operates. From my extensive work on children’s issues over the years, I know how effective and influential that role has been, particularly during a period when there has been a change of Government. It has genuinely shifted the dial. I get the fact that it may not always feel 100% comfortable for the Government of the day, but they should embrace and welcome the additional scrutiny, ideas and recommendations that are based on engaging directly with people with lived experiences about their concerns.
That is certainly how it is happened with the Children’s Commissioner, who I think has done excellent work on children’s mental health. I know that it has proved to be empowering for children and young people to feel that their voice is being heard at the top table. I want that same opportunity to be in place for people with mental illness. It has the potential to make this Act a truly ground-breaking piece of social reform.
Mental health commissioners already exist in a number of international jurisdictions, including Scotland, Ireland, Canada, New Zealand and Australia. There is some helpful research from the Centre for Mental Health that shows the value of such roles in other countries.
I feel I can already anticipate the Minister’s response. At Second Reading, the Minister said the commissioner might duplicate the work of the Care Quality Commission. I do not think that is the case, as their roles would be complementary, as the Children’s Commissioner complements the work of Ofsted. The functions of the two are clearly different: they have different powers and responsibilities that between them provide extra benefit to the public that could not be achieved by one of them alone. Both have the powers of entry to inspect services that work with children, but their roles and the outcomes they seek to provide are very different. The Children’s Commissioner has a wide advocacy role across the whole of government, as well as civil society more broadly, so they can act in a way that Ofsted cannot possibly do.
So I very much hope that the Minister will be willing to discuss this with me when we meet later this week and, indeed, with other noble Lords who have expressed support, to discuss how we can really make this fly. I beg to move.
Lord Bradley (Lab)
My Lords, I strongly support Amendment 131, to which, as my noble friend Lady Tyler has stated, I have added my name. I can be brief because of the eloquence and comprehensive nature with which she introduced the amendment.
First, to note my registered interests, as this is probably the last day of Committee, the establishment of a mental health commissioner was recommended by the Joint scrutiny Committee of which I was a member. So it was a great disappointment that the Government did not include it in the Bill.
As I said at Second Reading, the mental health commissioner should be a voice at national level, promoting the interests of those who are detained and who are likely to be detained under the Mental Health Act, together with the interests of their families and carers, raising awareness of their needs and challenging stigma and stereotypes. Crucially, the commissioner should be at the forefront of tracking and scrutinising the implementation of these reforms.
There is widespread support for the establishment of the commissioner, both inside and outside Parliament and from statutory, non-statutory and charitable organisations. For example, the Centre for Mental Health, for which I am an ambassador, has stated:
“A Mental Health Commissioner … would offer sustained leadership for mental health—complementary to existing roles and structures in government. They would operate both within the machinery of state and in the media and wider public sphere. They would have influence within government and the NHS, but with the freedom to speak out when necessary: to lead public debate, challenge stigma, and break boundaries and taboos”.
I totally agree with this view. However, in reply to this proposal at Second Reading, supported by many noble Lords, the Minister pushed back on it stating that there are concerns that
“the proposed mental health commissioner’s function would be potentially largely duplicative of existing bodies and functions, and nobody wants to risk diluting accountability or causing confusion”.
The Minister went on to say:
“As noble Lords will know, Dr Penny Dash has been asked by the Secretary of State to assess if the current range and combination of organisations within the healthcare regulation landscape is effective and to make recommendations of what might be needed, and I think it is important that we await her recommendations”.—[Official Report, 25/11/24; col. 584.]
The key word here, I think, is “regulation”, and I do not agree with this view.
Since Second Reading, I have looked at the terms of reference of commissioners and regulators in various areas of public policy, and I believe that these roles are quite distinct. I agree with the noble Baroness, Lady Tyler: the role of the Children’s Commissioner and the separate role of the education regulator Ofsted are a good comparison. I do not think these two roles dilute accountability or cause confusion. Further, I cannot remember if it has ever been suggested that these roles should be amalgamated or that the Children’s Commissioner should be abolished. In fact, I believe that there is widespread support, particularly from the public, for the invaluable independent work undertaken by a Children’s Commissioner.
I also think the Minister herself has made a very persuasive case for a mental health commissioner in her many constructive responses to the amendments already debated, especially today. My noble friend has noted, among other things: the complexity of the legislation and its interrelationship with the Mental Capacity Act 2005, the need for significant investment in community services, the development of a skilled and complex workforce, and the number of years it will take to implement all the provisions of the Bill. This will need rigorous, robust and consistent oversight of implementation and wider health policy and service developments over the next decade and beyond.
The establishment of a mental health commissioner will ensure transparency and accountability and introduce a real force for good for the development and delivery of high-quality mental health services across the country. I hope the Minister will now agree and support this amendment.
Baroness Bennett of Manor Castle (GP)
My Lords, in following two such eloquent contributions, I can be extremely brief. I thank the noble Baroness, Lady Tyler, for what is clearly a major piece of work in producing this amendment. I attached my name to it because the creation of a mental health commissioner is such an important issue that it was crucial that there was a demonstration of support that was as wide as possible—a full slate of support here, even in Committee, as I am sure there will be should this come back on Report, unless the Minister says it is a great idea and she is going to go ahead with it right now.
I will add one other point of comparison, on something with which I have been a little involved myself: the comparison with the Patient Safety Commissioner. Noble Lords will remember that a case for the Patient Safety Commissioner was made from the then Government Back Benches, by Lady Cumberlege. She spent a couple of years fighting to finally get a Patient Safety Commissioner. We have seen the work that the Patient Safety Commissioner has done since the creation of the post: we have seen some very specific, detailed work on the issues of vaginal mesh and sodium valproate. Digging into the details and supporting a fight to get something done are really something that only these independent commissioner positions can do. Otherwise, very often, it falls to severely underfunded NGOs and perhaps to Members of Parliament who are enlisted in a cause but have many other calls on their time and resources as well.
We have discussed again and again how difficult it will be to bring this Bill into effect and, as the noble Baroness, Lady Tyler, said, to address the issues of discrimination and inequality that we know are already there. This is surely an absolutely obvious thing to do to help ensure—as so many noble Lords have been saying today and previously in Committee—that we get this done.
Lord Kamall (Con)
My Lords, before I begin my remarks, I want to say how pleased my noble friend Lord Howe and I are to see the noble Baroness, Lady Hollins, back in her place; I am sure that many noble Lords would echo that sentiment.
I thank the noble Baroness, Lady Tyler of Enfield, for moving this amendment to establish a statutory mental health commissioner. One of the motivations behind some of the amendments in my name and that of my noble friend Lord Howe is to probe the Government on those recommendations from the pre-legislative Joint Committee that did not make it into this draft Bill. As noble Lords will be aware, and as the noble Lord, Lord Bradley, has said, this is one such recommendation of the Joint Committee that did not make the cut.
We did consider tabling a similar amendment ourselves, but I have to admit that the amendment from the noble Baroness, Lady Tyler, did the job very well; there was no need to duplicate that. Having spoken to the noble Baroness and to her noble friend Lord Scriven, I know this is an issue that they and many other noble Lords feel passionate about. The noble Baroness, Lady Tyler, has today made a very good case for a commissioner. The noble Lord, Lord Scriven, has also spoken of the need for central co-ordination to ensure implementation of the provisions of this Bill—something that was referred to in the last group of amendments.
I pay tribute to the noble Lord as I know that he has considerable experience in the NHS and is all too aware of the problems involved in trying to deliver at scale. However, I admit that I have some reservations about the idea of a mental health commissioner. While I understand the arguments in favour, I am, like the Minister, concerned about the creation of a new bureaucracy that could possibly duplicate functions.
In their response to the recommendations of the Joint Committee, the previous Government noted that
“the government does not believe that a statutory mental health commissioner would add significant value within the framework currently provided by existing bodies”.
The Joint Committee pointed out that a Mental Health Act Commission was established by the Mental Health Act 1983, which stood alongside the Healthcare Commission and the Commission for Social Care Inspection. In 2009, the then Labour Government took the decision to combine these three bodies into one integrated regulator with responsibility for all health and adult social care. I say that not as a political point but as an observation.
Since then, the CQC has undertaken the functions of the previous Mental Health Act Commission, and its remit extends to ensuring protections for those who are detained under the Act or subject to a community treatment order. To do this, the CQC has a number of Mental Health Act reviewers, who can visit patients in hospital and raise concerns about treatment or detention with managers, and then report back to the commission. The CQC also has a dedicated team that assesses complaints about the use of the Mental Health Act, including issues around detention and the use of CTOs.
I also understand that the CQC provides second-opinion appointed doctors for patients who do not have the capacity to consent to treatment under Part 4 of the Act. This Bill strengthens the safeguards around second-opinion appointed doctors, such as creating a clinical checklist that must be certified by the second-opinion doctor.
In addition to the functions of the CQC, local authorities and ICBs provide independent mental health advocates; we have debated those in earlier groups. The Department of Health and Social Care also gives funding to local authorities to commission Healthwatch services, of which I understand there are about 152 across the country. Healthwatch is another statutory organisation that gathers feedback from the users and ensures that NHS leaders listen to and, hopefully, incorporate that feedback.
As we have seen, the Parliamentary and Health Service Ombudsman, alongside the CQC, supports individuals to raise complaints against the private sector, the NHS and all public health authorities.
The point I am trying to make is that there appears to be a plethora of services and public bodies that work to oversee the function of the Mental Health Act and try to ensure that patients have a voice in their care and treatment. While I appreciate that some of the proposed duties of the commissioner would be unique to that role, there appear to be elements of duplication in that role and those of existing public bodies. However, I am also conscious of the point made by the noble Baroness, Lady Tyler, about being complementary.
So, while I hear the arguments on both sides, I am still slightly sceptical about whether we need a stand-alone mental health commissioner. To be fair, we have not completely made up our minds yet, and my noble friend Lord Howe and I are weighing up the arguments. For that reason, I ask the Minister to help these deliberations by clarifying a few points. First, will she confirm whether the CQC will take on the role of implementing the provisions of the Bill? Perhaps more importantly, how will it be able to fulfil that function effectively, given the concerns expressed by the noble Baroness, Lady Tyler, the noble Lord, Lord Bradley, and others and their strong feeling in favour of an independent mental health commissioner?
What action will the Department of Health and Social Care take to ensure oversight of the CQC’s role in the implementation of this legislation? If the Government remain opposed to the creation of a commissioner, can the Minister reassure your Lordships on how existing bodies will address the Bill’s implementation and accountability for its implementation, without the need for a stand-alone mental health commissioner?
I hope the Minister is able to give these assurances. Otherwise, given what was said today by other noble Lords, I am sure we will come back to this issue on Report.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Baroness, Lady Tyler, for tabling Amendment 131, supported by the noble Baronesses, Lady Bennett and Lady Murphy, and my noble friend Lord Bradley. As noble Lords are aware, I understand the intent behind the amendment. We have carefully considered the proposed functions of the commissioner that it outlines, and we recognise that improvements are needed to ensure that the system works effectively. But as noble Lords are aware, we do not feel that a new body is the answer. As the noble Lord, Lord Kamall, said, it may only duplicate existing functions, rather than providing the clarity and leadership that I know everyone is seeking. I was particularly interested to hear the noble Lord give his reflections on the opinions of the previous Government about a proposed mental health commissioner.
Overseeing implementation of the reforms is the role of the Department of Health and Social Care, working with NHS England, the Ministry of Justice and the CQC in England, and, in Wales, with the Healthcare Inspectorate Wales.
On the interaction between this legislation and the Mental Capacity Act, we are committed to keeping that under close review to minimise challenges potentially faced by front-line professionals.
The annual report by the commissioner proposed in the amendment would overlap with the CQC’s annual Monitoring the Mental Health Act report. The CQC’s annual statutory reporting reflects the views of thousands of patients interviewed each year by the CQC. Many of the issues that the commissioner would assess and report on, such as the accessibility of advice and the quality of services, are already reported on by the CQC.
It is proposed that the commissioner would examine cases of people detained under the Act. This clearly overlaps with the functions of the CQC and Healthcare Inspectorate Wales, which have a statutory duty to monitor and, where appropriate, to investigate. The Act provides the regulator with similar powers—for example, to gather information to support it in exercising these powers.
The Health Services Safety Investigations Body is responsible for conducting independent investigations into patient safety concerns across England to identify ways to improve mental health care and patient safety. It has just concluded a series of investigations into in-patient mental health care and is currently undertaking further work.
With regard to the proposed commissioner’s general powers, it is the Government’s role, with NHS England, to ensure sufficient capacity and resources in the system. It is the role of NHSE’s national director for mental health and the medical director for mental health and neurodiversity, newly established last year, to oversee and take forward improvements to mental health services. It is already the role of the regulator to safeguard the rights and welfare of patients, while other organisations independently investigate complaints.
Minimising duplication with these organisations and functions would require significant remodelling of the system, interrupting ongoing programmes and responsibilities that are important to the smooth delivery of the Mental Health Act reforms. Having said that, we recognise that improvements need to be made in the quality of care and the patient safety landscape. We are committed to that goal and intend to overhaul the healthcare system to make it better for all patients.
The CQC has already begun to implement the recommendations made by Dr Penny Dash and Professor Sir Mike Richards: a new chief inspector for mental health will use their independent voice to amplify and respond to the experiences and outcomes of people who use services. Implementation of Mental Health Act reform will be at the top of their “to do” list.
On the wider landscape, we expect to hear soon from Dr Dash who, as noble Lords have said, is reviewing the broad range of organisations that impact on quality and safety, many of which I have mentioned today, and is due to report on whether greater value could be achieved through a different delivery model.
Reference was made in the debate to the role of the Children’s Commissioner, which the noble Baroness, Lady Tyler, particularly focused on. I want to place on record my gratitude to the Children’s Commissioner for the work done on children’s mental health. But, in reflecting on the debate earlier, I should say that the Children’s Commissioner is operating in a rather difference landscape. The proposed mental health commissioner would have a much narrower purview that, for the reasons I have stated, risks overlapping with existing organisations in a way that the Children’s Commissioner does not. I understand why the Children’s Commissioner is being looked to, but I cannot draw that direct comparison myself.
The challenges we have heard about in this debate have highlighted areas we need further to focus our efforts on. I look forward to speaking to the noble Baroness, Lady Tyler, about this topic this week, and I am sure that I will have further conversations about it. For all these reasons, I ask the noble Baroness to withdraw Amendment 131.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her response and thank other noble Lords for their support: in some cases, strong support; in others, what I can only describe as support up to a point—if you know what I mean.
The noble Lord, Lord Kamall, was right to say that we on these Benches feel passionate about this. We think it has the potential to make a real difference and transform not just mental health services at the crisis end—the detention end—but how the whole mental health landscape works.
I would just say in response that I am slightly surprised that the Government consider the current arrangements to be satisfactory. The Joint Committee clearly did not. It spent an awful lot of time looking into this and made a recommendation for a reason.
Baroness Parminter
“Notification of specialist eating disorder units having arrangements for special casesIn section 140 (Notification of hospitals having arrangements for special cases) of the Mental Health Act 1983, after “hospitals” insert “or specialist eating disorder units””Member's explanatory statement
This amendment seeks to extend the provisions related to the reception of patients in cases of special urgency and the accommodation of under-18s in specially suitable facilities which apply to hospitals under section 140 of the 1983 Act to include specialist eating disorder units.
Baroness Parminter (LD)
My Lords, this is a very limited amendment. It aims to prompt ICBs to ensure that there are adequate placements for those with severe eating disorders—both those who are sectioned and those who are not sectioned. There is a need for this because general acute mental health hospitals are not appropriate if we are going to ensure the best outcomes for people with eating disorders, and there are far too few beds out there at the moment.
Let us address that last point first. In the UK, at the moment, there are 450 adult beds—that is a combination of NHS and private beds—and less than half that number for children. However, last year there were 30,000 hospitalisations for people with eating disorders, which is a fourfold increase on 2010, when there were 7,000. This means that people are being placed in inappropriate settings, be that in general acute hospitals, the general hospital down the road, or in out-of-area placements. All of those will deliver non-optimal recovery rates and result in more costs in the long term to the country, as well as greater suffering for individuals and their families and carers.
It is pretty obvious to most people that eating disorders require specialist staff—it is not rocket science. People with very severe eating disorders, sectioned or otherwise, will often need nasogastric tube feeding, which is a specialist skill, and there will be issues around avoiding refeeding syndrome, along with the cardiac risk. It is very clear why there is a need for specialist staff. The APPG on Eating Disorders did a recent report on this, The Right to Health, which looked at why specialist eating disorder nurses are required. Those provisions are not in general mental health hospitals, or indeed in the general physical health hospital down the road. It is pretty clear to most people that you need specialist staff.
What is probably not so clear, if you are not familiar with eating disorders, is that the physical constraints of a general mental health facility are not appropriate or optimal for people with eating disorders. If you have a severe eating disorder, you need feeding six times a day. People who are very anxious about eating will need to be supervised, one to one, in a calm environment. That is not what you get in a general mental health facility. Those people will then need to be supervised, one to one, for a period after meals, to help them to keep that food, again in a calm and spacious environment where they can be managed one to one. Those individuals will all have diets, weekly prepared especially for them, which will require a specialist canteen. Not only will you need staff to facilitate the provisions of those meals but you will need an area where people with eating disorders can be helped over a period of weeks to refamiliarise themselves with preparing food and to not be anxious about touching or preparing food—so you will need a second kitchen. The provisions in a general mental health facility are not optimal for people with specialist eating disorders. The legislation as it stands asks ICBs to focus only on general mental health facilities.
I am not making the case that eating disorder sufferers are somehow special—please do not think that. I am just making the case that they are different. For too long, they have not had a focus on their needs, which is why we have so few eating disorder beds in this country at the moment. This is probably a very poor attempt, but it is my attempt to ensure that ICBs are given a gentle nudge by the Government to do what I think the Government want to do—which is to treat the majority of people with eating disorders in the community but, for those who require beds, ICBs must at the appropriate time ensure that there are such beds. We must not rely on general mental health facilities, which will not produce the outcomes that we need. I beg to move.
Baroness Browning (Con)
My Lords, I support the noble Baroness, Lady Parminter, on the particular point that she raises about eating disorders in her amendment and on a more general point.
In an earlier debate, I tried to make the case that people being diagnosed with autism by clinicians should be seen by clinicians who specialise in autism. I was reminded of this very much when the Minister, responding to an earlier amendment this afternoon, talked about parity of esteem in the health service between the physical health support provided and that for mental health. In the world of physical health, if you were to see an orthopaedic consultant, you would not necessarily see the same consultant, depending on the condition that you had. The same applies today with cardiology, whereby cardiologists now have more specialisms within that and you would therefore see the appropriate person. As raised by the noble Baroness, Lady Parminter, the facilities that go along with such specialised treatment and assessment are very important.
I put it to the Minister, prompted by the noble Baroness, Lady Parminter, and by the Minister’s own words, that it really is about time that, with regard to mental health as a generic term, whatever the condition, we stop—as they did even within my lifetime—locking people up in some old Victorian institution where they all get the same treatment, facilities and so on. Today, with our increased knowledge of mental health and of medication for mental health, and with the increased number of specialisms that we are now aware of, particularly around eating disorders, it is really about time, if there is truly to be parity of esteem, that mental health is treated as physical health is treated, and that the specialisms that occur and the specialists there to work within those specialisms are given weight within legislation so that facilities and specialists can be provided—because we know that they are not.
At the heart of the Bill before us is the fact that we are taking autism and learning disabilities out of the Mental Health Act 1983, in which they were all treated the same—lumped in together and treated by the same clinicians, whether they had a specialism in that area or not. This is a real opportunity for the Minister and the Government to make sure that there is true parity of esteem and that conditions such as eating disorders are respected and treated in the way in which they should be.
Baroness Butler-Sloss (CB)
My Lords, I remember a specific case of a friend’s 17 year-old daughter who was suffering from an eating disorder. She had to go into hospital, where she was not treated at all well; she was criticised for not eating—the very thing she had gone into hospital to get help for. She did not for quite some time get any specialised help on how to deal with her eating disorder. This amendment would deal with that issue.
Lord Kamall (Con)
My Lords, I thank the noble Baroness, Lady Parminter, for moving this amendment. Unlike in the last group of amendments, where there was limited support, we fully support her on this one. We know that the noble Baroness has tirelessly campaigned for better support for those with eating disorders. At Second Reading, she shared the experience of living with such disorders, and we all became much more familiar with some of the concerns. I also agree with my noble friend Lady Browning that it is about time we stopped treating all people with mental ill-health the same; we know that we have to look at it in far more granular detail.
The amendment speaks to the problems around the adequacy of provision of care for patients suffering with eating disorders. As the noble Baroness said, Section 140 of the Mental Health Act provides for reception of patients in cases of special emergency and the provision of accommodation and facilities suitable for under-18s, but it applies only to hospitals. I agree that there is a reasonable case to extend this to specialist eating disorder units. With that in mind, I hope the Minister will be receptive to this amendment.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Baroness, Lady Parminter, for bringing Amendment 132 to your Lordships’ Committee, for raising this important issue, for sharing at Second Reading, as the noble Lord, Lord Kamall, said, her personal experience of her daughter’s treatment and for sharing her overall experience of the provision of services today. The noble Baroness, Lady Browning, made the important point about different conditions needing different provision and support. That was amplified by the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord.
Eating disorders are of course serious mental health challenges, and it is vital that those with them can access effective help quickly. We will continue to work closely with NHS England to improve access to the right and timely care and treatment for those with an eating disorder.
The purpose of Section 140 is to ensure that approved mental health professionals are aware of the services available to help them to locate hospital beds in special cases. The intention of the amendment is to extend the duty on health authorities to notify local authorities of arrangements for urgent cases and under-18s to include specialist eating disorder units.
Section 140 applies to arrangements for people who need in-patient treatment in a hospital. That includes specialist eating disorder units where they provide in-patient treatment in a hospital setting and are appropriate for someone to be detained in. Therefore, while I understand the points being made, it is not necessary to specify that Section 140 applies to specialist eating disorder units. I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Parminter (LD)
My Lords, I am grateful to Members around the Committee who have shared my concerns about the need for proper provision for people with eating disorders. The noble Baroness, Lady Browning, rightly identified that there is a need for mental health provision to focus on the particular illnesses and to treat each appropriately.
I knew that my amendment would not be accepted; I was just desperate to find some way to raise this important issue, but I am grateful that my poor attempt has at least allowed for a debate in Committee and allowed me to share with Members a bit more about what it actually means if you are in a specialist eating disorder unit for a very long time. I would still love to see the words in the Bill, because every time ICBs and others think about provision for people with mental illnesses, including eating disorders, specialist eating disorder units should be in there, but I am not going to press the point either here or in the future. I am grateful for the support around the Committee, and I will keep trying to raise the issue whenever I can. With that, I beg leave to withdraw the amendment.
Baroness Tyler of Enfield
“General duty to secure sufficient resources for services in the community(1) It is the general duty of integrated care boards to ensure, insofar as is reasonably practical, that services in the community responsible for delivering care, treatment, or detention provisions under the Mental Health Act 1983 and this Act have the necessary resources, including financial support, to meet service demands.(2) Additional forms of resource may be determined by integrated care boards in consultation with relevant local authorities or health care service providers and may include—(a) sufficient numbers of trained medical professionals;(b) purpose-built facilities for patient care;(c) community services responsible for out-patient care.”Member’s explanatory statement
This amendment places a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand on services to ensure that the provisions of the bill function as intended.
Baroness Tyler of Enfield (LD)
My Lords, yes, I am afraid it is me again. I thank my noble friend Lord Scriven and the noble Baroness, Lady Bennett, for adding their names to Amendment 134. Of course, we have already acknowledged in many of our debates that the provisions in the Bill rely heavily on strong and effective community provision being in place, but there are real concerns within the sector that community provision is not currently sufficient to support the changes set out in the Bill. In my view, the new duties placed on local authorities and integrated care boards to ensure an “adequate supply” of community support lack teeth, and no real accountability measures have been put in place as yet to ensure that this duty is fulfilled. My Amendment 134 would place a general duty on integrated care boards to ensure that services in the community had the necessary level of resource to meet demand for services.
This amendment is closely related to the amendments in group 1, already debated—indeed, I am not quite sure why this one was not included in that group; groups remain a bit of a mystery to me. It is worth noting that the Equality and Human Rights Commission recommended in its response to the Joint Committee that the Government should, in line with the recommendation of the independent review, ensure that there was
“sufficient, high-quality, appropriate, community-based mental health services and pathways to meet the needs of all adults, children and young people”.
It stressed:
“These should include therapeutic alternatives to detention, preventative support to minimise the risk of crisis, and wider community services that enable good mental health and recovery”—
something I will be returning to in a later amendment. Is the Minister able to say what consideration the Government have given to that specific recommendation?
The EHRC also felt that the Bill needed strengthening
“to ensure sufficient community-based services in practice in order to end inappropriate detentions. This was highlighted in the most recent annual review of the Mental Health Act by the CQC, which stated: ‘While we support the government’s objective to reduce hospital admissions for people with a learning disability and autistic people under the MHA, this can only be achieved by an increase in community support, including trained staff, and high-quality alternatives to admission’”.
I want to finish by focusing on the workforce aspect. Following the previous Government’s 2021 White Paper, the Royal College of Psychiatrists commissioned an independent assessment of the impact of the proposed changes on the psychiatric workforce to better understand how many additional psychiatrists would be required to deliver the reforms in the proposed year of implementation and, indeed, 10 years later. Based on that White Paper, the research found that by 2023-24, an additional 333 full-time equivalent psychiatrists would be needed in England, costing £40 million per year, and that by 2033-34, a further 161 full-time equivalent psychiatrists would be needed. While these figures may not necessarily accurately reflect the exact number of psychiatrists needed to deliver the reforms we are talking about in the Bill, or the current timelines for the legislation, they demonstrate clearly the impact on a workforce which is already understaffed and carrying high vacancy levels.
Back in March 2016, NHS England set a target to have an additional 1,040 consultant psychiatrists in post in England by March 2024. Based on these targets, as of July last year there was a shortfall of some 770 psychiatrists across England. That is a big shortfall. The impact assessment, while absolutely voluminous, is—as far as I can see—silent on where these people are going to come from. However, it estimates costs of around £99 million for alternative mental health care for people no longer admitted to hospital. It also estimates some £5.5 billion of savings from fewer overall admissions and fewer detentions for people with a learning disability or autism. It goes on to say that the benefits
“should not be understood as cashable”.
Can the Minister say what specific mechanism will be used for diverting more money into community services?
Psychiatrists are absolutely critical but are only one part of the wider mental health workforce, which also includes mental health nurses, clinical psychologists, mental health social workers, occupational therapists and others. Can the Minister say whether detailed plans to grow the overall mental health workforce will be contained in the 10-year plan and the upcoming spending review?
I am conscious that I have asked quite a lot of detailed questions, so if the Minister would prefer to write to me with her response, that is fine. I add that I am sympathetic to the aims of Amendment 157 in the name of the noble Lord, Lord Davies. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to again follow the noble Baroness, Lady Tyler of Enfield, and offer support to her. I will be very brief because there has already been a comprehensive introduction.
It is useful to draw a comparison to see how we might look at some kind of composite as we get towards Report. This amendment places a general duty on integrated care boards to ensure that services in the community have the adequate levels of resource, which is why I signed it, but who gives the resources to the integrated care boards? Ultimately, it is the Government.
My earlier amendment sought a regular process of reports and parliamentary oversight, and I suggest that we need both. This is a good, strong amendment to give the duty to the ICBs. But we also need to see that there is the oversight and that ICBs have the capacity to support the duty they are being given.
Lord Davies of Brixton (Lab)
Amendment 157 in my name seeks to clarify the responsibilities of integrated care boards and local health boards to find beds in a timely manner for patients admitted under Section 140 of the Mental Health Act.
This amendment goes to the heart of why we have the Bill in the first place. In large part, the practical problems experienced in obtaining proper care for people led to the introduction of the Bill, Sir Simon Wessely’s review and the work of the Committee. It reflects an important aspect of the transformation that has taken place in the understanding and treatment of mental illness. It reflects the importance of timely and effective care for people experiencing a crisis in their mental health. The Bill seeks to fill in gaps in mental health care, which can mean the difference between rapid intervention and needless delay.
My amendment to Section 140 is both necessary and overdue. It would place a clear responsibility on every integrated care board and local health board to ensure that patients who are assessed as requiring hospital admission under the Act receive it in a timely and appropriate manner. To that end, it mandates a clear line of responsibility by requiring the appointment of a designated officer charged with overseeing that these admission arrangements, as outlined in the Act, are not only established but function effectively on a day-to-day basis. This is not a mere administrative adjustment; it is an important change, aimed at addressing real world issues that affect the lives of countless individuals. Mental health crises occur without warning and do not adhere to schedules or bureaucratic timelines.
The local health boards and integrated care boards are the crucial link between community services and hospital care. Placing a clear statutory duty on these organisations will create a clear line of responsibility to ensure that no patient is left waiting whenever immediate care is needed. The appointment of a designated officer will further enhance accountability and operational efficiency. To emphasise the point, an individual with the specific responsibility of overseeing these arrangements will provide a robust mechanism to promptly address any issues that arise and to ensure that every patient’s admission is swift and appropriate.
It is important to understand the broader implications of this amendment. Timely admission to hospital is not merely a procedural matter; it is a critical component of effective mental health care. Early intervention can mean the difference between a manageable crisis and a catastrophic decline in a patient’s condition. By ensuring that patients are admitted promptly, we will invest in early treatment, reduce the likelihood of complications and, ultimately, alleviate the burden on our healthcare system. This proactive approach will lead to improved outcomes for patients, greater satisfaction among healthcare professionals and a more sustainable model for mental health service delivery.
To conclude, my amendment is a necessary step forward. It would provide clarity, reinforce accountability and ensure that our mental health system remains responsive and effective. I urge my noble friend the Minister to respond positively to my amendment, not merely as a change in policy but as a commitment to the well-being and dignity of every individual who depends on our mental health services.
Baroness Ramsey of Wall Heath (Lab)
My Lords, I rise to support Amendment 134. I hope I get the etiquette right, as this is my first contribution in Committee. I know noble Lords will put me right if I get it wrong.
People with learning disabilities and autism are generally detained because insufficient community support is available to keep them and others safe. Amending the Mental Health Act to prevent them being detained under its provisions will therefore be ineffective unless it is accompanied by serious investment in such support. In fact, without such investment it could actually be worse for people with learning disabilities and autism: if the community support is not available, doctors and social workers will inevitably look for other ways to keep them safe. They might be tempted to use the Mental Capacity Act in some cases, thereby taking away almost all agency and rights, not just those in respect of treatment, or to get the police and prosecutors involved in response to challenging behaviours, simply because the involvement of the criminal justice system means they can still use detention under the amended MHA. What an irony it would be if amendments to the Mental Health Act designed explicitly to reduce detention actually led to worse forms of detention.
Amendment 134, which would require integrated care boards to ensure that resources are made available to secure the necessary community support, is absolutely vital for the Bill to be effective. I mention here, as it is relevant, that I support the spirit of Amendments 163 and 164 in the names of the noble Lord, Lord Stevens of Birmingham, and others. If the necessary investment is made by integrated care boards, the future for people with learning disabilities and autism could be so much brighter.
I have seen what a wonderful difference this approach can make. I will never forget my work visit, in relation to children and young people with learning disabilities and autism, to a state special school in the London Borough of Islington—part of the Bridge Trust for youngsters with severe learning disabilities and autism, among other special needs—and seeing how well supported they were by integrated teams of social workers and health and education professionals. I asked the chief executive officer, Dr Penny Barratt, who had set the school up, how it started. She told me that she had been listening to the news one day and heard a report about a boy with autism whose behaviour was so challenging that he was being held down by seven people in A&E. Her background as a special needs teacher meant she knew that the next step for him was bound to be long-term, segregated detention. She was inspired in that moment to do something about it. The special school was born and, wonderfully, that young man became one of its pupils. His needs were as great as ever, with no language, but expert care and support from loving professionals meant that he was having a fulfilling life in a room with other pupils—with no detention and no segregation. Let us legislate to make it clear that this is the sort of future that we want to see for all such young people.
Baroness Hollins (CB)
In adding my support to these amendments, I welcome particularly the contribution from the noble Baroness, Lady Ramsey.
This debate has emphasised why the pathway of care, from the community through to any kind of hospital admission and discharge, must be considered as a whole. It is not okay to separate bits off. That is why the amendments are so important: unless we put provision in place to make sure that, when admission is necessary, it is timely and to a place which has the skills to provide the therapeutic care that people require, detention and admission will in fact be longer and costlier. We cannot contemplate making legislation that does not take account of the whole patient pathway.
Lord Stevens of Birmingham (CB)
I have been inspired by the previous two contributions. I will briefly pick up a point that the noble Baroness, Lady Tyler, made about Amendment 134 on the availability of community services, particularly psychiatrists. I think the Minister referred to the longer training times for psychiatrists and other mental health professionals as one of the rate-limiting factors that would affect the speed with which the measures in the Bill could be implemented.
I have a request for the Minister. It is quite hard to tease out from the impact assessment what the Government think the incremental requirements for psychiatrists will be, year by year, over the implementation period. In fact, slightly perversely, they use mixed currency: the Minister responded, rightly, to Amendment 163 by saying, I think, that there was a requirement for 400 additional psychiatrists for the second opinion service; but when you look at the table in the impact assessment, it turns out that that is a headcount number driven by a number that is not a whole-time equivalent. However, for all the rest of the workforce, a whole-time equivalent number appears to be shown.
It would be good to nail down what the incremental requirement will be for psychiatrists, year by year and on a whole-time equivalent basis, so that between now and Report, colleagues can consider what the ramifications of that might be for a backstop on implementation. If that incremental requirement could be juxtaposed with what the Government think the organic increase will be in the number of psychiatrists over that period anyway, driven by the already published NHS workforce plan, that would be supremely helpful.
Baroness Barker (LD)
My Lords, I will try to draw together some of the strands that we have been discussing in this debate. When the Minister responds, please will she share with the Committee the department’s and the Government’s thoughts on workforce planning and the modelling they use for the prediction of demand?
As I listened to my noble friend Lady Parminter eloquently introduce her amendment, it brought to mind friends of mine. They have been in the position where their child was diagnosed with a very severe eating disorder, but they were told, “You are not sufficiently ill for anything to happen”. From that stage, nothing happened. If it were a physical illness, there would be some kind of process—although maybe not a care pathway. I am sorry, but I am one of those people who is very cynical about the use of the phrase “care pathway”; it is very overused throughout the whole of health, and particularly in mental health. People are diagnosed and then are just left, until they become so ill that they are in crisis and it is impossible to ignore them. We have seen the trends in the number of young people with eating disorders, which my noble friend Lady Parminter mentioned. What is the department doing to forecast the demand for specialists of that nature in future?
I want also to return to some of the conversations and debates that were sparked by the noble Lord, Lord Davies of Brixton. We know that the police are going to withdraw from being the first responders when people are in crisis. What modelling are the Government doing in terms of the community provision that is needed to deal with those people—who will still be in crisis? They are not going to stop having crises; in fact, they are probably more likely to show up in in hospitals than ever before, because that is where people go in the middle of the night when they have a crisis.
This is the sort of argument that the noble Baroness, Lady Tyler of Enfield, was trying to get to in her discussion of having a mental health commissioner. Who will be the person who is in a position to take the Government to task for their planning and preparation for demands on the health service in the future? That is the kind of thing that we are trying to get to, and which all of us, in various different ways, have been trying to get to all afternoon.
Baroness Hollins (CB)
Can I just say that I did not talk about a “care pathway”? Perhaps I should have said the “patient journey”, but I was talking about the patient pathway—the actual experience of the person—which is not separated in their life.
Lord Kamall (Con)
My Lords, I will be brief on this one. I thank the noble Baroness, Lady Tyler, for this amendment and thank all noble Lords, who made very valid points.
Clearly, this is another sensible proposal, highlighting as it does the importance of making sure that the ICBs commission sufficient mental health services in the community to meet the demand for them. As the noble Baroness, Lady Barker, said, where will people go in the middle of the night? I know that we will come back to some of these issues when we discuss the group on mental well-being but I thought it was important that those points were raised now.
The Committee may remember that this was the subject of Amendment 139 in the name of my noble friend Lord Howe, who spoke to it on the second day in Committee. The main difference between those amendments is, I think, that the noble Baroness, Lady Tyler, wishes to get ICBs focused on this very important task as soon as the Bill becomes law—and I agree with her intention on that. My only fear around the wording as it is currently drafted—I recognise that it is a probing amendment—is that
“insofar as is reasonably practical”
may provide an excuse, or, as we say, the proverbial long grass into which this duty could be conveniently kicked. I look forward to the Minister’s response.
Baroness Merron (Lab)
My Lords, I thank noble Lords for their contributions on both these amendments. I turn first to Amendment 134 in the name of the noble Baroness, Lady Tyler, and spoken to by my noble friend Lady Ramsey and the noble Baroness, Lady Barker, both of whom shared real-life examples to illustrate what is being spoken about here.
This duty to consider mental health needs, as well as the needs of those with a learning disability and autistic people, in the community as well as in hospital is already covered by ICBs under the National Health Service Act 2006, as amended by the Health and Care Act 2022. An ICB must arrange for the provision of services to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility.
ICBs and their mental health trusts are also required to prepare a joint forward plan that describes how the ICB will arrange for NHS services to meet its population’s physical and mental health needs, and the needs of those with a learning disability and autistic people.
On the general point with regard to the long-term workforce plan, which the noble Baroness, Lady Barker, mentioned, it will report in a few months’ time, later in the year, which I hope will give a lot more substance to answer the kinds of questions that are being raised. The noble Lord, Lord Stevens, asked about incremental requirements for psychiatrists on a year-by-year and whole-time-equivalent basis. I say to the noble Lord that the impact assessment sets out our best estimate at this point, but the plans need to be seen as somewhat iterative. With regard to further specific questions, including those raised by the noble Baroness, Lady Tyler, I will indeed be glad to write.
Turning now to Amendment 157, in the name of my noble friend Lord Davies and spoken to by the noble Lady Baroness, Lady Bennett, as we have already discussed in relation to Amendment 134, there is already a duty on ICBs to provide sufficient hospital and community services under the National Health Service Act 2006. Furthermore, chapter 16 of the Mental Health Act code of practice already states that local authorities, NHS commissioners, hospitals, police forces and ambulance services should have local partnership arrangements in place to deal with people experiencing crises in mental health.
We accept that there are issues with bed capacity and patient flow, as referred to by the noble Baroness, Lady Hollins. I will resist using the term “patient pathway”, but I certainly agree that they are part of what happens to a patient and they are indeed linked—whatever form of words we choose to use. That is why, in the recent NHS planning guidance, we have tasked local systems with reducing the length of stay in mental health wards and have committed £26 million to improve mental health crisis care, with a further £75 million to reduce inappropriate out-of-area placement. All this is already in train and does not suggest a requirement for primary legislation. So, for these reasons, I ask that the amendment be withdrawn.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister yet again for her response. We have had a number of discussions so far this afternoon in this broad area, and indeed, as was alluded to, on previous Committee days. They are interrelated, so it is sometimes hard to separate the individual groups. I think at the very heart of all of our discussions is concern about two things: first, how we ensure that there is sufficient provision within the community to provide the sorts of services we all hope to see and which are fundamental to the successful implementation of the Bill; and, secondly—I think this came out very clearly—the need for really good workforce planning and understanding it on a year-by-year basis.
I was encouraged to hear from the Minister that we can expect to see the long-term workforce plan—I think she said—in a few months’ time. I very much look forward to that. I hope it includes some of the workforce planning and modelling of community provision that my noble friend Lady Barker referred to, and I hope, above all things, that it is slightly clearer than the impact assessment, which, I have to be honest—it may just be me; it might have been late at night when I was looking at it—I found somewhat on the opaque side. I am really hoping for greater clarity when we see the long-term workforce plan. This issue is not going to go away. In what form we return to it at Report, I am not quite sure, but, for the moment, on that basis, I beg leave to withdraw the amendment.
Lord Davies of Brixton
“Mental Health Crisis Breathing SpaceAny person detained under sections 3, 37, 41 or 47 of the Mental Health Act 1983 must be offered support from the mental health crisis breathing space debt respite scheme.”Member’s explanatory statement
This amendment ensures that MHCBS, a debt respite scheme, is offered and available to patients detained under sections 3, 37, 41 and 47 of the Mental Health Act 1983.
Lord Davies of Brixton (Lab)
In moving Amendment 135, I am grateful for the support of the noble Baronesses, Lady Tyler of Enfield, Lady Bennett of Manor Castle and Lady Neuberger, and I will be a little disappointed if I do not get some support from the noble Lord, Lord Kamall.
This amendment would require that the established and successful procedure, the mental health crisis breathing space, is offered automatically to those detained under longer-term Sections of the Mental Health Act. This is the final one of a set of three amendments to the Mental Health Bill in my name that have addressed the financial implications for people who struggle with their mental health. In these debates I have previously referenced that I am on the advisory board of the Money and Mental Health Policy Institute. This amendment is based on the institute’s work.
I thank my noble friend the Minister for her engagement on my Amendments 59 and 121, which sought to ensure that routine enquiries on financial matters are embedded in care and treatment plans and advance choice documents. I am grateful for the Minister’s acknowledgement and understanding on these issues.
Amendment 135 calls for mental health crisis breathing space to be automatically offered to those detained under Sections 3, 37, 41 or 47 of the Mental Health Act. Of the three amendments in this set on financial issues, this one perhaps has the greatest scope for reducing the financial harms that people experience when they are facing a mental health crisis. The mental health crisis breathing space mechanism is a vital tool that can protect people in a mental health crisis from the impacts of problem debt by pausing enforcement action and contact from creditors, and freezing interest and charges on any debts. These protections are provided for as long as the treatment lasts—plus another 30 days.
When people access this scheme, it can be life-changing. It can be the difference between people leaving hospital after a mental health crisis to find that bills and debts have escalated, thus putting their recovery in jeopardy, and having the space that they need to get back on their feet. I share the words of one of the Money and Mental Health Policy Institute’s research community members who has personal experience of accessing the scheme:
“Breathing space … has totally changed my experience from feeling hounded and persecuted to supported and valued”,
taking away
“much fear and sleepless nights coupled with dire days of depression”.
However, in its current provision, use of the scheme is significantly below its potential and the numbers that were forecast by the Government. When introducing the scheme in May 2021, the Treasury anticipated that 27,000 people would use it in its first year. Yet the most recent figures from last November show that only 4,404 people have accessed it in total. This underutilisation is due not to a lack of demand or need but to how the scheme is designed and delivered.
Existing NHS guidance on acute in-patient mental health care already states that wards should offer mental health crisis breathing space to those who need it. This is well-intentioned but does little to drive take-up of the scheme. In practice, thousands of people who would benefit from the support of this tool are missing out simply because nobody asks. On top of this, awareness of the mechanism is extremely low among mental health care professionals, meaning that, even when financial difficulties are spotted, it does not always result in people accessing the protections that the mechanism affords.
My proposed addition to the legislation would ensure a statutory obligation to offer this mechanism to those who need it most, requiring services to be more thorough in its implementation, with greater levels of accountability. Specifically, automatically offering the breathing space to people detained for potentially longer-term conditions would ensure that those whose incomes are likely to be adversely impacted by extended admissions can be supported. This intervention would target the core group that the mechanism was intended for.
To outline the possible reach of such a targeted intervention, in 2023-24 there were almost 11,000 detentions under the relevant Sections of the Act, representing a fifth of all detentions. Formalising the automatic offer of mental health crisis breathing space to this targeted group would go a long way towards ensuring that the mechanism supports the number of people that the Treasury forecasted it to serve. Crucially, after the breathing space period has ended, people would have the opportunity to be offered formal debt advice, with specialist support for those who need it, to ensure that financial difficulties are resolved on a longer-term basis. Legislating for the scheme to be automatically offered to those detained under the longer-term provisions of the Act would be genuinely transformative in preventing more people from experiencing the acute financial harms that too often accompany a mental health crisis. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Lord, Lord Davies of Brixton, and to offer the strongest possible support. These are issues that the noble Lord and I—the noble Lord very much in the lead and me following along in support—have engaged with on financial services and markets Bills previously. They are crucial issues for people’s well-being and the well-being of our whole society.
The noble Baroness, Lady Hollins, was talking on the last group about the patient journey. For someone who has become ill, who is seeking treatment and who has the weight of debt sitting on their shoulder, it is worth thinking about how damaging that weight of debt can be to the whole experience of the patient journey. It is worth thinking about how this interacts with issues around discrimination and unequal outcomes that we have looked at regarding other parts of the Bill in terms of the intersectional pressures that people can experience.
In preparing for this, I was looking at the middle of last year and mental health awareness week. The Women’s Institute was focusing particularly on the impact of energy debt, and 14% of the people in the study were at that stage in debt to their energy suppliers. Nearly a third said that they were worrying seriously about this. A fifth said that they had suffered sleepless nights. For the people who are suffering under debt pressures—single parents, very often women, or people from disadvantaged communities that are already economically disadvantaged—all these things feed in together. This is simply a measure for that. “Breathing space” is so evocative of the sense of taking off that pressure and allowing people the chance to focus on their own recovery and their own treatment, rather than just worrying away about that debt. I cannot see why the Government, or why anyone, would oppose this very modest measure.
Baroness Neuberger (CB)
My Lords, I should have declared interests before, as chair of University College London Hospitals NHS Foundation Trust and of Whittington Health NHS Trust. I also was a vice-chair of the review of the Mental Health Act, which reported in 2018 and is relevant, because I very strongly support this amendment to which I have added my name. It is something that the review did not address. We should have done. We did not have it raised sufficiently strongly with us by service users to whom we talked a great deal. That was an omission. It is very important that we do this. I hope that the Minister can say that this will be included in the legislation in its final form, and that she will accept this amendment or something redrafted along its lines.
I am very grateful to the wonderful Money and Mental Health Policy Institute—I pay full tribute to the noble Lord, Lord Bradley—for its briefings. When, in 2022, it conducted a piece of research looking at the finances of 200 people who had received care from secondary mental health services, it found that, quite unsurprisingly, a majority of the people who responded had experienced an income drop while receiving support from mental health services and struggled to pay their mortgages or for food, or missed a payment on energy, rent, council tax, or whatever it might be. This was a problem that kept coming back and they kept talking about. But the majority also expressed real support for the idea of making plans, ahead of time, for how to deal with their finances and how this would all be managed when they were unwell, as many people have episodic periods of being unwell. It seems to me that that piece of work is a cast-iron argument in favour of using breathing space to tackle these financial issues. I very much hope that the Minister will be able to support this.
Baroness Tyler of Enfield (LD)
My Lords, I rise very briefly to add my support to this amendment. I have been very pleased to add my support to all three of the amendments that the noble Lord, Lord Davies, has tabled in this area of financial inclusion. I remind your Lordships’ Committee of my interests as a member of the Financial Inclusion Commission and president of the Money Advice Trust.
I have always been a strong supporter of breathing space. It is a really important debt respite scheme, which has made a huge difference to the lives of many people struggling with debt. The idea of automatically offering this to people who are detained under the Act is absolutely the right thing to do. There is just so much evidence about the links between people spiralling into mental health crises and then into financial crises, which makes their recovery so much harder. I was pleased to hear the noble Lord, Lord Davies, talk about the sort of debt advice which might also then be available.
Everything that needs to be said about this amendment has already been said, so I underline my support for it and, like other noble Lords, very much hope we might hear some encouraging words from the Minister.
Baroness Watkins of Tavistock (CB)
My Lords, I very much support this amendment and do so for an additional reason to those already given, which is that it will reduce the time staff have to spend discussing debt with severely ill people in a time of crisis. One thing we need to do is improve productivity in the health service—I declare my interests in relation to that—and free up clinical staff to really support patients. I believe that this intervention would actually enable that.
Lord Kamall (Con)
My Lords, in speaking to this amendment, I pay tribute to the work of the noble Lord, Lord Davies, in raising this issue in this House and through his work with the Money and Mental Health Policy Institute. The noble Lord, Lord Davies, said he hoped that he would get my support; I can assure him of that. Today, and in previous groups of amendments related to advance choice documents, the noble Lord spoke powerfully about the need to understand the link between financial problems and mental health problems. It also reminded us that while this may not be seen as a priority for people detained under the Mental Health Act, it is not difficult to imagine why they might neglect their personal finances—obviously, not their first priority. During this time, their bills will not be paid, debts will grow, and this could lead to debt collectors or bailiffs being called in, making the situation far worse.
I was particularly struck by the personal testimony that the noble Lord, Lord Davies, read out, in the earlier group of amendments, from the person who was helped by the Money and Mental Health Policy Institute, about not being asked whether there was anyone who could open their mail and keep on top of their day-to-day living. For them, as the noble Lord told us, it was a spiral of going in for treatment and coming out to find that their finances were in a bigger mess than before. What would that do to someone who was suffering from mental health issues? It was a bigger mess, leading to terror, shame and guilt, and in fact it undid the work of the treatment that they originally went in for. Also, as the noble Baroness, Lady Bennett, has said, the phrase “breathing space” is very evocative of what we are asking for here.
It is worth repeating that this amendment does not require health and care professionals to offer financial advice. We are not asking them to be financial advisers or to deal with issues that they are not experts in. It is about empowering them to identify people in need and refer them to the appropriate existing support. As the noble Baroness said earlier, this will improve productivity and save all that time that would be wasted. It need not cost much money, or indeed any money in some cases, but could save the patient from financial and mental distress and save taxpayers’ money. For this reason, we are supportive of this amendment.
Baroness Merron (Lab)
My Lords, I am grateful to my noble friend Lord Davies of Brixton for raising what is a very real issue, among many we are debating today in Committee. I thank him for Amendment 135, supported by the noble Baronesses, Lady Bennett, Lady Neuberger and Lady Tyler, and spoken to by the noble Baroness, Lady Watkins, and supported by the noble Lord, Lord Kamall. I certainly agree that breathing space can indeed be what could be described as a lifebelt for people in problem debt, especially where this is worsening or is indeed a trigger for their mental illness, as my noble friend Lord Davies spelled out and the noble Lord, Lord Kamall, endorsed.
Individuals who are detained in hospital for assessment or treatment under the Mental Health Act are eligible for this scheme, as are those receiving crisis treatment in the community from a specialist mental health service. Approved mental health professionals can refer eligible individuals to protect them from debt enforcement. These professionals are often the first on the scene when a person is in crisis and are responsible for arranging assessment for treatment under the Act. Therefore, when a person is admitted to hospital, they may already have been enrolled in the scheme and, if not, NHS England guidance sets out the financial support, including referral to breathing space, that should be offered to patients receiving acute in-patient mental health care, whether detained or voluntary. I can say to your Lordships’ Committee that we do intend to make this an explicit requirement in the Mental Health Act code of practice.
I feel that is particularly important as my noble friend Lord Davies raised the point about uptake. Certainly, I recognise that uptake has been lower for the scheme than originally anticipated. While we do not believe this is a representation of the scheme significantly underperforming, I assure my noble friend that we will continue to keep the scheme under review to ensure that it is working effectively for those who need it, and needed indeed it is. It is for these reasons that I hope that my noble friend will withdraw the amendment.
Lord Davies of Brixton (Lab)
I thank everyone who has taken part in the debate; the case was made clearly by everyone. I thank particularly the noble Baroness, Lady Watkins, for the additional point about the pressure on clinical staff. This issue was, of course, raised in the earlier amendments about the code of practice and the treatment plan; they are all of a piece. I will consider carefully what my noble friend the Minister said, and perhaps we will have some discussions, and we will see where they go. In the meantime, I beg leave to withdraw my amendment.
Earl Howe
“Accessibility for children with physical disabilities(1) The Mental Health Act 1983 is amended as follows.(2) In section 131A (Accommodation etc for children), after subsection (4) insert—“(4A) Where a child who is accommodated under this section has needs arising from a physical disability, the managers, in determining the suitability of the environment in which the child is accommodated, must ensure that such reasonable adjustments to the environment are made as they consider necessary.”” Member’s explanatory statement
This amendment seeks to ensure improvements in accessibility for children with physical impairments who are accommodated in mental health inpatient units.
Earl Howe (Con)
My Lords, in moving Amendment 142, I will speak to Amendments 143 and 144 standing in my name and that of my noble friend Lord Kamall. These amendments are about one critical issue that has proved seemingly intractable despite best efforts for many years: the way the mental health system looks after child patients. I am not talking just about child patients who have been compulsorily detained under the Mental Health Act, although they are the subject of Amendment 143; I am referring also to children admitted to a mental health unit as in-patients for any reason at all. That is the subject of Amendment 144.
Noble Lords who are veterans of the last Mental Health Bill in 2007—I can see one or two—will remember that the late Lord Williamson of Horton, former Convener of the Cross Bench Peers, made this issue his crusade with, unfortunately, only limited success. We are still living with the problem. The current Mental Health Act code of practice says that it is government policy for under-16s not to be admitted to an adult ward, which is fine as far as it goes—although, in my book, when we talk about children, we should include young people aged 17 and 18.
The Government promised to eliminate the inappropriate use of beds in adult wards, but that has not happened. Last year, the CQC reported that 196 children were admitted to adult mental health units in 2022-23. This is not a trivial matter. The patient group Blooming Change, which I have mentioned before, has provided me with some first-hand accounts from children and young people who have been placed on adult mental health wards and who have been through some harrowing experiences. One has said:
“As a child I spent over 50 days in a mixed gender crisis unit … There was some very scary stuff that happened … During my first day on the unit, I witnessed a team of police dressed in riot gear with riot shields and dogs doing a drug search … At one point my bedroom was next door to a man who broke a student nurse’s nose and smeared his own bodily fluids over his bedroom wall … I was constantly scared and on edge and the ward was constantly unsettled. The staff on the ward were not trained on child restraint, so I often ended up really hurt … it would be, like, really big men who were used to going up to forensics to restrain people and then coming to restrain me, a little girl at the time, basically. It was horrific”.
That may be an extreme case, and one trusts that it is, but there are many cases that fall not far short of that level of emotional damage. It certainly is not that extreme as regards the complete absence for a child of any therapeutic benefit.
Another witness said:
“The worst thing about adult wards is you can’t access any intervention at all. No art therapy, no psychiatrist, because you’re under 18, so they say they don’t have the appropriate training to work with you. When I was on an adult ward, all my medication went unreviewed. I wasn’t allowed to ask for anything, not even allowed outside”.
What is the best way of solving this problem? The approach I have taken in these amendments is to say that, when a person aged under 18 is in desperate need of in-patient mental health treatment, the clinical decision-making around admitting that person to a mental health unit should be as rigorous as it can be to avoid, as far as humanly possible, admitting that patient into an adult ward. There surely to be a determination around best interests. There also need to be procedural safeguards so that, if it is decided that an adult ward is the only available option in a particular case, there is appropriate transparency around that decision, such that the local authority is informed of the fact and the hospital itself publishes statistics in its annual report recording the number of instances during the year when this has occurred.
I also suggest that a report to the local authority is equally appropriate in a situation where a child is accommodated in a hospital or mental health unit situated outside the local authority area in which the child is ordinarily resident. In one of our earlier debates, we talked about the particular vulnerability of children who are treated in a hospital far away from home. Alerting the child protection officer working nearby would go some way at least to mitigating the risk of the child self-harming.
There may be some Members of the Committee who think I have been far too lily-livered in tabling these amendments and who feel I should have tabled much stronger amendments proposing the outright abolition of placements involving children on adult wards. I quite deliberately have not done that for the reason we touched on in earlier debates: we have to work with the world as we find it, not as we would ideally like it to be. We have to recognise that, in a few cases—sometimes desperate cases—a temporary stay on an adult mental health ward could be the only way of saving a child from death or serious injury and, in those cases, I suggest that it is not for us in Parliament to prohibit the practice outright.
On Amendment 142, a child being treated in a mental health in-patient unit who also has a physical disability can sometimes get a very raw deal. If the unit they are on has areas that are, in practice, inaccessible to that child, that simple fact can have a huge impact on their access to treatment. One member of Blooming Change has said:
“I am physically disabled, and for me, the room to speak to the psychologist was upstairs in the unit, and there was no way for me to access that space. I kept being told she would come down to see me somewhere else during my stay, but it didn’t happen, so for me, my physical impairments meant that I didn’t get equal access to the support”.
This is not the sort of amendment I would choose, in the normal way, to bring back on Report, but the questions it raises are important enough for me to ask the Minister whether the department and NHS England are sufficiently aware of that kind of problem and what, if anything, is being done to address it. I beg to move.
Baroness Berridge (Con)
My Lords, I rise to speak to Amendments 159 and 160. Amendment 159 is similar to Amendment 143. It merely proposes a different notification procedure where a child has been present on an adult ward, but it also requires notification to the local authority and applies to out-of-area placements, which were mentioned by my noble friend Lord Howe. It is important that that information is given to the local authority, as it has the duties to safeguard—particularly children in need. I will speak to this on Amendment 160.
I join with my noble friend’s comments on how the Bill treats those who are 16 and 17. We have raised the issue in relation to other areas of the Bill that, in law, they are children, and they are treated as children by the professionals, as outlined in the example of the psychiatrist saying, “I don’t have the training to do this”. Under-18s are treated as vulnerable young people and children. One can also draw attention to the fact that under-18s are no longer allowed to marry in our country. We are increasingly coming into line with the fact that you are a child, and have the protection of the law as one, until you are 18.
Amendment 160 relates to “children in need” under Section 17 of the Children Act. Recommendation 117 of the Wessely review said:
“Section 17 of the Children Act 1989 should be amended to clarify that any child or young person admitted to a mental health facility is regarded as a ‘child in need’ so that parents can ask for services from their local authority”.
That will, obviously, be particularly important if the child has been placed out of area.
That recommendation was rejected by the Government in their published response to the review, but I note that the review also asked for this provision to be if the child is admitted—that means as a voluntary patient, of course, as well as just being admitted under the Act. I have laid this amendment to clarify the Government’s response to this. That response stated that, basically, it is not necessary to amend the Children Act because disabled children, which includes children suffering from a mental disorder, are already deemed to be “children in need”, so there is no need for this recommendation.
Baroness Tyler of Enfield (LD)
My Lords, I rise very briefly to add my support to Amendments 143 and 144, in the name of the noble Earl, Lord Howe. I added my name to these amendments. I am also very sympathetic to the other amendments in this group, both Amendment 142 and the two amendments that the noble Baroness, Lady Berridge, has just spoken to.
The noble Earl, Lord Howe, introduced these amendments in an incredibly compelling, moving and, indeed, comprehensive way. In a way, I do not feel that there is very much for me to add. I did have to think quite hard—there was part of me that wanted an outright prohibition, but I recognise the state of the mental health services we have at the moment. Unfortunately, there are times—hopefully, in only a few desperate cases, as the noble Earl said, and for a very short time—when these measures have to be taken. As undesirable as I think it is, we need to recognise the world in which we live.
I would also like to underline—because most of the debate so far has been about children in adult wards, which is clearly hugely undesirable—the importance of considering children placed out of area. That is, so often, when there is no suitable or available bed. It goes back to the issues raised by my noble friend Lady Parminter about eating disorder beds. It is hugely detrimental for children and young people to be placed out of area, away from their support networks—their family and friends who they so desperately need as part of their recovery at a time of real crisis—so I want to underline the importance of that, as well as the importance of real transparency and rigour when a child is, very unfortunately, placed in an adult ward, hopefully for a very short period of time.
Baroness Butler-Sloss (CB)
My Lords, I come to this totally uneducated, so what I have heard this afternoon I have found very shocking. I agree with what has been said already, and I was particularly shocked by the comments from the noble Earl, Lord Howe. I would like to underline what the noble Baroness, Lady Berridge, has said about the fact that these are children. They may be 17 and a half but, under the Children Act 1989, they remain children and, across all legislation dealing with children, “best interests” comes in.
From what I have heard, it sounds as though adult wards do not understand that these are genuinely children and have to be treated separately but, much more importantly, that their best interests are not necessarily, or almost certainly not, the same as those of adults. I wonder whether it should not be permeating all establishments, private and public, that, if they have to take into an adult setting those under 18, they have to deal with them in a special way. I remain horrified by what was said and I hope that the Minister, who is a particularly sympathetic person, will pick this up and take it across the board.
Lord Berkeley of Knighton (CB)
My Lords, I am only marginally less shocked than the noble and learned Baroness. The reason for that is that I regularly visited a friend in an adult ward, suffering, funnily enough, from eating disorders, among other things. So I support Amendment 144 most strongly. What shocked me was that, over several years, there were two children I saw. They were witnessing not only acts of violence but sexual acts too that were quite clear—I will not go into the details, but it was completely inappropriate for a child to be witnessing this.
The final point I want to make hinges on what we have also heard: that there is only so much we can do. Of course, the reason for that, and it is another reason why these experiences are seared into my mind, is the state of funding for mental health. No one can turn that switch on immediately, but the root problem here is that this is a sector that is somehow pushed to the side. Therein lies a fundamental reason why we have to take a completely different attitude to mental health, and I am sure that the Minister feels quite strongly about that herself.
Baroness Merron (Lab)
My Lords, I will turn first to Amendments 142, 143 and 144, in the name of the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall, and joined by the noble Baroness, Lady Tyler, on Amendment 143 and 144. I will also address Amendment 159 in the name of the noble Baroness, Lady Berridge.
I thank the noble Earl, Lord Howe, for the way in which he introduced this subject and for the understanding and shock shared by the noble Lord, Lord Berkeley, and the noble and learned Baroness, Lady Butler-Sloss. I am sure we all share the thoughts and views that they have expressed. I also thank the noble Earl, Lord Howe, for his reference to Blooming Change. I certainly recognise the important work that it does. The way he introduced its observations and experience really highlighted the reality of what we are here to deal with.
On Amendment 142, it is crucial that people with physical disabilities have equal access to mental health services. Under the Equality Act 2010, those providing mental health services, including under the Mental Health Act, must make reasonable adjustments to ensure that people with disabilities are not at a disadvantage. Therefore, the aims of this amendment are already covered by existing legislative requirements. I heard what the noble Lord said about an example of where this was not the case. I can only add my own comment to say that this is, of course, not acceptable and not at all how legislation would expect a provider to act.
We will review the guidance on how to support individuals with a physical disability, including children, when we consult on the revised code of practice and as part of NHS England’s new service specification, which will set out requirements for children and young people’s mental health services. I hope that will be helpful to meet the points raised in Amendment 142.
I turn now to Amendments 143, 144 and 159. The policy of NHS England is clear that children and young people should be able to access the right type of service, as close to home as possible and in the least restrictive environment. We do not want to see children and young people on adult wards or placed far from home. We are working to secure the necessary investment to expand community-based support and specialist beds to prevent this from happening. I am grateful to the noble Earl, Lord Howe, for referring to the need to deal with where we are rather than where we might like to be. That is what we intend to do.
There are already provisions in the Act that seek to limit inappropriate placements for children and young people. Under Section 131A, hospital managers must ensure that the patient’s environment is suitable, having regard to their age. We believe that the careful consideration and nuance involved in determining any circumstances where it is in a child’s best interest to be treated on an adult ward or in an out-of-area placement fits better in a revised code of practice rather than legislation, which would apply fixed rules that could not be adapted to individual circumstances or service provision.
We will provide additional guidance on the process to determine, and review throughout a child’s detention and treatment, that the environment in which they are accommodated continues to be in their interests. Such matters can be addressed through the new service specification for specialised children and young people’s mental health services.
I assure the Committee that there are already clear operational processes in place to identify and monitor children and young people in inappropriate placements. It is a statutory requirement for the CQC to be notified within 48 hours if a child or young person is placed on an adult ward. The CQC reports on the number of people under 18 admitted to adult wards as part of its Monitoring the Mental Health Act reports.
The CQC project on improving regulation for children inappropriately placed will identify what CQC can do to prevent children being cared for by providers who cannot meet their needs and to reduce their risks of being exposed to poor-quality care. I assure the Committee that we will review the process for who should be notified, and in what circumstances, in the new service specification for specialised children and young people’s mental health services, and in the revised Mental Health Act code of practice.
I turn to Amendment 160, tabled by the noble Baroness, Lady Berridge, on the extension of Section 17 of the Children Act 1989 to include children detained under the Mental Health Act. Section 17 places a duty on local authorities to provide support for children who are unlikely to reach or maintain a satisfactory level of health or development, or where their health or development would be significantly impaired without the provision of services—or where the child is disabled.
Earl Howe (Con)
My Lords, I am grateful to all noble Lords who spoke in this short debate and grateful for the support that they have expressed for the amendments, both mine and the others in this group. My noble friend Lady Berridge drew my attention to an inadvertent slip of the tongue that I committed in my earlier contribution. When I sought to define a child, I meant of course to say that we should include young people aged 16 and 17. In that regard, I was particularly grateful for the powerful interventions from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Berkeley of Knighton, citing their own experiences.
I much appreciate the Minister’s comments in response to these amendments, particularly Amendments 143 and 144. I believe, from what she said, that she and I are on the same page when it comes to age-appropriate settings for child patients. It was reassuring to hear from her what is contained in the current code of practice and what is intended to be included in the revised service specification. I am also pleased to hear that the CQC has it as part of its role to report on these very important issues.
I will study what she has said in Hansard and consider what is best to do between now and Report, but, for now, I beg leave to withdraw the amendment.
Earl Howe
“Recording of use of force on mental health patients(1) Each NHS facility must keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder, by staff who work in that facility and in relation to the patient’s diagnosed or suspected mental disorder, in accordance with this section.(2) Subsection (1) does not apply in cases where the use of force is negligible.(3) Whether the use of force is “negligible” for the purposes of subsection (1) is to be determined in accordance with guidance published by the Secretary of State. (4) The record must include the following information—(a) the reason for the use of force;(b) the place, date and duration of the use of force;(c) the type or types of force used on the patient;(d) whether the type or types of force used on the patient formed part of the patient’s care plan;(e) name of the patient on whom force was used;(f) a description of how force was used;(g) the patient’s consistent identifier;(h) the name and job title of any member of staff who used force on the patient;(i) the reason any person who was not a member of staff in the facility was involved in the use of force on the patient;(j) the patient’s diagnosed or suspected mental disorder;(k) the relevant characteristics of the patient (if known);(l) whether the patient has a learning disability or autistic spectrum disorders;(m) a description of the outcome of the use of force;(n) whether the patient died or suffered any serious injury as a result of the use of force;(o) any efforts made to avoid the need to use force on the patient;(p) whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan.(5) The facility must keep the record for 3 years from the date on which it was made.(6) In subsection (4)(g) the “patient’s consistent identifier” means the consistent identifier specified under section 251A of the Health and Social Care Act 2012.(7) This section does not permit the facility to do anything which, but for this section, would be inconsistent with—(a) any provision of the data protection legislation, or(b) a common law duty of care or confidence.(8) In subsection (7) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).(9) In subsection (4)(k) the “relevant characteristics” in relation to a patient mean—(a) the patient’s age;(b) whether the patient has a disability, and if so, the nature of that disability;(c) the patient’s status regarding marriage or civil partnership;(d) whether the patient is pregnant;(e) the patient’s race;(f) the patient’s religion or belief;(g) the patient’s sex;(h) the patient’s sexual orientation.(10) Expressions used in subsection (9) and Chapter 2 of Part 1 of the Equality Act 2010 have the same meaning in that subsection as in that Chapter.”Member’s explanatory statement
This amendment would require NHS facilities to keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder.
Earl Howe (Con)
My Lords, I beg to move Amendment 146 standing in my name and that of my noble friend Lord Kamall. On the previous group of amendments, I cited the experience of a child held on an adult mental health ward being subject to restraint, where undue force was applied by the staff involved, causing unnecessary pain and distress to the patient.
In fact, the incidence of restraint being used on children being treated in mental health settings—and, indeed, general hospitals—is alarmingly high. This fact was recognised in the Mental Health Units (Use of Force) Act 2018, which came into effect in 2022. However, despite the provisions of that Act, not only has there been no drop in the number of restrictive interventions that children are subject to but there has been an increase.
In 2023-24, a total of 84,626 restrictive interventions were carried out on children, which is a 51% increase on the year before. That is the highest number of restrictive interventions recorded since figures were made available in 2019, despite what appears to be a drop in the number children being treated in mental health units. It is not only that restraint is being applied in these cases; all too often, because there is a physical struggle involved in the process of restraining someone, that patient ends up with an injury.
What lies at the root of this? Blooming Change believes that restraint amounting to abuse is entrenched in the system. Unfortunately, that rather depressing view was borne out last August by the Independent newspaper, which reported that children in a mental health in-patient unit in Coventry were captured on CCTV
“being dragged across the floor”
by the staff. There surely has to be something here about the need for staff in all mental health settings to receive training in the different techniques for de-escalating a crisis, with physical restraint being regarded as a last resort.
In fact, with the two very welcome principles set out in Clause 1, “least restriction” and “therapeutic benefit”, the training of staff in appropriate techniques of control will, one hopes, become an even more important priority than before. I hope the Minister can let me have some reassurance on this very troubling set of issues. I beg to move.
Baroness Hollins (CB)
My Lords, I declare my interest and my experience as a retired psychiatrist, working for the majority of my career with people with learning disabilities and autistic people.
In 2019, the then Secretary of State for Health asked me to oversee an important review of the use of another restrictive intervention, long-term segregation, known as LTS, for people with learning disabilities and autistic people. The Government published the oversight panel’s report of that review simultaneously with their quite positive response to its recommendations in November 2023.
Amendments 155 and 156 in this group address critical issues highlighted in the report about the use of LTS and the measures needed to eliminate its use for people detained under mental health legislation. The amendments aim to improve oversight and accountability in its use, while pointing to the urgent need for appropriate community services to prevent delayed discharges. The proposed changes are not merely administrative; they are a necessary response to urgent human rights questions raised by the use of LTS, and indeed these other restrictive interventions covered by the noble Earl, Lord Howe, whose amendment I support.
The report, aptly titled My Heart Breaks, found that the mental and physical health of children and young people and adults detained in long-term segregation deteriorates as a direct consequence of enforced isolation. In medicine, we call this iatrogenic harm, and it is unacceptable. LTS is often used in association with other restrictive practices. There is substantial research evidence pointing to the harms of such enforced social isolation, including in conditions of solitary confinement. Nor does it have therapeutic benefit. Oversight panel members considered that LTS should actually be renamed “solitary confinement” to avoid the normalisation of the practice in healthcare settings. Currently, rather less clear terminology is used, perhaps to disguise what is really happening in practice.
It is interesting to note that not all psychiatric hospitals have rooms in which to detain people. The type of accommodation used is sometimes totally unacceptable, with people being detained in rooms with no natural light, with a mattress on the floor and no toilet facilities.
Amendment 155 would require notification of LTS to the CQC within 72 hours of its commencement. It would require that the CQC must initiate an investigation if LTS was used for more than 15 days within any 30-day period, and if it were used for a person under the age of 18, or for a disabled person whose condition would be exacerbated by its use—for example, an already psychologically traumatised person who would be further traumatised by the sensory and social deprivation caused by its use, which is probably most people.
The amendment would require that the code of practice introduced minimum standards for LTS, including access to natural light, outdoor space and meaningful human contact. As I am sure most noble Lords would agree, these are basic necessities for dignity and well-being. Psychiatric hospitals still using LTS would be required to appoint a responsible officer to review and report on its use to the CQC. They would also be required to comply with recommendations from independent care (education) and treatment reviews, known as ICETRs, as they relate to LTS.
Amendment 156 seeks to ensure that therapeutic alternatives to LTS have been properly considered by requiring independently chaired reviews for any person detained in LTS. Since the end of the Department of Health’s programme of ICETRs in 2023, which reviewed 191 cases between 2020 and 2023, the CQC was commissioned to restart the programme. The new programme includes that the independent chairs must follow up to see whether the recommendations have been implemented, but funding has been committed only to the end of this current year, while LTS continues. These reviews must be kept in place until the use of LTS comes to an end, or for as long as it is in existence, so the amendment would require ICETRs to be continued, and it outlines the role, responsibilities and authority of the independent reviewer. I hope the Minister will be able to assure the Committee that the continuation of these independent reviews will be funded.
By limiting the duration of LTS, mandating independent oversight and requiring therapeutic alternatives, we could protect people’s rights and lay the groundwork for effective rehabilitation and reintegration back into their communities. Meeting minimum standards and reclassifying such segregation as “solitary confinement” would rightly underscore its appalling and often inhumane nature. I know many clinicians dislike that term because it is equated with punishment, but it describes the conditions that we sometimes saw.
The excuse is often given that LTS is the last resort for a person, but in fact it is usually the first resort and the first response, because no appropriate care and support have been provided. I have seen systemic failures that are leaving individuals in restrictive settings due to insufficient community-based support. While commissioners and clinicians often act with good intentions, they lack the co-ordination, resources and expertise needed to deliver the care that is needed to keep people safe.
The amendments simply aim to ensure therapeutic care close to home. They require that, by monitoring the continuing use of LTS and understanding the barriers to eliminating its use, the CQC would be able to identify the themes, trends and changes that are taking place over time in the use of this restrictive intervention. I urge the Minister to support the amendments.
Baroness Ramsey of Wall Heath (Lab)
My Lords, I support Amendments 155 and 156, to which I have added my name. If they were approved, the Care Quality Commission would be required to ensure independent reviews of the suitability of continued segregation, with a particular focus on the potential for community support to be preferable. The amendments would also increase transparency and set minimum standards, both of which I am sure noble Lords will wish to support.
When I chaired, from 2017 to 2020, NHS England’s transforming care steering group for children and young people with learning disabilities, autism or mental health problems and challenging behaviour, I heard heartbreaking testimony from parents whose teenage and young adult children were segregated for weeks and months on end, as referred to by the noble Baroness, Lady Hollins. For example, I visited a non-NHS provider outside London that had kept one young adult woman—whose story appeared in social media at the time, noble Lords may remember—in segregation, in a room with no window and no natural light, and passed food to her through a hatch. She was completely alone.
As I and other noble Lords have already argued, investment in the right type of community support is the only humane way forward. To ensure that proper use is made of this investment, we should send out a clear message that we expect community services to be used wherever possible, rather than segregation. The way to do this is for the Care Quality Commission to oversee a process of independent review in any case of segregation of a young person under 18, anyone with learning disabilities or autism, or anyone whose segregation exceeds 15 days.
Baroness Browning (Con)
My Lords, I too was pleased to add my name to Amendments 155 and 156 in the name of the noble Baroness, Lady Hollins. She has already spoken on this subject, and it would be remiss of me not to say that the title of the report she mentioned, My Heart Breaks—which is of course in her name and authorship—was chosen for a purpose. This is a heartbreaking situation, and on the piece of paper I am holding in my hand, headed GOV.UK, it says: My Heart Breaks—Solitary Confinement in Hospital Has No Therapeutic Benefit for People With a Learning Disability and Autistic People.
As we have heard, it is not just that it is not therapeutic; it is actually harmful. On the terminology, other speakers have already spelled out why they have dumbed down the real raw facts of the language that they use to describe this type of incarceration—for that is what it is. It reminds one of prisons. Look at the legal structures needed to put somebody into a prison, yet people who are ill are treated in the same way as prisoners.
I remember visiting a school for autistic children many years ago. It had a single room where they took children who were having a meltdown. It was a padded room, and they felt that was the appropriate treatment for children. We know, from the many debates in this House about people who have been held for extended periods in mental health hospitals, the damage it does and the difficulties when these practices are in place.
Ironically, this does not happen everywhere. You have to ask why it happens in some institutions and not in others. There is an answer to that. It is not because of a different profile of patients in these two different types of settings but because in some places they understand the problem and have sufficient training and resources. Training of personnel, particularly senior personnel, is key. If the person in charge says, “This is what we are going to do”, very few people in the structure below them are going to challenge it, so that is what they do and it becomes the norm.
Fifteen months ago the noble Baroness, Lady Hollins, produced this report, which now bears government approval and GOV.UK and the Department of Health and Social Care on it. It is now really time for the Government to adopt the amendments from the noble Baroness, Lady Hollins, and her recommendations. It is a wealth of experience that we can only admire, and I urge the Minister to please accept these recommendations. They come from the very highest level. We are very lucky in this House to have the expertise of my dear friend, the noble Baroness, Lady Hollins.
Baroness Fox of Buckley (Non-Afl)
My Lords, I will speak very briefly and on a slightly related topic. I want to talk about a different group of people who are in long-term segregation who are not sectioned and often do not get mentioned—prisoners. Long-term segregation is used when very mentally ill people in prison are not transferred to hospital and nobody knows what to do with them. They are put into isolation and left there, psychotic, delusional and forgotten—dumped, in effect.
The noble Baroness, Lady Browning, alluded to prisons, but even prisoners should not be treated like prisoners sometimes. The confusion and conflation of punishment and treatment outside prison is no less shocking when it is inside prison. You are not meant to punish somebody doubly because they are in prison and happen to get ill.
The Chief Inspector of Prisons, Charlie Taylor, has made the point that the segregation units are completely unsuitable for people who are severely unwell. They are also a significant drain on the hard-pressed staff, because very often the restraints are of people literally going out of their mind. They are not getting any medical intervention at all. According to the chief inspector, it requires multiple officers to unlock the cells even just to deliver meals.
Is it possible for the Minister to give any thoughts on that? Also, in a way, this is an appeal to the noble Baroness, Lady Hollins—if she takes this amendment forward—to bring that into the situation, even though I know I am slightly squeezing it in because I have Amendment 160A on reviewing prisons.
On Amendment 146 and the use of force, I absolutely agree with the mover of the amendment in relation to the need to keep records. That is obvious. I suppose the nightmare for us all is the misuse of force. It is horrifying—the stuff of nightmares—when people are ill.
I do not want to be naive. I know that when people are very ill and very psychotic, sometimes appropriate force is necessary; I just think it needs to be recorded. When I say force, I obviously do not mean violence or anything not within the realms of professional intervention. Sometimes I think we forget how ill people can be and how violent and how difficult it is for the people who work with them. We should record every instance of the use of force but be wary of demonising or damning every use of it, because it is not quite as simple as that.
Baroness Watkins of Tavistock (CB)
My Lords, I support all three amendments in this group but make the point that a lot of NHS care is now commissioned into the independent and charitable sectors. It is vital that records are kept in any care setting that is paid for by the NHS, not just by NHS facilities. I also believe that recording will reduce these kinds of behaviours because it will make people think much more carefully, particularly in long-term segregation. As you get to 10 days, people will be thinking, “How can we change the care we are delivering to avoid that 15-day reporting sanction?”. It really is imperative that we do this. We are treating some of the people who have the greatest needs in our society really badly.
Baroness Barker (LD)
My Lords, we on these Benches offer our support to the noble Baroness, Lady Hollins, for her two very thoughtful amendments and the way in which she introduced them. However, I want to turn our attention to Amendment 146, in the name of the noble Earl, Lord Howe.
I was a colleague of Norman Lamb, who was formerly a Minister in the department. He was one of the people who was, as a Minister, most active in addressing the issue of the overuse of force in mental health. This is a campaign that he has continued to develop in his chairmanship of South London and Maudsley NHS Foundation Trust. It is a subject that I am very glad we are focusing on again.
Anybody who has visited a mental health facility in which there are people who are having acute episodes will know that there are times when, for the safety of the person and the safety of others, it is necessary sometimes to use restraint. However, as I think the noble Earl was alluding to in his introduction, the overuse and frequent use of force is often an indicator of substandard care. Therefore, it is very important that incidences of use of force and the reasons for it, as in his carefully crafted amendment, are recorded.
There are two things that I want to pick up with the noble Earl. His amendment is very carefully crafted. In his introduction to it, he referred throughout to children, but his amendment relates not just to children but to all mental health patients. For that reason, I wish to concentrate on proposed new subsection (9). It says:
“In subsection (4)(k) the ‘relevant characteristics’ in relation to a patient mean—”,
and then lists all of the protected characteristics within the Equality Act, with one omission: gender reassignment. I therefore wish to ask him simply why people undergoing gender reassignment do not merit the same protection as everybody else.
Baroness Merron (Lab)
I thank noble Lords for their contributions. Let me first turn to Amendment 146, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall.
The amendment largely replicate duties under Section 6 of the Mental Health Units (Use of Force) Act 2018 for all patients in NHS mental health units. We recognise that the data suggests that the use of force for children and young people is still far too high, and we are working with NHS England to address this. Although the section I have referred to has not yet been commenced, the guidance is published and the data is already being recorded and reported, and we plan to commence the duty formally later this year. The amendment as drafted would capture a much broader range of patients than the use of force Act does—for example, all patients who are being treated for dementia or delirium in an acute hospital. Furthermore, it is not clear what use will be made of that data. Therefore, the volume of new data collection processes could be significant, but the benefits that would result from this are somewhat unclear.
I turn to Amendments 155 and 156, which have been put forward by the noble Baroness, Lady Hollins, regarding long-term segregation. The amendments are supported by the noble Lord, Lord Crisp, the noble Baroness, Lady Browning, and my noble friend Lady Ramsey, both of whom made important contributions to the debate.
Like other noble Lords, I thank the noble Baroness, Lady Hollins, for her work on this issue over many years, including her significant report, My Heart Breaks, which the noble Baroness, Lady Browning, rightly referenced. We are here today, I believe, in no small part due to the tenacity of the noble Baroness, Lady Hollins, and others who have fought for better outcomes for people under the Mental Health Act. I thank them all.
Baroness Hollins (CB)
There seemed to be an assumption that long-term segregation would continue and that perhaps ICETRs are not effective, but one thing that emerges from an independently chaired review is some learning about the barriers in place and the reasons why LTS is being used, rather than more therapeutic options. That is the reason for this kind of oversight being necessary. It is not necessarily that the ICETR itself will lead to recommendations being implemented; in my report, we found that the recommendations were not being followed—they were made and then not followed through. There needs to be much more effort to try to learn from what is happening and begin to change the culture of LTS as an okay response to somebody’s distress.
Baroness Merron (Lab)
I understand that point, and the noble Baroness makes it very well. I simply refer her to the points that I made about needing to look at evidence, the outcomes and the value of those reviews, and whether that is the right approach for everyone. I take on board her point, but my comments probably tell the Committee that we feel that there is more work to be done in this area.
Earl Howe (Con)
My Lords, once again, I express my appreciation to all noble Lords who have contributed to this debate. I highlight in particular the speech of the noble Baroness, Lady Hollins, which I found extremely powerful and persuasive, as did other noble Lords.
It strikes me that this is an especially appropriate grouping of amendments. The overuse of restraint in mental health settings and the use of completely untherapeutic long-term segregation are equally pressing and emotive concerns.
The noble Baroness, Lady Barker, pulled me up slightly on the issue of protection for those undergoing gender reassignment. The concern that I had in drafting the amendment was to cover protected characteristics across the piece, but she has drawn my attention to a lacuna, and I am very grateful.
I was somewhat disappointed with the Minister’s reply on the issue of restraint applied to mental health patients, which, as the noble Baroness, Lady Barker, pointed out, is an issue affecting adult patients as well as children. The amendment was drafted with precisely that in mind. The point that I sought to make was that, despite the statute law to which the Minister referred, the incidence of restraint on children in particular has rocketed, which raises questions about clinical practice, staffing and training around the code of practice. To my mind, it was a pity that the Minister had little to say about those possible areas for practical follow-up.
I shall read again what the Minister said about my amendment between now and Report. For now, I beg leave to withdraw the amendment.
Baroness Keeley
“Human Rights Act 1998: provision of treatment for a mental disorder as a public function(1) This section applies where—(a) a patient is receiving after-care under section 117 of the Mental Health Act 1983,(b) a patient is accommodated in a hospital for the purpose of being given medical treatment for mental disorder, or(c) a person’s health or social care arrangements in connection with their mental disorder give rise to a deprivation of their liberty, within the meaning of that term as under Article 5(1) of the European Convention on Human Rights.(2) The provider of treatment or care under subsection (1) is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature, if the treatment or care is arranged by or paid for (directly or indirectly, and in whole or in part) by a local authority in England, Wales or Scotland, or by an NHS Health Board, an NHS Integrated Care Board, or by a Health and Social Care Trust.”Member’s explanatory statement
This amendment ensures the Human Rights Act 1998 applies when people receive outsourced mental health treatment or after-care, or are deprived of their liberty in connection with a mental disorder. It addresses a gap in human rights protection exposed by Sammut & Ors v Next Steps Mental Healthcare Ltd & Anor [2024] EWHC 2265 (KB).
Baroness Keeley (Lab)
My Lords, I rise to explain the significance of Amendment 149 in my name, which aims to ensure that the Human Rights Act 1998 protects individuals whenever the NHS, local authorities or other state bodies outsource mental health treatment or aftercare to private providers. It also seeks to secure human rights protection whenever people are deprived of their liberty, in connection with mental disorders, by private health or social care providers. I start by saying that I am not in any way a legal expert, so I thank Dr Lucy Series and Professor Luke Clements for raising the need for this amendment. I also thank them for their help in drafting the amendments and providing notes and briefings on the issue, and for working with a number of noble Lords and the Bill team on it. I also thank the noble Baroness, Lady Barker, for her support for the amendment and adding her name to it.
A growing proportion of mental health treatment and most social care is now commissioned from the private sector by the NHS and local authorities, but human rights protection does not necessarily follow. When Parliament enacted the Human Rights Act 1998, it was intended to apply to private organisations delivering public functions on behalf of the state. However, the courts have narrowly interpreted public functions.
In the 2007 case YL v Birmingham City Council, the House of Lords ruled that private care providers, being commercial operators working for profit, were not performing public functions, even when providing state-commissioned and funded care services. That interpretation appears contrary to Parliament’s intent, but it remains legally binding. Parliament partially addressed that issue with Section 145 of the Health and Social Care Act 2008, and later with Section 73 of the Care Act. These provisions state that private care providers commissioned by local authorities under the Care Act 2014 or equivalent legislation in Scotland, Wales and Northern Ireland are performing public functions as defined by the Human Rights Act. This ensured that individuals whose care is arranged by the Care Act are protected by the Human Rights Act, regardless of whether their care is provided directly by the local authority or outsourced to a private provider.
However, the recent High Court case of Sammut v Next Steps Mental Healthcare Ltd shows that mental health patients and many other users of outsourced health and social care services were still not protected. Mr Sammut had schizophrenia and, after being discharged from hospital, he was placed in a private mental health nursing home, using Section 117 aftercare. He developed constipation, a known complication of the antipsychotic medication he was taking. After his death from bronchopneumonia, large intestinal obstruction and faecal impaction, his family alleged very serious clinical negligence and brought a claim arguing that his human rights were violated. However, their claim was unsuccessful, as the judge held that the Human Rights Act did not apply because Mr Sammut’s care was arranged under Section 117 of the Mental Health Act 1983, not under the Care Act.
This judgment highlights the narrow limitations of the Human Rights Act as a remedy for those using outsourced public services, such as private care provision or mental health treatment. This raises concerns about the human rights protection of thousands of other people who are deprived of their liberty in private health and social care settings in connection with their mental disorders.
This amendment addresses gaps in human rights protection for three groups of people: patients like Mr Sammut receiving mental health aftercare from private providers; any patient receiving in-patient mental health services, whether subject to the Mental Health Act or not; and anybody who is deprived of their liberty in connection with a mental disorder by a private provider of health or social care. It has not been possible in this amendment to include all the other groups whose lack of rights are now exposed by the Sammut case, so it does not include children’s social care, as it is not within the scope of this Bill, or people receiving NHS continuing healthcare or other outsourced health or social care not arranged under the Care Act.
However, the amendment would ensure better protection for people with mental disorders in private care settings. I know that Dr Series and Professor Clements are also working on raising the issues that I just mentioned in relation to other Bills, including the Children’s Wellbeing and Schools Bill, so that they will also ensure human rights protection for those who draw on outsourced treatment, care and support. I commend this simple but important amendment, and I hope it can be supported.
Baroness Chakrabarti (Lab)
My Lords, I apologise to the Committee for my not having been able to speak at Second Reading and for seeking to intervene on one amendment only in such an important Bill. That is the amendment from my noble friend Lady Keeley, supported by the noble Baroness, Lady Barker. I declare an interest as a council member of Justice, the NGO that will no doubt have sent briefings to many Members of the Committee on this important amendment.
Amendment 149 is a no-brainer, which warrants support and adoption by the Government and welcome from every political tradition represented in your Lordships’ House. It is no surprise to the Committee, I am sure, that I am a supporter of the Human Rights Act and the way in which it has protected vulnerable people and their families, including in mental health facilities. Those are some of the most potent stories about the Human Rights Act over the last near-quarter of a century.
Contracting out services will always be a matter of high politics in a democracy. It is literally the meat and drink of left-right debate over social and economic management. This was amply demonstrated in contributions on an earlier group by the noble Baronesses, Lady Bennett and Lady Fox, the noble Earl, Lord Howe, and my noble friend the Minister. However, no one in that debate ever advocates for either public or private provision on the basis that vulnerable people should be less well treated or protected.
It is my contention that everyone in the Committee should support Amendment 149, which would ensure Human Rights Act protection for publicly arranged mental health care, whether delivered by a public or private provider. No social democrat or liberal can approve of public authorities being able to contract out of constitutional protection, and no conservative can approve of public authorities being able to avoid responsibility for negligence or harm to individuals and their families, especially where coercive power is involved. Finally, I am sure that all Members of this Committee believe in equality before the law.
This amendment closes not so much a loophole as a glaring omission in legal protection as exposed by the case law and the Joint Committee on Human Rights. I commend it to the Committee.
Lord Pannick (CB)
My Lords, I too support the amendment from the noble Baroness, Lady Keeley, and I agree with every word spoken by the noble Baroness, Lady Chakrabarti. I am here today because I have an interest to declare, which is that I acted—unsuccessfully—in the case that caused the problem. In YL v Birmingham City Council, I was the unsuccessful counsel for YL, although I take comfort from the fact that of the five members of the Appellate Committee who sat on that case, the two who dissented were Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale—a formidable combination indeed. The noble and learned Baroness summed up the point in her dissenting speech in the Appellate Committee. She said that it is a function of a public nature for the purposes of the Human Rights Act when it is performed pursuant to statutory arrangements, when it is performed at public expense, and when it is performed in the public interest. It is as simple as that. I agree with her, I agree with the noble Baroness, Lady Keeley, and I very much hope the Minister will accept this amendment.
Baroness Barker (LD)
My Lords, it is usual in your Lordships’ House for the people with their names on the amendment to speak first; noble Lords will understand why I stood back, given the previous two speeches. I understand how the noble Lord, Lord Pannick, felt, having the noble and learned Baroness, Lady Hale, in his corner. I do not want to repeat anything that the noble Baroness, Lady Keeley, has said, because she summed it up extremely well.
We are very lucky; we get to talk to lawyers of calibre and fame. But I want to stand up for the solicitors, lawyers and independent mental health professionals who, day in and day out, go and see the people who are in real distress or are forgotten about, who nobody else is terribly interested in. They make it their business to make sure they are treated like human beings, wherever they are. I simply take the occasion to say this, because right now, we have to take every opportunity we have to defend the Human Rights Act and the application of universal human rights. It is no good having human rights that you pick and choose and apply to the people you like. It is why I picked the noble Earl, Lord Howe, up on his previous amendment.
We are very bad at explaining the importance of the Human Rights Act to people in the community; it is fair game for every newspaper hack or whoever wants to take a go at it, but it is about making sure that vulnerable people are treated as full human beings in our society. Therefore, I hope that even if we have not managed to fashion the exact perfect amendment, the noble Baroness will agree that this deserves to be in the legislation.
Baroness Butler-Sloss (CB)
My Lords, I came in today particularly to support Amendment 149, as others, including the noble Lord, Lord Pannick, have clearly done. What we are asking for is either for the loophole to be closed or for clarification. I share with the noble Baroness, Lady Keeley, the view that the judges produced a somewhat narrow definition of the situation. I agree with everything that has been said, and I do not want to repeat it, but with a narrow interpretation by the courts and with some lawyers here in Parliament and others who have put things so beautifully, Parliament can put right what is happening. That is what I am here to support: Parliament putting right what at the moment is not clear, is a loophole and needs to be put right.
Earl Howe (Con)
My Lords, I should like first to speak to Amendment 160BC standing in my name. Although it may not look like it, this is a probing amendment. I have tabled it because I have been made aware of concerns that there is a serious lack of clarity around one aspect of the Mental Health Act 1983 that would greatly benefit from a clarifying statement from the Minister.
Let us imagine a patient who is detained in a mental health hospital under the Act and who requires urgent treatment in another NHS setting, such as a general hospital. The treatment, let us further imagine, is kidney dialysis—that is just a random example. Unfortunately, in this case, the patient is deemed to lack decision-making capacity for his own health and well-being, and the doctors therefore agree that if he is transferred to the other hospital, he will need to be restrained during the time that he is receiving the treatment, because if he is not, there is a likelihood that the treatment will not be deliverable.
The question then arises: in that particular situation, does the Mental Health Act 1983 allow for the patient to be deprived of his liberty in a setting other than a mental health hospital in order for necessary life-saving treatment to be administered? I am aware that there are contrary opinions among lawyers and clinicians as to the answer to that question. Some believe that, in that example, it would be necessary for the managers of the mental health hospital to apply to the court for a deprivation of liberty order under the Mental Capacity Act, which the court could grant under its inherent jurisdiction. I understand that this is standard procedure in a number of mental health hospitals. By contrast, other experts are clear that Section 17(3) of the Act already provides authority to place the mental health patient into the custody of the managers of the acute hospital and that there is therefore no need to apply for a DoL order under the Mental Capacity Act in order to achieve this.
Section 17(3) of the Mental Health Act says:
“Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital”.
Those words appear to confirm the opinion that I have just set out—that the responsible clinician can authorise “leave of absence” in another hospital, with the patient being kept in custody so long as this is seen to be in the patient’s best interests.
Unfortunately, it also appears that there is more than one way of interpreting Section 17(3). There are those who maintain that what one might call the carte-blanche interpretation is too broad a reading of Section 17(3), which they insist needs to be read with Section 63 of the Act. Section 63 says:
“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment”.
Taken together, those two sections say that the Mental Health Act authorises treatment only for mental disorders and physical disorders that are part and parcel of the treatment for the mental disorder; in other words, for treatment of physical disorders that are not directly connected to the mental disorder, a court would need to make the appropriate order under the Mental Capacity Act. Who is right? I should be very grateful if the Minister would use this opportunity to bring some clarity to bear on this area of the law, around which there appears to be a veil of fog. Whatever the answer, will she ask NHS England to examine the guidance contained in the relevant part of the code of practice to ensure that it is as clear as possible about what the current law permits?
Finally, I shall comment briefly on Amendment 149, which the noble Baroness, Lady Keeley, has tabled jointly with the noble Baroness, Lady Barker. I fully support this amendment. At the same time, I regret that it appears to be necessary, and I say that with some personal feeling. The issue addressed by this amendment is precisely the same as the one which in 2014, as a Health Minister, I endeavoured to close down by means of a government amendment to the Care Bill, which now forms Section 73 of that Act.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Earl, Lord Howe, for his reflection on both the Almighty and our legal friends, and I thank noble Lords for their contributions to the debate on these amendments.
I turn first to Amendment 149 and thank my noble friend Lady Keeley, supported by the noble Baroness, Lady Barker, not just for tabling the amendment but for the time and attention they and their expert advisers have given to this. It has been much appreciated. I take this opportunity to express my condolences to the family of Paul Sammut for the tragic loss of their loved one.
We recognise the concern around unequal coverage and rights to redress under the Human Rights Act. The Sammut judgment highlighted the need to clarify the position of private health and care providers under the Human Rights Act when providing care arranged and paid for by the NHS or local authorities, something that has come up a number of times in our debates. I am grateful to my noble friend Lady Chakrabarti, the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for their good humour and their expert contributions on this matter. We are actively considering this matter and I look forward to engaging further with my noble friend Lady Keeley and the noble Baroness, Lady Barker, ahead of Report.
On Amendment 160BC in the name of the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall, deprivation of liberty for the treatment of a physical health disorder is always an important decision. We are concerned that this amendment would, in effect, remove the need for a separate authorisation where physical health treatment is needed. We do not think it is right to undermine the protections available under the Mental Health Act to patients who are already, as we have heard, in a vulnerable position.
Furthermore, the situation this amendment applies to is rare and, where it does arise, there are already frameworks in place to authorise a deprivation of liberty. These include: Section 17 leave under the Mental Health Act; deprivation of liberty safeguards under the Mental Capacity Act; and, in certain circumstances, the High Court. The safeguards provided by these frameworks are different, and decision-makers must use their professional judgment to decide which is most appropriate for the individual. We feel that retaining this flexibility is important.
While we recognise that there is, at times, confusion among clinical professionals around which legal framework to apply—it is a point well made—we do not believe that this amendment would bring the necessary clarity. We feel this is best clarified using the Mental Health Act code of practice. I say to the noble Earl, Lord Howe, that I will reflect on the detailed points that he raised and will be happy to write to him further on them. For all these reasons, I urge noble Lords not to press their amendments.
Baroness Barker (LD)
Before the Minister sits down, I thank her very much, but I wonder whether she could include some of the rest of us in her correspondence with the noble Earl? We are back to the same issue of the interface between the Mental Health Act and the Mental Capacity Act. We need to keep coming back to this to get more clarity on it, because nobody understands it now. Whatever the Minister comes up with will be only a sticking plaster until the point at which we recognise that these two pieces of legislation continue to rub up against each other and cause confusion. They need to be addressed together.
So, would the Minister please include more of us in the correspondence, including the noble Baroness, Lady Browning? A number of speeches she has made throughout our deliberations have indicated that this is exactly the sort of issue that she is concerned about, too.
Baroness Merron (Lab)
Yes indeed, I will be pleased to include the noble Lords referred to.
Baroness Keeley (Lab)
I am very grateful to all noble Lords who have spoken in the debate today, including the noble Baroness, Lady Barker, who has supported the work we have done on this, my noble friend Lady Chakrabarti and Justice, which I should have mentioned earlier. I am very thankful to the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for bringing their expertise. I thank my noble friend the Minister for her positive response and I look forward to talking to her more about this and taking forward this amendment. But for now, I beg leave to withdraw.
Mental Health Bill [HL]
Monday 24th February 2025
(4 months, 2 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-V Fifth marshalled list for Committee - (20 Feb 2025)
Baroness Fox of Buckley
“Review: impact of this Act on the prison estate(1) Within 12 months of the day on which this Act is passed, the Secretary of State must publish a review of the impact of provisions in this Act related to the treatment and care of mentally disordered persons on—(a) under 18s in youth offender institutions,(b) IPP prisoners,(c) female prisoners, and(d) any other such persons they deem appropriate.(2) In the review, the Secretary of State must assess whether, in their view, the Act provides adequate support for ongoing treatment and care of mentally disordered persons in a prison setting.”Member’s explanatory statement
This amendment requires the Secretary of State to publish a review of the impact of the provisions of the Act on prisons and to assess whether the Act provides for adequate support for ongoing treatment and care in these settings.
Baroness Fox of Buckley (Non-Afl)
My Lords, after all that excitement, I fear I may be a bit of an anticlimax, but I will carry on regardless—and let people walk out. My Amendment 160A calls for a review of the impact of the Act on the prison estate and the ongoing treatment and care of mentally disordered people in a prison setting a year after the Act passes. We have all welcomed the Bill’s commitment to ending the use of prison cells as so-called places of safety, but as some of us noted in the debate on an earlier group, the promise of, for example, a transfer to hospital for prisoners facing acute crises within 28 days is widely viewed by criminal justice stakeholders as unlikely to happen. We need to review whether such cynicism is merited, because the prison reform aspects of the Bill are not minor. They should not be treated as Cinderella clauses: they are, to my mind, crucial.
We cannot pass this Act and leave prisoners who ought to be in hospital beds abandoned in squalid conditions in jails. Additionally, it is not fair to prison staff because, to quote Andrew Neilson from the Howard League:
“Our overcrowded prison system that has been asked to do much, with too little, for too long, is ill-equipped to help people who require intensive support for their mental health”.
I recently visited Five Wells prison in Wellingborough with my Academy of Ideas hat on. The new leadership team at Five Wells is doing some fantastic work on purposeful rehabilitation activities, and we hope to do a joint project of Debating Matters Beyond Bars with it there. I chatted more generally to the team members, who have worked in a variety of prisons over the years, and they all noted that the time and emotional strain on staff when dealing with psychotic and very poorly prisoners—they gave gory examples of prisoners eating their own faeces or making very bloody attempts at self-harm, et cetera—have been totally demoralising for officers. It may have been one of the reasons for the use of the segregation units I talked about earlier. But these things have also had a destabilising and frightening impact on other prisoners. Sharing space with those with paranoid delusions and who present a violent threat to themselves and others is no joke; it makes prison difficult for everyone. So it is crucial that we get this right in the context of an overstretched prison crisis, and a specific view would focus minds.
I also think that we cannot let the Bill pass into law without acknowledging that there is considerable public disquiet about the relationship between criminal justice and mental health care. What do we do about the detention of those convicted of serious crimes due to diminished responsibility, where professionals see secure hospitals as more appropriate than prison? I am sure we can all recognise that, for many victims and their families, this hospital option can feel like an injustice.
I am, of course, thinking of the high-profile and controversial case of Valdo Calocane. According to the recently published independent investigation, it was repeated failures to treat Calocane’s paranoid schizophrenia and violent outbursts that left him free to kill Barnaby Webber, Grace O’Malley-Kumar and Ian Coates in June 2023. More pertinently in relation to the Bill, the families of these tragic victims fear that Calocane may have been spared prison due to incomplete evidence presented in court, especially about his mental capacity. This is now exposed in the 302-page investigative report, and the families have concluded:
“This was a man who actively avoided his medication and treatment, knowing that when he didn't take his medication he would become paranoid and violent”.
This is interesting for our deliberations, because we now know that the doctors responsible for Calocane’s case repeatedly ignored the nurses treating him in the community, who begged for him to be put on a CTO to ensure that he took long-acting anti-psychotic drugs. Why were they ignored? It seems that the clinical team at Nottinghamshire Healthcare Foundation Trust made decisions “influenced” by the draft Mental Health Bill 2022. Those medics were very conscious of legislation down the line that seeks to raise the threshold of detention and reduce the use of CTOs, and of the call for a reduction of compulsion in medicating patients in the community. Then there is the issue of patient rights, in Calocane’s reluctance to take medication because he did not like needles. Staff were, we are told, acutely aware of the Bill highlighting the “disproportionate” use of restrictive practices on black African or black Caribbean patients—and so on and so forth.
Baroness Tyler of Enfield (LD)
My Lords, I had not intended to come in on this group, but, having just heard the very powerful—and, in places, very alarming and harrowing—speech from the noble Baroness, Lady Fox, I will just ask the Minister whether he can explain what plans the Government have to assess and evaluate the impact of the provisions of the future Act on prisons and the criminal justice system, even if they are not planning a formal review. We need to know how the impact will be assessed.
Lord Kamall (Con)
My Lords, during the passage of this Bill, both the noble Baroness, Lady Fox, and the noble Lord, Lord Bradley, who is not in his place, have spoken passionately about people with mental health issues in prison. The noble Baroness, Lady Fox, referred to Valdo Calocane, and I know that the Government have instigated an inquiry. That particular case was the motivation for Amendments 160BA and 160BB in a later group, to which my noble friend Lord Howe will speak.
During the earlier debates on this, both at Second Reading and in Committee, I was particularly struck by the remarks of the noble Baroness, Lady Fox, on Chief Inspector Charlie Taylor’s graphic description of seriously mentally ill people in prisons being akin to a Victorian nightmare. After that debate, I read some of what Charlie Taylor had said, particularly about his visit in 2022 to Eastwood Park, where he witnessed
“bloodstains on the floor and scratch marks on the walls—evidence of the levels of distress of the women being held there”.
The noble Baroness, Lady Fox, also told the Committee about the experience of prison staff, saying that one of the most difficult things is the danger that prisoners with mental health issues pose to themselves, other prisoners and staff. In fact, Charlie Taylor gave an example of an incident when staff were
“unable to stop one inmate from repeatedly running into a brick wall due to a lack of suitable training”.
These are very important issues that the noble Baroness and other noble Lords are raising.
Given all this and its importance—I know that one of the reasons the Minister was appointed to his position was his experience and passion for prison reform—it seems reasonable to ask the Secretary of State to publish a review of the impact of this Act on prisons and to assess whether it provides for adequate support for ongoing treatment and care in those settings, including adequate staff training. I am sure this will be of help not only to the Secretary of State for the Department of Health and Social Care but to the Ministry of Justice. I look forward to the Minister’s response.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
I am grateful to the noble Baroness, Lady Fox, for bringing this discussion before the Committee today. This amendment would introduce a new clause, making it a requirement for the Secretary of State to publish a review of the impact and assessment of the provisions of the Act that relate to care and treatment of mentally disordered persons in prisons— this includes under-18s in young offender institutions, IPP prisoners and female prisoners—within 12 months of the day it is passed.
The aim of the criminal justice reforms is to speed up access to specialist in-patient care and ensure that offenders and defendants with severe mental health needs are able to access effective and timely support in the most appropriate setting. We are committed to understanding the impact of these provisions as we monitor any available data. However, these reforms will not come into effect until at least 18 months post Royal Assent. This is to ensure that the necessary operational improvements have been made to enable them to be safely implemented.
We are working closely with health and justice partners to ensure that there is a robust implementation plan in place, and we will scope the feasibility of assessing the impact on all prisoners, including under-18s in young offender institutions, IPP prisoners and female prisoners. Our expectation is that the numbers of these cohorts affected in a prison setting will be small and are unlikely to show up in administrative datasets. However, I reiterate that everyone in our care is important—and I thank the noble Lord, Lord Kamall, for his comments about the importance of this to me. We are committed to supporting everyone’s rehabilitation, working to ensure that people stay out of prison by leaving in good health.
I am pleased with the feedback on the noble Baroness’s visit to HMP Five Wells. I too have seen some very ill prisoners in HMP Five Wells and many other prisons. That is why the Bill, and the work we are doing to improve our prisons and the chances of prisoners leaving with a one-way ticket, not a return ticket, are so important.
I reassure the noble Baroness, Lady Tyler, that there is already a robust scrutiny landscape in place. We are accountable to several key stakeholders and bodies, including His Majesty’s Inspectorate of Prisons, independent monitoring boards, the Care Quality Commission and the Healthcare Inspectorate Wales. We are committed to learning from what works and where we can improve support for vulnerable offenders with severe mental health conditions.
Baroness Fox of Buckley (Non-Afl)
Briefly, I say thank you very much to the Minister, the noble Lord, Lord Timpson, who obviously has an intimate and empathetic relationship with the prison estate and the issues that I was raising. I appreciate that he and I share very similar concerns. The difficulty is—I do not think it is just the hour—that the Bill says it will resolve things in relation to prisons but, actually, the discussion around prisons has been rather neglected. I understand why.
The reason I mentioned Mr Calocane is that a lot of the issues in the community and a lot of the public debate about mental health concern the notion of people being ill, wandering around, not being safe and so on and so forth, and I could not think of another way of raising that here. That then affects the prison estate, because people phone the police and then people get taken to prison—or they have been let out of prison when they are mentally ill, and so on and so forth. That is one thing. It requires much greater scrutiny and debate, not just through this Bill but in general in Parliament: that is the first thing. I also think that we have not got public opinion our side on this, in many ways. People are not sure why people are sent to prison in some instances and to hospital in another. I do not expect the Minister to reply, but I think that needs to be acknowledged.
Secondly, I note that, even though I used the example of Five Wells prison, if all the awful things were not happening there, it was based on prison officers’ experiences in many places. I do not want in any way to put the prison into any difficulties, because it is actually doing a very good job in very difficult circumstances. I will just say that I think that, on paper, this Bill will make a small impact, but I think there is much further that it could go. I am glad to hear that different groups will be taken seriously. I withdraw the amendment, but I think we have a long way to go and I will keep pursuing this. I thank noble Lords who spoke in support; I really appreciate that.
Baroness Tyler of Enfield
“Duty to promote mental health well-beingAfter section 142B of the Mental Health Act 1983, insert—“Duty to promote mental health well-being(1) It is a general duty of local authorities and any body in carrying out functions under this Act or the Mental Health Act 2025 to promote mental health well-being.(2) In carrying out the duty under subsection (1), local authorities and commissioning bodies must have regard to—(a) the prevention of mental illness,(b) the promotion of positive mental health,(c) the reduction of stigma and discrimination associated with mental health conditions, and(d) the provision of accessible and appropriate support services to individuals experiencing mental health challenges.(3) Local authorities and commissioning bodies must publish an annual report outlining the steps taken to discharge their duty under subsection (1), including an assessment of—(a) progress in improving mental health well-being in their area for persons affected by the provisions of this Act, and(b) any barriers to promoting mental health well-being for such persons and proposed actions to address them. (4) The Secretary of State may issue guidance on the discharge of the duty under subsection (1), and local authorities and commissioning bodies must have regard to such guidance.””
Baroness Tyler of Enfield (LD)
My Lords, there has been discussion throughout Committee about whether this Bill and our deliberations should stick strictly to detention under the Act or range wider. I know that there are different views on this issue. I have said consistently throughout our debates that we need to see what more we can do to prevent people reaching the point where the only option is being forcibly detained.
I feel that a key omission is a power around prevention. Given the cost of statutory in-patient admissions under the mental health legislation, and the stated intention of the Secretary of State to reduce hospitalisation through prevention, I find this surprising. Therefore, I have brought forward a simple amendment that would give relevant authorities the power to promote mental ill-health prevention in their communities, while of course being realistic about current financial realities.
My Amendment 160B seeks to explicitly grant relevant bodies, including integrated care boards, public health bodies and local health boards in Wales, the power to promote mental ill-health prevention within their communities. It would also empower organisations such as social care and the voluntary sector to take proactive steps in reducing the likelihood of individuals reaching crisis point and requiring detention under the Act.
I was pleased recently to have the opportunity to discuss this with the Approved Mental Health Professional Leads Network, which is very much involved in this. It expressed its support for such an approach. I think we all understand that the causes of mental health issues are complex and can be as much around societal issues, such as employment, housing and poverty, as clinical issues. That is clearly recognised in the AMHP’s role, which acknowledges that while a clinical perspective is always appropriate, other perspectives can be equally valuable. As was explained to me, at the core of the approved mental health professional’s role is a responsibility to explore less restrictive alternatives to detention for individuals in crisis.
As has been quoted a number of times in this Chamber, recently the Secretary of State said that the Government will publish a 10-year plan early next year setting out how they will deliver three big shifts in the focus of the NHS,
“from hospital to community, from analogue to digital, and from sickness to prevention”.
I see this legislation, and indeed this amendment, as an opportunity to make a reality of that statement in relation to mental health. While there will always need to be provision for statutory interventions for those who present a severe risk to themselves or others, it is surprising to me that, in this journey from hospital to community and sickness to prevention, there is no explicit mention of the promotion of good mental health within the Bill.
There is plenty of evidence of the links between prevention and reducing detention. I was going to give some examples, but the hour is late and noble Lords will be pleased to hear that I am not going to. There are also plenty of examples of alternative approaches to detention, such as crisis cafes and safe spaces, community crisis response teams, mobile mental health and social care professionals who respond to individuals in crisis, peer support networks, sanctuaries and respite services. All these have been shown to be effective in reducing the need for hospital admissions.
To conclude, by formally giving relevant bodies the power—it is a power, not a duty—to promote mental ill-health prevention, this amendment encourages a proactive rather than a reactive approach to mental health care and support, thereby, I hope, reducing reliance on crisis interventions, including involuntary detention. I beg to move.
Lord Kamall (Con)
My Lords, I thank the noble Baroness, Lady Tyler, for introducing this amendment. It is quite clear that noble Lords across the Committee agree with the Government’s commitment to move the emphasis from sickness to prevention. This amendment is clearly aimed at that, as the noble Baroness has said.
During my time as a Health Minister and since, I have met a number of community and civil society projects, charities and mental health professionals who have shared the amazing work being done across the country to improve the well-being of local communities. I put on record my thanks to the late Baroness Greengross and the noble Lord, Lord Howarth, for introducing me to the wonderful world of creative health and to the National Centre for Creative Health. Its work addresses the theme of earlier amendments from the noble Baroness, Lady Hollins, and the noble Lord, Lord Crisp, on the overprescribing of antidepressants and looking at alternatives. We are not saying that medication is a bad thing necessarily. It is very appropriate in some cases, but there are alternatives, such as social prescribing.
The late Lady Greengross introduced me to a wonderful organisation called Intergenerational Music Making, and I put on record my thanks for its work. It invited me to take part in one of its intergenerational music hubs in Guildford last December and, despite being handed a guitar to play along, I found it inspiring to see the difference that music can make in improving well-being and bringing people of all ages together, including some children from a local learning disability charity.
Noble Lords will also know of the equally amazing work done by many social prescribing organisations, using music, art, drama and green spaces. A career in creative health also opens up new opportunities for budding actors and rock stars who can train as drama and music therapists while waiting for their big break. But many do not wish to be stars and actually find their work, combining their passion with improving mental well-being, fulfilling in its own right.
However, one criticism I hear is that, although there is amazing work on well-being in different primary care settings or in different trusts and integrated care systems across the country, the challenge is how we spread the best practice across our system of health and care, while recognising that what works in one area may not always be an off-the-shelf solution in another locality.
The amendment from the noble Baroness, Lady Tyler —which says that
“Local authorities and commissioning bodies must publish an annual report outlining the steps taken to discharge their duty”
to promote mental health and well-being—may be a way to address this concern. Given that, I hope it is an amendment that the Government will consider. If not, perhaps the Minister can tell your Lordships how the Government intend to encourage the sharing of best practice in improving mental well-being across our system of health and care, particularly across different communities with different needs and different constraints, in order to improve the mental well-being of the nation.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank the noble Baroness, Lady Tyler, for tabling Amendment 160B. We recognise the importance of local organisations taking collective action to promote mental well-being and prevent mental ill-health. However, turning to the amendment very specifically, we do not feel that this amendment suggests the best approach, as there is potential for introducing unnecessary burdens on local authorities and commissioning bodies. It may also be duplicative of other existing duties, such as the Care Act duty, to promote individual well-being.
However, the noble Baroness, Lady Tyler, and the noble Lord, Lord Kamall—whom I also thank for his contribution—may be interested to note that the existing prevention concordat for better mental health, a voluntary agreement signed by local authorities and integrated care boards across the country, does involve, for those who sign it, a commitment to take
“evidence based preventive and promotional action to support”
population mental health and well-being.
Through the NHS 10-year plan, which the noble Baroness referred to, and as noble Lords are aware, we aim to encourage stronger partnership working between local government mental health services and the voluntary and community sector—which, as we know, plays a vital role, as the noble Lord, Lord Kamall, described—in order to galvanise that shift, which we all seek, from sickness to prevention. On the basis of the reasons outlined, I hope the noble Baroness will withdraw her amendment.
Baroness Tyler of Enfield (LD)
I thank the Minister for her remarks and the noble Lord, Lord Kamall, for his. I am interested to hear about the prevention concordat and hope to hear more about that; I think that could be a useful way forward. Overall, I remain of the view that having something about prevention in this Bill—we have not got it yet—sends out an incredibly important signal.
I am very happy to accept that the way it is currently worded may not be the best and that we could find other ways of doing it. But I would be really disappointed if, in the final piece of legislation, we do not, in some way or another, have something that underlines the importance of prevention. I am not going to go over all the arguments again. I can see us returning to this on Report and, on that basis, I withdraw my amendment.
Earl Howe
“Duty to publish investigations(1) The Mental Health Act 1983 is amended as follows.(2) After section 54A insert—“54B Duty to publish the outcome of investigations(1) Integrated care boards, hospital managers and the relevant authority must, if requested to do so by the court, publish any report, review or investigation that they have undertaken in relation to a relevant patient.(2) For the purposes of this section, a “relevant patient” is a patient who–(a) has received treatment under this Act,(b) is currently receiving treatment under this Act, or(c) has been detained under this Act, andhas been sentenced for a “specified offence” under section 306 of the Sentencing Act 2020.””
Earl Howe (Con)
My Lords, I beg to move Amendment 160BA and will speak to Amendment 160BB. These amendments, tabled in my name and that of my noble friend Lord Kamall, stem directly from the harrowing case of the murder of three people by Valdo Calocane in Nottingham. The Minister and, indeed, other noble Lords may question the propriety of referring to an individual case in this way. However, I believe that this is one occasion on which it is legitimate to do so.
The amendments I have tabled were drafted in the light of the facts that have emerged from the full independent investigation into the care and treatment of Valdo Calocane in the months leading up to the tragic events of 13 June 2023. There have also been press articles on a report by the Independent Office for Police Conduct, the IOPC, which identified 11 mistakes in the run-up to that fateful day. There is a great deal about the case that is known and not disputed, and, given the magnitude of the tragedy, it would be remiss of this Committee not to spend at least a little time considering its implications.
Before I go further, there are two things I need to say. The first is to acknowledge that the Government have agreed to a judge-led public inquiry that will start in a matter of weeks. Secondly, on that account I will do my utmost to avoid saying anything that would undermine that inquiry.
There are a number of issues arising from the treatment of Valdo Calocane that are directly relevant to the Bill because they are of wider application. The report of the independent investigation recounts the timelines associated with Calocane’s treatment. His first contact with mental health services was on 24 May 2020, when he was arrested for criminal damage and a Mental Health Act assessment was undertaken. That assessment indicated that Calocane was experiencing the first episode of psychosis brought on by sleep deprivation and social stressors.
During that first contact, he was not detained for treatment as he acknowledged that he required help for his condition. However, after returning home, Calocane was arrested again and, on admission, was considered not to have capacity to consent and was consequently detained under Section 2 of the Mental Health Act. After that episode of treatment, he was again detained on 13 July 2020, this time under Section 3 of the Mental Health Act. Upon discharge, he was
“considered to have a primary diagnosis of paranoid schizophrenia and was to continue with antipsychotic medication”.
During the course of 2021, Calocane was detained again under Section 2 of the Act and continued treatment in the community. He began missing appointments with his care co-ordinator and mental health care team from July 2022. On 4 August, the care co-ordinator attempted to make a home visit, but the given address was incorrect. On 17 August, the care co-ordinator attempted to reach Calocane at a new address, which received no response.
The report then states:
“On 23 September 2022 it was documented that as no contact had been made with VC, a decision was made at an MDT meeting on the 22 September to discharge VC back to his GP due to non-engagement. A letter to VC’s GP was written the same day, outlining non-contact and that VC had been discharged”.
The key aspect of all this is the problematic last line:
“There was no contact between VC and mental health services or his GP between this date and the tragic incidents in June 2023”.
For a whole nine months prior to the killings there was no contact between any health service and Calocane. What this demonstrates is that the co-ordination of the community aspect of Calocane’s care was clearly inadequate. After he began to miss appointments, it appears that there may not have been sufficient attempts at outreach. There were evidently issues with maintaining contact between mental health services and the patient.
It is this issue that my Amendment 160BB tries to address. The amendment takes the form of a report on continuity of care, to ensure that all options can be explored. I do not profess to have the answers but, as proposed subsection (2) in the amendment makes clear, such a report must include discussion of the possibility of creating some form of duty, placed on ICBs and/or hospital managers, to
“maintain contact with patients known to have a mental disorder”.
This is not too far from one of the recommendations of the independent investigation, which said:
“NHS England and other national leaders, including people with lived experience, should come together to discuss and debate how the needs of people similar to VC are being met and how they are enabled to be supported and thrive safely in the community”.
The point is that, somewhere along the line, the mental health care system failed Valdo Calocane and ultimately his victims and the wider public. As we debate this Bill, we have the opportunity to address these potential failures, in the hope that we can make progress towards minimising the number of patients who slip through the net in this way.
The second issue to arise from the case relates to the publication of the investigation. Noble Lords will remember that controversy arose when the NHS trust responsible refused to publish the full version of the independent investigation into the treatment of Valdo Calocane, due to patient confidentiality. We all know that the NHS did subsequently publish this investigation—I have just referenced it above—but this was not without significant public and political pressure.
There are questions to be answered about whether patient confidentiality rules should apply in cases such as this, where there is a significant public interest. Of course, there should always be adequate safeguards to ensure that a patient’s medical records are protected, but, as my Amendment 160BA sets out, where there have clearly been significant institutional failings regarding a patient who has been treated under the Mental Health Act and who has then gone on to commit a violent offence, it may very well be in the wider public interest for such investigations to be published in full.
I am under no illusion that this amendment is the absolute best solution to the problem. But I hope it at least starts a conversation and pushes the Government to review their approach to publication. There are obviously a number of concerns raised by these harrowing events. We obviously must do better. In the light of the published report, does the Minister believe that there are any measures that could and should be taken now, prior to the report of the judge-led inquiry? I thank the Minister in advance for the considered answer that I know that she will give. I beg to move.
Baroness Tyler of Enfield (LD)
My Lords, I rise quickly to say that I am very sympathetic to the aims behind these two amendments. They have been set out very powerfully and comprehensively by the noble Earl, Lord Howe. I feel, particularly, that an obligation to publish a report of an investigation of the type we have just heard about is absolutely essential if we are to avoid a repetition of these terrible events. There must be a way of learning lessons from this, and transparency and publication are an important part of that.
Baroness Fox of Buckley (Non-Afl)
My Lords, I was pleased to see these amendments as well. The noble Earl, Lord Howe, explained why they are important. He has conceded—I tried to imply the same in my own amendment—that it is not necessarily clear how best to raise these issues, but that we need to. If we are seen by the public discussing a mental health Bill, going through the whole thing and refusing to acknowledge one of the big controversies of recent times, which was a mental health issue, it will discredit the Bill when it becomes an Act.
In relation to the reluctance of the NHS trust to publish its investigation and the use of patient confidentiality, I note that the families of the victims saw this very much as an excuse and were very angry about that. It does not help us to have a discussion with the public about mental illness because it then seems as though murder was committed but, somehow, mental illness was used as an excuse. We have all heard that argument being used; that is why I referred to the fact that there was some dispute about whether Calocane should be sent to prison or to hospital. The more openness that we can give this, the less stigma and confusion there will be. We need to have this debate out in the open.
Finally, I have a question on the judge-led inquiry and what we now know from the investigation by the trust. How will that impact this Bill? How, practically, will we be able to incorporate what we have learned from that into our discussion on a whole new piece of legislation on mental health? It would seem that we need to be able to take on board some of the recommendations of the inquiry and what we now know from the investigation by the trust.
Baroness Merron (Lab)
My Lords, I thank the noble Earl, Lord Howe, for tabling Amendments 160BA and 160BB, supported by the noble Lord, Lord Kamall, and spoken to by the noble Baronesses, Lady Tyler and Lady Fox.
I say at the outset that I understand the deep concerns raised today by noble Lords. I would like to take this opportunity to express my sincere condolences, and I am sure those of the whole of your Lordships’ House, to the families of Grace O’Malley-Kumar, Barnaby Webber and Ian Coates. The Secretary of State and I have met the bereaved families following these horrific killings, and, rightly, important actions have been taken, which the noble Earl, Lord Howe, asked about. Indeed, we have to look at what improvements must be made, both at the trust and across the country.
To take this further, NHS England and the Nottinghamshire Healthcare NHS Foundation Trust have accepted all of the recommendations made following the Section 48 CQC review into this incident, and action has started on implementation. The recently published independent investigation into the care and treatment provided to Valdo Calocane makes a series of recommendations, which NHS England and the Nottinghamshire Healthcare NHS Foundation Trust have accepted. I reiterate that the Government expect to see swift action to ensure that the recommendations are implemented as soon as possible. As the Prime Minister has confirmed, and as the noble Earl, Lord Howe, acknowledged, there will be a judge-led, statutory public inquiry into this tragic incident.
I now turn specifically to the amendments, and first to Amendment 160BA. We recognise the importance of transparency when there are concerns around a patient’s care, to enable a full understanding of what went wrong and how learning can be applied as a result. The courts already have legal powers to request, and where appropriate compel, disclosure of relevant reports, ensuring judicial access to relevant information. In criminal and civil proceedings, courts can make orders that particular information be provided, or issue witness summonses, while coroners can obtain documents as part of an inquest. There is no clear evidence that courts face systemic barriers in accessing necessary information.
There are also existing mechanisms to provide robust oversight and transparency. NHS England’s patient safety incident response framework sets out clear guidelines for responding to serious incidents involving patients who are detained under the Mental Health Act. Additional scrutiny is provided through investigations by the Health Services Safety Investigations Body and oversight from the CQC.
If information is not disclosed, interested parties already have mechanisms to access information, including judicial review, freedom of information requests and the coronial process for deaths in detention. While courts have the powers set out in the amendment, we absolutely recognise the importance of openness in mental health services, which is why officials are working with NHS England to ensure that information from investigations is as transparent as possible—something that all noble Lords have rightly referred to.
Earl Howe (Con)
My Lords, I am grateful to the noble Lords who have spoken in this debate. While the Calocane tragedy provided the trigger for these amendments, there are messages sent out from that case that are of wider and more general application that it would not be inappropriate for the department and NHS England to think about now, and I am glad that such consideration is being given as we speak. I recognise that there are established processes set out in the community mental health framework, among other places, but those processes clearly failed, which is why the Calocane case is such a seminal one.
The inquiry will no doubt shed further light on who bears responsibility for what happened, but that is not my concern today, as I am sure the Minister will appreciate. My concern is that practical steps could be taken, perhaps in the areas of professional training, updating the code of practice and the revision of standard referral protocols—the Minister has spoken broadly about those sorts of things, which I very much welcome. I will give further thought to this very vexing set of issues between now and Report but, for now, I am content to withdraw the amendment.
Baroness Tyler of Enfield
Baroness Tyler of Enfield (LD)
My Lords, I will speak to Amendments 160C and 160D in the name of my noble friend Lord Scriven. These amendments would ensure that any changes to this primary legislation implemented through secondary legislation were properly considered by Parliament before they took effect.
Amendment 160C makes it clear that certain provisions in subsection (5) should not be included under the general powers in Clause 51, and Amendment 160D then strengthens parliamentary oversight by requiring that any statutory instrument amending or revoking this primary legislation be approved by both Houses before it comes into force; that is, by using the affirmative procedure.
This is a matter of proper scrutiny. Primary legislation is carefully debated before it becomes law, as we have demonstrated throughout this Committee stage, and any later changes to it should not be made too easily or without full consideration. If a statutory instrument can amend or remove part of an Act without Parliament’s approval, there is a risk that important legal protections could be altered without proper deliberation.
This is particularly important in the context of mental health legislation, where the law directly affects the rights, personal liberties, and treatment and care of highly vulnerable people. I hope that the Government will recognise that these amendments, which are completely in line with the recommendations of the Delegated Powers and Regulatory Reform Committee, simply ensure that when primary legislation is changed, it is done with the same level of scrutiny that was given to it in the first place. I beg to move.
Earl Howe (Con)
My Lords, I will keep this brief since I can do no more than back the noble Baroness, Lady Tyler, in every word that she has said in support of these two amendments. We are dealing here with a Henry VIII clause that is surely far too permissive given the great sensitivity of the Bill’s entire subject matter and, as the noble Baroness said so well, its momentous significance for the health and well-being of very vulnerable people.
The absolute minimum that Parliament can expect is that Parliament be consulted in the exercise of these powers. The affirmative procedure is therefore entirely appropriate for any statutory instruments made under this clause and I hope the Minister will not disagree with what is proposed.
Baroness Merron (Lab)
My Lords, I thank the noble Lord, Lord Scriven, for tabling Amendments 160C and 160D, which were introduced by the noble Baroness, Lady Tyler, and spoken to by the noble Earl, Lord Howe.
The proposal in the amendment, as was referred to, was a recommendation in the report from the Delegated Powers and Regulatory Reform Committee. I hope that your Lordships’ Committee will welcome that we are actively considering this proposal and will publish our response to the committee’s recommendation ahead of Report.
Baroness Tyler of Enfield (LD)
My Lords, I very much welcome the statement we have just heard from the Minister. I think it is a good point on which to finish our deliberations tonight and I thank her very much. I also thank the noble Earl, Lord Howe, for his support. I beg leave to withdraw the amendment.
Baroness Merron
“Power of Welsh Ministers to make consequential provision(1) The Welsh Ministers may by regulations made by statutory instrument make provision that is consequential on this Act.(2) The only provision that may be made by virtue of this section is provision that would be within the legislative competence of Senedd Cymru if contained in an Act of the Senedd.(3) Regulations under this section may amend, repeal or revoke provision made by or under primary legislation passed—(a) before this Act, or(b) later in the same session of Parliament as this Act.(4) In this section “primary legislation” means—(a) an Act, or(b) an Act or Measure of Senedd Cymru.(5) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of Senedd Cymru.” Member's explanatory statement
This confers a regulation-making power on the Welsh Ministers to make consequential provision that is within devolved legislative competence. The Secretary of State has an equivalent power under Clause 51.
Baroness Merron
29(2)
34(1)
(3)(b)
Member's explanatory statement
This amendment would provide for certain provisions currently commenced by regulations to be commenced two months after Royal Assent (and vice versa).
Mental Health Bill [HL]
Monday 31st March 2025
(3 months, 2 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 73-I(a) Amendment for Report (Supplementary to the Marshalled List) - (28 Mar 2025)
17:32 - Division on Amendment 7 - Ayes: 223 / Noes: 157 - Amendment 7 agreed.
18:07 - Division on Amendment 11 - Ayes: 272 / Noes: 157 - Amendment 11 agreed.
19:24 - Division on Amendment 34 (to Amendment 33) - Ayes: 218 / Noes: 143 - Amendment 34 (to Amendment 33) agreed.
19:36 - Division on Amendment 37 - Ayes: 209 / Noes: 143 - Amendment 37 agreed.
“Application of the Mental Capacity Act 2005: autism and learning disability
(1) In Schedule 1A to the Mental Capacity Act 2005, paragraph 2, after the last line of the table, insert—
“Case F | P has autism or a learning disability and is not subject to any of the mental health regimes | See paragraph 5A” |
“5A (1) This paragraph applies in Case F in the table in paragraph 2.
(2) P is ineligible if the following conditions are met.
(3) The first condition is that P objects to being—
(a) admitted for treatment as a mental health patient, or
(b) given some or all of the mental health treatment.
(4) The second condition is that a donee or deputy has not made a valid
decision to consent to each matter to which P objects.
(5) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following—
(a) P’s behaviour,
(b) P’s wishes and feelings, and
(c) P’s views, beliefs and values.
(6) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them.
(7) For the avoidance of doubt, Case F and this paragraph do not apply to determine P’s ineligibility in respect of admission for assessment of mental disorder.””
Member’s explanatory statement
This amendment to the Mental Capacity Act 2005 would prevent the Deprivation of Liberty Safeguards scheme being used to replace detention under section 3 of the Mental Health Act for people with learning difficulties or autism who do not have a mental health condition.
Baroness Browning (Con)
My Lords, I will speak to Amendment 1, which is in my name, and then to Amendment 4, in the same group, to which I have added my name.
Amendment 1 is exactly the same amendment that I tabled in Committee. I have brought it forward yet again because I felt it was so important and I did not feel that we went into as much detail as we should have to recognise the real challenge that the Mental Capacity Act could have to the Mental Health Act, as amended by the Bill we are debating. I am enormously grateful to the Minister; she has not only had a one-to-one meeting with me specifically about this clause but has sent me a letter. I hope it will be appropriate for me to quote some of it.
I am concerned, as are others, including many charities—I refer to the charities I am registered to in the record—such as the National Autistic Society, Mencap and of course the Law Society, which I am grateful to for drafting this particular amendment. There is a difficulty with the Mental Capacity Act. Under the Bill, we wish to prevent people with autism and learning disabilities who have no additional identified mental health condition being deprived of their liberty—they should not be. The worry is that the existing Mental Capacity Act will be used instead to take away their liberty and admit them to a mental health hospital. We know the history in this area, which we have debated many times in this House.
In my discussion with the Minister, I raised with her the fact that the NHSE service model for commissioners sets this out very clearly. At 4.3, it says:
“Alternative short term accommodation (available for a few weeks)”—
we are talking about just a few weeks—
“should be available to people, as and when it is needed, to be used in times of crisis or potential crisis as a place where they can go for a short period, preventing an avoidable admission into a hospital setting. It might also provide a setting for assessment from teams providing intensive multi-disciplinary health and care support (see principle 7) where that assessment cannot be carried out in the individual’s home”.
I think we all recognise that there will be some circumstances under which people will not be able to remain wherever they are, in either their domestic home or their normal place of residence. But, none the less, there should be alternatives to them being admitted to a mental health hospital.
To detain them under the Mental Capacity Act and the DoLS—deprivation of liberty safeguards—has other consequences. Those rights in the Mental Capacity Act include the rights of the nearest relative or nominated person to object to discharge, accessible and automatic referrals to tribunals, independent reviews of medical treatment, statutory care and treatment plans, and of course Section 117 aftercare. So it is not a question just of the Mental Capacity Act being used to deprive people of their liberties; there are associated issues that almost take away even more rights from the individual.
As I mentioned, the Minister and I have discussed this in some detail and I am very grateful to her for agreeing in her letter to me, first, that she has concern—I believe she has genuine concern—about this area. In order to mitigate what might happen under the Mental Capacity Act, she has shared something with me in her letter. I hope this does not seem impertinent, but it is such a good letter and I hope she will put it in the Library, because I am sure it would be of interest to many people in the House. She gave me a lot of data about how the Government are already making sure, and will continue to make sure, that there is proper monitoring of people who are detained under the Mental Capacity Act who may have autism or a learning disability but who do not have an associated mental health condition.
In bold letters, the letter says:
“Ahead of the changes to Part 2, Section 3, we commit to monitoring the data on the number of people with a learning disability and autistic people detained under the MCA”—
Mental Capacity Act—
“and will include a line on this in our standard publications”.
The existing data shows that the number is very few—it is in single figures. But, although it is in single figures, the Act that we hope to put on the statute book does not want anybody: we do not want even one person detained, as they have been previously. We hope that the Mental Capacity Act will not be used.
In addition to this commitment in bold from the Minister in this letter, I am half-comforted, because the other half of the equation is what happens if people are to stay in the community but in specialised environments and with specialised staff to deal with what might be a crisis. We have mentioned that, with autistic people, there could be a meltdown, which can be quite traumatic for the individual and for the people around them dealing with them, but is not a psychotic incident—an autistic meltdown is not a psychotic incident and it does not warrant automatic admission to a mental health hospital. How are we to identify suitable places when these facilities are needed? Again, the Minister has made commitments to the services that should be available in the community for people with autism and learning disabilities to make sure that those services and facilities are available.
Baroness Hollins (CB)
My Lords, I will speak to a number of amendments in my name. I thank noble Lords who have added their support. I also support the amendment in the name of the noble Baroness, Lady Browning. I thank the Minister for the very helpful meetings and correspondence about the outstanding issues my amendments seek to rectify. I apologise for the slightly lengthy explanation that follows.
I declare my interests: I have the benefit of expertise from a psychiatrist attached to the Royal College of Psychiatrists parliamentary scholar programme and research support from a PhD student from King’s College London. Until November 2024, I was chair of the independent oversight panel to review the use of seclusion and segregation for adults with learning disabilities and autistic people. I am grateful to panel members for advice on my amendments relating to long-term segregation. The key message of the report published by the panel, My Heart Breaks, was that long-term segregation has no therapeutic benefits and that it can retraumatise already traumatised people.
When the Mental Health Act was introduced in the early 1980s, our understanding of learning disability and autism was limited, and therapeutic interventions were inadequately developed or trialled. The impact of trauma on the development of people’s behaviour—the behavioural responses to their trauma—and mental illness was very poorly understood. Regrettably, during the 2007 review, the appalling conditions experienced by patients subject to long-term segregation had yet to gain public awareness, so this group of people was once again overlooked and harmful restrictive practices persisted unchecked.
We now possess a much clearer understanding about the nature of learning disability and autism. We therefore know that they cannot be cured my medication or short-term therapies, and we understand the harmful impact of restrictive practices.
We know that therapeutic community-based settings offer far better outcomes where they exist, enabling people to lead fulfilling and productive lives, and community care is more cost effective than prolonged in-patient stays. Although I acknowledge the introduction of the Mental Health Units (Use of Force) Act 2018, this legislation alone cannot address the deeper systemic issues that I have encountered in my work.
The Bill is an opportunity to add the necessary external scrutiny, and the stricter safeguards needed for long-term segregation. Without this, we risk becoming more of a record-keeping tool rather than a catalyst for real change, and the Bill relies heavily on the Mental Health Act code of practice, which is guidance and not law. In practice, we know that services do not always follow it. It is a large document; I reckon that most psychiatrists probably have not read it. It is huge already, and we are going to add more to it.
The amendments I propose directly address these shortcomings. Amendment 55 would require notification of long-term segregation within 72 hours, significantly strengthening oversight from the beginning of this restrictive practice. The Minister has told me that the CQC is already looking for the best way to introduce notification, and I hope she can say more about that. If she is not minded to place this in primary legislation, please can we have an estimate of when this restrictive practice notification will be brought into practice?
Amendment 3 mandates immediate investigation and safeguarding reviews when minimum standards—which would need to be outlined in the code of practice—are breached, or when long-term segregation becomes prolonged or repetitive. Given the profound deprivation of liberty involved, I believe these safeguards are essential. If the Minister accepts no other amendment, can she please accept Amendment 3? One might assume that safeguarding is already in place, but my review found that there were certain definitions of what safeguarding is, and being in long-term segregation for long periods of time was not one of them.
Amendment 56 mandates independent reviews that would provide external oversight within 28 days of a patient being placed in long-term segregation. Experience shows that independent evaluations, especially when they are multidisciplinary, are one of the most effective mechanisms for disrupting institutional inertia and preventing prolonged and unnecessary segregation.
The introduction of independently chaired care (education) and treatment reviews by the Government in 2019 has already demonstrated the value of external scrutiny, but these reviews are only funded until the end of the current year. They have exposed and addressed issues that have been tolerated or overlooked within the host hospital for years. The impact is clear: when independent professionals review cases, inappropriate long-term segregation is far more likely to be challenged and addressed. Given their success, I believe that independent reviews should be a statutory requirement. If the Minister is not minded to accept Amendment 56, could she reassure your Lordships’ House that these independent reviews will continue to be funded for as long as long-term segregation exists?
We already have statutory oversight mechanisms for other hospital interventions. Medication and electroconvulsive therapy require review by second opinion doctors under the SOAD CQC system, yet long-term segregation—one of the most restrictive interventions possible—lacks equivalent scrutiny. Although tribunals oversee a patient’s detention under the Act, they rarely examine specific treatment decisions, such as segregation. A formal independent review process could be built into existing legal and oversight structures, such as SOAD and the CQC, without requiring significant structural adjustments. Of course, there will be workforce shortages in the short term. However, the cost of independent reviews is undoubtedly lower than the financial and human rights costs of keeping patients in long-term segregation for years.
The Government plan to revise the code of practice. Amendment 52 seeks mandatory updates to the code of practice to provide clear guidance about the minimum standards needed for the accommodation used, and strict standards for the initiation, continuation and termination of the enforced social isolation that is euphemistically called “long-term segregation”. Defining minimum standards is critical, given the appalling conditions in which some people are being detained. They are beyond your Lordships’ imaginations, I assure you.
Amendment 57 mandates the appointment of an independent responsible officer by a hospital manager to proactively monitor and address the use of LTS, to ensure compliance with independent recommendations and to actively promote less restrictive alternatives. This too could be brought into practice very quickly, because the SOAD independent review and obligations on hospital managers are already in place.
I thank Mencap, the National Autistic Society, the Challenging Behaviour Foundation and VoiceAbility for their help drafting Amendments 4 and 5, which would require His Majesty’s Government to publish a fully costed plan to provide sufficient community services. These services are needed to switch on the important learning disability and autism elements of the Bill. One of these amendments was originally tabled for Committee and has been revised in light of the Minister’s response. Both would require the Government to consult with stakeholders to develop and publish a costed plan to ensure that integrated care boards and local authorities provide a sufficient number of the right services, as needed, to people with learning disabilities and autistic people.
Baroness Meacher (CB)
My Lords, I rise to speak very briefly to the issue of people with autism and learning disabilities being detained in hospital. Clause 3(4) amends the Mental Health Act to prevent people being detained under Section 3—in other words, for six months—if they have autism or learning disabilities. Should this not also be preventing detention of people with autism and learning disabilities at all, and certainly for 28 days, for example? Limiting this restriction to Section 3 is unhelpful for people suffering with these disabilities. This is a small point to raise with the Minister.
Lord Crisp (CB)
My Lords, I have added my name to one of my noble friend Lady Hollins’s amendments on community services and to four of those on long-term seclusion. I will speak very briefly to each topic.
On community services—I also support my noble friend Lord Adebowale’s amendment on this issue—I understand the Government’s concerns about timing and, presumably, costs, but I believe nevertheless that the Bill should provide legislative pressure to deliver community services for autistic people and people with learning disabilities. There is little point in using the Bill to set out a new legislative framework for this group if this does not include some notion of a plan or timetable, and it is highly likely that the service will simply fall back into the established patterns of non-therapeutic containment if this is not included.
I fully endorse the point made by the noble Baroness, Lady Browning, about the Autism Act. As one of the witnesses to the autism committee recently said, this is a pretty good law, but where is the action? Where is the implementation? That is the point, and we need some reassurance on a plan being forthcoming within a reasonable timeframe.
On long-term seclusion, I suspect that most members of the public would be surprised to know that what amounts to, in some cases, solitary confinement—I use that pejorative phrase deliberately—is used for such long periods in our institutions. We are talking about 15 days at a time and potentially more than that, over the course of a month, if there is a break between the 15 days and the next 14 days, for example. We should be particularly concerned about what happens out of sight in these institutions, where what should be a very rare occurrence at best can become all too easily routine.
These amendments open this long-term seclusion to greater scrutiny and control. They may not prevent it happening altogether, but they will help to make it a rarer occurrence. I refer in particular to two amendments, neither of which I have my name against—that is my mistake rather than anything else. Amendments 3 and 53 both refer to the code of practice and require that if people are kept in long-term seclusion for 15 days, or indeed the majority of 30 days, there will be clear monitoring and subsequent active intervention to take account of that. They are entirely reasonable amendments and do not raise funding, timing or any other issues. They are about ensuring proper scrutiny of what is happening to vulnerable people in some of our institutions.
In saying that, I am reminded of reading the report from Blooming Change, a young people’s organisation. I quoted the report at Second Reading, and it describes problems with safety and quality. There are descriptions of being injured during restraint, being drugged and restrained, and being scared all the time. It includes the terribly sad quotation:
“‘hospital makes you worse’… going into hospital with one problem and then leaving with trauma, new behaviours, new diagnoses, assaults, PTSD – it’s awful.”
We ought to be able to ensure that the code of practice for long-term seclusion is adhered to and that where it is not, it is properly investigated.
Lord Scriven (LD)
My Lords, I rise to speak to a number of amendments that I have added my name to, particularly those in the name of the noble Baroness, Lady Hollins. In Committee, the whole issue of people with learning disabilities and autism caused a number of concerns. I note that the Minister has gone some way towards dealing with some of those concerns, and it is a tribute to her listening and enaction skills that progress has been made.
I think it would be fair to say that there are still some concerns on Benches across the House about potential unintended consequences for people with learning disabilities and autism if the Bill goes through in its present form. In some areas, I would describe the statement from the Minister as, “It’ll be all right on the night”—but we know that, sometimes, it is not all right on the night, and things will happen.
The noble Baroness, Lady Hollins, puts forward quite an important base for long-term segregation. There is no evidence that it has a long-term therapeutic benefit for people who have learning disabilities and autism, and so the provision for it still being there, without laser-focused monitoring and intervention, is a weakness. The Minister really has to convince the House that the Government have a plan to deal with this.
The worry about having too much faith in the code of practice, as we found out in Committee, is that simple words such as “should” and “must” have very different meanings for whether or not there is a statutory obligation on an organisation. It would be interesting to hear the Minister’s view on the focus in the code of practice and on strengthening the words used.
Amendment 4, to which I have added my name, is something that the House should focus on and understand. Throughout the history of implementation of improvements in mental health and other areas where community carers come in, they have always fallen down on implementation, due to a lack of either funding or resources. Amendment 4 focuses on implementation. As the noble Lord, Lord Crisp, has just said, in the Autism Act 2009 Committee, we heard from two witnesses who said there is a plethora of policy but it is always the plan on implementation that fails. The amendment in the name of the noble Baroness, Lady Hollins, focuses on that implementation and asks that the Government have a real plan to do that.
It was worrying as we went through Committee, particularly when issues were raised about the numbers in the impact assessment, that the Minister pointed out that they are indicative. The amendment in the name of the noble Baroness, Lady Hollins, is required because, if we take a look at the trend of the percentage of total healthcare spend that has been allocated to mental health, including the Government’s announcement last week, we find that there have now been two years in which the total spend will be reduced. That means that some of the good ideas that the Government have mentioned with regard to the implementation of this Bill and community services are potentially at risk.
I do not know whether the noble Baroness will press her amendment, but, if she does, she will have the support of these Benches. We think this is vital, and we are not quite convinced, unless the Minister says something to that effect from the Dispatch Box, that that crack—that real weakness—has been dealt with.
Lord Kamall (Con)
My Lords, before I begin my remarks, I express my gratitude to the Minister and to officials for their engagement with not only me but other noble Lords between Committee and now. I know I am not alone in appreciating the amount of time and work that the Minister and officials have put into meeting with us, addressing our concerns, and even having follow-up meetings; that was very much appreciated.
I will speak to Amendment 1, in the name of my noble friend Lady Browning, and briefly address some of the other amendments in this group. We supported my noble friend Lady Browning’s intention to retable this amendment, which seeks to address the loophole which could lead to the use of the Mental Capacity Act to detain patients with learning disabilities but without a recurring condition.
As noble Lords have acknowledged, both in Committee and today, once the legal basis for detention under the Mental Health Act is removed for these patients, there was always a profound risk of them falling under the deprivation of liberty safeguards. Nobody wishes to see extra safeguards introduced into the Mental Health Act for that to be simply replaced with detention by another Act. My noble friend said today that she has received further assurances from the Minister—we are grateful for those assurances—and that she is no longer minded to test the opinion of the House. Had she been minded to test the opinion of the House, she would have had our full support, but I am grateful for the assurances that the Minister has given to my noble friend.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I start by saying how grateful I am to noble Lords for their amendments and for the contributions they have made today. I express my thanks at the beginning of this first day of Report for the generosity of time and expertise of noble Lords from across the House—I have greatly appreciated it.
I turn now to the specifics. As the noble Baroness, Lady Browning, is aware, I agree with the principle behind Amendment 1, but there are limited circumstances where it might be appropriate to use the Mental Capacity Act to ensure that patients get the right support. I am glad that the noble Baroness welcomed my letter and that it was helpful. For people who have recently received treatment for a psychiatric disorder under the Mental Health Act, the Mental Capacity Act may be required to continue to support the individual in hospital in the short term while a community-based placement is being arranged.
Monitoring our reforms will indeed be crucial, as many noble Lords have said today. The NHS England assuring transformation dataset collects data on the number of people with a learning disability and autistic people detained in mental health in-patient settings under the Mental Capacity Act. As the noble Baroness herself referred to, the current number is fewer than five; nevertheless, it is, as she said, important.
I reiterate from this Dispatch Box the commitment that I made in the letter. Ahead of reforms to Part II, Section 3, we commit to monitoring the number of people with a learning disability and autistic people who are detained under the Mental Capacity Act, and will include a line on this in standard publications. Should we see an increase in this number following the reforms and discover that the Mental Capacity Act is being used inappropriately, we will ensure that appropriate action is taken.
I thank the noble Baroness, Lady Hollins, for her work on long-term segregation. Many noble Lords have raised facilities and community resourcing. I will address this, and the concerns about commitments in this Act being applied, when I turn to Amendments 4 to 6. On Amendments 3 and 55, there is a requirement in the Mental Health Units (Use of Force) Act 2018 to publish instances of isolation in mental health units. We have consulted on making this and other restrictive practices notifiable to the CQC within 72 hours for all patients in mental health hospitals, allowing the regulator to take prompt appropriate action.
Practical concerns were raised through the consultation that was held, which we are legally required to consider. I hope noble Lords will understand that because of this I am unable to commit to mandating reporting at this stage or to give a timeline, which I was asked for. However, noble Lords can be well assured that I more than understand the urgency. My officials have written to the CQC to commission it to develop a proportionate reporting mechanism, as has been referred to, and these changes can be made in regulations.
The noble Baroness, Lady Hollins, asked about restricted practice notification. Because this is to be made in regulations, clearly that will be, as usual, when parliamentary time allows. Every NHS-funded organisation is responsible for ensuring that safeguarding duties are applied. The code of practice requires the local safeguarding team to be made aware of any patient in long-term segregation.
On Amendment 56, the code of practice already sets out that a patient’s situation should be reviewed by a clinician at least once every 24 hours and at least weekly by the multidisciplinary team. The CQC has received funding to continue the programme of independent care or care (education) and treatment reviews for two years, and reviews recommenced in May 2024. We need to consider the programme’s impacts and the outcome of the spending review before future decisions are taken. Doing this outside legislation allows for flexibility. The independent care (education) and treatment reviews model has evolved as we have learned about what works best. We want to be able to continue to deliver the right approach. On Amendment 52, we will review the guidance in the code of practice on the use of long-term segregation, drawing on available evidence. This does not require primary legislation.
To my point on drawing on available evidence, we will indeed use the report of the noble Baroness, Lady Hollins, alongside other evidence, to consider changes that need to be made to the Mental Health Act code of practice, which we will review as part of the implementation of the Mental Health Act reforms after Royal Assent. We hope that this, alongside other actions that we are taking—including the continuation of ICETRs and NHS England’s quality transformation programme—will make progress to reduce long-term segregation.
There were points raised about Amendment 53, which we will return to in the debate on the fifth group. On Amendment 57, it is our belief that this duplicates existing requirements. The Mental Health Units (Use of Force) Act 2018, once fully implemented, will require mental health units to have a responsible person who must keep a record of any use of force by staff.
I absolutely understand the concerns that many noble Lords have raised about community support. This has driven Amendments 4 to 6. I also recognise the need for accountability and scrutiny of these reforms—a point that has been made several times.
I say to the noble Lord, Lord Scriven, that I hope I am about to do better by him than, “It will be all right on the night”, but he will be able to judge that. I am pleased with what I can commit, which is that within a year of Royal Assent, and each year subsequently, we will lay a Written Ministerial Statement in both Houses. This will include setting out details of the work that has been done over the preceding 12 months to implement this legislation and plans for how we will implement future reforms. It will include progress on the learning disability and autism reforms and plans for community provision.
Regarding Amendment 68 and the remarks by the noble Lord, Lord Crisp, we have heard concerns about possible unintended consequences, such as the potential criminalisation of individuals or detention via other legislative routes. To avoid such scenarios, we will commence changes to Section 3 only once there are strong community services in place and it is safe to do so, because flexibility is essential.
I hope that these commitments will satisfy noble Lords not to press their amendments.
Baroness Hollins (CB)
Will parliamentarians be able to question and amend the plan that will be laid before Parliament every year? The lack of ability to influence that process and that plan concerns noble Lords.
Baroness Merron (Lab)
I have heard from noble Lords that they are concerned with having transparency, holding the Government to account and being updated on the situation. I absolutely agree with all those points, which is why I am pleased to make that commitment. Parliament has a number of routes available to it to hold the Government to account. I have just outlined the manner in which we will be transparent and the way the Government will be held to account by having to do that. As always, parliamentarians have the ability to scrutinise in many ways.
Baroness Browning (Con)
My Lords, we have heard a lot of very salient and not just helpful but wise words in the debate on this group of amendments. I thank the Minister for standing at the Dispatch Box and making commitments that are now on the record with this Bill. When people ask what Parliament’s intention was, she has left us in no doubt on some important points, particularly on my amendment concerning the need to monitor the use of the Mental Capacity Act in respect of autistic people and people with learning disabilities. I am grateful that she has done that and for a similar commitment I think I heard her make around some of the concerns that the noble Baroness, Lady Hollins, had.
Finally, the Minister has not given us exact dates as to when implementation will take place. We imagine it may be staged—not all in one go—but before the end of this year, the committee upstairs will report on the post-legislative scrutiny of the Autism Act. That will cover a wide range of issues, particularly services to people with autism. I hope that, perhaps in her deliberations on this Bill, when she sees that report—I cannot predict what the outcome of that will be—she will take those into account as well. For certain, services provided under the Autism Act, if they are provided in a timely way, will reduce the number of services that will be needed under the Mental Health Act. It is not rocket science; it is pretty basic that if you provide those services, that downward spiral in mental health is reduced. With that, I beg leave to withdraw my amendment.
Baroness Butler-Sloss
“(v) a person or persons with parental responsibility who have not received a court order restricting the exercise of their parental responsibility.”
Baroness Butler-Sloss (CB)
My Lords, I have three amendments in this group—Amendments 2, 25 and 27. They all relate to the relationship between parents, special guardians and others with parental responsibility, and the Bill.
I must first say that I am extremely grateful to the Minister and her team for having been allowed to try these points out on her on several occasions. I am afraid that I did not make a great deal of progress, but I hope that I made just a little. I do not propose to ask for the view of the House on any of these three amendments, but I hope that they will go into the code of conduct.
Baroness Berridge (Con)
My Lords, I shall speak to Amendment 34; I thank the noble Baroness, Lady Tyler, for adding her name to it. I am grateful too to the Minister for beginning, by way of the government amendments, to ensure that the Mental Health Bill does not conflict with orders of the family court under the Children Act.
Amendment 34 would ensure that the AMHP—approved mental health professional—appointing the nominated person for a child who lacks competence must appoint either the special guardian, when the family court has ordered one, or the parent with whom the child lives under a child arrangements order. His Majesty’s Government’s amendment reflects the current position under Section 37 of the Mental Health Act, and this amendment merely reflects the current position under Section 38. Under the Bill, however, the nearest relative becomes the nominated person and moves from a “must” in the Mental Health Act to a “should” in a code of practice.
According to the Government’s policy paper, His Majesty’s Government wished to give the AMHP the discretion to appoint someone other than that special guardian or the parent with whom the court has ordered that the child resides. Both those court orders affect parental responsibility. A special guardian takes all effective day-to-day decisions for the child and, according to the Children Act 1989, parents are left only with consent to a change of name or if the child is to leave the jurisdiction.
A kinship carer or foster carer is given parental responsibility by way of a court order after a report that has to be produced by the local authority to the court. Under a child arrangements order, the matter of who the child lives with or sees is determined, again, by a court order. A matter that is usually part of parental responsibility decided between the parents is now the subject of a court order. Breaching that order is, in fact, contempt of court—or a breach of a court order, as is normally said.
Many of these admissions of sick children who have no capacity are in the evenings or at weekends. That is what I was informed last Thursday by Dominic Marley of the AMHP Leads Network, whose clear view is that it does not want to be foisted with the discretion that His Majesty’s Government offer them. Why? It is because, quite simply, AMHPs are not equipped, unlike the family courts, to assess that there is now no risk of harm to a child, or to appoint someone other than the special guardian or the parent with whom the child resides.
How can AMHPs assess, at 10 pm on a Saturday night, that the daily life of a child is no longer what was outlined in the special guardianship order, or if the child now lives with that parent without a problem, even though that parent may have a history of not being able to care for them due to illness, or a history of violence, but has now recovered or reformed sufficiently? How can AMHPs assess that the parent who was ordered not to have contact after a week-long trial of the evidence in the family court is, in fact, safe to have contact with the child as the nominated person? AMHPs are simply not equipped to delve into complex family issues that have already been determined by the family court—nor, when they are trying to do a mental health assessment of a sick child, do they want to be distracted by this.
The remedy, as the noble and learned Baroness, Lady Butler-Sloss, outlined, is to enable the reformed parent in either of those cases to go to the county court under the nominated persons process, which, indeed, often hears cases within 24 hours. There is, of course, also the remedy to go back to the family court, but that would take longer. It is for that court to assess, we hope with a family judge, what the position is and whether that parent is now safe to be involved in the child’s life as the nominated person. It is unfair to put that responsibility on AMHPs, who see only a small number of Children Act cases each year. Also, as these cases are not straightforward—by definition, they have been subject to an order in the family court—AMHPs would almost certainly need His Majesty’s Government to provide out-of-hours specialist legal advice across England and Wales to help them do this. That matter would, obviously, be open to litigation.
AMHPs and the staff of a unit should not have this responsibility or discretion. What if a father who has a no contact order is given access as the nominated person and harms the child? Even if that does not happen, I cannot help wondering, can the mother go to the family court and say that the dad is in breach of the no contact order or in contempt of court by seeing the child as the nominated person? And would the dad defend that breach and say, “I need to call the AMHP to the family court”? This seems to be getting rather expensive and complicated. Family court orders should be respected, so who the AMHP must appoint as the nominated person should again be on the face of the Bill. Most importantly, this would eradicate the risk of harm to a child from a parent, who has been found by a court to be a risk to their child, getting contact with them, or getting access as the nominated person until another court determines otherwise. Court orders are amended by court orders, not AMHPs.
After eight years of looking at the Mental Health Act to reform it, we are now at Report stage and there are still significant conflicts between this Bill and the Children Act. I am left wondering why. Sadly, despite the considerable engagement that other noble Lords have mentioned by the Minister, which I know is appreciated, as of last Thursday, His Majesty’s Government have not met with the lead AMHP network that I have outlined, which represents over 90% of local authorities in England and Wales and has been in existence for over 20 years. The network is not aware of any other professional network being in existence. It was promised by the last Government that, before a Bill was produced to Parliament, it would be met with. As of last Thursday, His Majesty’s Government have also not consulted with the British Association of Social Workers, which has a special interest group of AMHPs. Why not? Will the Minister please outline precisely whether any AMHPs have been met with and, if so, tell us who are they are and make them known? The network I have spoken to is very concerned about this discretion.
The Minister has immunity while being a servant of the Crown; AMHPs and the staff of a secure mental health unit do not. All the AMHPs are asking for is what is indeed reflected in Whitehall. The DHSE has responsibility for the Mental Health Act and DfE for the Children Act. This is not their expertise. I do hope I will not be attaching this Hansard to a letter to a coroner, a CQC inquiry or any other inquiry if, God forbid, a child is harmed or killed in a secure unit by a parent.
Governing is about deciding. Without Amendment 34, His Majesty’s Government have, in my view, decided to take an unnecessary risk with the safety of some of our sickest children. As noble Lords may be aware from how I have outlined this speech, I intend to divide the House if necessary—but I hope the Minister will concede the point.
Lord Meston (CB)
My Lords, I would like to support both the amendments of the noble and learned Baroness, Lady Butler-Sloss, and the amendment just spoken to by the noble Baroness, Lady Berridge. It seems to me that, in the potentially complex and fluctuating family situations with which mental health professionals may find themselves having to deal, it is absolutely fundamental that they identify and consult those who have parental responsibility. It would be quite wrong, even in a hasty or urgent situation, for such people to be marginalised.
So far as the amendment from the noble Baroness, Lady Berridge, is concerned, I likewise entirely agree that the practical realities of operative family court orders, which may or may not be relevant, will certainly need to be understood and properly looked at before any urgent decisions are made. They will also need to be fully considered later when more measured decisions have to be made. For that reason, I would certainly wish to support her amendment.
Baroness Tyler of Enfield (LD)
My Lords, I shall comment on this important group of amendments. I have real sympathy with the amendments that have been tabled. I join others in thanking the Minister for the helpful and constructive conversations that we have had since Committee in a number of areas, including this one.
Earl Howe (Con)
My Lords, this is Report and I do not propose to do more than underscore all that is been said by noble Lords who have spoken, particularly my noble friend Lady Berridge. Approved mental health professionals carry with them a huge responsibility for the well-being of those whose interests they are called upon to protect. When a child or young person suffers a mental health crisis, it is the job of the AMHP to make the right assessments, take the right decisions and follow the right procedures under the law to ensure that the young person is looked after appropriately and swiftly. To do that, he or she needs a clear set of ground rules to follow.
We need to imagine a situation, such as the one posited by my noble friend, in which a child’s mental and emotional condition is such that they lack decision-making competence. An AMHP is then called in. In that situation, when it comes to appointing a nominated person for the child, the scope for confusion and indeed delay is enormous. Who should be appointed? Is it the mother or the father, or is there someone else who should take precedence?
The Minister has acknowledged through the government amendments before us that, when there is a care order for the child, the AMHP should have no choice but to appoint the local authority as the nominated person for the child. That is a welcome step forward but, as my noble friend has rightly said, what if there is a special guardianship order or child arrangement order issued by the court under the terms of the Children Act? In those circumstances, too, the AMHP should be relieved of the obligation of making a decision that, if it is the wrong one, could leave them open to legal challenge. I very much hope the Minister will be receptive to the powerful arguments that my noble friend and the noble and learned Baroness, Lady Butler-Sloss, have advanced on these significant issues.
Baroness Merron (Lab)
My Lords, I thank all noble Lords for their contributions in this important area, and I thank the noble and learned Baroness, Lady Butler-Sloss, for Amendment 2.
On that point, I can say that a copy of the report made following a care and treatment review must be sent to those who have a legal duty to have regard to the review recommendations, so that they are implemented appropriately. We agree that parents play an important role. However, it may not be appropriate for the report to be sent to parents in every case: for example, where safeguarding concerns have been raised. Inappropriate sharing of information could result in the patient withdrawing their consent to the review. So we will provide statutory guidance on the role of the parent to assist the responsible commissioner in considering who to involve in care and treatment reviews.
On Amendment 25, also tabled by the noble and learned Baroness, Lady Butler-Sloss, the Bill already allows anyone involved in the patient’s care or welfare, which includes parents, to apply to the county court to terminate the appointment of a nominated person. I can assure the noble and learned Baroness that we will make this clear in the code of practice and the Explanatory Notes for the Bill, as she has raised an important point.
To address Amendment 27, we are concerned that making it a requirement for parents always to be consulted when a nominated person is chosen could put undue pressure on a child to choose a parent. However, we agree that the witness should consider the views of parents and others who may have insight into the suitability of a nomination. I can tell the House that we will therefore set out in the statutory code of practice how the views of the family and others should be fed into the witnessing process.
I have also heard the concern of the noble Baroness, Lady Berridge, about the nominated person regarding children who lack competence. In response to this, as she acknowledged, I have tabled Amendments 29 to 33 to make it clear who an approved mental health professional must appoint in certain circumstances. For an over-18 lacking capacity, an approved mental health professional must appoint a competent lasting power of attorney or Court of Protection deputy, if they have one. For all under-18s lacking capacity or competence, where there is a care order, they must appoint a local authority which has parental responsibility for them or, if relevant, a competent Court of Protection deputy. Where there is no care order, the approved mental health professional can appoint a person who does not have parental responsibility for 16 and 17 year-olds. This allows for suitable alternative arrangements, for example, informal kinship arrangements for young people who live independently. I hope that this reassurance and commitment on my behalf provides the further clarity for which the noble Baroness has been advocating.
Finally, in response to Amendment 34, we agree that in the vast majority of cases we would expect a parent, or whoever has parental responsibility, to be appointed. This would include consideration of special guardians and child arrangement orders. As I have set out before, we do not agree that a person with residual parental responsibility should always be blocked from being a nominated person. A child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child. For example, the parent might struggle with their own health issues but could still be an effective nominated person.
The situation is different in the case of a care order because the local authority is being given lead parental responsibility. We have engaged with the Children’s Commissioner on this point. As I believe the noble Baroness may be aware, I recently met the Children’s Commissioner on a range of issues, including discussions about the Mental Health Act.
If there are no relevant people, approved mental health professionals must follow the patient’s past and present wishes and feelings when deciding who to appoint. We do not believe that the eldest person should be given preference, as this represents an outdated assignment of responsibility. I assure the noble Baroness, Lady Berridge, that I have been advised that my officials met the chair—but I understand that the term is lead—of the AMHP Leads Network last November.
I can make a further commitment, which I hope will be helpful to your Lordships’ House. I am committing to establishing an expert taskforce to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process for children and young people. Views will be very much welcomed on who should be part of this; I have already invited the noble Baroness, Lady Berridge, and the noble and learned Baroness, Lady Butler-Sloss, to make suggestions about that. With these reasons, I hope that noble Lords can support our amendments and will not press their amendments.
Baroness Berridge (Con)
Before the Minister sits down, the information I have is that Dominic Marley of the AMHP Leads Network had not seen a draft of the Bill that was to go before Parliament. Can the Minister confirm that? The Minister has outlined that there can be an assessment of ill-health already before the courts. Is she confident in legislating when a group of professionals are saying that they are not competent to assess the illness or otherwise of that parent and that the matter, already determined by a court, needs to go back to a court to be re-evaluated? They say that they are not competent to do what you are asking of them.
Baroness Merron (Lab)
I note what the noble Baroness has said. We have discussed these issues a number of times in the Chamber and outside. On her second point, the situation is as I have outlined, and I do not feel I should go further today. These are the points I wish to bring before your Lordships’ House. I am happy to take up the points she raised separately. However, on her point about the exact details of the meeting, to be quite honest I cannot give that level of detail. I am very happy to find out more from my officials. The noble Baroness originally asked whether there had been a meeting, and the answer is yes.
Baroness Buscombe (Con)
My Lords, the Minister will know that I pledged at the very beginning, before the Bill came to this House, that I would do all I could to help its passage. I made that pledge to the Secretary of State. Given the continued conflict, as we see it, with the Children Act, would the Minister be prepared between now and Third Reading—rather than us dividing the House on this later—to have a little more discussion on this issue? We discussed it at great length during our inquiry into the draft Mental Health Bill. To us, it is a significant point that does not appear to have been properly resolved. In wanting to support the Government in making sure, as my noble friend has said, that they are not opening themselves to legal challenge, and to ensure a safe passage of the Bill, can I put that possibility to the Minister?
Baroness Merron (Lab)
I am grateful to the noble Baroness, not least because she has also given me a bit of time to add to my earlier answer to the noble Baroness, Lady Berridge, about the meeting with the lead of the AMHP Leads Network last November. That meeting took place after the Bill was published.
On the point the noble Baroness raised, whether the House will be divided will be a matter for the noble Baroness, Lady Berridge, and others to decide, but I am always happy to have discussions. If the noble Baroness wishes to do that, I will be very pleased to, as always.
Baroness Butler-Sloss (CB)
I do not think I need to say anything else. I am relieved to hear from the Minister that it will be expressly in the code of practice. I am also grateful for the idea that I can put forward some suggestions, which would be very helpful. I do not propose to take any further steps on my three amendments, and I beg leave to withdraw the amendment.
Baroness Hollins
“125FA Community Services Sufficiency Plan: commissioning of services for autistic people and people with a learning disability(1) The Secretary of State must prepare and lay before Parliament a document setting out a plan for resourcing and commissioning sufficient community services for autistic people and people with a learning disability to ensure the operability of provisions in the Mental Health Act 2025. (2) The document shall be referred to as the “Community Services Sufficiency Plan”.(3) The Community Services Sufficiency Plan must be published within one year of the day on which the Mental Health Act 2025 is passed.(4) The Community Services Sufficiency Plan must include—(a) a definition of “sufficient community services” in relation to autistic people and people with a learning disability, including how sufficient community services will be assessed regarding the operability of provisions in the Mental Health Act 2025;(b) the actions that the Secretary of State will take to ensure community services are available to meet demand for autistic people and people with a learning disability after the end of the 28-day detention period under section 2(4) of this Act (admission for assessment);(c) the actions that the Secretary of State will take to ensure that sufficient community services for autistic people and people with a learning disability are available to prevent detention under section 3 of this Act (admission for treatment);(d) plans to allocate appropriate resource to ensure operability of services, including, but not limited to, financial resource;(e) plans to ensure that responsible bodies and individuals receive the necessary training in autism and learning disability to carry out support, diagnosis, and treatment;(f) plans for data collection to support the commissioning of sufficient services for autistic people and people with a learning disability;(g) targets and milestones relevant to—(i) the number of autistic people and people with a learning disability who are detained under this Act, and(ii) the development of sufficient community services for autistic people and people with a learning disability,(h) any other information the Secretary of State deems relevant.(5) For a period of 10 years beginning on the day on which the Community Services Sufficiency Plan is first published, the Secretary of State—(a) must keep the plan under review, and(b) may revise it.(6) If the Secretary of State revises the Community Services Sufficiency Plan, the Secretary of State must publish it as revised.”
Baroness Hollins (CB)
My Lords, I am grateful for the promises made by the Minister, but they are not wholly reassuring and I had intended to test the opinion of the House. However, I would like to put on record the lack of support from the Opposition Benches, even though I have the support of many Members of the Cross-Bench group and noble Lords on the Liberal Democrat Benches. This lack of support is surprising, given the failure of their own plan, Building the Right Support. I fear it would be wasting the time of your Lordships’ House for me to proceed, so, instead, I will keep an eagle eye on the progress of the promised plan and the resources allocated to make it achievable, as well as the degree of challenge and amendment that will be facilitated. I will not move Amendment 4.
Lord Kamall
Member’s explanatory statement
This amendment and others in the name of Lord Kamall seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.
Lord Kamall (Con)
My Lords, these amendments in my name and that of my noble friend Lord Howe are really amendments from my noble friend Lady May, who unfortunately cannot be in her place today. As my noble friend told the House in Committee, when she was Home Secretary, a recurring concern raised by police officers was being called out to situations where they were expected to determine whether someone was at the point of crisis and what should happen to that individual. As we know, that usually meant taking the individual to a police cell as a place of safety—an issue that is addressed in other parts of the Bill. But police officers continue to be concerned that they are asked to deal with something for which they have no, or insufficient, training or knowledge.
As my noble friend reminded the House, a police presence is also often not good for the individual, as not only is that individual not being given the healthcare support they need, but the presence of an officer in uniform coming to deal with them could exacerbate their mental health situation. Even if the police officer is able to get somebody to a hospital, they might still be required to sit with an individual to make sure they do not harm themselves or others. My noble friend Lady May cited the Metropolitan Police’s evidence to the Joint Committee on the draft Bill, where it gave an example of a patient in A&E who was required to be guarded by eight Metropolitan Police officers over 29 hours to prevent them being a high-risk missing person.
In its letter to the current Secretary of State, the National Police Chiefs’ Council was concerned that the law as it currently stands
“arguably views mental health through the lens of crime and policing related risk, which raises … issues including disproportionality in the criminal justice system, discrimination, adverse outcomes for people suffering with poor mental health as well as increasing stigma attached to mental health”.
I make it clear that, although this amendment removes the statutory demand for the police to be the primary responders to incidents of mental health where there is an immediate risk to life or serious injury, the police will still have a role to play.
The amendments specify that the authorised person attending an individual should be
“trained and equipped to carry out detentions”
and should not be
“put at unnecessary risk by carrying out those functions”.
This is in line with the College of Policing’s 2019 mental health snapshot, which found that almost 95% of calls that police attend that are flagged as a mental health response do not require a police response.
The Minister will be aware that, in the joint Home Office and Department of Health review and survey of Sections 135 and 136 powers, 68% of respondents agreed that all or part of Sections 135 and 136 powers should be extended so that healthcare professionals could use them, provided that they were not putting themselves at risk. Paramedics in particular supported a change, with more than 90% agreeing and more than 60% strongly agreeing.
However, this is not just about the interests of the police and healthcare professionals. More importantly, we need to focus on the individual at the point of mental health crisis. They deserve the right response, the right care and the right person.
I note that the Minister, in our conversations—I appreciate her giving forewarning of this—discussed how the amendment as it stands appears to give the police more powers. I discussed that with my noble friend Lady May before I came to the Chamber, and she was surprised at this and said that it was somewhat disappointing, given the constructive meetings that the Minister and my noble friend have had, and given that the Metropolitan Police said that they were supportive of this move when my noble friend met representatives last year.
There is clearly a difference of opinion here, and we appreciate that we need to find a way forward. I know that my noble friend Lady May is open to discussions with the Minister to ensure that the principle behind these amendments is met. Could the Minister give a guarantee to meet my noble friend and that, following these discussions back and forth, she will be able to bring back an amendment at Third Reading?
The fundamental principle remains unchanged: the role of police in detentions under the Mental Health Act must be reduced, and it must be reduced for the patients’ and the workers’ benefit. If the Government can accept the principle but not necessarily the precise wording, I hope that the Minister will be able to give the assurances that I and my noble friend Lady May have asked for. I am afraid that, if the Minister cannot give the assurance that she can bring forward an amendment at Third Reading, having had discussions with my noble friend Lady May, we will have to test the opinion of the House. I hope that the Minister can help to find a constructive way forward with my noble friend.
Lord Davies of Brixton (Lab)
I am extremely pleased that the noble Lord, Lord Kamall, has moved his amendment for the Opposition. I will not be voting for it, but I am pleased that it has been moved because in Committee I moved amendments along the same lines.
I know that my noble friend the Minister agrees with the suggestion that there is a challenge here for the Government—she told me so. This issue is not going to go away, and it would be a constructive way forward for there to be a meeting—I would ask to be included in any such meeting. We are clear about where we want to get to, and that the appropriate phrase is “right care, right person”. I do not think that that is currently being delivered, so something needs to be done. I hope that we can move to a better system, in a constructive way.
Baroness Barker (LD)
My Lords, like the noble Lord, Lord Davies of Brixton, I find myself in exactly the same place. We all know why the police have said that they are not the appropriate people to be first responders when somebody is having a mental health crisis and presenting a danger either to other people or to themselves. We also know that not putting anything in place, or not putting the right people in place, means that somebody having a crisis will not necessarily be seen by an appropriate person.
A number of us have looked at this and talked to people in the field, and we think that what will happen is that there will be a response from somebody on the front line in the National Health Service, either in an A&E department—because that is where a lot of people will go—or, more likely, from an ambulance. That will put the ambulance service under even greater strain and pressure than it is under now.
It is the hope of those of us who have been involved in the discussions so far—and the intent, I think, of the noble Baroness, Lady May, who is the prime mover behind this—that we do not do that. We should not wait until there is a terrible incident in which somebody is badly harmed; we must try to foresee that situation.
I suspect that, around the country, since the police have taken the decision that they have, front-line health services have had to come up with new ways of responding. The issue has not gone away; people are still going to have mental health crises in which they are a danger to themselves or seem to present a danger to others.
I propose that we follow the suggestion from the noble Lord, Lord Kamall, that there be further discussion on this—preferably with people from mental health organisations and from different parts of the NHS, as well as the police force—to see whether we can come up with something that will plug a very obvious gap.
As I have said before during the passage of this Bill, this is the last chance for the next 10 to 15 years to pass legislation on this subject. We need to behave diligently, take appropriate action now and not wait to rue the day in the future.
Baroness Merron (Lab)
I thank the noble Lord, Lord Kamall, for tabling these amendments. They seek to amend Section 2 of the Mental Health Act, which relates to admission for assessment, and Section 3, which relates to admission for treatment, as well as Section 5(4), which relates to detention for six hours pending application admission.
I emphasise that the police do not currently have the ability to detain under Sections 2, 3 and 5 of the Act. These amendments, as the noble Lord has referred to and as we discussed earlier, would give police additional powers, where they currently do not have powers to intervene. The noble Lord will be aware, and he mentioned the fact, that we do not support extending police powers in this way, and we understand that the police do not support an extension either.
I am very happy to continue discussion with the office of the noble Baroness, Lady May, as I have done previously. I know that my noble friend Lord Davies would also welcome a discussion, which I am very happy to commit to.
The noble Lord asked for amendments on Third Reading, but such amendments are to clarify any remaining uncertainties, to improve drafting and to enable the Government to fulfil undertakings given at earlier stages of the Bill. I am sure the noble Lord will understand that amendments are therefore restricted to technical points. For all those reasons, I cannot give the agreement that he sought on an amendment at Third Reading, as it is not within scope to do so.
With regards to the ambition to reduce police attendance at mental health incidents, we recognise the pressures that police are facing, which noble Lords have highlighted, and agree that, in many cases, it is far preferable for those in mental health crisis to be responded to by health and care professionals. However, action is already under way to address this. Almost all police forces in England and Wales are implementing the “right care, right person” approach—a police-led initiative to reduce inappropriate police involvement in cases where people have health or social care needs. There has already been a 10% decrease in Section 136 detentions last year. We are taking steps to improve mental health services to avoid people reaching a crisis where police involvement may be required in the first place, which is a far more preferable position to be in. That includes through the Government’s commitment of £26 million of capital investment to open new mental health crisis centres, which are far more suitable environments for those in mental health crisis to receive care and treatment.
Therefore, extending these legal powers currently held by the police to other professionals would represent a major shift in roles and responsibilities for health and care professionals. It would place significant additional pressures on the NHS and potentially lead to staff, patient and public safety issues which mental health and urgent and emergency care leads have already raised significant concerns about. It is for all these reasons that I ask the noble Lord, Lord Kamall, to withdraw his amendment.
Lord Reid of Cardowan (Lab)
My Lords, just before my noble friend sits down and before the noble Lord, Lord Kamall, has to reach his crucial decision on this amendment, perhaps I may clarify something. As I understood it, my noble friend the Minister said she was more than happy to respond to the invitation or proposal from the noble Lord, Lord Kamall, and various other colleagues to discuss the issue further, but she obviously could not commit herself in advance to bringing forward an amendment. Is that the position?
Baroness Merron (Lab)
It is indeed. The noble Lord, Lord Kamall, was very specific about bringing an amendment forward at Third Reading, and it was to that that I explained it was not possible to commit. I thank my noble friend for allowing me to reiterate that.
Lord Kamall (Con)
My Lords, I am grateful to the Minister for addressing the points that were raised, and I listened carefully to what she said. I had hoped that she would be open to resolving this issue, as I know she is with my noble friend Lady May. However, once again, there is a difference of opinion. As I understand it, amendments brought forward at Third Reading do not have to be only technical amendments and I had hoped that the Minister would give an undertaking to bring back an amendment at that stage. Given that we have a disagreement of interpretation on two issues, I am afraid I think it best to test the opinion—
Baroness Merron (Lab)
It might be helpful for your Lordships’ House to know that to fulfil what the noble Lord says, there would be a need for collective agreement to offer a commitment to bring forward an amendment at Third Reading, which I do not have. I emphasise the point made by my noble friend on this.
Lord Kamall (Con)
That is entirely understandable. I know the Minister always means well in our discussions and always tries to find a solution, but, given that, it may be helpful to finding a solution if I test the opinion of the House.
Lord Kamall
Member’s explanatory statement
This amendment and others in the name of Lord Kamall seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.
Member’s explanatory statement
This amendment and others in the name of Lord Kamall seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.
“(7) In section 145(1) (interpretation), at the appropriate place insert—““authorised person” means a medical practitioner, approved mental health professional, mental health nurse or doctor, or a person of description specified in regulations made by the Secretary of State, who has been trained and equipped to carry out detentions under this Act and who would not be put at unnecessary risk by carrying out those functions;””Member’s explanatory statement
This amendment and others in the name of Lord Kamall seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.
Lord Scriven
“(2A) In section 17B (conditions) after subsection (7) insert—“(8) The responsible clinician must ensure that community treatment orders align with the code of practice as set out in section 118(2B).(9) A community treatment order shall have a maximum duration of 12 months, subject to the following provisions— (a) the responsible clinician may extend the duration of a community treatment order beyond 12 months only after— (i) consulting the patient, the patient’s nominated persons, and any relevant mental health care professional involved in the patient’s treatment or care planning;(ii) undertaking a review process to evaluate the ongoing necessity and therapeutic benefit of the community treatment order;(iii) consulting a General Medical Council registered psychiatrist regarding the conditions of the community treatment order and obtaining their written agreement that an extension is necessary and in accordance with the principles set out in section 118(2B);(b) community treatment orders with a duration of less than 12 months are not subject to the review process set out in subsection (9)(a)(ii);(c) a tribunal may recommend that the responsible clinician consider whether to extend, vary, or terminate the duration and conditions of a community treatment order.(10) Where a community treatment order is extended beyond a period of 12 months, the order shall be subject to review at intervals not exceeding six months, in accordance with the procedure set out in subsection 9(a).(11) At the conclusion of the default period or any extended period, the responsible clinician must undertake a review to assess the effectiveness of the community treatment order in aligning with the code of practice stipulated in section 118(2B).””Member’s explanatory statement
This amendment ensures that community treatment orders align with the code of practice, limits their default duration to 12 months, requires a structured review process for extensions, mandates six-monthly reviews for extended orders, and reinforces patient consultation and oversight by mental health professionals.
Lord Scriven (LD)
My Lords, I start this group on community treatment orders by thanking the Minister and her team of officials for dealing not just with this issue but with most issues in the Bill on a collaborative basis, which should be a blueprint for how Ministers should deal with people with different opinions to those of the Government. It is genuine thanks from these Benches.
I also thank my noble friend Lady Parminter for giving her lived experience of community treatment orders. In Committee, there was a huge divide in this House about whether they should continue rather than pragmatism on how we deal with the problem. My noble friend Lady Parminter focused our minds on that.
My amendment tries to deal with what I see as the major flaw of community treatment orders, whether or not we have a review of them, and that is their potentially indefinite nature. As for the way that these community treatment orders are implemented, whether they are effective or not, there seems to be a revolving door which some people find impossible to get out of. This has led to a number of issues about whether they have therapeutic benefit and whether the treatment is actually effective. There have also been huge issues to do with racial disparities in their use and the length of time that people are on a community treatment order.
Even if we agree Amendment 23, in the name of the noble Baroness, Lady Bennett, and Amendment 62, in the name of the noble Lord, Lord Kamall, to have a review of their effectiveness, something needs to be done now to ensure that the initial community treatment order is time-limited—I suggest 12 months—then if it is to be reviewed, it has to be reviewed by not just the consultant who is treating the individual but also by another GMC psychiatrist who has to agree in writing that there is therapeutic benefit for the community treatment order to continue. That review should take place every six months. That would not stop community treatment orders, but it gives an absolute, firm process, which needs to be in the Bill—not in the code of practice—to ensure that individuals who are on a community treatment order have certainty about the length of time and review. It would also require a second doctor’s written agreement about the therapeutic benefit of reviewing and continuing the treatment order.
I understand that the Minister will probably and quite rightly say that the Bill has moved forward and that there are certain elements which help with the review of treatment orders and the people being put on them. For example, the community doctor has to be consulted. However, there is a difference between being consulted and giving agreement. That is why my amendment talks about the agreement of a second doctor. Consultation in itself does not mean that community treatment orders cannot be indefinite, as they are in some cases. My amendment is practical and solves this problem. As my noble friend Lady Barker said, we tend to get legislation about the Mental Health Act once every 15 years, and we cannot wait another 15 years to deal with this anomaly.
I and others on these Benches would be supportive of a review of community treatment orders and of the evidence about whether they are effective in the grand sense. However, the practical pragmatism is that people will continue to be put on community treatment orders, that, even with the changes that the Government have put in the Bill, people would still be there indefinitely and that the second doctor’s opinion would not necessarily have to be taken into consideration if the order were to continue to ensure that there was therapeutic benefit.
I will not say much more, but I believe that my amendment is practical, needed and will get the correct balance both for service providers and for those who are on a community treatment order to deal with some of the unintended consequences we have found since they were introduced. It is a practical step to ensure that we get them right, if reviews take place. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Scriven, and to agree, in essence, with everything he said. Amendment 11 is truly important; it would immediately affect the well-being of some very vulnerable people in our community. Should the noble Lord decide to divide the House, the Green Party will support his amendment.
I will chiefly speak to my Amendment 23, which also relates to community treatment orders and calls for a statutory periodic review of them. I can see quite a few noble Lords in the House, so it is worth very briefly going back a little over what we discussed in Committee. The Joint Committee on the draft Bill concluded that CTOs should be abolished for people under Part II, the civil sections. For people under Part III, the Joint Committee recommended a statutory review of CTOs with a provision to abolish them unless the Government legislated to keep them.
My amendment does not go that far, but it starts from the point that the noble Lord, Lord Scriven, mentioned, citing the noble Baroness, Lady Barker: it is likely to be at least 15 years before legislative attention returns to the Mental Health Act. That is a very long time—especially for the health of people who are going through certain experiences. I stress that it is not my own initiative that brought this amendment forward; the organisation Mind encouraged me to do so. I will quote from a couple of people who Mind has spoken to about CTOs, because we have to consider what the actual lived experience is like. One person said:
“Being on a CTO is like being cornered … It is good that you are out of hospital but only a little better because it is so intrusive”.
Another person who had been on a CTO said that it can feel like:
“A tag that nobody can see but you know it’s around your mind”.
Throughout the debate on this Bill, we have considered getting rid of CTOs entirely. As the noble Lord, Lord Scriven, said, the noble Baroness, Lady Parminter, made the very powerful case that there may be circumstances and conditions where they are indeed appropriate. However, my amendment simply calls for a statutory review, so that we do not wait 15 years and then say, as we have been saying about so many aspects of what we are trying to fix now, “This has been terrible for so long. We really need to do something about this”.
I say to the noble Lord, Lord Kamall, that I am still planning to arrange the Trieste meeting; I am afraid I have not got there yet. Looking at community alternatives has to be the way forward. There are models around the world where that is achieved. If we were to have a review, as my amendment would require, then everything in proposed new subsection (3)—which looks at
“the impact … on people from different ethnic minority backgrounds”,
preventing readmissions and whether CTOs provide “therapeutic benefits”—would be considered within a reasonable period. We could affect and improve people’s treatments within a foreseeable period and not sentence them to another 15 years.
It is not my intention to divide the House. I very much hope that the Bill will continue to work on this, and that the arguments for including a statutory review will become evident as the Bill progresses. On that basis, I urge noble Lords, particularly the Minister, to consider that, and I echo the points that the noble Lord, Lord Scriven, made. My engagement between different stages of the Bill tends to be limited by the fact that I am juggling a great many Bills at the same time. However, I have heard reports of how the Minister has been engaging with noble Lords, and I hope that she and the department will bring an open mind to the idea that we should not sentence people to another 15 years of CTOs without a statutory review, because there have been so many questions and concerns about them. On that basis, I hope that we can move forward as the Bill progresses.
Baroness Tyler of Enfield (LD)
My Lords, I will very briefly speak in support of this very important set of amendments. As my noble friend Lord Scriven set out on Amendment 11, which I very strongly support, the case for having some conditionality around community treatment orders is overwhelming, including making them time limited and having a second doctor’s certification to confirm their therapeutic benefit. Both are very hard to argue against. They get the right balance between, as we heard in earlier stages, those who want to get rid of the orders altogether and those who feel that we need to tighten up the conditions. The other two review amendments are also very important.
Finally, we need to remind ourselves, as we did at Second Reading and in Committee, that black people are seven times more likely to be on a community treatment order than other members of the population. That is why this is so important.
Lord Kamall (Con)
My Lords, I thank the noble Lord, Lord Scriven, for the excellent way he introduced his Amendment 11. I fully support everything that he said.
The suitability of community treatment orders is an issue that has obviously featured heavily in the discussions on the Bill so far. I think that many of us came to the debates on the Bill, having read the Joint Committee’s pre-legislative scrutiny report, thinking that we were going to support the abolition of community treatment orders or be very sympathetic to that idea. However, two contributions gave us a reason to pause and think. One was the personal story from the noble Baroness, Lady Parminter; the other was hearing the noble Baroness, Lady Barker, say that she previously believed that they should be abolished before realising that they are entirely appropriate for a small number of situations or cases. In fact, given that one of the principles of the Bill is imposing the least amount of restriction, maybe they are the least restrictive solution for some incidents.
Having said that, very serious concerns obviously remain about the use of community treatment orders in their current form. Other noble Lords and I spoke in Committee about the overrepresentation of black males, which is what my Amendment 62 intends to address. It was a shame that the deliberations on this issue came so late at night, but I thank the Minister and her officials for their engagement. I asked three simple questions: what do we know about why black people are disproportionately detained? What do we not know? What research and work are we conducting—I know this sounds like a PhD research thesis seeking to generate the research questions so that someone can go from an MPhil to their PhD—and what is the gap in research to generate the questions for the primary research?
I was very reassured by the responses from the Minister and her officials that they take this seriously. They set out in detail the work that they are doing. In fact, the Minister put a lot of that in a letter to me. It would be unfair of me to ask her to read out precisely what is in that letter, because we would be here for quite a few hours, but can she share some of those assurances with the House? It would be very helpful for other noble Lords to understand why, given that letter, I have decided that I will not push my amendment to a vote.
As I said, the noble Lord, Lord Scriven, has struck the right balance. The amendment acknowledges that there are issues with CTOs and allows for their continued use, under restrictions. It is really important that, in every case, there is a review, and 12 months would seem an appropriate time for that review, rather than cases just being forgotten about, people being caught up in other casework or cases falling behind the filing cabinet—if there was another analogy I could use, I would. If the noble Lord, Lord Scriven, decides to divide the House, these Benches will support him.
I look forward to hearing some of the assurances the Minister gave to me and others on racial disparities. I hope also that she can address the concerns of the noble Lord, Lord Scriven.
Baroness Merron (Lab)
I thank the noble Lord, Lord Scriven, for tabling and speaking to Amendment 11, along with the noble Baroness, Lady Tyler. At the outset, I can say that it is already the case that community treatment orders can be renewed only under specific conditions, which aligns with the intent and direct requests of the noble Lord, Lord Scriven.
Alignment with the code and the four principles is already achieved by new Section 118(2D) of the Mental Health Act, which requires clinicians, before placing someone on a community treatment order, to have regard to the statement of principles in the code. Clause 6 ensures that a patient can be put on a community treatment order only if there is a risk of serious harm without it and a reasonable prospect of it having therapeutic benefit for the patient.
I assure your Lordships’ House that a responsible clinician cannot extend a community treatment order beyond six months, unless the conditions, including therapeutic benefit, continue to be met. A community treatment order can be extended for a further six months and then a subsequent 12 months, but only if these conditions continue to be met.
The current code of practice states that, before renewal, the responsible clinician should consult with the multidisciplinary team, the patient, the nearest relative—which in future will be the nominated person—and an advocate. I put it to the House that we are going further than the request from the noble Lord, Lord Scriven, by introducing a new requirement for the patient’s community clinician—who must be an approved clinician, overseeing the patient’s care as a community patient—to be consulted before a community treatment order is renewed beyond six months.
I have heard the concerns of the noble Lord, Lord Scriven, that the Bill requires just the second-opinion appointed doctor to be consulted, whereas the amendment requires the extension to be agreed with them. In response to that, I assure the noble Lord that, in addition, the community clinician must provide a statement that it appears to them that the community treatment order criteria continue to be satisfied.
We are increasing the frequency of automatic referrals to the tribunal to ensure that patients can come off community treatment orders when they are no longer benefiting them. The tribunal will have a power to recommend that the responsible clinician reconsiders whether a CTO condition is necessary. To elaborate further in view of the points raised, this means that, following an initial tribunal referral at six months, another referral is required after a further six months, followed by a mandatory referral 12 months after that, if the patient has not made an appeal themselves. The tribunal will have to agree the CTO criteria, including the requirement that a therapeutic benefit continues to be met. We are therefore already meeting the requests that the noble Lord, Lord Scriven, has rightly made and, in some places, going further than we have been asked to do.
I turn to Amendment 23, tabled by the noble Baroness, Lady Bennett. As I said on the similar amendment tabled by noble Lords on the Opposition Front Bench in Committee, CTOs remain a valuable intervention, albeit they need reform—as I more than acknowledge and accept. We will review these changes as part of our ongoing monitoring of the implementation and impact of the reforms. A review after two years would be premature, as it would be based on data from before any reforms were commenced. I say to the noble Baroness and your Lordships’ House that we will instead commit to review the impact our reforms have as part of our wider monitoring and evaluation of the Bill as it is implemented.
Amendment 62 is in the name of the noble Lord, Lord Kamall, and the noble Earl, Lord Howe. We are, as the noble Lord acknowledged, committed to addressing racial disparities under the Act—something I know the noble Baroness, Lady Tyler, was concerned about. I was very pleased to host a session a couple of weeks ago with leading academics, a number of officials from the department and Members of this House. We discussed in detail what is known and what further evidence is required. I give the assurance that work—as the noble Lord, Lord Kamall, has kindly acknowledged—is already under way, and we will continue to explore this issue. I am therefore happy to commit to undertake further investigation into racial inequalities under the Act.
The scope is to be developed further, but may involve synthesising findings of existing research, conducting a review of recent literature, and exploration of potential evidence gaps that require future research with experts and academics. Further research will receive sufficiently high-quality research applications and will be subject to the outcome of the spending review. I hope noble Lords will understand that we therefore prefer not to commit to a timescale in primary legislation but to allow time to develop and deliver research to ensure the best-quality evidence in this extremely important area. I hope noble Lords will not press their amendments.
Lord Scriven (LD)
I thank the Minister for that helpful explanation and description of community treatment orders. Despite all the words, whenever independent research is done, whether by the CQC, the Joint Committee or mental health organisations, the same answer keeps coming back. Something is fundamentally flawed, maybe not with the policy but with the implementation of CTOs. I note the Minister quoted the rule in the code of practice but, as we know, the code of practice does not necessarily have the legal status of something in the Bill. Therefore, for that reason and because there is an issue with community treatment orders, I believe that putting this in the Bill will not just change the practice but get the correct safeguards for people who are put on them. I would like to test the opinion of the House.
“(iii) seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma;”
Earl Howe (Con)
My Lords, in moving Amendment 12, I will speak also to four other amendments in my name included in this group: Amendments 13, 15, 37 and 41.
To set the scene, there is a theme running through all the amendments in this group—not only mine—which is patient empowerment. All of us, I am sure, welcome the fact that patient empowerment is already writ large in the substance of this Bill, and as the changes that it makes are taken forward, as they will be, I am certain that they will be hugely beneficial to patients. However, as we heard in Committee, there remain features of mental health law and practice that give cause for real concern. My contention, which I am sure is shared, is that we should try to do all we can to make sure that the procedures, clinical practice and, if possible, cultures are made as good as they can possibly be in the way that this legislation is drafted.
My Amendments 12 and 13 are identical to amendments that I tabled in Committee. The point of them is to signal something important about the culture of mental health care. Many of us may take for granted that the aim and purpose of treatment in a mental health unit is to promote psychological well-being and recovery and to minimise distress, but we know that there are many patients undergoing treatment for whom distress and psychological trauma are ever-present features of in-patient care, particularly children and young people. The noble Lord, Lord Crisp, reminded us of that earlier. My Amendment 58, which we will debate in a later group, is designed to tackle this problem in a practical way.
The same applies to my Amendment 41, which brings us back to an issue that I am glad to say received strong support from noble Lords in Committee: the need to beef up the provisions in this Bill around advanced choice documents. ACDs are a great idea and I am delighted that the Government have recognised their potential for enhancing patient well-being, because that is what they will certainly do. We know from research that they have the potential to reduce compulsory detention rates appreciably, as well as reducing time spent in hospital. However, as the Bill is now expressed, patients will not be guaranteed an opportunity to create an advanced choice document, if that is their wish. All that we have in Clause 42 is a provision to allow commissioners to make information on ACDs available to people for whom they are responsible. I do not think that that is good enough.
I turn to my Amendment 15 and, in doing so, focus on an issue that has been brought to my attention by the Law Society relating to nasogastric tube feeding of patients in mental hospitals. The central concern here is that the Mental Health Act 1983 contains no specific safeguards for situations where nasogastric tube feeding of a patient is being proposed. That is because it is considered to fall under Section 63 of the Act, which does not require a second opinion appointed doctor. I suggest that this is unsatisfactory.
In January of this year alone, according to the most recent data, there were 1,975 uses of restraint to facilitate nasogastric feeding in England. Furthermore, a recent comprehensive audit of in-patient mental health units in England reported that the duration of nasogastric tube feeding under physical restraint ranged from a single feed to 312 weeks, with a mean duration of 29.1 weeks. In other words, this is an invasive procedure and the degree of invasiveness can be measured not just by the amount of force used but by the length of time for which the treatment lasts.
Professor Phil Fennell outlined the significant gaps in patient protection in the use of nasogastric tube feeding in his 2019 article, The Regulation of Tube Feeding: a Critical Analysis, and this highlighted the need for regulations.to govern the use of nasogastric tube feeding to achieve a more patient-centred approach to what is quite a drastic medical intervention. The same issue was previously raised in 2007 by the Joint Committee on Human Rights, which pointed out that forcible feeding is potentially a breach of Articles 3 and 8 of the convention, and it, too, questioned why it was not subject to regulation in the same way as ECT is under Section 58 of the Act. The response at that time was that the provisions were compliant with the ECHR.
However, this was before the decision in X v Finland, and in this case, the European Court of Human Rights found that Finland violated X’s rights under Articles 5, 8 and 13 of the convention. X was involuntarily admitted to a mental institution and forcibly medicated with nasogastric tube feeding, which the court deemed unjustified and a breach of her rights to liberty and privacy. Additionally, X lacked an effective remedy to challenge the forcible medication. However, the court did not find a violation of her right to a fair trial under Article 6.
The Law Society has put it to me that this highlights the wider need for safeguards, as patient X did not have sufficient avenues for challenging forcible nasogastric tube feeding. It strongly contends—and I agree—that the Bill represents a real opportunity for making a change to the law in a way that creates a direct safeguard for patients consistent with the safeguards applicable to electro-convulsive therapy, and that is what my amendment seeks to achieve.
Finally, I direct the House’s attention to Amendment 37. This returns us to a Committee debate we had on 22 January. The patient voice in mental health care is, I would argue, inherently weaker than it is in other fields of healthcare, and the patient experience that much more determinative of outcomes. That really matters because, as we know from evidence provided by the CQC and many patient-representative groups, the care of patients in mental health settings is frequently underresourced. It therefore carries with it a heightened degree of risk that acceptable standards of care are not always maintained.
In this amendment, which replicates the amendment I tabled in Committee, I am putting forward the idea that, if every patient discharged from a mental healthcare setting were to be given the opportunity to rate, comment on and provide constructive feedback on the treatment they had received while in hospital, the value to the system and the potential value to the patient could be very significant.
I know that the Minister does not take issue with this. Indeed, I am sure she is sympathetic to what I have said. What I must question, though, is the premise of her response to me in Committee. In that response, she sought to argue that the visits and interviews with patients carried out by the CQC fulfil a function that, in terms of transparency and empowerment of patients, is identical to the kind of debriefing that I am arguing for.
Having heard what I have heard from well-informed patient groups, I must beg to disagree. The reality of the CQC’s encounters and interviews with patients is an evidence-gathering process that is all too often skewed. Here are some of the comments from patients that have been relayed to me. “I know when we had a CQC visit, the nursing staff would steer CQC in the direction of patients who would reflect positively about the ward.” Someone else said: “A lot of the time, if you speak to the CQC, they will have staff present at the same time, so you can’t be honest”.
Patients have also expressed doubts about the effectiveness of the CQC’s monitoring process in general. I will share a couple of typical comments. “There’s been examples of where it took three to four years of the same consistent reports”—of a mental health unit—“for the CQC to eventually do something about it”. And again, “If this process”—of the CQC—“was working, young people would be having a much better experience”.
It has been put to me that one of the differences between the process adopted by the CQC and the debriefing process that my amendment proposes is that the CQC does not take an individualised approach to its monitoring. I am sure that the CQC is sincere in wanting to speak to people about their poor experience of hospital care, but, in practice, people say they have often felt dismissed when speaking about what they have experienced.
There is a wider point here as well. In the words of another patient: “De-briefing isn’t just complaining. It’s discussing and reflecting on events during admission and the patient’s experience in order to learn from it. A complaint is given and then dealt with behind the scenes, whereas a de-brief is a reflective discussion between multiple people where the young person is an active participant in discussing their own experience”. Another said: “It gives people the room to process things”.
In practice, the independent mental health advocate would take responsibility for the debriefing process. The Minister expressed concern about that and about the risk of overburdening those individuals. I appreciate that concern, but suggest that a conversation with a patient, or former patient, taking the form of a debriefing is squarely in line with the existing role of an independent mental health advocate. It would not be asking him or her to do appreciably more than they do already. As one patient put it:
“The IMHAs doing the de-briefing is already technically what they do, there just isn’t a formal name to the process … They don’t need any specific training to be able to manage the process as they already know what to do. They are there to advocate”
for them.
Baroness Watkins of Tavistock (CB)
My Lords, I will first reflect on the introduction to this group from the noble Earl, Lord Howe. I found it deeply moving. As many of your Lordships know, I am a mental health nurse. I have worked in locked units and acute units. Some of the things that he just described happened 30 years ago. What is so sad is that they are still happening now.
I will speak to the three amendments in my name, Amendments 14, 42 and 43. I thank other noble Lords who have added their names to them. These amendments have been drafted with help from the Royal College of Psychiatrists and are supported by several mental health patient and user groups and charities that work with the Mental Health All-Party Group in particular.
Amendments 14 and 42 would ensure that advance choice documents within the Mental Health Act are aligned with the existing best practice on providing such documents. Amendment 43 would ensure that clinicians and relevant bodies have a responsibility or duty to consider the information that is provided in the advance choice documents and use it to inform care and treatment orders given under the Mental Health Act. This is important. Clinicians, nurses and social workers need time to undertake the responsibility of sharing what is in those documents and trying—even if they are not always able to—to design care that reflects what people have asked for before. We continue to have a shortage of staff in mental health and very tight budgets compared with some other parts of the health service. If this is put as a duty in the Mental Health Act, it will help to resolve some of those issues.
I hope that the Minister can support the amendments, so that the rights of some of the most vulnerable patients from all ethnic groups in this country are strengthened within the documents, with the right to ensure that staff have enough time to deliver what is in the documents.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow that short but extremely powerful contribution, informed by so much professional experience. I think that the whole House would like me to acknowledge that.
My Amendment 63 is about the powers of tribunals to determine challenges against treatment decisions. In many ways the argument for this follows on from the noble Baroness, Lady Watkins, just said. Things go wrong. However much we are trying through this Bill to improve the treatment of people with serious mental illness, I am afraid that we all acknowledge that things will continue to go wrong. Again, I have tabled this amendment at the request of Mind, which feels that there should be something like this. The amendment would not create any automatic right. It says that the Secretary of State may, by regulations, make provision about appeals. It would set up the framework to make this possible.
We had extensive discussion on this in Committee. I will not rehash all of that. We are trying to create mechanisms of common justice, ways forward and possibilities. We all acknowledge that so much of what is in this Bill will not be delivered within a month, a year or even two years, but it is trying to create the frame to make that possible. This is a very strong argument for that.
The noble Baroness, Lady Watkins, powerfully made the case for Amendment 14. I added my name to it as it is so important that it should have a full slate.
I will briefly address Amendment 13, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, to which I have also added my name. All through Committee, it kept occurring to me, though I never found the place to reflect it, that the word “trauma” does not appear once in the Bill. I was really surprised about that. I thought about several debates that I have had, going back to the Domestic Abuse Act and the Schools Bill under the previous Government that never became an Act. There was a lot of discussion about the need for trauma-informed environments and trauma-informed care. There is a general sense of intention from your Lordships’ House that this is one of the things that we are thinking about, but there is nothing about it in the Bill.
Therefore, this amendment would add the words
“seeks to minimise the patient’s distress”
and promote their
“recovery from any childhood trauma”.
That is possibly a bit narrow. The Minister might take away and think about the fact that nothing in the Bill talks about the fact that so many of the patients we are talking about will have been through hideous traumas: childhood abuse, domestic abuse, war situations, torture—all kinds of circumstances. This is a chance to ensure that we put in the Bill, perhaps even more broadly than in this amendment, an awareness of the need to think about trauma. I think we are all thinking this, but let us ensure that it is written down in law.
Baroness Hollins (CB)
My Lords, I agree with the noble Baroness’s points about trauma.
I will speak to Amendment 53. I credit my parliamentary scholar with writing it. His experience as a practicing psychiatrist confirms my experience of many years ago, before I retired as a psychiatrist. The code of practice is too often ignored or inconsistently applied, leaving vulnerable patients without essential safeguards. A thematic review of independently chaired reviews into the use of long-term segregation, which I oversaw for the previous Government, found that around a third of providers were not reviewing long-term segregation in line with the current code’s requirements. Unfortunately, this problem extends beyond LTS and is evident across other settings, including acute care for individuals with personality disorders.
There is often a disconnect between what we assume guidance and policy achieve and the reality of front-line psychiatry. As the strategist Helmuth von Moltke said, no plan survives first contact with the enemy. In this context, no guidance survives contact with the complexities and pressures of day-to-day clinical care. That is precisely why guidance alone is not enough. Despite the requirement to have regard to the code, breaches frequently go unchallenged. Again and again, we see that statutory law, not just guidance, is needed to ensure compliance and protect patients’ rights. Also, detained patients are not in a position to take a provider to court if their treatment is not in line with the code.
That is why this amendment seeks to introduce a statutory accountability mechanism for non-compliance with the code of practice. It would establish enforceable obligations on providers, ensuring that failure to adhere to the code carried real consequences, that compliance is not optional, and that hospitals would be held accountable when failure to follow the code resulted in harm or breaches of a patient’s rights.
Legislation typically drives funding priorities. We have seen time and again that, where the law mandates action, resources follow. Section 2 of the Mental Health Act limits detention to 28 days. If this timeframe was merely guidance, would it be as strictly adhered to? Without a statutory requirement, would the same level of resource be dedicated to mental health tribunals? When the maximum detention period under Section 136 was reduced from 72 hours to 24 hours under the Policing and Crime Act 2017, we saw an immediate and dramatic change in practice across the country. If this had been guidance alone, I doubt we would have seen such swift and universal compliance.
Prior to the Mental Health Act 1983, patients could be detained indefinitely, with minimal safeguards and little external oversight. The introduction of statutory time limits and legal protections under the 1983 Act marked a turning point, contributing to the decline of long-term institutional care and supporting, importantly, the rise of community-based mental health services and rights-based community care. Without statutory backing, there is no guarantee that revisions to the code of practice will be implemented or enforced.
Baroness Barker (LD)
My Lords, at this stage I do not wish to detain the House for very long. I will simply reflect on the fact that, when we debate mental health legislation, we are always trying to do three things: one is to update current thinking in legislative circles on what patients want and need; the second is to try to gently confront the sometimes conservative disposition of practitioners, by pushing for progress; and the third is that we try to avoid the situation where the biggest imperative for legal change is scandal and crisis when something goes wrong.
The amendments put forward by the noble Baroness, Lady Watkins, along with others proposed by noble Lords in this group, do that. They have reflected on what has been seen over the last 10 to 15 years in the patient experience and the most progressive aspects of professional development, in particular the growing acceptance that patients can have informed insight into their condition, even if they are at times very ill.
That is why a number of practitioners—admittedly in the face of some professional resistance in other quarters—have gone down the route of advance choice documents. The key thing I will say to the Minister is this: it is always difficult in mental health practice to come across evidence which is up to the same standards that we have in physical health—namely, randomised controlled trials. However, there have been randomised controlled trials of advance choice documents in a number of different places around the world, and in the United Kingdom. They may not always have been called advance choice documents—they may have had other names—but the findings from those trials say that these are cost-effective interventions.
However, we know that there will not be widespread uptake, that attention will not be paid to what people have put in those documents, and that they will not become standard practice unless they are in law. That is why the noble Baroness, Lady Watkins, was right to come back to try to put this in the Bill.
Baroness Merron (Lab)
My Lords, I thank noble Lords for their contributions. I will take each amendment in turn.
The points on trauma were made extremely well and sensitively. Amendments 12 and 13 recognise the impact that childhood trauma can have on psychological well-being. This is indeed so. However, it does not apply to all patients, and that is why we do not wish to restrict decision-making by giving particular reference to this in legislation. I can point to Clause 8, which already requires decision-makers to consider the nature and degree of the disorder and all other circumstances, which could include childhood trauma. The definition of medical treatment under the Act is broad, as noble Lords have seen. Therefore, we expect it to cover interventions aimed at minimising distress and promoting psychological well-being. Additionally, NHS England’s care standards require that in-patient care be trauma informed.
Earl Howe (Con)
My Lords, I am grateful to all noble Lords who have spoken so powerfully in support of the amendments in this group. I also thank the Minister for her full reply. In the interests of time, I will not cover all the issues at length; however, I am grateful to the Minister for her welcome assurances on my Amendment 41. It is excellent news that the Government will be taking forward my plea to strengthen the provisions around advance choice documents when the Bill reaches the other place.
On nasogastric feeding, I was glad to hear that discussions would be taken forward with the professions in the mental health sector. I hope that the Law Society’s concerns will be taken into account in those discussions.
Finally, I must express some disappointment at the Minister’s reply about the idea of a debriefing process for patients after leaving hospital. We cannot be sure that the work of Dr Dash will deliver progress in this area, and I still feel that the case I tried to put is strong. I will reflect on what the Minister said, but I reserve the right to test the opinion of the House when Amendment 37 is reached. For now, I beg leave to withdraw Amendment 12.
Member's explanatory statement
This amendment seeks to align the Mental Health Act with the existing best practice on providing advance choice documents.
Baroness Watkins of Tavistock (CB)
Amendment 14 is not moved, but I express my thanks to the Minister for her work on advance choice documents.
Baroness Blake of Leeds
“(2) The treatment may be given to a patient who has capacity to consent to the treatment only if—(a) the patient has consented to it, or(b) the patient has not consented but a certificate has been given by a second opinion appointed doctor under subsection (4).(3) The treatment may be given to a patient who lacks capacity to consent to the treatment only if—(a) the giving of the treatment would not conflict with any of the following—(i) a valid and applicable advance decision, or(ii) a decision of a donee or deputy or the Court of Protection, or (b) the giving of the treatment would conflict with such a decision but a certificate has been given by a second opinion appointed doctor under subsection (5).”Member's explanatory statement
This amendment clarifies that the requirement for a certificate by a second opinion appointed doctor does not apply to urgent electro-convulsive therapy if: (1) the patient consents, or (2) the patient lacks capacity but the treatment does not conflict with an advance decision etc.
Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)
My Lords, I will move Amendment 16 and speak to all the amendments in this group in the name of my noble friend the Minister. I speak first to Amendments 17, 18, 19, 21, 36, 39, 45, 64, 65, 66 and 67, which follow recommendations made by the Delegated Powers and Regulatory Reform Committee and the amendments tabled by the noble Lord, Lord Scriven, in Committee.
Amendments 17, 18, 19, 21, 36, 39 and 45 remove the Henry VIII power from the Bill that allowed the Government to set out in regulations the exceptional circumstances where a second opinion appointed doctor’s certificate is not necessary to administer urgent and compulsory electroconvulsive therapy, and instead sets out these limited circumstances in the Bill. These situations arise when the regulator determines that there are exceptional circumstances delaying the appointment of a second opinion doctor and the treating clinician deems urgent electroconvulsive therapy necessary to save the patient’s life. In recognition of the seriousness of the situation, the new process will also ensure that these exceptional cases are monitored and reported on by the regulator.
Amendments 64, 65, 66 and 67 ensure that, where regulations are made under the power to make consequential provision to amend or repeal primary legislation set out in Clause 52, they will be subject to the affirmative scrutiny procedure. Amendment 65 extends this to Clause 53, which confers equivalent power on Welsh Ministers in areas of devolved competence.
I turn back to Amendment 16, which addresses concerns from stakeholders that the Bill was not explicit on whether urgent electroconvulsive therapy is permitted when the person is consenting or lacks capacity but treatment is not in conflict with a decision to refuse it—as is currently the case under the Act. This amendment makes clear that treatment in these scenarios is still permitted, addressing any possible risk of misinter-pretation.
On Amendments 20 and 22, the Bill as introduced expressly permits remote assessment by the second opinion doctor’s service only for urgent compulsory electroconvulsive therapy. These amendments clarify that remote interview and examination are permitted for all second opinions provided by people appointed by the regulator. Remote interview and examination may be used only when deemed appropriate. If not, these functions must be conducted in person. Specific guidance will be provided in the code of practice.
Turning to Amendment 26, approved mental health professionals have raised concerns that the requirement for the nominated person to sign an appointment instrument in the presence of a health or care professional “witness” could result in delays to having a nominated person in place, which could undermine the safeguard and place geographical restrictions on who could take the role. This could mean, for example, that patients who are placed in out-of-area hospitals have greater delays in appointing a nominated person.
Lord Scriven (LD)
My Lords, I thank the noble Baroness for detailing very clearly the Government’s amendments. I also thank the Minister, who I see in her place, for, again, a very collaborative approach and for, on this occasion, implementing exactly not just what was in my previous amendment, so ably moved by my noble friend Lady Tyler, but what came from the Delegated Powers and Regulatory Reform Committee.
On the use of ECT, the powers in the government amendments before the House mean that the balance is absolutely correct on not having the second doctor’s signature and consent, as well as on the need to save life and the use of ECT. I thank the Government sincerely for not just listening but acting on the concerns that were around.
Earl Howe (Con)
My Lords, the House will be grateful to the Minister for these government amendments, which, as the noble Baroness made clear, cover two principal policy issues. Accordingly, I have two sets of queries.
On the changes for the rules for authorising electroconvulsive therapy, I am sure it is not the Government’s intention in any way to water down the safeguards surrounding the administering of ECT. However, in relation to Amendments 16 and 17, taken together, can the Minister reassure me? The Bill, as modified by the proposed amendments, will posit that there could be circumstances in which a patient who has the capacity to consent to ECT but who has not consented to it could nevertheless find their refusal to treatment overridden by the decision of a single treating clinician. Even in a situation where the judgment of the clinician was that ECT was necessary to save the patient’s life, it seems to me a significant change from the current rule whereby the decision of a second opinion appointed doctor is required in all cases where it is proposed to administer ECT to a non-consenting patient who has the capacity to consent.
Amendment 17 makes it clear that the regulatory authority—the CQC, in other words—may give permission for ECT to be administered only on the say-so of a single doctor where a SOAD is not available and “exceptional circumstances” apply. I will not ask the Minister to define what “exceptional circumstances” might consist of, but it is to be assumed that a primary example of such circumstances might be when time was of the essence and no SOAD could be located soon enough to avoid exacerbating the risk of harm or death.
So my questions are, firstly, has this proposed change been prompted by a general awareness across the mental health sector that the availability of SOADs can frequently prove a problem in circumstances where urgent decisions are needed? In other words, to put it bluntly, are we being asked to change the law because of habitual shortcomings in NHS communication arrangements? I would be concerned if that were the case.
Secondly, what guidance, if any, will the CQC formulate for itself to ensure that, when its decision is sought to temporarily waive the requirement for a SOAD, it will not do so just on the basis of a SOAD being unavailable? Will it also commit itself to a standard procedure whereby it will seek at least some background detail from the treating clinician of the case before him or her, such as the reasons why they consider that administering ECT to that particular patient carries particular urgency? In other words, can we be reassured that the treating clinician’s opinion will be subject to at least a modicum of testing and cross-questioning before the CQC issues the go-ahead for ECT to be administered? I hope so, because anything short of that could turn into a tick-box exercise.
The other government amendment on which I would appreciate further clarity is Amendment 26, which
“changes the process for appointing a nominated person”.
One of the changes proposed is that the various statements and signatures required for appointing the nominated person no longer have to be contained in the same instrument. The other is that the nominated person’s signature no longer has to be witnessed. I was grateful for the Minister’s explanation, but it implies that the written instrument that appoints the nominated person and is signed by the patient in the presence of a witness can be executed without the nominated person themselves being in the room, or indeed anywhere near. At the moment, the Bill says:
“The instrument appointing the nominated person must … contain a statement, signed by the nominated person in the presence of”
the same person who witnesses the signature of the patient.
I previously assumed that the reason for that provision was the responsibility that the Bill places on the witness—quite a serious responsibility—to ensure, as far as possible, that the nominated person, whoever they are, is a fit and proper person to act in that capacity. It would appear now, with this amendment, that there is no need for the witness even to clap eyes on the individual who is nominated. How can that be right? Without at least meeting the nominated person, how can any self-respecting witness certify, hand on heart, that, in the words of the Bill, they have
“no reason to think that the nominated person lacks capacity or competence to act as a nominated person,”
or that they have
“no reason to think that the nominated person is unsuitable to act as a nominated person”.
Are they simply meant to take the patient’s word for it?
This alteration in the wording raises all sorts of question marks in my mind, given the concerns expressed by noble Lords in Committee about misplaced loyalty towards a particular individual, a naivety on the part of a child or young person, or even some degree of psychological manipulation of a young person—for example, someone who makes it their business to set a child against their own parents.
In Committee, the Minister herself emphasised the need for the law to prevent exploitation and manipulation. While I did not at the time think that her response was completely reassuring, I saw it at least as an acknowledgement that the role of the witness could not be fulfilled properly without some sort of contact with the nominated person. Was I right or wrong on that? It would be helpful if the Minister could explain how my misgivings in this area, about the way in which the nominated person procedure comes to be implemented in practice, might be allayed.
Baroness Blake of Leeds (Lab)
My Lords, I thank the noble Lord, Lord Scriven, for his comments and express my thanks also for the many contributions made by noble Lords around the House.
The noble Earl, Lord Howe, asked some searching questions. I think the main thrust of his comments was to look for reassurance that due diligence will be gone into in all of the areas that he raises. I am not sure that I can answer every line in detail, but I want to reassure him in particular about the nominated person question, which I know has caused him enormous concern.
In addition to what I have said, I emphasise that there is no intention at all to water down the safeguard, and that Amendment 26 will make sure that patients get access to a nominated person quicker, along with all the rights and powers that entails, meaning that safeguards provided by the role will not be delayed. That is the crucial point that we have to factor in as to why these amendments are deemed necessary. As he quite rightly says, this is particularly important for patients and those who may be subject to out-of-area placements.
The change that we are bringing in is that the nominated person’s signature does not need to be witnessed in person. None of the safeguarding checks is changed in any way by this. In answer to the noble Lord’s concern, we would expect that, in the majority of cases, the witness will still meet the nominated person face to face. In exceptional circumstances, where this is not possible, we believe that it is better to be able to appoint a nominated person, subject to all the appropriate safeguarding checks, than to have to wait until a person can have their signature witnessed.
A second opinion doctor is not currently required for urgent and compulsory electroconvulsive therapy; this is new under the Bill. I need to emphasise this point. What the amendment does is sets out the exceptional circumstances where a second opinion appointed doctor—sorry, it is a bit of a mouthful—is not required. I hope that gives some clarification.
We have to make sure that these are all taken in the round. I reassure the noble Earl, Lord Howe, and noble Lords across the Chamber, that many of these are regarded to be due to exceptional circumstances, where time is of the essence.
As to whether some of these provisions are based on failure, it is from learned experience and bringing together everyone who has a view to make sure that everything we bring forward is in the best interests of the patient. That is the crucial thing. This is where the detailed work will be done under the code of practice, bringing together all the different parties in a measured way. It will take a few months to do this. That is critical, so that we can all be reassured that the processes are brought into play.
I can understand the concern about making sure that communication is there in situations of stress, but I believe that these amendments are designed to address this issue, with, as I have said, the patient’s interest absolutely in the forefront. There will be opportunities as the code of practice is put together for us to make sure that our endeavours are followed, bringing the best opinion together with the best interest of the patients.
Baroness Blake of Leeds
“62ZAA Life-saving section 62ZA treatment: modified procedure in exceptional circumstances(1) Where—(a) a request is made to the regulatory authority under section 56B for the appointment of a second opinion doctor to perform the function of giving a certificate under section 62ZA in relation to any treatment, and(b) the regulatory authority determines that there are exceptional circumstances which mean that there will be a delay in appointing a second opinion doctor,a function of a second opinion appointed doctor under section 62ZA in relation to the giving of a certificate containing a statement under subsection (4)(c)(i) or (5)(c)(i) of that section may be performed, instead, by the approved clinician in charge of that treatment.(2) But no treatment may be given in reliance on a certificate given by the approved clinician by virtue of subsection (1) once the second opinion doctor has been appointed under section 56B.(3) Each time a patient is given treatment in reliance on a certificate given by the approved clinician by virtue of subsection (1), the managers of the hospital or registered establishment in which the treatment is given must notify the regulatory authority of that treatment as soon as reasonably practicable.(4) The regulatory authority’s annual report under section 120D must include—(a) a statement of how many times the regulatory authority has made a determination under subsection (1)(b) in the period to which the report relates and a summary of the reasons why any determinations have been made, and(b) a statement of how many times during that period treatment has been given in reliance on a certificate issued by virtue of subsection (1).”Member’s explanatory statement
Where exceptional circumstances mean that a second opinion appointed doctor is not available to authorise life-saving electro-convulsive therapy, this amendment would allow the approved clinician to do so. The amendment replaces the regulation-making power currently in new section 62ZB(1).
Member’s explanatory statement
This is consequential on my amendment to clause 18, page 26, line 4.
Member’s explanatory statement
This is consequential on my amendment to clause 18, page 26, line 4.
Member’s explanatory statement
This amendment leaves out text that is replaced by my new clause inserted after clause 18.
Member’s explanatory statement
This is consequential on my amendment to clause 18, page 26, line 4.
Baroness Blake of Leeds
“Remote assessment for treatment(1) Section 119 (practitioners approved for Part 4 and section 118) is amended as follows.(2) In subsection (2)(a), for the first “and” substitute “or”.(3) After subsection (2) insert—“(2A) A person authorised by subsection (2) to carry out an interview or examination may, to the extent that they consider appropriate, carry it out—(a) by live audio link, or(b) by live video link.”(4) In subsection (3), before the definition of “regulated establishment” insert—““live audio link” , in relation to the carrying out of an interview or examination, means a live telephone link or other arrangement which enables the patient and the person carrying out the interview or examination to hear one another;“live video link” , in relation to the carrying out of an interview or examination, means a live television link or other arrangement which enables the patient and the person carrying out the interview or examination to see and hear one another;”.” Member’s explanatory statement
This new clause would enable remote assessments to be carried out by certain people for the purpose of non-urgent electro-convulsive therapy and certain other treatments. It also replaces clause 18(7) which makes equivalent provision for urgent treatment.
Baroness Berridge
Baroness Berridge (Con)
My Lords, I will be brief, bearing in mind the time. I have tabled these amendments again on Report, regarding the appropriate tribunal to hear the nominated person’s claims. I am very appreciative of the information given earlier to the noble and learned Baroness, Lady Butler-Sloss, that parents would be able to go to the tribunal. I am also very grateful for the letter that the Minister wrote to me.
The only point on which I wish to have clarification is that there is a difference between the Mental Health Act tribunal and the county court in relation to funding. A parent who goes to the county court will be subject to means testing for Legal Services Commission funding. That is not the case for the Mental Health Act tribunal. So, bearing in mind the importance of the county court to parents, will the Minister outline whether there are any proposals to enable parents to access Legal Services Commission funding?
Lord Meston (CB)
I am grateful to the noble Baroness for bringing this point up again. I mentioned it in Committee. The reference to the county court, currently in Schedule 2 to the Bill, is the only place in this jurisdiction where the county court is given anything to do. It seems to me now to be an anomaly and an anachronism. It is simply carrying forward the use of the county court from the 1959 Act and the 1983 Act, which provided for that court to deal with applications to displace nearest relatives.
I do not believe that, if the mental health legislation was now being started afresh, it would refer to the county courts. The county court is, in any event, now greatly overburdened, but that is not the only reason to replace it. A mental health tribunal, or indeed the Court of Protection, would be better equipped to deal with these cases, having specialist expertise and judiciary.
Baroness Butler-Sloss (CB)
My Lords, I support this amendment and, in particular, what the noble Lord, Lord Meston, has said. He has considerable experience of the county court, which I do not have, excepting when I used to appear before it.
What concerns me is that, if a case is sent to the county court, to a judge who is not a family judge, there will be considerable difficulties for that judge. I support the idea that it should be either the mental health tribunal or—as I would prefer, and as the noble Lord, Lord Meston, has suggested—the Court of Protection. The judges of the Court of Protection are judges of the High Court, Family Division, of which I was president. That would be the right court. If it is said by the Government that they are not prepared to move on this issue, and I suspect they might not be, could they at least put in the court code of practice that, if it is sent to the county court, it will be dealt with by a family judge in the county court? The county court sits also as a family court. That would at least ameliorate the situation.
Earl Howe (Con)
My Lords, I will speak briefly to the amendments in this group tabled by my noble friend Lady Berridge, supported by the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, whose last suggestion I hope will be listened to by the Minister.
I must commend my noble friend for her tenacity with this issue. As she has outlined, there is a significant concern that the use of the county courts to decide on matters pertaining to the termination of nominated persons is not the most appropriate process. I do hope that the Minister will give my noble friend words to her comfort.
Baroness Merron (Lab)
My Lords, I thank the noble Baroness, Lady Berridge, for her Amendments 24, 28 and 35. They would mean that the mental health tribunal, rather than the county court, handled the termination of appointment of the nominated person. The county court already has a role in displacing the nearest relative. It has the expertise, procedural tools and legal framework to handle sensitive disputes involving external parties, such as conflicts of interest or allegations of abuse. The First-tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales are focused on reviewing detention under the Mental Health Act. This would add an additional burden on the tribunal, risking undermining its core function and delaying detention reviews.
The noble Baroness, Lady Berridge, raised the issue of legal aid. County court mental health cases are largely limited to applications for the displacement of a nearest relative. Legal aid is currently available to a person seeking the displacement of the nearest relative, except where the person bringing that application is doing so in a professional capacity and to the nearest relative themselves. That would also apply for the nominated person, which will replace the nearest relative.
Legal representation is available where the applicant meets the means test, unless they are under 18, and the relevant merits criteria. If there are any further points of clarification, I will be pleased to make them to any noble Lords who have raised points today, including the noble Baroness.
As we do not feel that the mental health tribunal is the right place for what I was referring to before I went on to legal aid, I ask the noble Baroness to withdraw the amendment.
Baroness Butler-Sloss (CB)
Does the Minister know which judge deals with these issues in the county court? The point that I made as a possibility was that it should be one of the family judges. She will know that circuit judges do both family and civil, but generally there is a designated family judge and a designated civil judge. I am just hoping something can be said so that it gets at least to a judge like the noble Lord, Lord Meston, who would understand what was going on.
Baroness Merron (Lab)
The noble Lord, Lord Meston, does indeed know what is going on—I agree. I cannot answer the noble and learned Baroness’s question directly, but I would be pleased to look into that point in order to do so. Maybe the noble Lord could help me.
Lord Meston (CB)
Perhaps I can relieve the Minister. I can tell her who has to deal with it: it is whoever is available at the time, and these applications tend to come in really quite urgently.
Baroness Berridge (Con)
I am grateful for the Minister’s comments, the reassurance she has given and the details she will provide me with, so I beg leave to withdraw the amendment.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, I must inform the House that if Amendment 26 is agreed to, I will not be able to call Amendment 27 by reason of pre-emption.
Amendment 26
Baroness Merron
(c) the nominated person has signed a statement that they—(i) meet the age requirement (see paragraph 2(2)), and(ii) agree to act as the nominated person, and(d) the witness has signed a statement that—(i) the instrument appointing the nominated person was signed by the patient in the presence of the witness,(ii) the witness has no reason to think that the patient lacks capacity or competence to make the appointment,(iii) the witness has no reason to think that the nominated person lacks capacity or competence to act as a nominated person,(iv) the witness has no reason to think that any fraud or undue pressure has been used to induce the patient to make the appointment, and(v) the witness has no reason to think that the nominated person is unsuitable to act as a nominated person.”Member’s explanatory statement
This changes the process for appointing a nominated person. It removes the requirement for the nominated person’s signature to be witnessed and the various statements and signatures no longer have to be contained in the same instrument.
Baroness Merron
Member’s explanatory statement
This and my amendments to paragraph 10 of new Schedule 1A ensure that where a nominated person is appointed for a patient who is aged 16 or 17 and for whom a local authority has parental responsibility, the local authority is appointed as the nominated person.
Member’s explanatory statement
See the explanatory statement for my amendment to Schedule 2, page 77, line 27.
“(2) If a local authority has parental responsibility for the relevant patient, the approved mental health professional must appoint that local authority.(2A) If no local authority has parental responsibility for the relevant patient but the relevant patient has a competent deputy who is willing to act as the nominated person, the approved mental health professional must appoint the deputy.”Member’s explanatory statement
See the explanatory statement for my amendment to Schedule 2, page 77, line 27.
Member’s explanatory statement
See the explanatory statement for my amendment to Schedule 2, page 77, line 27.
Baroness Merron
“10A “(1) This paragraph applies where an approved mental health professional is deciding who to appoint as a nominated person for a relevant patient who is aged under 16.(2) If a local authority has parental responsibility for the relevant patient, the approved mental health professional must appoint that local authority.(3) If no local authority has parental responsibility for the relevant patient but there are one or more other persons who have parental responsibility and who are willing to act as the nominated person, the approved mental health professional must appoint one of them.(4) In any case in which sub-paragraphs (2) and (3) do not identify who is to be appointed, the approved mental health professional must, in deciding who to appoint, take into account the relevant patient’s past and present wishes and feelings so far as reasonably ascertainable.”Member’s explanatory statement
This largely replicates the effect of existing paragraph 10 of new Schedule 1A but ensures that where a nominated person is appointed for a patient who is aged under 16 and for whom a local authority has parental responsibility, the local authority is appointed as the nominated person.
Baroness Berridge
“(3) Where sub-paragraph (2) does not apply, the approved mental health professional must appoint as a nominated person— (a) a guardian who has been appointed for the relevant patient,(b) a person who is named in a child arrangements order, as defined by section 8 of the Children Act 1989, as a person with whom the relevant patient is to live, or(c) a person who has parental responsibility for the relevant patient.(3A) In this paragraph “guardian” includes a special guardian within the meaning of the Children Act 1989 but does not include a guardian under section 7 of that Act.(3B) Where there is more than one person identified as a potential nominated person in sub-paragraph (3)(a), (b) or (c) then the approved mental health professional must in deciding who to appoint—(a) take into account the relevant patient’s past and present wishes and feelings so far as reasonably ascertainable, or(b) where it has not been possible to ascertain the relevant patient’s past and present wishes, preference must be given to the eldest person.”
Baroness Berridge (Con)
My Lords, I have listened carefully to the Minister’s reasoning, but I am sure it will not be a surprise to her that there is now a matter of disagreement, so I wish to test the opinion of the House.
Baroness Merron
Member’s explanatory statement
This is consequential on my amendment to leave out clause 50.
Earl Howe
“Ascertaining and learning from patients’ experiences of hospital treatmentAfter section 23 of the Mental Health Act 1983 (discharge of patients) insert—“23A Ascertaining and learning from patients’ experiences of hospital treatment(1) A patient who has been detained under this Part of this Act must, within 30 days of their discharge, be offered a consultation with an independent mental health advocate to review their experiences of hospital treatment.(2) A report from any consultation undertaken pursuant to subsection (1) shall be produced by the independent mental health advocate in partnership with the patient.(3) The report referred to in subsection (2) shall be provided to the managers of the hospital within 14 days of its completion.(4) The managers of the hospital shall publish each year a report setting out what they have learned from patients’ experiences at the hospital, and the actions they have taken.””Member’s explanatory statement
This amendment would mandate the de-briefing of mental health patients after they have left hospital.
Earl Howe (Con)
My Lords, I listened carefully to the Minister’s reply to the proposal that I made to give mental health patients an automatic opportunity to avail of a debriefing process after leaving hospital, in the interests of patient empowerment and greater transparency for the system generally. I am afraid that I nevertheless wish to test the opinion of the House.
Mental Health Bill [HL]
Monday 31st March 2025
(3 months, 2 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 73-I(a) Amendment for Report (Supplementary to the Marshalled List) - (28 Mar 2025)
Lord Bradley
“(d) a specified accountable person or body is appointed, who will be responsible for ensuring that the provisions within this subsection are completed within the specified time limit.”Member’s explanatory statement
This amendment seeks to ensure that there is an accountable person, who will ensure that transfer to hospital takes place within 28 days.
Lord Bradley (Lab)
My Lords, I declare my interests as listed in the register.
In Committee, I moved an amendment that would require a specified accountable person to be appointed by the relevant referring body to ensure that the specified 28-day transfer period is met. This proposal was based on the fact that many agencies are involved in arranging prison transfers. From my experiences in helping to develop services across health and justice, I believe there could be significant merit in creating a single role: a dedicated official whose primary function would be to ensure efficient transfers, with the ability and power to liaise and intervene with the various agencies at the most senior level where necessary.
As I said in that debate, the amendment would clarify and enhance accountability and transparency, and
“support the desire expressed in the impact assessment”
of the Bill to increase
“‘accountability for all agencies involved in the transfer process to meet’ … the deadline”.
It is important to note again that this is supported by
“Sir Simon Wessely’s independent review, which stated that it would help … ‘unblock the institutional barriers and … give … the teeth it needs to push the transfer through’”.—[Official Report, 27/1/25; col. 61.]
At the conclusion to that debate, first, the noble Lord, Lord Kamall, from the Opposition Front Bench, commented that my amendment
“again, speaks to the point of implementation”
of provisions in the Bill, and said that this
“could be a sensible way of holding providers to account and working with them to address the shortcomings in patient transfers”.—[Official Report, 27/1/25; col. 66.]
Secondly, and most importantly, the Minister, my noble friend Lord Timpson, helpfully reminded the House that the previous Government had run a public consultation seeking views on the effective way to establish this role, but no consensus was reached. Further, a cross-agency working group was established to scope out the role, and that work
“continues between health and justice partners”
on this issue. He suggested that a non-statutory approach
“will ensure that the interests of patients are considered while providing the flexibility required, given the complexity of the process”.—[Official Report, 27/1/25; cols. 67-68.]
Very helpfully again, the Minister offered to meet to discuss this further and for that to be undertaken before Report. I am very pleased that such discussions have taken place, and thank not only the Minister but the excellent officials in both the Ministry of Justice and NHS England for their very constructive engagement with me.
I still strongly believe that we need effective oversight of the transfer process, hence I tabled Amendment 38, which proposes that either an accountable person “or body”—a slight extension to my original amendment—is established for the purpose and, of course, to ensure accountability and transparency to Parliament on this matter. I hope the Minister will now support this proposition. I look forward to his response at the end of this short debate and will listen carefully to it. I beg to move.
Baroness Fox of Buckley (Non-Afl)
My Lords, in Committee, a number of us stressed the importance of those sections of the Bill relating to its application for prisoners suffering mental disorder. I continue to push to ensure that the parts of the Bill that relate to the responsibilities of the MoJ in relation to the Department of Health and Social Care are not neglected once the Act becomes law.
In Committee, I focused on calling for a government review of the impact of the Bill on prisoners, but, from listening to the thoughtful response from the noble Lord, Lord Timpson, I saw that this could become yet another bureaucratic report. I therefore commend Amendment 38 from the noble Lord, Lord Bradley, as an elegant way of ensuring that the crucial provision of a transfer to hospital within 28 days is more than an “if only” paper aspiration.
My Amendment 40, which I am delighted is supported by the noble Baroness, Lady Bennett of Manor Castle, is also a practical proposal. It is designed to tackle problems that directly pertain to the Bill, broadly because, regardless of this legislation, the reality is that there will continue to be large numbers of prisoners suffering mental disorders who are incarcerated within the prison estate rather than in secure hospitals. The question then is what happens to their mental health care when they are released. If this aspect is neglected, these ex-prisoners could well become increasingly unwell and deteriorate, and therefore be in need of future detention.
It would be a real mistake to neglect any policy or practice associated with this Bill that fails to address the need for bespoke, ongoing support in the community, in which ex-prisoners’ mental health is not allowed to fall further, creating new risks to both them and the public. This is a real risk. Estimates from a 2023 report from the Centre for Mental Health, based on a survey of 75% of prisons and young offenders’ institutions in England, found that one in seven prisoners receive mental health support while in custody—the figure is one in four among women. However, continuity of that care collapses after release. Research led by the University of Manchester recently found that, of 53 prisoners who had been in touch with in-house services due to severe and enduring mental health conditions, only four were in touch with community health services six months after release.
It is perhaps understandable why this happens. When leaving prison, both the authorities and prisoners may focus on practical challenges, such as lack of housing and how to earn money and a living, and therefore mental health support can and does slip down the priority list. It is also the case that leaving prison can present a shock to the system, and that affects this. Prisoners will be leaving a structured environment, focused on routine, and, in many instances, returning to more disorganised and chaotic conditions. Freedom may mean an arbitrary end to an effective course of treatment, someone having waited perhaps months or even years to access services, such as therapy or specialised groups, in which they have started to open up about traumatic experiences—all in-prison services. Suddenly, on release, there is an abrupt end to such support. Targeted interventions, prescribing regimes and the access to medication inside are no longer guaranteed on the outside.
I understand that ensuring continuity of care can be incredibly difficult. People leaving prison often have multiple and complex needs, and can be wary of accessing care in the community because of a lack of trust in state institutions that means that they are less likely to proactively seek out help. Ex-prisoners report that they fear that disclosing mental health challenges to, for example, probation staff will draw attention to their vulnerabilities. Then there is the dread of recall—an especially acute fear for IPP prisoners: a fear of being sent back to prison if they appear too ill to cope, or a dread of that other detention mechanism, sectioning.
All that this amendment seeks is to ensure a smooth handover between prisoners and community services. Without such ministerial reassurance, I fear that this will undermine core parts of the Bill unless it is taken into account. The stock reply to such concerns is that prison mental health services send on information to prisoners’ GPs, but in the real world this is often nonsense. Prisoners often do not have a fixed address on release, so they are discharged with just a medical letter. Prison nurses explain that they do not know where their patient will be released to, beyond a hostel somewhere, making it impossible to connect that person to even primary care. Prison-led medical staff complain that often they are not informed of the impending release until very shortly beforehand—sometimes a week or days—and this is especially acute in relation to the present early release scheme. There is not enough time to set up appropriate community provision, to communicate with services or even to conduct proper assessments of individual patients before their release. Clinical needs are therefore deprioritised, and prisoners fall through the net of statutory services.
What is needed, and what this amendment envisages, is that a relevant detention authority is responsible for discharge packages which will, for example, register prisoners with GP services in the precise area a person is discharged to, and liaise with relevant third-party organisations and community provision to make arrangements. Prisons and health authorities would work together to prevent deteriorating mental health and the potential for behaviour on the outside that would mean yet more contact with the criminal justice system for the ex-prisoner and, possibly, emergency intervention and detention.
Baroness Bennett of Manor Castle (GP)
My Lords, I support Amendment 40, tabled by the noble Baroness, Lady Fox, and have added my name to it—probably not a combination that you will see very often. This amendment, as the noble Baroness set out with practical, clear evidence, makes such a lot of sense that I had to back it.
My particular interest when it comes to prison policy is women in prison. More and more shocking figures are emerging all the time about what is happening in our women’s prisons. A third of women in prison are now self-harming, which is a 29% increase in the last quarter, and 82% of women in prison report mental health problems. As the noble Baroness said, one in four women in prison are receiving help from mental health services. That is not to say that there are not enormous issues around male jails as well—the figure for male jails is one in seven—but I want to take a moment to paint a picture.
Six in 10 female prisoners are serving sentences of less than six months. Their life is torn apart and they are put into prison, where maybe they start to get help from the mental health services. Here are some other figures: seven in 10 women in prison report being victims of domestic violence; 53% report that they were victims of child abuse. We have a huge and often acute need for mental health services here, yet, as the noble Baroness set out, these women are thrown out, virtually on to the street, and the chances of continuing care and support being there are utterly unrealistic.
I suspect the Minister will say that the Government are trying to improve the situation. I respect and understand that. None the less, this is a practical, sensible measure that it would be common sense for the Government to take on board.
Baroness Tyler of Enfield (LD)
My Lords, briefly, I want to make a couple of contributions to the debate. In so doing, I reflect on that fact that we have not spent much time talking about the criminal justice side of this Bill. I wonder why that is.
On the amendment tabled by the noble Lord, Lord Bradley, it makes eminent sense to ensure that there is an accountable person or body responsible for ensuring that transfers to hospital occur within 28 days. I have a simple view of the world: if you want to make sure that some things get done, you need to ensure that someone is in charge and that that person is held to account. As the Minister knows, I am quite keen on responsible people, particularly in relation to this Bill, to ensure that things get done—hence, I support the amendment.
I was very interested in the arguments put forward by the noble Baroness, Lady Fox, for her amendment, focusing on ensuring that prisoners treated for a mental disorder have access to continued mental health treatment once they are back in the community. That is such common sense and such an obvious thing to do, if we are to stop repeat admissions and detentions and the whole thing becoming a revolving door. We all know that it is not easy in the community at the best of times to get access to the treatment that you need, particularly mental health treatment. It is particularly difficult for people who have recently been released from detention. Further, we all know the episodic nature of many mental health conditions, so this amendment is just good common sense.
Lord Davies of Brixton (Lab)
I want to express my support for the amendment from my noble friend Lord Bradley, because in Committee I had a parallel amendment that dealt with a similar issue. I very much agree with what the noble Baroness, Lady Tyler of Enfield, said about locating specific responsibility for getting people through the system. In this area, time is absolutely of the essence to avoid crises and worsening mental health states. So I strongly support the thought behind my noble friend’s amendment, and I hope the Minister can help us by showing that the problem is understood and that the Government see it as a priority to resolve the problems that undoubtedly occur at present.
Lord Kamall (Con)
My Lords, I will speak briefly to Amendments 38 and 40. One of the things about being a politician is that when you say things, you cannot hide. When the noble Lord, Lord Bradley, told me he was about to quote me in his contribution, I thought, “Oh no, what have I said now?”, so I am grateful to him for warning me and not being too harsh on me. As other noble Lords have said, this is an eminently sensible amendment, and I hope we will get a positive response from the Minister.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
I am grateful to my noble friend Lord Bradley for bringing this discussion before the House today and his commitment to improving outcomes for patients since the publication in 2009 of the Bradley Report, which highlighted the need to ensure that transfers between prison and secure hospital take place in a timely manner. I also thank him for his kind words about my superb team in the Ministry of Justice.
The Government are committed to addressing the unnecessary delays that some patients experience, which can cause significant distress to these individuals, their families and those charged with their care. Transparency and accountability, as the noble Lord, Lord Davies of Brixton, and the noble Baroness, Lady Tyler, expressed clearly, are essential to the successful implementation of this reform and to reducing delays more broadly. I thank my noble friend Lord Bradley for the constructive conversations with my officials since Committee to ensure we get this oversight mechanism right.
I am pleased to share that this Government have recently established a health and justice strategic advisory group, which will bring together key partners with responsibility for the various parts of the transfer process. This group will be chaired by a national clinical director, who will report regularly to Ministers and be responsible for agreeing a joint work plan to support implementation of the statutory time limit, identifying solutions to common barriers to timely transfers and holding partners to account. I am confident that this group will provide effective oversight by bringing together operational leaders across health and justice with the levers necessary to effect change, while inviting challenge from critical friends such as the Care Quality Commission and His Majesty’s Inspectorate of Prisons to ensure external scrutiny. I will continue to work closely with my noble friend Lady Merron to ensure that the long-term future of the strategic advisory group remains a priority.
As my noble friend announced earlier, the Government have committed to providing an annual report to Parliament on the implementation of the Mental Health Act reforms. Through this reporting mechanism, I will update Parliament on the implementation of the statutory time limit and on the strategic advisory group, and provide data on transfer timelines when available for publication. I hope this reassures my noble friend of this Government’s commitment to improving timely access to treatment. I urge him to withdraw his amendment.
Amendment 40 tabled by the noble Baroness, Lady Fox, and supported by the noble Baroness, Lady Bennett of Manor Castle, would ensure that prisoners released into the community who have previously been treated for a mental disorder can continue to receive access to treatment in the community. Section 117 of the Mental Health Act already places a duty on health and social care services to provide aftercare to patients under specific criminal justice sections of the Act who are released from hospital into prison or into the community. These services aim to reduce the risk of a deterioration of the patient’s mental condition and, accordingly, the risk of them requiring admission to hospital again for treatment.
The noble Baroness, Lady Bennett, is right that our women’s prisons have many women who are mentally unwell. That is why we have set up the Women’s Justice Board—to reduce the number of women in prison and to help divert many women away from custody in the first place.
The noble Baroness, Lady Fox, will be pleased to know that, in addition to the Section 117 aftercare that is available to those detained under the Mental Health Act, all prisoners who have engaged in any form of treatment while in prison—regardless of whether they have been detained under the Mental Health Act —have access to services in the community when they are released.
To strengthen the links between substance misuse and health services in prisons and in the community, and to support access to treatment, we have recruited 57 health and justice partnership co-ordinators and managers across all probation regions in England and Wales. NHS England’s RECONNECT, a care after custody service, supports prison leavers with vulnerabilities including mental health needs to engage with the right health services in the community through referrals and peer support. The noble Lord, Lord Kamall, is right: through-the-gate continuity is crucial. The successful pathway is how we reduce reoffending and help people who are unwell.
I hope this reassures the noble Baroness that there is already sufficient provision in the Act to ensure that prisoners who have previously been treated for a mental disorder can continue to receive access to treatment in the community. I urge her not to move the amendment.
Baroness Fox of Buckley (Non-Afl)
My Lords, I do not doubt in any way that prisoners can access that community care; the problem is that they are not accessing it. The assurances about new schemes are positive, but the idea was to make this more than just an abstract wish list and make sure that something practical happens. If that is what the new scheme—although it does not exist yet—will do, that is reassuring, but it is certainly not what is happening now.
Lord Timpson (Lab)
The noble Baroness has visited many prisons, as I have, and knows how complex they can often be. One of the main points of the Bill is to make sure that our partners—because we often work with third sector organisations—make sure that it is a priority that people who are leaving prison and are unwell get the continuing care that they need.
Lord Bradley (Lab)
My Lords, I am very grateful to the Minister for that positive response. I believe it is a major step forward in ensuring that the time limit of 28 days for the transfer of prisoners to an appropriate health setting is adhered to. I believe that the new strategic body that the Minister recommended will also have a significant part to play in increasing transparency and accountability as we go forward.
I am pleased that, in the general debate, the Minister mentioned the RECONNECT service, which is being rolled out across the country as we speak. It will have a significant impact on the continuity of care that has so rightly been identified tonight. With the assurance the Minister has given to the House, I beg leave to withdraw my amendment.
Baroness Merron
“(5) In section 143 (general provisions as to regulations, orders and rules)—(a) for subsection (2) substitute—“(2) The following are subject to annulment in pursuance of a resolution of either House of Parliament—(a) any Order in Council under this Act;(b) any order made by the Secretary of State under section 54A or 68A(7);(c) any statutory instrument containing regulations made by the Secretary of State under this Act, other than regulations made under section 48B(3);(d) any statutory instrument containing rules made under this Act.”;(b) after subsection (3) insert—“(3ZA) A statutory instrument containing regulations under section 48B(3) (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””Member's explanatory statement
This is consequential on my amendment to clause 18, page 26, line 6.
Lord Kamall
“Removal of patients by authorised persons (1) The Mental Health Act 1983 is amended as follows.(2) In section 135 (warrant to search for and remove patients)—(a) in subsection (1), after “constable”, insert “or authorised person”;(b) in subsection (1A), after “constable”, insert “or authorised person”;(c) in closing words of subsection (2), after “constable”, insert “or authorised person”;(d) in subsection (3ZA)(a)(ii), after “constable”, insert “or authorised person”;(e) in subsection (7)(b), after “constable”, insert “or authorised person”. (3) In section 136 (removal etc of mentally disordered persons without a warrant)—(a) in subsection (1), after each instance of “constable”, insert “or authorised person”;(b) in subsection (1A), after “constable”, insert “or authorised person”;(c) in subsection (1B), after “constable”, insert “or authorised person”;(d) in subsection (2A)(a)(ii), after “constable”, insert “or authorised person”.”Member's explanatory statement
This amendment and others in the name of Lord Kamall seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.
Baroness Merron
Member's explanatory statement
The material in this clause is, so far as it needs to be retained, inserted into clause 36 (see my amendment to that clause).
Baroness Merron
“Review of duty to notify incidents(1) The Secretary of State must carry out a review into—(a) whether regulation 18 of the Care Quality Commission (Registration) Regulations 2009 (S.I.2009/3112) (duty to notify incidents) ought to be extended to require a notification to be given in any other cases in which a person under the age of 18 is admitted to a hospital or registered establishment for medical treatment for, or assessment in relation to, mental disorder, and(b) whether the time period mentioned in regulation 18(2)(h) of those Regulations remains appropriate.(2) The Secretary of State must prepare and publish a report setting out the conclusions of the review.(3) The Secretary of State must lay a copy of the report before Parliament.(4) The report must be laid and published before the end of the period of 2 years beginning with the day on which this Act is passed. (5) In this section the following expressions have the meaning given by section 145 of the Mental Health Act 1983—“hospital” ;“medical treatment” ;“mental disorder” ;“registered establishment” .”Member's explanatory statement
This requires the Secretary of State to carry out a review into the circumstances in which incidents involving mental health patients under the age of 18 ought to be notified to the Care Quality Commission.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, having heard the concerns of noble Lords in Committee around the placement of children and young people, we want to go further than when we started. It is a statutory requirement for CQC to be notified when a person under 18 is placed in an adult psychiatric unit for longer than 48 hours. CQC takes action to assess risk and ensure the child is being safeguarded. Government Amendment 46 will now require the Secretary of State to review whether current notification requirements should be extended to other incidents and whether the 48-hour time period remains appropriate. A report on the findings of this review must be laid before Parliament within two years.
I am also pleased to announce today that NHS England will use existing powers under the NHS Act 2006 to require ICBs to provide information, first, on accommodation or facilities for patients under the age of 18 and, secondly, on any incidents where a person under the age of 18 is placed in a setting that is clinically appropriate but is outside of the natural clinical flow or not in a specialised children and young people’s mental health ward. Those requirements will be set out in the new service specification and made clear in the revised code of practice. Collecting this information is crucial to enable NHS England to monitor and minimise risk and make the case for changes in local capacity to meet population needs.
Finally, I am pleased to announce that we will lay regulations under existing powers to require ICBs to provide information that CQC reasonably requests and to publish an action statement where directed to do so by CQC. This will strengthen CQC oversight of how it monitors the application of the Act in local areas, such as the duty on ICBs under Section 140 to notify local authorities specifying hospitals where arrangements are in place for the provision of accommodation and facilities for children and young people. I hope that noble Lords will feel able to support this amendment. I beg to move.
Baroness Browning (Con)
My Lords, I just want to clarify something, as the Minister has referred quite a lot to NHS England and its role going into the future. My understanding is that there is a sea change due at NHS England. How can we be sure that some of these roles, which are very important to this Act, will still be there and that they will be the people who will be responsible?
Baroness Merron (Lab)
I will answer the question at the end for simplicity; I do have an answer for the noble Baroness.
Lord Meston (CB)
My Lords, in those circumstances, if I may, I shall now speak to Amendment 51, which is also in this group. This is the same amendment that I put forward in Committee to provide a statutory basis for determining the competence of a child under 16 to make decisions for the purposes of this Bill and the Mental Health Act 1983. I should emphasise that it is concerned not with the consequences of such decisions but with the determination of competence for the purposes of those decisions.
I will not repeat at any length the arguments from Committee but remind the House that this amendment was prompted by the report of the Joint Committee on the draft Bill, which referred to the complexity of the law in this area concerning those under 18 years of age and referred to the absence of consistent criteria to establish capacity or competence. Sixteen and17 year-olds are subject to the Mental Capacity Act and have the benefit of a statutory presumption of capacity applicable to adults. Children under 16 covered by this Bill do not have the benefit of that presumption and the existing Mental Capacity Act does not apply to them.
The competence or otherwise of those under 16 to make decisions is considered by reference to the principles decided judicially by the House of Lords in the case of Gillick, to which the Minister referred when rejecting my amendment. However, Gillick did not actually set out any test for assessment of competence or any method for such assessment. It simply provided that a child under 16 could consent to medical treatment if considered by professionals to have the maturity and intelligence to understand what is involved. There was no indication of how the broad notions of maturity and intelligence were to be assessed.
This has left professionals, legal and medical, with what has been called inherent uncertainty. The Bill will create a range of situations in which professionals will have to assess a child’s competence, but it is silent as to how that is to be done. In rejecting this amendment, the Minister suggested that it could cause confusion if it was seen to be a different test to that established by Gillick.
The more that I and others have thought about that and analysed the argument, the harder it has been to accept it. First, as I have said, Gillick does not establish any methodical test. The House of Lords in that case did not have to set out how competence was to be assessed. Secondly, this amendment does not conflict with or undermine Gillick. On the contrary, it is intended to build upon it and to provide a workable approach to problematic assessments which professionals sometimes have to undertake.
The amendment provides a clear, structured test for determination of a child’s competence to fill the gap in the Bill and to address the uncertainty to which the Joint Committee referred. I therefore suggest that, rather than create uncertainty or confusion, as was suggested by the Government, it will actually reduce or remove it, and it will provide a clear statement of parliamentary intention as to relevant considerations to be brought to bear.
The Minister has been kind enough to write to me recently, explaining further the Government’s reasons for not supporting my amendment. She stated concern that it could have unintended consequences. However, unintended consequences are by their nature unknown, unforeseeable and may never happen. I have therefore found it difficult to understand the Government’s concerns, particularly as my amendment is expressly limited, referring only to decisions under this Bill and under the existing statute.
The Government also suggested that it might have the effect of restricting the ability of children to exercise choice and autonomy. I have to say I do not understand how that could be suggested. On the contrary, I think it would facilitate the exercise of choice and ensure respect for Article 12 rights, which are expressly referred to in the amendment. The exact terms of Article 12 of the UN convention require that a child who is capable of forming his or her own views is assured of the right to express those views freely, and that those views are given due weight according to age and maturity. In short, I do not see the problems suggested by the Government, and accordingly I commend this amendment.
Baroness Butler-Sloss (CB)
My Lords, I agree with all three amendments that we are considering at this moment, but in particular I support Amendment 51 and agree respectfully with every word that the noble Lord, Lord Meston, said. He has set it out extremely carefully and clearly.
Despite meeting the most helpful Minister to discuss this and other matters in the Bill, I absolutely cannot understand why the Government do not realise that the absence of any information to help medical professionals looking at a 14 or 15 year-old who has mental health issues, which are why they are in hospital, but who appears otherwise to be very bright, is an issue. How on earth are they to judge whether that child has the degree of competence necessary for the professionals to listen carefully to what the child has to say? If you are over 16, you are included in the Mental Capacity Act 2005, but under-16s have not been included.
I emphasise the point made by the noble Lord, Lord Meston, that Gillick is very long-winded. It would be unreasonable for any medical professional looking at a child of 13, 14 or 15 to settle down and read the judgments of the then House of Lords to find out that they say that Gillick should be applied but absolutely do not say how.
This is why we have this amendment. The Government might decide that they are not prepared to accept it. I did not see the letter that the Minister sent to the noble Lord, Lord Meston, but I cannot understand why there is any confusion. I cannot understand why a form of advice to mental health professionals on dealing with under-16 year-olds in mental health conditions might be applied in any other circumstance in any other litigation. It does not apply.
I have spoken not only to the Minister but to the very helpful team who surround her, and I have been completely unable to understand what on earth they are really worried about. I would be—and I would like the Government to be—much more worried about anyone over 16. There is primary legislation telling anyone how to judge that someone over 16 has the ability to make decisions, but there is nothing to tell anybody about someone under 16.
In my view, there will be a serious lacuna in the law that is very unhelpful, particularly to mental health professionals. What on earth are they going to do with a child who, as I say, is bright and cheerful despite what his or her mental health problems are? How on earth are they going to approach judging whether that child has the sort of competence that over-16s have?
I find it difficult that what is contained in this excellent proposed new clause by the noble Lord, Lord Meston, is seen as somehow confusing or that it will be used in the wrong circumstances, or anything like that. If Amendment 51 is not going to be accepted, what on earth is the help that the Minister expects to give to mental health professionals dealing with under-16s?
Baroness Bennett of Manor Castle (GP)
My Lords, I say humbly and briefly, following that expert explanation of Amendment 51 from the noble Lord, Lord Meston, and its powerful reinforcement by the noble and learned Baroness, Lady Butler-Sloss, that I attached my name to this amendment simply because I thought it was such an important one, following our debate in Committee. I felt that it should have a full slate of signatures from as broadly around the House as possible. I do not claim any particular expertise here, but my intention to do this was strengthened by the joint briefing from the Law Society, Mind and the Children and Young People’s Mental Health Coalition. It is quite notable and I am sure many noble Lords will have received it. That briefing is explicitly on Amendment 51, which just shows the level of concern on this issue among NGOs.
It is worth saying—it is kind of stating the obvious—that, as the briefing notes:
“We consider that the test should be on the face of the Bill, not in a Code of Practice as the Government suggests. This is because the courts have made clear that codes of practice should reflect the law and cannot create law”.
That sets out clearly to me, as a legal lay person, where we are. As the joint briefing then says,
“a clear and consistent approach to assessing a child’s competence can only be achieved by including a test in the Bill. The Code is not the right place”.
Baroness Tyler of Enfield (LD)
My Lords, I will also say briefly that I too added my name to Amendment 51 in the name of the noble Lord, Lord Meston. In Committee, I pondered this issue long and hard. At one stage, I thought that perhaps more consultation was required, but having listened to the arguments and heard from people in the sector, which was very helpful, along with the briefings we have received, I am now firmly of the view that this is a real gap in the current Bill.
We have this opportunity and, as has been said two or three times so far today, we do not get such an opportunity very often. It might be once every 10 or 15 years that we get the opportunity to look at mental health legislation such as this. I have therefore come strongly to the view that we need to make the most of this opportunity so that there is a proper test for decision-making for under-16s—a sort of competence test—within the Bill.
In coming to that view, I have taken two or three things into consideration. One is that it would apply only when the Bill requires that a child’s competence is to be considered. Then, very importantly I thought, the amendment is concerned only with the question of a child’s ability to decide, not what happens once that has been determined. Finally, this excellent amendment explicitly limits this test to decision-making under the Bill and the previous Mental Health Act 1983. In short, it applies only to children who fall within the scope of this legislation, so it is tightly drawn. The noble and learned Baroness, Lady Butler-Sloss, set out so powerfully the need for this and the case for it, in a way that I could not possibly do. I just wanted to explain how my thinking had evolved since our discussions in Committee.
Briefly, while I am on my feet, I was always very supportive of the amendment put forward by the noble Earl, Lord Howe, for strengthening safeguards for children admitted to adult wards and out-of-area placements. This is a really important issue and I shall be interested to hear what he has to say on the subject. I was also interested to hear the Minister talk about the amendment that she has put forward in relation to this, so I hope that progress is being made in this important area. I will be interested to hear what the noble Earl’s reaction is to that.
Earl Howe (Con)
My Lords, I join other noble Lords in expressing my full support for Amendment 51 in the name of the noble Lord, Lord Meston. A very compelling case was put by forward by him and the noble and learned Baroness, Lady Butler-Sloss.
I also thank the Minister very warmly for her Amendment 46 and her helpful explanation of what it is likely to entail regarding the process that will flow from it. It is reassuring to know that our Committee debates on age-appropriate treatment for children and young people have been seriously considered by the Minister. I put on record my appreciation of the advanced notice she gave me of her intention to meet noble Lords’ concerns in this constructive way. I hope, nevertheless, that she will not mind me posing a number of questions prompted by the government amendment and my Amendment 58, which has been grouped with it.
Baroness Browning (Con)
My Lords, very briefly, I added my name to this amendment, but I of course support the amendment from the noble Lord, Lord Meston—it is urgent to have an answer to that when the Bill proceeds.
I support all that my noble friend on the Front Bench said about children in adult wards, but I particularly focus on his request for attention to out-of-area placements. We know, from many of the cases that, sadly, we have had to debate in this House, that, when people are detained unduly—almost as though they are placed somewhere and the keys are thrown away—it is all too often because they are well away from their home base and from convenient visiting by relatives, and, as my noble friend said, often far away local authorities that might have had some sort of overview of them previously.
This is very difficult. We know that local authorities are stretched financially, and, presumably, keeping an eye on what is happening to somebody who has gone well out of their area has a clear cost implication. None the less, we are talking about children. Therefore, I support my noble friend and I hope the Minister will find a way forward to support these children.
Baroness Merron (Lab)
My Lords, I thank all noble Lords across the House for their contributions during the debate on this group, the last of the evening. I am glad that both Front Benches welcome government Amendment 46, albeit I heard the noble Earl, Lord Howe, say that he had hoped that we would go further. I am glad that the other commitments made at the start of the debate were welcomed.
Amendment 58 was tabled by the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall. We agree with the intention of this amendment but do not believe that placing more limitations and prescriptions in legislation is the best vehicle to reduce the placement of children in certain settings.
In Committee, I set out existing measures to address and monitor this issue. The latest data from the CQC’s Monitoring the Mental Health Act in 2023/24 report shows that it was notified of 120 instances where a person under the age of 18 was admitted to an adult ward, which was a 38% decrease compared to 2022-23. I committed to set out guidance in the revised code on the process to determine whether a placement is in a child’s best interests, and to ensure that safeguards are in place. NHSE will also do this in the new service specification—I will return to this point for the noble Baroness, Lady Browning. I hope that the additional commitments we have made in this debate show that the Government take this matter seriously and that we are committed to continuing to work on and address this issue.
To the point that the noble Baroness, Lady Browning, made about NHSE, I assure her that, as we work to bring the two organisations together—NHSE and DHSC—we will ensure that we continue to evaluate impacts of all kinds and that the functions currently undertaken by NHSE will continue along with that change. It will take some two years for the full process, including legislation, to take effect. However, admin changes are happening more immediately. The main thing of which I want to assure the noble Baroness is that the change into the future will not affect the commitments that we have given; they will continue, and without duplication.
Before I turn to Amendment 51, I will go back to the noble Earl, Lord Howe, who asked whether we would undertake a concerted effort to look at other directions of the issue, such as training and suitable in-patient or outreach mental health services. In response, I can say that, subject to securing further investment, NHS England is developing a new model for specialised children and young people’s mental health services, which will be supported by a new service specification and quality standards. The priority for these services is to transform and expand community services to make sure that there are local accessible community alternatives and to reduce the need for admission and dependency on in-patient beds, as well as reducing the length of stay and keeping young people closer to home. I hope that the noble Earl will appreciate that we are in the same place on this and that it is a matter of actually putting it into action.
I return to Amendment 51, which was tabled by the noble Lord, Lord Meston, and spoken to the noble and learned Baroness, Lady Butler-Sloss, and other noble Lords. We believe that the Mental Health Act is not the appropriate legislative vehicle to set out a statutory test for competence for under-16s, and nor would it be appropriate to seek to establish a test in a single setting. We are not satisfied that the possible implications for mental health in other settings where Gillick is applied have yet been fully explored.
The principle of Gillick competence is established in case law, as noble Lords will be aware, not statute. Any statutory test should reflect existing case law and would not necessarily override the application of Gillick outside the Act. The design of the test is partly aligned with the tests set out in the Mental Capacity Act. There is no consensus in the courts, as noble Lords will be aware, on whether it is appropriate to apply these tests to test competence in children under 16.
The noble Lord, Lord Meston, raised the question of unintended consequences, to which I am able to respond. The creation of any test that does not consider the interaction with existing case law could inadvertently limit the ability of children detained under the Act to exercise choice and autonomy under their care and treatment. Those are the concerns about unintended consequences.
We are also greatly concerned that, in seeking to provide clarity on assessing competence in mental health settings, two different tests could be created. This is likely to cause further confusion and a risk of legal challenge for decision-makers in mental health settings, potentially in any setting where Gillick is applied. This could have unintended consequences—I use that phrase again—for the ability of children to exercise choice and autonomy, as I have already mentioned, which I hear is counter to the noble Lord’s intention.
The noble Lord will understand that we cannot comment on or prevent how, as I say, courts will interpret the test or whether there will be further calls for similar tests. The courts may even go as far as to apply this test in other settings. That is what we mean when we say the introduction of a test for decisions under the Act will or may cause confusion and uncertainty in other settings. We do not think the consequences of this have been given proper consideration, nor can this risk be appropriately mitigated. We will consult on the statutory guidance for assessing competence in mental health settings, as I have mentioned, in the revised code of practice. I hope that will meet the intention to provide further clarity.
The noble and learned Baroness, Lady Butler-Sloss, asked what additional support would be provided to clinicians in engaging with children and young people, as we are rejecting this amendment. The Mental Health Act code of practice already provides guidance on establishing competence in under-16s. As I have said, we will consult on the guidance in the revised code of practice. I also re-emphasise that we feel it is better to focus on improving the practical application of Gillick rather than create or risk further confusion.
I hear that there are differences of opinion. While I am sure that what I say will not completely satisfy noble Lords who have raised concerns, I hope it gives a sense of where we have got to and the reasons. I therefore hope that these reasons will convince noble Lords not to press their amendments.
Mental Health Bill [HL]
Wednesday 2nd April 2025
(3 months, 1 week ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 73-II Second Marshalled list for Report - (1 Apr 2025)
19:37 - Division on Amendment 47 - Ayes: 49 / Noes: 129 - Amendment 47 disagreed.
21:12 - Division on Amendment 56 - Ayes: 51 / Noes: 106 - Amendment 56 disagreed.
21:24 - Division on Amendment 59 - Ayes: 19 / Noes: 112 - Amendment 59 disagreed.
Baroness Tyler of Enfield
“Mental Health CommissionerAfter section 142C of the Mental Health Act 1983, insert—“Mental Health Commissioner
142D Independent Mental Health Commissioner: establishment(1) There is to be an office known as the Office of the Mental Health Commissioner.(2) The Office in subsection (1) must be established by the Secretary of State three months after the day on which the Mental Health Act 2025 is passed.(3) The Office of the Mental Health Commissioner will be led by an individual appointed by the Secretary of State titled the “Independent Mental Health Commissioner”.(4) The role in subsection (3) is referred to as the “Mental Health Commissioner”.(5) The Mental Health Commissioner may appoint staff to the Office of the Mental Health Commissioner they consider necessary for assisting in the exercise of their functions in section 142E. 142E Functions of the Commissioner(1) The Mental Health Commissioner is responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under the provisions of this Act, the Mental Health Act 1983, and the Mental Capacity Act 2025 particularly regarding the provision of treatment, care, and detention of people with a mental disorder.(2) The Mental Health Commissioner must publish an annual report on the use of functions discharged under this Act, which must assess—(a) the quality of mental health care treatment provided by relevant services;(b) the accessibility of mental health care treatment services;(c) the relationship between mental health and the criminal justice system;(d) inequalities of mental health care provision regarding protected characteristics under the Equality Act 2010;(e) the use and effectiveness of detention measures under this Act, including but not limited to Community Treatment Orders, for the purposes of therapeutic benefit outlined in section 1(2B);(f) challenges surrounding stigma of mental health conditions;(g) the accessibility of advice and support to mental health service users, their families and carers on their legal rights;(h) other issues deemed appropriate by the Mental Health Commissioner.(3) In fulfilling their duties under subsection (1), the Mental Health Commissioner may review, and monitor the operation of, arrangements falling within subsection (1), (2) and (3) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the principles in section 118(2B) of this Act.(4) Subject to any directions from the Secretary of State, the Commissioner may take action necessary or expedient in connection for the purposes of their functions.(5) This may include—(a) collaborating with health services, public authorities, charitable organisations, and other relevant entities, including NHS bodies, the Care Quality Commission, and the Parliamentary and Health Service Ombudsman;(b) ensuring enforcement authorities and public bodies under the Mental Health Act 1983 have the necessary capacity and resources to adequately discharge duties under the Mental Health Act 1983 and this Act.142F Appointment, Tenure, and Remuneration of the Mental Health Commissioner(1) The Secretary of State may by regulation make provision for the appointment, tenure, removal, and general terms of appointment of the Mental Health Commissioner.(2) The Secretary of State may also by regulation determine the Commissioner’s remuneration, allowances, and pension entitlements.142G Examination of cases(1) The Secretary of State may, by regulations, make provision for the examination by the Mental Health Commissioner of the cases of those who are detained under this Act receiving treatment by authorised mental health care providers.(2) The Secretary of State may, by regulations, provide for the Office of the Mental Health Commissioner to access and examine relevant data on mental health treatment provision held by NHS England and any other authorities the Secretary of State considers appropriate.142H Regulations(1) Regulations under sections 142F and 142G are to be made by statutory instrument.””Member’s explanatory statement
This amendment establishes the office of the Mental Health Commissioner and makes provisions for relevant duties and responsibilities.
Baroness Tyler of Enfield (LD)
My Lords, Amendment 47 would establish a mental health commissioner for England. The role would fill a major gap in the operation of the Mental Health Act and the rights of people with mental health difficulties. I believe this role is essential in ensuring oversight and advocacy for people affected by the Mental Health Act.
Unlike existing bodies, the commissioner would have a strategic, cross-government focus working to promote mental health, tackle inequalities and be a powerful advocate for the rights and well-being of those living with mental health problems, who would finally have a voice at the top table. The commissioner would also play a vital role in the public sphere, tackling stigma and discrimination and championing policies that support good mental health across society. The commissioner would have the independence to comment on the implementation of the reformed Mental Health Act and any subsequent changes or issues that arise. International evidence highlights the impact such a role can play in improving outcomes.
I know concerns were raised in Committee that the commissioner would duplicate the CQC’s Mental Health Act responsibilities. I simply do not believe this is so. The CQC is an arm’s-length body that has a statutory responsibility to inspect and regulate health and care services and intervene in cases of abuse of people’s rights, and it has powers to tackle poor practice in providers. Its work is essential, but its ability to oversee implementation is limited and it absolutely does not have a policy advisory function. I welcome the announcement of a new chief inspector for mental health at the CQC, who will lead the inspection of mental health providers. It is long overdue. However, like the CQC, the new chief inspector will have no role to work across government to take a view on public health policies or their implementation and to speak publicly on them, so the roles of the new chief inspector and the commissioner in my amendment are separate and distinct.
The commissioner would complement the CQC in the same way as the Children’s Commissioner complements Ofsted. I was very pleased to hear that the Minister recently had a productive meeting with the Children’s Commissioner, including, as I understand it, a discussion on children and young people’s mental health. I look forward to hearing more about that. I am sure that the Minister understands the distinct role that the Children’s Commissioner has in championing the rights of children with mental illness and that it is separate from the role of Ofsted.
Finally, I know that some concerns have been raised about resources. I emphasise again, as I did in Committee, that I envisage the commissioner having a very small secretariat, similar perhaps to the Domestic Abuse Commissioner or the Victims’ Commissioner. I believe the latter has around 10 staff. Of course, the commissioner would prioritise their work sharply. For a small investment, I believe that the commissioner could transform the way government and public services support our mental health, bringing a deep understanding of mental health into the heart of government, with statutory authority and independence that will enable them to inform policy, support delivery and oversee progress. They can bring government departments together to make the best use of resources and advocate for mental health in the public sphere. I beg to move.
Lord Bradley (Lab)
My Lords, I will speak briefly to Amendment 47, so eloquently moved by the noble Baroness, Lady Tyler. As the House will know, the establishment of a mental health commissioner was a recommendation of the joint scrutiny committee on the Bill, of which I was a member, but, disappointingly, it was not included in the Bill. As I have said on a number of occasions, I believe that a commissioner could be a voice at a national level, promoting the interests of those who are detained or are likely to be detained under the Mental Health Act, together with the interests of their families and carers.
There will be a need for rigorous, robust and consistent oversight of the implementation of the Act, wider mental health policy issues and service development, particularly workforce capacity, over the next decade and beyond. The establishment of a mental health commissioner could ensure public confidence, transparency and accountability during that period.
However, since Committee, the landscape has shifted somewhat. First, throughout the passage of the Bill, as we have heard, the Minister has made the case that the CQC, as the regulator, already has responsibility for the range of activities proposed for a mental health commissioner. This view was recognised by the Official Opposition. I still have considerable doubts about it but, as we have heard, the CQC has now created the role of Chief Inspector of Mental Health, because it at last recognises the crucial importance of mental health services in supporting people to lead fuller, healthier lives, and the need for specialist expertise in regulating those services. The eminent doctor, Arun Chopra, has been appointed. I hope to meet him as soon as possible, to be clear about his role and the range of activities that he sees it as his role as regulator to undertake. I hope that may go some way towards allaying my concerns.
Secondly, and importantly, the Secretary of State, Wes Streeting, has stated that, in future, he is determined to be directly accountable to Parliament for the performance of the health service—obviously, including mental health. To achieve that, he wishes to reduce arm’s-length bodies. As we all know, he has already announced the abolition of NHS England. Clearly, that will lead to significant uncertainty during the reform process, and the establishment of a mental health commissioner at this time would be unlikely to land favourably. It is clear to me that primary legislation might be required, yet again, to implement the NHS reforms that the Secretary of State is advocating, so Parliament may have a further opportunity to consider the new architecture of the NHS and then determine whether to bring forward plans for, among other things, enhanced advocacy and oversight of the implementation of the Act, and to support the policy development that a mental health commissioner, as we have heard, could bring to the table.
In the meantime, I will continue to take every opportunity to hold the Government to account, as the Secretary of State has assured us he will welcome. The Secretary of State should be looking particularly at the implementation of this Act and the capacity of the service to deliver it in a timely way. I will be looking at further developments of mental health policy, particularly the interface between health and the criminal justice system in the future.
Lord Meston (CB)
My Lords, I support the introduction of a commissioner. There seem to be three basic arguments that suggest it would be a good measure to take at this stage.
The first is the proven value and quality of work done by other independent commissioners, particularly the Children’s Commissioner, the Domestic Abuse Commissioner and the Victims’ Commissioner, as already mentioned. The second is the need for a commissioner to oversee the prolonged implementation of this Bill when it is enacted and the wide-ranging scope of work to be covered by the new legislation. Thirdly, a commissioner will enable standards of good practice to be maintained and raised. The existence of a dedicated commissioner should in fact remove, or at least reduce, the need for periodic statutory reviews of specific areas of work and functions in the field of mental health.
Baroness Bennett of Manor Castle (GP)
My Lords, I have attached my name to Amendment 47, in the name of the noble Baroness, Lady Tyler, and I raised this issue at Second Reading.
A powerful case has already been made for a mental health commissioner, so I am just going to make one comparison here. At the same time as this Bill has been going forward, in the other Chamber I have been dealing with the Armed Forces Commissioner Bill. An Armed Forces ombudsman was created, which in some ways has parallels with the Chief Inspector of Mental Health and the CQC. It was found that that was not effective or strong enough, and now the Government themselves are going for the Armed Forces commissioner model.
There is another parallel. One of the reasons why it is felt so strongly that there needs to be an Armed Forces commissioner model is that members of our Armed Forces do not have the same rights. They have certain responsibilities laid on them and are treated differently from other members of society, which is why they need a special advocate. The parallel with people who are potentially subject to the Mental Health Bill is obvious.
In the health space, I have been heavily involved over the years with the Patient Safety Commissioner, which was initially resisted by the Conservative Government of the time. Eventually the fight was won, and it is now seen to be a huge success. This is a model that we can see working and that is seen to be necessary.
The Government have expressed a desire to get rid of arm’s-length bodies and make decisions themselves. The Government devolve decision-making to those so-called quangos—the arm’s-length bodies—but that is not the case with the Patient Safety Commissioner; there is no parallel here. They are a person who is there as an advocate and to have oversight; they are not making decisions. I do not think the Government can shelter under that umbrella.
Lord Kamall (Con)
My Lords, I thank the noble Baroness, Lady Tyler, for, as others have said, the eloquent way in which she introduced her amendment.
I know this is a topic that noble Lords across the House feel strongly about, and I appreciate the arguments in favour of the creation of a commissioner. Indeed, as other noble Lords have said, it was a recommendation of the pre-legislative Joint Committee.
Having listened keenly to what the noble Baroness has said, and having discussed this issue with her and her noble friends, I have to say that I agree with the noble Lord, Lord Bradley, when he says that the landscape has changed. We are now at a time when the Government are looking to reduce duplication and arm’s-length bodies—something that I believe a responsible Opposition should support. We believe it should not be necessary to have a new, separate, independent mental health commissioner.
We were going to group this amendment with the ideas about strengthening the CQC, but that has been ungrouped and we will talk more to it in the next group. When I had some conversations with those who supported the independent mental health commissioner, they said I should look to Children’s Commissioner as an example. I looked at the Children’s Commissioner; it does a great job, but it has a staff of 25, a temporary staff of 31, and expenditure of £3 million. That may not sound a lot of money but I wonder whether that amount of money could be better invested in strengthening the CQC. One of the things about any bureaucracy is that they grow and have more non-essential roles as other bits of legislation bring them in. I worry about the cost and duplication of functions.
I completely understand the argument from those who say that the CQC has not been doing its job and those who have criticised it for being ill-equipped. That is why we tabled our amendment, which will be discussed in the next group, about strengthening CQC functions. However, rather than saying all that now and repeat it in the next group, I do not wish to detain the House any longer. I believe there should be a comprehensive review of the CQC and proper accountability, and I hope we can achieve that without an independent commissioner.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank all noble Lords for their contributions on this fiercely and keenly debated proposal. Amendment 47, in the name of the noble Baroness, Lady Tyler, leads me to say that we continue to be of the strong view that the functions of the proposed commissioner, as set out in the amendment, would clearly overlap with the existing responsibilities of other organisations, most notably the CQC. I must respectfully disagree with the noble Baroness: the CQC has a statutory role in monitoring the Mental Health Act. It publishes an annual report that serves to drive policy improvements in this area.
Lord Scriven (LD)
Can I just ask the noble Baroness a very quick question? Will the newly appointed person have a statutory right to call for papers and witnesses from other departments to deal with mental health issues, as a commissioner would?
Baroness Merron (Lab)
I cannot draw a comparison with a commissioner but I will be very pleased to answer the noble Lord definitively in writing.
Secondly, as announced by the Secretary of State, we are abolishing NHS England as part of the radical reforms we are making to the national health system to rid it of duplication, inefficiency and waste, so that vital resources can be redirected to the front line. On this, we very much look forward to the much-anticipated report from Dr Penny Dash on the wider patient safety and oversight landscape. Of course, as noble Lords will be aware, the 10-year plan for the NHS is being co-developed with staff, patients and the public. I believe these changes only confirm that creating a new mental health commissioner would be not only duplicative but completely at odds with the important and very live reforms that the Government and the CQC are making.
During the course of the Bill, including today, I have heard noble Lords speak passionately about introducing a mental health commissioner role akin to that of the Children’s Commissioner. I very much value the work of the Children’s Commissioner and, as I have said before, I do not accept that it is a valid comparison. More pressingly, following a constructive meeting last week with the Children’s Commissioner, which the noble Baroness, Lady Tyler, referred to, I can report that she is concerned about the establishment of a mental health commissioner. In her view, covering all aspects of children and childhood is a critical part of her role. This is because children see their mental health as indistinguishable from their wider health and experience of childhood. We discussed this at some length. The Children’s Commissioner’s view is that the proposed establishment of a mental health commissioner risks taking a siloed approach to the barriers and challenges that children face, and I feel it is incumbent on us to listen to that view.
I also reiterate that I am deeply concerned about the level of resource needed to take this forward, as required in the amendment, as was understood by the noble Lord, Lord Kamall. This would be on top of the resources needed to remodel the healthcare quality and regulatory landscape to avoid the risk of duplication and waste. I can honestly say that I do not feel that this can be justified, particularly in the current climate.
The noble Baroness, Lady Bennett, made comparisons with the Government’s plan to introduce an Armed Forces commissioner. This is a manifesto commitment that we are certain addresses an important and specific gap: the strengthening of support for Armed Forces communities to improve service life. Furthermore, we are talking about an entirely different set of responsibilities, aimed at different set of needs in an entirely different environment. So I have to say once again that I do not believe that it is a useful comparison with respect to Amendment 47. For these reasons, I ask the noble Baroness to withdraw the amendment.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her response and particularly thank other noble Lords who have contributed. I apologise to the noble Baroness, Lady Bennett, for forgetting to thank her for adding her name.
The short answer is that we disagree quite fundamentally on this. I do not accept the argument that the Minister has just put forward that the comparisons that I and the noble Baroness, Lady Bennett, have drawn are not good; I think they are very good. Of course, I understand that the landscape has changed. I understand that arm’s-length bodies, particularly large ones, have gone out of fashion and I understand the reason for that. I am talking about a very small body that acts as an advocate. I think that is different. I do not think it is something that the CQC can or will do.
I am pondering on what the Children’s Commissioner has said. I understand the point about children and their mental health being part of their wider experience, but we have to remember that a lot of the work of the mental health commissioner would be about adults who are being detained and whatever. We are not going to agree, so I suspect the best thing to do is to test the opinion of the House.
Baroness Tyler of Enfield
“Review and reporting on inequalities in Mental Health Act Measures(1) As soon as reasonably practicable after the end of each calendar year, the Secretary of State or appropriate national authority must conduct a review, in consultation with relevant bodies with commissioning functions, on the use of treatment and detention provisions contained in the Mental Health Act 1983, broken down by race and other demographic information.(2) Having conducted a review under subsection (1), the Secretary of State or appropriate national authority must publish a report on the progress made in reducing inequalities in treatment outcomes and the use of detention under the Mental Health Act 1983 on people who have protected characteristics under the Equality Act 2010.(3) In this section “the appropriate national authority” means—(a) in relation to services or unit whose area is in England, the Secretary of State;(b) in relation to units or services whose area is in Wales, the Welsh Ministers.”Member’s explanatory statement
This amendment requires the Secretary of State or Welsh Ministers to review and report annually on the use of treatment and detention measures under the Mental Health Act 1983, analysing data by race and other demographics to assess progress in reducing inequalities for those with protected characteristics under the Equality Act 2010.
Baroness Tyler of Enfield (LD)
My Lords, Amendments 48 and 49 are in my name. I thank the noble Baroness, Lady Bennett, for adding her name to Amendment 49.
As debated throughout the passage of the Bill, a primary driver of the review into the Mental Health Act was the shocking racial injustices in the use of that Act. The figures are well known to us: black people are disproportionately more likely to be detained and put on a CTO, and experiences and outcomes for people from racialised communities are, on average, worse. One of the main policy objectives set out in the Bill’s impact assessment is to
“reduce racial disparities under the MHA and promote equality”.
That is great but, given that, I have found it surprising from the outset that race and racial disparity were not mentioned anywhere in the Bill or the Explanatory Notes.
Instead, there has been an expectation that non-legislative programmes—in particular, the patient and carer race equality framework, which is a contractual arrangement—and some of the Bill’s broader reforms will reduce racial disparities without specific legislative requirements. I was grateful to the Minister for organising a helpful recent round table on reducing racial disparities. I learned a lot about the operation of the PCREF, if I might call it that; I will return to it shortly.
I believe there is currently insufficient collection and reporting of data on the experiences and outcomes of people from racialised communities under the Act. That in turn hinders the ability to scrutinise progress being made in reducing racial disparities. I know from our deliberations on Monday that further thought is being given to this and that new research is being commissioned. I very much welcome that, so what would my amendments do?
In brief, my Amendment 48 would require the Secretary of State and Welsh Ministers
“to review and report annually on the use of treatment and detention measures”,
broken down by detected characteristics. This would enable us to understand whether these reforms are fulfilling their intended purpose of bringing down inequalities and to identify any further action needed. However, I firmly believe that this needs to be accompanied by Amendment 49, which would introduce a new responsible person role at hospital level in mental health units to tackle and report on racial and other inequalities, as recommended by the Joint Committee.
The Minister has expressed concerns that a responsible person role may duplicate existing roles and duties, such as those under the Equality Act. I do not believe that will be the case. Where there are people performing similar roles, they can take this on but, in many places, local PCREF leads do not exist. Where they do, they can take on the responsible persons role and that is absolutely fine. I think this role would actively assist providers in complying with PCREF and their Equality Act duties. It would also help to drive implementation of other measures in the Bill, such as advance choice documents and opt-out advocacy. These important measures are much more likely to succeed if someone is clearly tasked with ensuring that the mental health unit implements them, everyone knows who is in charge and who is accountable.
There is a model for the use of a responsible person at unit level, in the Mental Health Units (Use of Force) Act 2018. Under that legislation, the role is accountable for ensuring that the requirements of the Act are carried out. It is a senior role which may be carried out by an existing member of staff, such as a medical director or director of nursing. That would be a good model to follow. Giving an existing senior clinician with the necessary clout the responsibility to make things happen and creating clear accountability would really help to bring down disparities at local level.
The scope of the PCREF, which is NHS England’s anti-racism framework, is rightly much broader than the Mental Health Act. The responsible person in my amendment would be accountable for ensuring that the voices and interests of detained patients and their carers are properly reflected in the PCREF.
Finally, I was very grateful to the Minister for our recent correspondence following the helpful round table I referred to. I was very struck by the acknowledgement at that event of the big difference that a responsible person could make in enabling the patient and carer race equality framework to reduce both racism and racial inequalities in the way the legislation operates. As the Minister knows, I have made the—hopefully—helpful suggestion that some form of pilot of the responsible person role could considered at an appropriate time when the PCREF has bedded down and with some idea of how effective, or otherwise, it might be. Any assurances the Minister could provide would be much appreciated. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Tyler. I have attached my name to the noble Baroness’s Amendment 49. As the noble Baroness said, like Amendment 48 it addresses one of the primary reasons for reviewing the Mental Health Act in the first place. Black people are over 3.5 times more likely to be detained under the Mental Health Act than white people, and over seven times more likely to be placed on a community treatment order. Their experiences and outcomes are worse. All of those are facts. As the noble Baroness, Lady Tyler, said, the Bill somehow does not seem to be addressing that. We are taking an overall systemic view but not addressing the issues of a particular population. The reason I chose to sign Amendment 49—we are going to come shortly to the amendment in the name of the noble Lord, Lord Stevens, looking at the resources being put into the Mental Health Act—is that this is another way of putting resources into what everyone agrees is a crucial issue. This is a different way of allocating resources.
The noble Baroness, Lady Tyler, has made the case that PCREF is not the same thing. The Care Quality Commission does not have the same kind of situation. We are talking about people at a local trust level here; that is where the responsible person would be. As the noble Baroness said, if there is already someone, because of local arrangements, fulfilling this role, they can simply adopt this along the way. It does not have to be any kind of duplication. I note that the campaign group Mind very strongly backs this amendment. It delivers where we started from on this whole Bill.
Baroness Fox of Buckley (Non-Afl)
My Lords, I will speak to Amendment 61, which calls for a review into the causes and consequences of the huge spike of diagnoses of mental disorders. It should also investigate the impact of this on the availability of services that we envisage treating people with a mental disorder that this Bill seeks to help.
If, in our best efforts to provide alternatives to detention for the severely ill, we hope to ensure that adequate care in community settings exists, we must look at the phenomenon that threatens to squeeze out those who most need access to such services. Implicit to this endeavour is to ask if, inadvertently, some aspects of policy set in train a self-fulfilling prophecy. Rebranding any deviation from the norm, troublesome behaviour, anxiety or even, according to the Government’s curriculum review, GCSE exam stress, under the therapeutic language of mental health has consequences. As Tony Blair has noted recently:
“you’ve got to be careful of encouraging people to think they’ve got some sort of condition other than simply confronting the challenges of life”.
Yet the young especially are prone to internalising the narrative of medicalised explanation and adopt an identity of mental fragility and illness. This can create a cohort of citizens demanding official diagnoses, NHS intervention and treatment.
This week, the media has featured the new book by Dr Alastair Santhouse, a neuropsychiatrist from Maudsley Hospital. In the book No More Normal: Mental Health in an Age of Over-Diagnosis, Dr Santhouse argues that it has become crucial to reassess what constitutes mental illness:
“so that we can decide who needs to be treated with the limited resources available, and who can be helped in other ways”.
He worries the NHS has
“buckled under the tsunami of referrals”.
Other state services are straining to the point of dysfunction as well. Despite the fact that the number of children with education, health and care plans has more than doubled in less than 10 years, parents are still desperately complaining about waiting for years for autism and other assessments. In other words, the demand is just galloping.
All of this is leading to at least 18 councils being at risk of insolvency, according to the Guardian on Monday. The present row over PIPs and the welfare system collapsing under the costs of ever greater numbers claiming disability payments for mental disorders is now a major political issue. I have been partly inspired to table this amendment by the Health Secretary Wes Streeting’s concern about overdiagnosis of working-age adults leading them to be “written off”, as he said. It is especially tragic that this is happening overwhelmingly among young people.
My concern, and the point of this amendment, is that this can skew NHS provision. A Savanta poll of 1,001 GPs for the Centre for Social Justice’s report Change the Prescription reported that four in five, 84%, of GPs believe that the ups and downs of normal life are now wrongly being redefined by society as mental disorders. Of those GPs, 83% now believe that anti-depressants are too easily prescribed to patients. But the GPs are under so much pressure from patients demanding treatment that they prescribe them. Similarly, in 2013 and 2014 just 1,800 adults were prescribed drugs for ADHD, but last year 150,000 adults were prescribed with ADHD medication. Waiting lists keep growing and lots of anger continues.
When I last spoke on this topic in the Mental Health Bill debate, the media picked up on it and I was inundated with emails, largely from people furious with me for challenging overdiagnosis; I had a tsunami of hate mail. There was even a formal complaint sent to the standards committee of the House. People said, and I understood it, “How can you say there is an issue with overdiagnosis when I can’t get a referral for myself” or “for my child” and so on. It is true that a GP cannot formally diagnose ADHD as it requires specialist assessments. The average waiting list for an ADHD referral on the NHS is now three years. This lack of formal diagnosis is not necessarily stopping service provision becoming overwhelmed and distorted, and I think this mood will have a very damaging impact on what we want this Bill to do.
I will finish with an apocryphal tale from the University of Oxford’s disability report from 2022-23. It reveals that the university has, under pressure from students, agreed to
“accept a wider range of disability evidence”
as a key to giving 25% more time in exams and the use of computers in exams. The university’s explanation is telling. It talks of
“a wider context of extensive and ever-growing waiting times for ADHD and autism diagnostic assessments”,
so it aims to reduce “administrative burdens and barriers” for disabled students.
Baroness Browning (Con)
Before the noble Baroness sits down, she mentioned autism several times, but the whole purpose of the Bill is to remove autism and learning disability from mental health, where it previously was. In fact, I served on the Bill Committee, as did others in the Chamber, in 2005-06, when I was really opposed to autism being added to the 1983 Act. But it was added, and now it is being taken out, I am very pleased to say.
I hope that the noble Baroness will accept that there is a piece of legislation about this on the statute book: the Autism Act 2009, which is being reviewed by the House at the moment. Autism is not some fad, something that people just make up, or something temporary; it is a lifelong neurological condition. I raise the failure to provide the right services for people with autism who are in that part of the spectrum where they need support. Not everybody does: it is a spectrum, and I quite agree that there are people on the spectrum who cope quite well with life, knowing that they have autism and not needing that sort of support. We have discussed that support a lot in the course of this particular Bill, and if you do not provide it where it is needed—this is the weakness that we are looking at in the current Autism Act—that leads to quite serious mental health conditions, including suicide. Of all the conditions that the noble Baroness mentioned, among the autistic community the suicide rate is the highest.
Baroness Fox of Buckley (Non-Afl)
I genuinely appreciate that intervention. That is what I think too. It is precisely the inappropriate use of terms such as autism in relation to this overdiagnosis that concerns me, because it is too glibly used. That is part of what I am talking about. I absolutely want those people who need the intervention to get it, but my concern is if it becomes widely used socially, in the way that I did not want to go into in great detail, on university campuses or in society in general. I note the TikTok phenomenon of people getting diagnoses and that being used, and so on. My concern is that the label, the labelling process and the demand for diagnosis and treatment squeeze out the very people that the noble Baroness is talking about.
I too have spent many years trying to distinguish between autism and mental illness. It drives me mad that people do not know the difference. My problem is that, in the debate about this issue, they are very often all lumped together in a way that is medically not clarifying, but the demand for a medical label can mean that people are not even that choosy about which one they get. That is where I have tried to raise an issue.
Baroness Browning (Con)
I am very grateful for that response. The noble Baroness said that autism is different; it certainly is different, which is why it has its own Act of Parliament.
Lord Kamall (Con)
My Lords, as I said on the previous group, I will start by speaking to the amendment in my name and that of my noble friend Lord Howe. It would require the Secretary of State to conduct a review into the ability of the CQC to effectively fulfil its role
“in carrying out its duties under the Mental Health Act 1983, and … in regulating the provision of mental health services”.
We have also included proposed new subsection (3), which would ensure that the review of the CQC’s functions will also include an assessment of whether it will be able to “effectively carry out” its new duties under the Bill.
As the Minister will know, in May 2024, Dr Penny Dash was commissioned to conduct the independent review of the operational effectiveness of the CQC. The full report, published in October, found
“significant failings in the internal workings of CQC which have led to a substantial loss of credibility within the health and social care sectors, a deterioration in the ability of CQC to identify poor performance and support a drive to improved quality—and a direct impact on the capacity and capability of both the social care and the healthcare sectors to deliver much needed improvements in care”.
In addition, my noble friend Lord Howe raised the issues arising from his meetings with the charity Blooming Change on a number of occasions. It has raised serious concerns about the CQC’s monitoring activity. We also know that the Secretary of State himself has claimed that the CQC is not fit for purpose, and that there are some fundamental issues with how the CQC oversees the mental health care system.
As we have heard from other noble Lords, one solution would be to have an independent mental health commissioner. Our solution is to call for a review of the CQC that specifically focuses on its mental health functions, to make sure that it does its job properly. The review conducted by Dr Dash comprehensively assessed the CQC’s ability to regulate primary, secondary and community care, but it did not focus on the sufficiency of mental health care regulation. I thank the Minister for the brief meeting with my noble friend and me earlier this week, in which she indicated that she would be able to give greater assurances on this particular issue. I look forward to what the Minister has to say on it, because this is part of our justification for not supporting the mental health commissioner: we want to see a strengthened CQC. We do not want duplication, but, in avoiding duplication, we want to make sure that the CQC does the job it is supposed to do. I hope I can get that assurance from the Minister when she speaks.
I have some sympathy with Amendment 61, in the name of the noble Baroness, Lady Fox, in line with the comments of the former Prime Minister, Tony Blair, but I also have some sympathy with what the Secretary of State said. We thought about whether we could find an appropriate amendment to table on this. We have to be very careful and sensitive about this issue: we in Parliament or officials in Whitehall cannot hope to pronounce on the issues individuals face in their homes or communities. It is about getting the balance right.
The noble Lord, Lord Alderdice, also spoke about the concerns about overdiagnosis, but we cannot just make a generalisation. We have to make sure that the mental health professionals are doing their job, with the right guidance, to ensure that we understand the needs of each individual. For that reason, I thought it was far too difficult—and it would have been insensitive —for me to lay an amendment on this topic. I did not want to go there for that reason. This is an issue that has to be discussed, but we have to do it in the most appropriate way—in a sensitive way that understands those who suffer seriously from mental health conditions.
Let me turn to the amendments tabled by the noble Baroness, Lady Tyler. She and I have both raised the issue of racial disparities. In Committee, I went in very strongly on it—this is the issue that matters to me personally very much, and I shared some of my own experience of racial discrimination. I am as frustrated as everyone else that we still have not resolved the problem to this day; we still do not understand why, disproportionately, black men in particular are subject to detentions and community treatment orders. I asked questions at the time. What do we know? What do we not know? What are we doing to fill that knowledge gap? Once we have filled that knowledge gap, what are we going to do about it? Once again, I thank the Minister and her officials for the detailed meetings that they had with us when they laid out some of the things that they are doing. Could I tempt her to share with noble Lords some of that discussion and her letter, to assure us all that the Government really are on top of that issue, know what they are doing and are going to address these problems?
I was unsure about how effective the provision in Amendment 49 would be. I know that it is not very fashionable for politicians to say, “I don’t know”; we are supposed to make a firm decision one way or the other and agree or strongly disagree. But I wanted to reflect on whether that amendment would represent an additional burden on the healthcare professional, additional cost or additional bureaucracy. Given that we cannot, at this stage, say for sure how this will turn out, I support the suggestion of the noble Baroness, Lady Tyler, to pilot a scheme of a senior responsible person to address racial disparities. If we could pilot it in some places, it would give us the data to understand whether a responsible person would be effective in addressing those disparities. We all know that more needs to be done. We have had successive Governments of all political colours, and we still have not solved this problem. Let us be determined, as a House, whichever party we are, to tackle this problem of racial disparities, and let us make sure that we do it in the most effective way.
I am grateful for what the Minister said on Monday, but I hope that she will give some consideration to what the noble Baroness, Lady Tyler, said about piloting a responsible person to see whether that works. Maybe it will not work, but at least we would have the data and evidence. I would appreciate the Minister giving a more detailed explanation of some of the research that is being conducted to fill that gap, so we can understand why there are still racial disparities and what Governments of any political colour would have to do to address them.
Baroness Merron (Lab)
My Lords, I thank all noble Lords for their contributions on this important and somewhat wide-ranging group of amendments.
I turn first to Amendment 48, tabled by the noble Baroness, Lady Tyler. We very much recognise that there are inequalities in the use of the Act between different demographic groups, and particularly that there are significant racial disparities. The noble Lord, Lord Kamall, has rightly expressed some frustration with the fact that we all find ourselves where we are today.
To those points, I would say that these inequalities are explored in the impact assessment published alongside the Bill. I reiterate how grateful I am to Peers who recently attended our round table to examine research findings and ongoing work to address racial disparities under the Act. I am glad to hear that the noble Baroness, Lady Tyler, found it helpful—as indeed I did.
I offer the assurance that NHS England already publishes the Mental Health Act Statistics annual reports, broken down by ethnicity and other demographic information, including gender, age and index of multiple deprivation decile. We are improving the data through the patient and carer race equality framework, and we will monitor these inequalities as part of the overall monitoring and evaluation of the reforms.
Furthermore, as I announced on day one of Report, I commit to update Parliament annually on our progress with implementation, including racial disparities. I also committed to undertake further investigation into racial inequalities under the Act. As far as possible, we want to better understand where disparities are most significant across the patient journey, what drives those disparities and, most importantly, where we can most effectively intervene to reduce those inequalities. I very much look forward to keeping Peers updated on those findings, as the noble Lord, Lord Kamall, has rightly requested.
Lord Kamall (Con)
I am sorry to interrupt. Just to go back to my amendment on the CQC, one of the arguments for those who believed in creating an independent mental health commissioner was that they would be a voice for the patients. With that strengthened role for the CQC, where is that voice for the patients? That was one of the justifications for those arguing for creating a mental health commissioner. We decided not to support that because we thought that function should be part of what the CQC does. Could the Minister reassure us on that point?
Baroness Merron (Lab)
For me, it is about not just somebody speaking for others but getting those voices heard. I hope that the noble Lord and all noble Lords have heard my acknowledgement of the importance of that. Those with lived experience need to be properly heard and their voice amplified. I have given a number of reassurances on that point.
With that, I hope that the noble Baroness can withdraw her amendment.
Baroness Tyler of Enfield (LD)
My Lords, I thank all noble Lords who have contributed to this group and the Minister for her responses. I also thank the noble Lord, Lord Kamall, for supporting my suggestion about a pilot for the responsible person. I have noted that the Minister has said that a pilot is not really necessary because what the Government are doing goes further than that. That is one way of looking at it, but I have to be honest and say that it is not quite how I see it. I completely take the point that we need to see what happens when the PCREF has bedded down. Let us see what it achieves, but if it does not achieve what we all want to see then we will need to think at that point about whether a responsible person would make the sort of difference that was being talked about at that very helpful round table.
I look forward to hearing more about the various actions that the Minister mentioned in relation to the CQC. I of course look forward to meeting the new chief inspector and will be interested to hear how they see their role, particularly the extent to which they think they are an advocate, providing a voice for people with mental health difficulties. This gets to the very heart of this Bill and the very reason why we have it in the first place. It is an incredibly important issue. We could talk about it for a long time, but we cannot. The hour is late and it is incredibly unfortunate that we have had such a truncated second day of debate. I know that these things happen but, given the importance of the topic, it is extremely unfortunate. Having said that, I beg leave to withdraw my amendment.
Baroness Tyler of Enfield
“Workforce sufficiency assessment by Integrated Care BoardsAfter section 142C of the Mental Health Act 1983 (inserted by section 51 of this Act), insert—“142D Workforce sufficiency assessment by Integrated Care Boards(1) Each Integrated Care Board must conduct a workforce sufficiency assessment every two years to evaluate whether it has sufficient workforce resources to deliver services under this Act effectively. (2) The assessment may include—(a) an analysis of current workforce levels across all relevant service areas;(b) identification of workforce shortfalls;(c) an evaluation of the impact of staff shortages on patient care and service delivery;(d) proposals to address workforce challenges.(3) Integrated Care Boards may consult any relevant personnel or organisations they deem appropriate when conducting the assessment.(4) Each Integrated Care Board must publish a report outlining its findings upon completing the assessment.(5) The first reports must be published 12 months after the day on which the Mental Health Act 2025 is passed.””Member’s explanatory statement
The amendment requires Integrated Care Boards to produce a biennial report assessing workforce sufficiency, identifying shortages, and proposing measures to address workforce challenges in delivering services.
Baroness Tyler of Enfield (LD)
It is funny how these amendment groupings work, is it not? I will speak to my Amendment 50 and say a few comments on Amendment 59 in the name of the noble Lord, Lord Stevens, to which my name is attached.
We have talked a lot throughout the passage of this Bill, and rightly so, about the importance of how it is implemented and in particular about ensuring that sufficient resources are available to allow a much-needed expansion of community mental health services. To be blunt, unless this happens, the Bill just will not be implemented. To put this into context, those waiting the longest for elective community mental health care—both adults and children—have waited two years, which is twice as long as those waiting for elective physical health care. Parity is still a long way off.
I was very grateful to the Minister for sharing the Government’s implementation plan and for arranging a helpful discussion with her and officials.
My Amendment 50 would require integrated care boards to produce a biennial report assessing workforce sufficiency, identifying shortages and producing measures to address workforce challenges in delivering these services. We all understand that it will take time to enact the Bill’s provisions and that systems will take time to build capacity, including training of an expanded work- force—particularly given existing workforce challenges. In Committee, I talked about the workforce impacts of the Bill, drawing on figures and research from the Royal College of Psychiatrists. I will not repeat those figures, save to say that NHS England set a target back in 2016 to have more than 1,040 consultant psychiatrists in post in England by last year. Based on these targets, as of last year, there was still a shortfall of 769, so we still have a long way to go. Of course, the mental health workforce goes considerably wider than consultants.
I turn to Amendment 59 in the name of the noble Lord, Lord Stevens, to which I have added my name and which we very strongly support on these Benches. This amendment would ensure that mental health funding is not cut as a share of overall health service funding until this Bill is fully implemented. Indeed, it is vital, given the pressures on public finances, including on the overall health system and the pressures that they pose to mental health spending. Critically, the amendment would not tie the Government’s hands in whatever decisions they make about the overall level of NHS spending.
One reason why I support this so strongly is because the Written Statement from the Secretary of State on 27 March on the amount and share of spend on mental health was, frankly, not reassuring, with mental health spending expected to go down as a proportion of overall NHS spend this year and a forecast for similar next year. I know that it was small amounts, but this could be part of a trend. It just reinforces the point that mental health spending and parity of esteem are not currently sufficiently protected, which I believe underlines the need for legislative cover. Therefore, if the noble Lord, Lord Stevens, is minded to test the opinion of the House, we will certainly support him.
Lord Stevens of Birmingham (CB)
My Lords, this Bill has been years in gestation, and we have heard, in Committee and on Report, that it is going to be years in implementation. The Government, not unreasonably, have pointed to two principal rate limiters for that: workforce and funding. As we have just heard in the powerful speech from the noble Baroness, Lady Tyler of Enfield, her Amendment 50 is responsive to the staffing constraints and concerns, and my Amendment 59 tackles the funding question. I am grateful for her support and that of the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord Scriven.
In a nutshell, as the noble Baroness says, this amendment does not seek to tell the Government, or indeed the House of Commons under its privilege, how much to spend on the NHS. All it says is that there should be a floor on the share of that total going to mental health for a time-limited period while the Act is being implemented; in other words, the Government would continue to decide the size of the NHS pie. The Government, of whichever complexion, could decide to grow or shrink it, but the slice of that pie devoted to mental health would be protected for a time-limited period, not only at the local ICB level but nationally.
We had a debate on this in some detail in Committee, so I will not repeat the arguments in favour, but I will update the House on two developments since then. First, in consultation with the Public Bill Office, this Report amendment is more tightly drawn, focusing specifically on the mental health services that are in scope of this Bill and are required for its implementation. Secondly, as the noble Baroness, Lady Tyler, has just noted, since we debated this point in Committee, new evidence has emerged, sadly, as to precisely why this amendment is needed. Previously, Ministers have argued, in good faith, that the Government are committed to protecting the mental health share anyway, whereas last Thursday, the Written Ministerial Statement disclosed that the Government now intend to shrink the share of NHS funding on mental health services in the year ahead.
The Written Ministerial Statement says:
“This is because of significant investment in other areas of healthcare”.
That is not a justification; it is a mathematical tautology. It reveals a preference entirely antithetical to what will be required over the years to get this Bill implemented.
It may be argued that it is a small percentage reduction, even though it is an important negative new precedent that has been set. However, a small percentage reduction on a large pound note number itself constitutes a large pound note number. Mental health services will be missing out on hundreds of millions of pounds more, not only in the year ahead but over the decade that it will take to implement the Bill. If that is not corrected in subsequent years, over £1 billion of funding has, in effect, been removed from mental health services and the implementation of the Bill as a consequence of that decision.
In summary, there are, sadly, real grounds for concern about whether the implementation of this Act will be properly and expeditiously resourced. If the Government want to argue that this amendment is unnecessary, because they are going to do what it says anyway, it is not clear why they would therefore object to its inclusion in the Bill. But if the Government’s argument is that they do not support the amendment because they would like the flexibility to cut mental health funding shares, then, to my mind, that really points to the necessity of the amendment.
Baroness Bennett of Manor Castle (GP)
I rise briefly, having attached my name to Amendment 59 in the name of the noble Lord, Lord Stevens, and backed by the noble Baroness, Lady Tyler, and the noble Lord, Lord Scriven. We saw in Committee multiple amendments all trying to address the resource issue. We have focused on this one because it is both an elegant solution, as the noble Lord, Lord Stevens, just outlined, and it is—emanating from the Cross Benches—a moderate solution that can and I think will attract wide support from around the House.
As the noble Lord and the noble Baroness have said, parity of esteem has never been achieved and, on the current figures, is currently going backwards, in the wrong direction. We have to focus on the fact that the waiting lists for community mental health care for adults and young people and children are twice as long as those for physical healthcare. That is the outcome of the inequality of esteem with which mental health is being treated. I note that the Rethink Mental Illness Right Treatment, Right Time report found that most people living with a severe mental illness experienced worsening mental health while waiting for treatment, with 42% requiring urgent care and 26% being hospitalised. We are aiming to shift from hospital care—in-patient care—to community care, but we are actually forcing things in the other direction because people reach such a state of crisis. I have to preface the horror of what I am about to say with a warning. The Right Treatment, Right Time report found that 25% of people whose mental health deteriorated while waiting for treatment attempted suicide, which highlights how the lack of funding for mental health care impacts on that awful statistic.
This is a step to create a framework that heads in the right direction. As noble Lord, Lord Stevens, said, how could you possibly oppose this?
Baroness Fox of Buckley (Non-Afl)
My Lords, very briefly, I will say that I absolutely support this amendment. I think it is worth clarifying what I said earlier about overdiagnosis. The danger is that that can be interpreted as meaning that I want cuts; what I actually want is targeted intervention for the right people, rather than saying, “Oh, everybody’s been calling themselves mentally ill, so let’s cut the services”.
I completely agree with the noble Baroness, Lady Tyler of Enfield, that, if we do not sort out the amount of community provision, what we have done over the last few weeks, never mind the years preceding it, will have been a waste of our time, because the Bill will not be worth the paper it is written on—that is the danger. It is very tempting, in a period of intense economic difficulties, to suggest that this might be one of the first things to go—so I do think this is a very good amendment.
I will remind the House of a discussion we had late the other evening on the plight of prisoners. If there is no community resource for people leaving prison—ex-prisoners—they will deteriorate and end up becoming very ill in the community and being incarcerated again. I discussed that in great detail. In other words, this is essential if we are serious about saying that we do not want to lock people up but, instead, want to treat them appropriately.
Lord Scriven (LD)
My Lords, I rise very quickly to support the amendment from the noble Lord, Lord Stevens, and have put my name to it.
I will add a couple of extra things to the noble Lord’s very well-argued case. Modest as it may be, I think it is an effective measure—and this is why I think it is and why the House should support the noble Lord’s amendment if he decides to push it to a vote. It is not that the Secretary of State has announced that the percentage will decrease next year; the percentage decrease happened during this financial year, going down from 9% to 8.78%. So we are now on a trend for the percentage of National Health Service spend on mental health.
Furthermore, one has to question the priority of the Government when they look at the national planning guidance and some of the targets that have been dropped from it. There are no plans to target the 2 million long waiters waiting for mental health care. It would be slightly disingenuous of the Minister, in response, to talk just about the mental health investment scheme, because all it refers to is ICB spend. The uniqueness and cleverness of the amendment from the noble Lord, Lord Stevens, is that it talks about all health service spend, including non-ICB spend, specialised commissioning and other elements that need to be there.
Mental health takes up 20% of illness treated by the NHS, which will probably be spending 8.7%. Because of the trend that is happening, the amendment from the noble Lord, Lord Stevens, is absolutely vital to ensure not just that the percentage is maintained but that the community facilities within this will be funded and implemented.
Earl Howe (Con)
My Lords, I will not speak at length, but I express my support for the case put forward by the noble Baroness, Lady Tyler, in her Amendment 50. Her concerns around the resourcing of the mental health workforce are well founded and there is no better source of evidence for those concerns than the CQC, which I thank for briefing me, very fully, on this subject at the beginning of last month.
When we look at the issue of workforce sufficiency, a paradox confronts us. Between 2019 and 2024, the mental health workforce grew by nearly 40,000 full-time equivalent staff—an increase of 35%. Yet, when we sit down to read the CQC’s recently published Monitoring the Mental Health Act in 2023/24, we find that staff shortages are a pervasive feature throughout the service. There is a cocktail of reasons for this apparent contradiction: very steeply rising patient demand; patients being admitted to hospital with a greater acuity of mental illness; a struggle in many places to recruit staff with the right skills; and poor retention of skilled staff, with, as a consequence, a high reliance on agency workers. That all impacts the quality of care given to patients, because, with hospital staff suffering burnout and temporary staff coming and going, there is often no opportunity to develop the kinds of therapeutic relationships that make patients feel psychologically safe and secure.
Of course, not all areas of the country are the same. Geographical disparities affect the availability of different skill sets, resulting in different kinds of problems manifesting themselves: for example, in one of the three high secure hospitals, the CQC encountered cases where patients were being kept in their rooms during the day. Elsewhere, on a number of in-patient wards, patients with autism or a learning disability reported that staff lacked the necessary training to look after them properly. In other settings, the lack of training is more basic: agency staff very often do not know how to operate the hospital’s IT system. This mixed picture underlines the fact that the amendment from the noble Baroness, Lady Tyler, is expressed in exactly the right way, since it mandates that biennial staff sufficiency reviews should be done not centrally but by commissioners locally.
That formula is appropriate for another reason. Depending on where you are in the country, there can be different sorts of barriers to accessing care, whether the barriers are for people from ethnic minority groups, for children and young people or simply for people living in areas of high deprivation. The more people find it difficult to access the care that they need, the more seriously they can be at risk. That particularly applies to children. The noble Baroness, Lady Bennett, made that point. We have not heard much from the Government about workforce planning generally, but this is an area where this exercise just cannot wait.
This leads me to Amendment 59, in the name of the noble Lord, Lord Stevens. It will not be much comfort to him if I say that I am right behind the sentiment of the amendment. He knows that, sadly, I cannot ask my colleagues on these Benches to vote for it, simply because I do not think it is appropriate for primary legislation to tie the hands of Government in matters of health spending. Those macro decisions surely have to be for Ministers.
Nevertheless, the flagship principle at the centre of the amendment is parity of esteem—a principle that is enshrined in statute and to which I am totally signed up, alongside, I am sure, all of your Lordships. However, parity of esteem is a broad concept and should, in my view, be measured in a range of ways, not simply by reference to monetary input, important as that is—and it is important.
Baroness Merron (Lab)
My Lords, I am grateful for all the contributions and considerations this evening, to which I have listened closely.
I first turn to Amendment 50 in the name of the noble Baroness, Lady Tyler. Workforce is absolutely a critical factor in enabling these reforms and we have committed to recruiting 8,500 more mental health staff over the course of this Parliament. The impact assessment sets out our expectations for the additional workforce that is required to deliver the Bill.
However, there are already various mechanisms in place to monitor and address concerns about the mental health workforce. The amendment would be duplicative and unnecessary. Providers registered with the CQC—both NHS and independent services—are required to deploy enough suitably qualified, competent and experienced staff, as outlined in Regulation 18 of the Staffing of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. If CQC finds a breach in Regulation 18, it can take action.
The Mental Health Act Code of Practice also states that local authorities should ensure that there are sufficient approved mental health professionals and independent mental health advocates. All staff in CQC-registered providers must receive the appropriate training that is necessary to enable them to carry out their duties under Regulation 18 of the Health and Social Care Act Regulations 2014.
At a national level, CQC reports on workforce sufficiency as part of its monitoring of the Mental Health Act report. We would argue that this is a much better process than requiring integrated care boards to mark themselves on how well they are fulfilling their duties.
Furthermore, as I said on Monday and wish to reiterate, we are committed to laying an annual report on implementation, which will set out progress made and future plans for implementation. This will include information on the expansion of the workforce, including second opinion appointed doctors, Section 12 doctors and approved clinicians. It will also include details of the key statistics and outcomes under the Mental Health Act, including detention rates, community treatment order rates and other key metrics, such as racial disparities and outcomes for children and young people, all of which noble Lords rightly seek. I hope this annual commitment will be welcomed by your Lordships’ House and that this, combined with the existing workforce monitoring I have referred to, will allow the noble Baroness to withdraw her amendment.
On Amendment 59, I also understand —as does the noble Earl, Lord Howe—the intention of the noble Lord, Lord Stevens, which is to ensure that we invest in delivering these reforms. I want to be clear: as I said in Committee, there are already mechanisms in the NHS Act to prioritise mental health spend to deliver these reforms.
To reiterate the point that I made previously, we believe that this amendment is not the right mechanism to ensure that we do that. I will return to the three main reasons for that, but I want first to refer to the point the noble Lord, Lord Stevens, made when he spoke of “shrinking mental health spend”.
Lord Stevens of Birmingham (CB)
It was the shrinking share of mental health spend.
Baroness Merron (Lab)
I thank the noble Lord for that correction from a sedentary position. Perhaps I could provide some more clarity, which the noble Earl, Lord Howe, also asked for.
The proportion of spend is almost exactly the same as it was last year, with a difference of just 0.07%. We understand concerns that the share of overall NHS funding for mental health will reduce slightly. However, this does not mean that mental health funding is being cut, and I would not want noble Lords to think that to be the case. To be clear, spending on mental health support will increase relative to 2024-25 and is forecast to amount to £15.6 billion—an increase of £680 million in cash terms, and equivalent to £320 million in real terms.
Perhaps it would be helpful for me to return to the three main reasons for not supporting this amendment. The first is—as the noble Earl, Lord Howe, helpfully referred to—what I would call a point of principle. Primary legislation should not be used to constrain spending in this way. Multiyear budgets for government departments will be set by the established spending review process, which considers spending in the round and in the context of the Government’s policy priorities. Additionally, it is Parliament that is responsible for scrutinising government spending and approving spending set by departments for the current financial year as part of the estimates process.
Secondly, the amendment as drafted applies only to spend under the Mental Health Act. The mental health system, as noble Lords will appreciate, does not structure its accounts based on the legal framework under which a patient is held. A single ward, for example, could contain a mix of patients under the Mental Health Act and informal patients who would not usually be considered to be under the Mental Health Act. Likewise, community services will support a mix of people, some on community treatment orders and others who are not. It would be impractical to require services to split costs based on the ever-changing patient mix within their care.
The third reason for not accepting this amendment, and perhaps the most fundamental point, is that the share of spend on the Mental Health Act could reduce over time, which is not undesirable. I will explain why. The genesis of these reforms is the review initiated by the noble Baroness, Lady May, to address the rising rates of detention. We all want to see more people cared for effectively in the community so that the need for the use of the Act is reduced. This would require more investment in preventive community services, which, I put to noble Lords, is surely the preferable model for supporting severe mental illness. In creating a legal requirement for the share of spend specifically under the Mental Health Act not to decrease, this amendment would actually preclude the shift from detention to prevention that I know we all want to see.
So, while I absolutely understand the intention, and I can commit that we will invest to deliver these reforms, we cannot support this amendment, which, for the reasons I have outlined, we believe is fundamentally flawed. For these reasons, I hope that the noble Baroness will withdraw her amendment and the noble Lord will not press his.
Baroness Tyler of Enfield (LD)
My Lords, this has been another incredibly important group of amendments. We are very short of time. I thank everyone who has contributed. I welcome that the Minister has committed to an annual report on implementation. I hope that there will be an opportunity for a debate in both Houses when that annual report is received. I was very grateful to the noble Earl, Lord Howe, for his support on my Amendment 50, which I will not be pushing to a vote. I do not consider it to be duplicative and unnecessary. If I did, I would not have tabled it. I thought that it was quite good, but I am not pushing it to a vote.
My final comment is that I was very pleased that there was widespread support for the very important amendment tabled by the noble Lord, Lord Stevens. It was variously described as modest, elegant, clever and other things. It had an awful lot going for it, but I leave it to the noble Lord, Lord Stevens, to say how he wishes to proceed. I beg leave to withdraw my amendment.
Lord Meston
“Determination of ability to decide for persons under 16(1) For the purposes of this Act and the Mental Health Act 1983, a person aged under 16 (referred to in this section as a child) is able to make the relevant decision if they can—(a) understand the information relevant to the decision;(b) retain the information; (c) use or weigh that information as part of the process of making the decision;(d) communicate their decisions (whether by talking, using sign language or any other means).(2) Where a child is able to decide in accordance with subsection (1) above, that child will be competent for the purpose of this Act.(3) A child is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).(4) A person determining a child’s ability to decide under this section must—(a) have due regard to Article 12 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (“the Convention”), and(b) must be able to show reasonable grounds for their belief that the child is or is not able to make the relevant decision.(5) When considered by any appropriate court or tribunal, any question whether a child is able to make the relevant decision within the meaning of this Act must be decided on the balance of probabilities.”Member’s explanatory statement
This amendment inserts a test for determining a child’s ability to make decisions (competence) under the Mental Health Act.
Lord Meston (CB)
My Lords, I explained this amendment on the assessment of competence of under-16 year-olds on Monday, and was grateful for the forceful support that it received. However, I recognise the realities of the Government’s determined objections to it. I record my thanks to the Minister for her explanation in a letter to me and the noble and learned Baroness, Lady Butler-Sloss, this afternoon, indicating the Minister’s wish to make progress on the matters which we raised. I therefore simply ask the Government to consider circulating a preliminary draft of the guidance to be produced, preferably before the Bill leaves Parliament. I also ask them to consider whether a designated task force could be used to formulate that guidance. I will not be moving my amendment.
Baroness Keeley
“Human Rights Act 1998: provision of treatment for a mental disorder as a public function(1) This section applies where—(a) a patient is receiving aftercare under section 117 of the Mental Health Act 1983,(b) a patient is accommodated in a hospital for the purpose of being given medical treatment for mental disorder, or(c) a person's health or social care arrangements in connection with their mental disorder give rise to a deprivation of their liberty, within the meaning of that term as under Article 5(1) of the European Convention on Human Rights. (2) The provider of treatment or care under subsection (1) is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature, if the treatment or care is arranged by or paid for (directly or indirectly, and in whole or in part) by a local authority in England, Wales or Scotland, or by a NHS Health Board, an NHS Integrated Care Board, or by a Health and Social Care Trust.”Member’s explanatory statement
This amendment ensures the Human Rights Act 1998 applies when people receive outsourced mental health treatment or after-care, or are deprived of their liberty in connection with a mental disorder. It addresses a gap in human rights protection exposed by Sammut & Ors v Next Steps Mental Healthcare Ltd & Anor [2024] EWHC 2265 (KB).
Baroness Keeley (Lab)
My Lords, Amendment 54 in my name is the same as the one I tabled in Committee. It aims to ensure that the Human Rights Act 1998 protects individuals whenever the NHS, local authorities or other state bodies outsource mental health treatment or aftercare to private providers. It also seeks to secure human rights protection whenever people are deprived of their liberty by private health or social care providers in connection with mental disorders.
I am grateful to my noble friend the Minister for her comments on this amendment when it was debated in Committee and for all her engagement on the related issues before and since. I am grateful to the noble Baroness, Lady Barker, for her support for this amendment, and to her and other noble Lords who spoke in favour of the amendment in Committee. I am also very grateful to Dr Lucy Series and Professor Luke Clements. They helped with drafting this amendment and provided notes and briefings on the need to close this gap in human rights protection for mental health patients when their care is commissioned from private health and social care providers.
As we noted in Committee, after the 2007 case of YL v Birmingham City Council, Parliament moved to close gaps in human rights protection with Section 145 of the Health and Social Care Act 2008 and, more recently, with Section 73 of the Care Act. The noble Earl, Lord Howe, reminded us in Committee that, as Health Minister, he tabled a government amendment to the Care Bill in 2014 to close the gap in human rights protection.
However, the recent High Court case of Sammut v Next Steps Mental Healthcare Ltd showed that mental health patients and many other users of outsourced health and social care services were still not protected. The judge held that the Human Rights Act did not apply because Mr Sammut’s care was arranged under Section 117 of the Mental Health Act 1983, not under the Care Act. This judgment highlighted the narrow limitations of the Human Rights Act as a remedy for using outsourced public services such as private care provision or mental health treatment. This raises concerns about the human rights protection of thousands of other people who are deprived of their liberty in private health and social care settings in connection with their mental disorders.
Amendment 54 addresses these gaps in human rights protection for three groups of people: patients such as Mr Sammut, who are receiving mental health aftercare from private providers; any patient receiving in-patient mental health services, whether subject to the Mental Health Act or not; and anybody who is deprived of their liberty by a private provider of health or social care in connection with a mental disorder. It would ensure better protection for people with mental disorders in private care settings.
Baroness Barker (LD)
My Lords, at this late hour I do not intend to speak at great length, but I do not want anybody to misinterpret that as in any way diminishing the support for the amendment of the noble Baroness, Lady Keeley. I believe that this is very important.
It is important for two main reasons. The first is that we all know that the Human Rights Act is under attack on many different fronts for many different reasons. I happen to be—it is perhaps fair to say or apt to describe as—a human rights absolutist: I do not believe that human rights can be picked or that you can pick and choose whose human rights you support. Human rights are universal. You cannot call yourself a human rights supporter unless you are prepared to stand up for the human rights of people you do not like and you do not care for. I suggest that among the people whose human rights are most at risk are those who are stuck away in care homes without anybody paying any attention to them—perhaps without relatives —and about whom, frankly, nobody cares. They are the people who are at the mercy of, particularly, providers who have a commercial interest in maintaining them in the positions where they are rather than seeking to address their care in more fundamental ways. If nothing else, I want us to acknowledge that.
Secondly, I want to pay tribute to all those health professionals and to people such as solicitors who choose to work in this most unglamorous part of the legal system. There is no great financial reward in putting yourself out to stand up for these people, but they do. It is their dedication that has brought this back to the attention of people in this House.
The noble Baroness, Lady Keeley, and I were to a certain extent, as we all have been throughout the passage of the Bill, assuaged by the noble Baroness, Lady Merron, and the very personable way in which she has listened to all of our concerns, but we were not yet convinced that the Government, who are uniquely placed to stick up for the rights of these people, are doing so to the extent that they should. That is why we have taken the time and troubled your Lordships this evening. I hope that all of the provisions of this amendment are taken up by the Government.
Baroness Chakrabarti (Lab)
My Lords, I declare an interest as a member of that persecuted minority of activist human rights lawyers. Crucially, it is a privilege to follow the noble Baroness, Lady Barker, and my noble friend Lady Keeley, who have done so much wonderful work on this. I also commend the brains trust of mental health professionals and lawyers who sat behind them.
On 24 February, we had a lengthy discussion on this in Committee, and it was one of the best debates in which I have had the privilege of participating in your Lordships’ House, and not just because everybody agreed. But they did. I do not remember a single person speaking against my noble friend’s amendment in Committee. We disagree well in your Lordships’ House, but it says something that not a single person disagreed. In particular, I commend the eloquent speeches on that day by the noble and learned Baroness, Lady Butler- Sloss, and by the noble Earl, Lord Howe, on the Opposition Front Bench.
I have been very excited to hear that my noble friend the Minister has been in such constructive meetings with my noble friend Lady Keeley. Whatever debates there are about contracting out vital public services, nobody on any side of this House wants people to be treated less decently and with fewer human rights because of a service being provided directly by the state or a decent contractor. With that, I look forward expectantly, with hope in my heart, to the response of my noble friend, who is very experienced, decent and wily.
Earl Howe (Con)
My Lords, having listened to the noble Baroness, Lady Keeley, and her clear and concise explanation of this amendment both today and in Committee, I can do no other than express my full support, yet again, for all she has said. This is indeed an important issue that case law has exposed as needing resolution, and the amendment seems to achieve that aim extremely well. I may have read the runes incorrectly, but I dare to entertain the hope that, if the amendment is not to be accepted as it stands, which of course would be very gratifying, the Government will take the matter forward in the way the noble Baroness has asked.
Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)
My Lords, it gives me enormous pleasure to respond to my noble friend Lady Keeley’s amendment. I had not joined the team during Committee, so I was not present at the meeting that everyone has described, but I have read the verbatim report and I express my thanks for the sincerity and the careful, thoughtful way that the arguments have been put forward by all noble Members who took part and those who have spoken today.
I am, of course, aware of the wider strong support for this issue. I am very grateful for the references to the different organisations that have engaged in this. I am also struck by the comments from the noble Baroness, Lady Barker, about reference to other professionals—all those unsung heroes who do not get the recognition they deserve. I think that we all join together to express our gratitude.
I express my condolences to the family of Paul Sammut. As we have discussed, his case has helped bring this to our attention. We recognise the concern around unequal coverage and rights to redress under the Human Rights Act, and the court judgment has highlighted the need to clarify the position of private mental health and care providers under the Human Rights Act when providing mental health-related care arranged and paid for by the NHS and local authorities.
Tonight, I commit that we will return to this issue when the Bill goes to the other place. There, we can have proper discussion and further consideration of some of the issues raised. My noble friend Lady Keeley has raised the issue of the wider implications of this, and I am particularly conscious of the references to children’s services. It is an issue that we have, of course, been discussing with the DfE, which has responsibilities to look at the ramifications for it.
We need to keep working on this, recognising the gap that my noble friend and others have raised in this place, but committing to taking it forward as part of the legislative process. I know that my noble friend the Minister has put a lot of time into this and is thankful for the input. She has graciously offered further meetings on this point as we move forward in the discussions and we look forward to the outcomes in due course.
Baroness Keeley (Lab)
My Lords, I am very pleased to hear that Ministers will pick up this issue and hopefully take action to close this gap in human rights protection during the Bill’s passage in the other place. I thank noble Lords, and noble and learned Lords, for their support for this amendment in Committee and today. It has been important that we have that support, as my noble friend Lady Chakrabarti said. I want to thank the Minister. She has done a huge amount of work with us on this amendment and I thank her and my noble friend Lady Blake for agreeing to take action on this important issue of human rights protection. That said, I beg leave to withdraw the amendment.
Baroness Hollins
“Long-term segregation: independent medical review After section 142C of the Mental Health Act 1983, insert—“142D Independent medical review of long-term segregation of patients with learning disabilities or autism(1) Where a patient with a learning disability, autism, or awaiting autism assessment is placed in long-term segregation under section 142D (Notification requirements for long-term segregation for patients with learning disabilities or autism), the Secretary of State or a designated body must arrange for an independent review within 28 days.(2) The responsibilities, procedures, and reporting requirements for such reviews must be specified in the Code of Practice under section 118 of the Mental Health Act 1983.””Member’s explanatory statement
This amendment seeks to introduce an independent review process for patients with learning disabilities or autism placed in long-term segregation under the Mental Health Act 1983.
Baroness Hollins (CB)
My Lords, although funding for independent reviews for people detained in long-term segregation will continue until 2026, it is not really enough. Independent reviews have been found to be effective and need to continue until the practice of long-term segregation ends. I am sorry that it is so late, but I should like to test the opinion of the House.
“Consultation: bus funding formula(1) Within six months of the day on which this Act is passed, the Secretary of State must publish a report detailing a proposed bus funding formula for consultation.(2) The report published under subsection (1) must include—(a) the Secretary of State’s rationale for proposing that formula,(b) an evidence-based assessment of the distributional effect of that formula between various transport authorities in England, and(c) any alternative funding formulas that the Secretary of State has considered but chosen not to pursue.” Member’s explanatory statement
This amendment requires the Secretary of State to publish a proposed bus funding formula for consultation, including their reasoning, an assessment of its impact on different transport authorities, and details of alternative approaches considered but not adopted.
Lord Stevens of Birmingham (CB)
My Lords, I am grateful to the Minister for her response to Amendment 59. I accept that there are some philosophical differences of view that she expressed. However, I do not think it was right to say that the scope of Amendment 59 does not include any community and preventive mental health care, since the Bill itself includes provisions that relate to those types of services. In any event, now is not the time for further relitigating. I wish to test the opinion of the House on Amendment 59.
“Duty to implement preventative policies for mental disorders(1) The bodies listed in subsection (3) must implement policies which take a preventative approach to the management of mental disorders which are likely to lead to detainment under the Mental Health Act 1983.(2) The policies must be adapted to the needs of the local community that those bodies serve.(3) The bodies in subsection (1) are integrated care boards, local health boards and local authorities.”Member's explanatory statement
This amendment seeks to ensure that ICBs, LHBs and local authorities take a preventative approach to the management of mental disorders which lead to detainment and adapt their approaches to the needs of their local area.
Baroness Bennett of Manor Castle (GP)
My Lords, I am acutely aware of the hour so I will be very brief. My Amendment 63A would provide for a duty for ICBs, local health boards and local authorities to implement preventive policies for mental disorders.
I join the noble Baroness, Lady Tyler, in regretting how the debate on this crucial Lords-starter Bill has been squeezed. However, I am in a lovely position because, in responding to the group beginning with Amendment 48, the Minister essentially supported my amendment. She said that if support can be provided much earlier, mental ill-health can be prevented. That is essentially what this amendment seeks to do.
I am obviously not going to divide the House at this stage of the evening, but I have spoken over the years to so many public health professionals, consultants and directors in local authorities, and they continually express the frustration that everyone knows that investment in preventive healthcare is the way to take pressure off the NHS. Understandably, when someone turns up with an acute mental health crisis or a broken leg, we have to treat that, and that is where the resources go.
This amendment is an attempt to write into the Bill—I hope it might be revisited in the other place—the duty of prevention. And it has to be a duty. This aligns very much with the Government’s rhetoric and their approach to public health. I will not press the amendment to a vote, but I hope this can be the start of a discussion.
Lord Scriven (LD)
My Lords, because of the lateness of the hour I will be very brief. These Benches support the aim of the amendment in the name of the noble Baroness, Lady Bennett of Manor Castle. It is important that, throughout all this, there is an element not just of treating the acute phase of mental ill-health but trying to ensure that prevention is there within the health service and across the whole of government, national and local. We believe on these Benches that a mental health commissioner would have been really helpful for that, as they could highlight elements that could help with prevention—but the House has made its decision on that.
I have only one question for the Minister. One of the three shifts of the Government is towards prevention. How do the Government see prevention of mental ill-health fitting into that shift, not just in NHS services but, as I said, across the whole of government, including local government, to determine how they can use their resources and levers to bring about what the noble Baroness, Lady Bennett of Manor Castle, is trying to achieve?
Lord Kamall (Con)
My Lords, this will probably be the last time I speak on Report—and I am sure many people are grateful for that. Before I make my last remarks, I want to put on record my gratitude to the Minister, her officials and the Whips for the amount of time they have given us in discussing a lot of these amendments. It is certainly appreciated by our side and, I am sure, by other noble Lords.
Given the time, I will not take another hour. The sentiment behind this amendment is unquestionable. During my time as Minister, I was repeatedly reminded of the need to focus on prevention, and of course I agreed to that. As we know, the noble Lord, Lord Darzi, in his report on the state of the NHS, repeated his emphasis on the shift to prevention. If we believe in parity of esteem, where possible, this should be applied to mental health.
If we can shift from a situation where we are treating patients and repeatedly detaining them, such that they are detained for longer, to a scenario where we can treat and prevent those conditions worsening, our mental health system will be better for it. I am sure that all noble Lords can agree with this. So we strongly agree with the intent here, which is in line with one of the Government’s other intentions: a shift from hospital to community.
However, when I have discussed this amendment with others, I have heard one concern that I am still reflecting on. This amendment states that ICBs, local health boards and local authorities must implement preventive policies. It has been suggested to me that this might be too prescriptive or may place a duty on smaller bodies that may not necessarily have the resources to implement such policies. Those who suggest this tell me that it may appear more reasonable to place that duty on the Secretary of State or the Department of Health and Social Care, which have the capabilities and resources to implement preventive measures. Such a policy could work if the department had to work with ICBs and local authorities, as well as local community non-state civil society organisations, to move towards preventive care. As I said, I am still reflecting on this, but I do not wish to detain the House while I make up my mind. So, with that, I look forward to the response from the Minister.
Baroness Merron (Lab)
My Lords, I thank all noble Lords for their contributions on Amendment 63A in the name of the noble Baroness, Lady Bennett. I am grateful for the appreciation of the noble Lord, Lord Kamall —and the appreciation shown throughout Report—for the whole team. Similarly, I reciprocate thanks to all noble Lords and their offices for their assistance in improving the Mental Health Bill.
As the noble Baroness observed, we agree with the intention of the amendment: there must be a focus on prevention and the commissioning of services must reflect the needs of the local community. However, we do not feel that it is necessary to place this requirement in statute. As the noble Baroness knows, the Government are currently co-developing the 10-year health plan with the public, staff and patients. As part of this, we are exploring ways to stimulate the shift from sickness to prevention so that we can deliver an NHS fit for the future.
I turn to the points raised by the noble Lord, Lord Scriven. First, progress is already being made to transform community mental health services. In the last 12 months, more than 400,000 adults have received help through new models of care that aim to give people with severe mental illness greater choice and control over their care. We are going further by piloting the 24/7 neighbourhood mental health centre model in England, building on learning from international exemplars such as those in Trieste, which I know the noble Baroness, Lady Bennett, has taken a great interest in. Six early implementers are bringing together their community, crisis and in-patient functions into one open-access neighbourhood team that is available 24 hours a day, seven days a week. This means that people with mental health needs can walk in or self-refer, as can their loved ones.
ICBs are already required to have policies that reflect their communities under the National Health Service Act 2006, as amended by the Health and Care Act 2022. Section 3(1)(i) of the NHS Act 2006 also specifies the duty of an ICB to commission certain health services, including
“such other services or facilities for the prevention of illness”.
An integrated care board must arrange for the provision of services
“to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility”.
ICBs and their partner NHS trusts and foundation trusts, including their mental health trusts, are also required to prepare a joint forward plan, which describes how the ICB will arrange for NHS services to meet their population’s physical and mental health needs.
Given that these duties already exist, given the Government’s commitment to a shift from sickness to prevention, and given the progress being made on community transformation and expansion of crisis services, we do not consider that it is necessary to create any additional duties within the Mental Health Act and I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Bennett of Manor Castle (GP)
I thank the Minister for her detailed response and the positive mention of Trieste. I echo the noble Lord, Lord Kamall, in thanking the Minister for her genuine engagement in the debates on this Bill. On this final point, it is worth noting that a very small number of noble Lords put in an enormous amount of work into the Bill. It would be nice to see a wider engagement across the House rather than the weight being carried by such a small number of people.
On the amendment, I thank the noble Lord, Lord Scriven, for his expressions of support for the general intention at least. On the point made by the noble Lord, Lord Kamall, on whether the duty should potentially rest with the Secretary of State rather than locally, we come back to some of the debate that we had in the earlier group when we were talking about a responsible officer. It is about laying duties down at the level where services are delivered, which is why I took this approach.
None the less, given the hour, I shall stop there. The Bill is now going to the other place, and I hope that we see a real level of attention and focus there as well, as there has been in your Lordships’ House. I beg leave to withdraw the amendment.
Baroness Merron
“(3A) A statutory instrument containing (alone or with other provision) regulations under this section that amend or repeal provision made by primary legislation may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(3B) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”Member’s explanatory statement
This amendment and my other amendments to clauses 52 and 53 would ensure that regulations made under the consequential amendment powers in the Bill that amend or repeal primary legislation are subject to the affirmative resolution procedure.
Member’s explanatory statement
See the explanatory statement for amendment 64.
Baroness Merron
“(4A) A statutory instrument containing (alone or with other provision) regulations under this section that amend or repeal provision made by primary legislation may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, Senedd Cymru.(4B) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of Senedd Cymru.”Member’s explanatory statement
See the explanatory statement for amendment 64.
Member’s explanatory statement
See the explanatory statement for amendment 64.
Mental Health Bill [HL]
Wednesday 23rd April 2025
(2 months, 3 weeks ago)
Lords ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 93 Running list of amendments – 14 April 2025 - (14 Apr 2025)
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I will make a brief statement on the devolution status of the Bill. The majority of the Act that the Bill amends extends to England and Wales. An initial legislative consent memorandum was laid in the Senedd following the Bill’s introduction. Following further amendments to the Bill, supplementary legislative consent memorandums have been laid. I thank the Welsh Government for their constructive engagement, and I am pleased that they are recommending consent. The Senedd will hold a vote on legislative consent before the end of the Bill’s passage through Parliament.
Clause 30: Periods for tribunal applications
Amendment
Baroness Merron
“(c) in paragraph (e), for “six months” substitute “three months”.”Member's explanatory statement
This amendment is consequential on clause 29(2) of the Bill and changes the period within which an application to the tribunal may be made where a patient is transferred from guardianship to a hospital to align that period with the initial detention period in relation to the patient.
Baroness Merron (Lab)
My Lords, this is a minor and technical amendment which would reduce from six months to three months the period within which an application to the tribunal may be made, where a patient is transferred from guardianship to a hospital under Section 19.
We are making this change to ensure that the relevant period within which transferred guardianship patients can make an application to the tribunal aligns with the relevant period for Section 3 patients. This is consequential to the changes that the Bill makes in Clause 29 to reduce from six months to three months the initial detention period for patients admitted for treatment, as part of our intention to provide patients with faster access to tribunals to review relevant decisions about their care. I beg to move.
Baroness Merron (Lab)
My Lords, it has been an extraordinary honour and pleasure to take this Bill through the House with my noble friend Lord Timpson. As we are all aware, numerous aspects of the Mental Health Act 1983 are not serving us today. Over the decades, we have seen racial inequalities, inadequate care for individuals with learning disabilities and autism, and insufficient empowerment of patients who have not had an adequate voice.
Reform to the Mental Health Act is therefore long overdue. Many of the processes in the Act are out of step with a modern mental health system and with society at large. It has been a privilege to advance these reforms to deliver the Government’s manifesto commitment to modernise the Act to give patients greater choice, autonomy, enhanced rights and support, and to ensure that everyone is treated with dignity and respect throughout treatment, while ensuring that patient and public safety is paramount.
As noble Lords will be aware, this Bill is the product of the combined effort, over many years, by Members of both Houses and many outside Parliament who have worked for change and to whom thanks are due. I express my sincere gratitude to members of the former Joint Committee on the Draft Mental Health Bill: the noble Baroness, Lady Buscombe, as chair, as well as my noble friends Lord Bradley and Lady McIntosh of Hudnall, and the noble Baronesses, Lady Barker, Lady Berridge and Lady Hollins. The work and careful consideration that went into their rigorous scrutiny of the draft Bill, along with the constructive recommendations made, have undoubtedly strengthened it.
I pay tribute to the former Prime Minister, the noble Baroness, Lady May, who identified the need for modernisation and set up the independent review of the Act in 2017, chaired by Sir Simon Wessely and supported by the noble Baroness, Lady Neuberger, as one of the vice-chairs. Without this, we would not be here today.
I extend my heartfelt thanks to all Peers who have engaged with the Bill’s reforms. In addition to those previously mentioned, gratitude is due to both Front Benches—to the noble Lord, Lord Kamall, the noble Earl, Lord Howe, the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler. I am grateful to all noble Lords from across the House who have spoken during the various stages of the Bill and engaged with me and my officials over the past few months.
Because I would like to think that I am wise, I also thank my Whip, my noble friend Lady Blake, and my previous Whip, my noble friend Lord Cryer. I thank the Chief Whip and the whole of the Whips’ team and the team in the Leader’s office, including Ayeesha Bhutta and Michael Bleakley. My appreciation, as ever, goes to the clerks, doorkeepers and staff of the House.
I extend my heartfelt gratitude to all the officials who have played a crucial role in the progression of this Bill, and hope your Lordships’ House will indulge me while I give them the honour of mentioning them by name, because I believe they deserve it. Special thanks go to Phillip Dunkley, our Bill manager, and his dedicated team, Callie Mulligan, Sam Monday, Emily Bouldero and Rhys Jose. I am deeply appreciative of the Bill’s senior responsible owners, Kathy Smethurst and Caroline Allnutt, as well as the DHSC officials, including Esther Horner, Hannah Coaker, Alice Devlin, Matt Siddons, Tabitha Mufti, David Nuttall, Jennifer Rhodes, Megan McIvor and Mihiri Seneviratne, and their teams.
Additionally, I want to acknowledge the invaluable contributions of the Government Legal Department officials, Matt Smith, Lizzie Rattee, Nicky Richardson and Tim Spencer Lane, and their wider team, along with my private office staff, including Carl Plane and Yetunde Agaga, as well as Diggory Bailey and Victoria Griggs from the Office of the Parliamentary Counsel.
While I cannot list every individual, I express my appreciation to all officials who have played a part, including officials from the Ministry of Justice. Their unwavering support and dedication have been instrumental in the successful advancement of the Bill, and their work with Peers—as noble Lords across the House will testify—has been exemplary. I am confident that this legislation will make the Mental Health Act fit for the 21st century and give greater and better support to people when they need it. I look forward to it receiving support in the other place. I beg to move.
Lord Kamall (Con)
My Lords, as the Minister has said, debating the passage of the Bill through your Lordships’ House has been a pleasure. We have seen a genuine spirit of constructive engagement with a Bill that we all acknowledge will help patients who encounter mental health services, as well as a cross-party desire to improve the Bill. This was not a particularly political Bill; we found alliances across political lines and did not play political games. We wanted to improve the Bill and make sure that patients receive the best possible care. That is a wonderful demonstration of the value of this House.
I extend my thanks to all Peers who took part. I also thank the members of the pre-legislative committee whom the Minister acknowledged. Like the Minister, I acknowledge my noble friend Lady May of Maidenhead, the former Prime Minister, who we have to thank for beginning the process that led to this Bill. My noble friend identified the issue of racial disparities in the use of community treatment orders and wanted to reduce the involvement of police where they are not needed. Even though my noble friend was unable to be in her place to speak to her amendments on Report, I am grateful to all noble Lords who supported them, and I am delighted that the House has decided that they should be inserted into the Bill. We look forward to how that will be debated in the other place.
It was also welcome to see the House rally behind my noble friend Lady Berridge’s amendment to ensure that the process for appointing nominated persons for patients under 16 aligns with the Children Act 1989. My noble friend was crystal clear that there has to be consistency between different Bills, and that we do not want people falling between Bills and into harm’s way. She highlighted this and gave some harrowing examples of what could happen if we do not align these Bills. We have to make sure that we align them as much as possible.
I also thank the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, for their dedication to improving community treatment orders and addressing racial disparities. Noble Lords will remember that this is probably the issue that was closest to my heart, and we probed the Government heavily on it. There are still too many racial disparities. We understand that it is a complicated issue, but the Government assured the House that they are looking into the data around this. What do they know? What do they not know? How will they fill that gap and what will they do to address racial disparities? I hope that is something that all noble Lords can agree on.
Of course, I have to thank my noble friend Lord Howe for his stalwart support and advice on this Bill, and for his experience not only of parliamentary procedure but of previous iterations of this Bill. I appreciate his sagacity, and I am grateful whenever he agrees to work with me on Bills—sometimes to curb my schoolboy enthusiasm and keep me on the right path. I am grateful that he has agreed to work with me on the Tobacco and Vapes Bill, which your Lordships will debate later today.
I also thank the Minister—and of course her noble friend, the noble Lord, Lord Timpson—for taking time at the Dispatch Box, and for the fact that the Minister and her officials were always available to meet us to try to iron out some of the disagreements or find compromises. That is very much appreciated by all noble Lords in this House. I thank Ben, the special adviser in her office, for his input, and, in our office, our adviser Jamie Tucker, who was amazing in his understanding of the Bill.
I will end by mentioning a quote that was sent to me and my noble friend Lord Howe from the charity Blooming Change. On hearing that the House had voted in favour of my noble friend’s amendment on mandatory debriefing for mental health patients, a younger person told the charity:
“I genuinely for the longest time felt like I didn’t matter, to anyone or anything, that the universe didn’t need to hear my voice, that what I went through didn’t matter. It took so long to build my confidence and to find my voice … I’m glad I decided to use my experiences to fight for change and I’m so happy our words have made a difference. We will keep fighting for more changes, little by little”.
As the Bill now progresses to the other place, I hope all Members involved will heed those wise words.
Baroness Tyler of Enfield (LD)
My Lords, it has been a privilege to be involved in scrutinising and improving this vital Bill, for which we had waited so long. Our debates have been, rightly, exhaustive, and at times—again, quite rightly—passionate. I will make one general observation, which is a point that was made on a number of occasions throughout our deliberations. You get only one chance about every 15 years to reform and modernise mental health legislation, so it is really important to get it right and to include all the relevant issues before the ship sails. Some would like to have seen more fundamental fusion legislation between mental health and incapacity, but that was not on the table, so you work with what you have.
Mental Health Bill [Lords]
Monday 19th May 2025
(1 month, 3 weeks ago)
Commons ChamberMental Health Bill [HL] 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 93 Running list of amendments – 14 April 2025 - (14 Apr 2025)
The Secretary of State for Health and Social Care (Wes Streeting)
I beg to move, That the Bill be now read a Second time.
I want to place on record my thanks to Baroness Merron for her leadership of the Bill’s progress in the House of Lords, and to thank Members on both sides of that House for their contribution to scrutiny of it. I particularly thank Baroness May of Maidenhead for the constructive way in which she has engaged the Government, and for commissioning Sir Simon Wessely to undertake the review of mental health that underpins so much of the Bill.
At the general election, Labour stood on a manifesto commitment to modernise the Mental Health Act 1983, and I am proud to say that we are delivering on that promise in the first Session of this Parliament. In doing so, we are providing a once-in-a-generation opportunity to profoundly transform the way in which we view and support people with serious mental illnesses. The measure of a society is how it treats its most vulnerable citizens, and when it comes to the treatment of people with serious mental illnesses, we are falling well short of the humane, compassionate society that we aspire to be. Patients live 15 to 20 years less than the average, and they are often accommodated far away from their families and loved ones. The facilities in which they are housed can be completely unsuitable. During his investigation last year, Lord Darzi found nearly 20 patients in a mental health facility who were forced to share two showers and live among an infestation of rats and cockroaches.
Patients are denied the basic choice and agency that is awarded to NHS patients with physical illnesses. People from ethnic minority communities, especially black African and Caribbean men, are more than three times as likely to be sectioned. Although they are very different conditions, people with a learning disability and autistic people are often lumped in with those who have mental illness, reflecting an outdated lack of medical understanding.
Sir Jeremy Hunt (Godalming and Ash) (Con)
The Health Secretary will have been briefed by the Minister for Care about the tragic murder of Christopher Laskaris, the son of my constituent Fiona Laskaris, and the lack of a voice for parents, who know their own children extremely well, in very difficult situations like this. Have the Government considered whether they might table an amendment to make things like Christopher’s tragic murder less likely in the future?
Wes Streeting
I am extremely grateful to the right hon. Gentleman for his intervention, and I place on record my thanks to Fiona for her campaigning work in circumstances that are completely unimaginable for those who have not walked in her shoes and experienced the kind of grief that she is experiencing. I know that my hon. Friend the Member for Rother Valley (Jake Richards) has been campaigning assiduously on this issue; similarly, we have had representations from the hon. Member for Dorking and Horley (Chris Coghlan), who is in his place, and the right hon. Gentleman. We are carefully considering the arguments that have been made, and looking at what we can do in this Bill to advance things in the way that Fiona and others like her would like to see. We will continue that engagement throughout the passage of the Bill, and see if there is a workable way in which we can improve it to ensure that others do not have to go through the unimaginable heartbreak that Fiona is living with every day.
Peter Swallow (Bracknell) (Lab)
My right hon. Friend is touching on ways to strengthen this Bill even further. He will know that the Joint Committee on Human Rights has just this morning published our report on the Bill. We have praised it for all that it will do to address a number of inequalities, but we have picked out one or two areas where it could go even further. I know that he will not yet have had a chance to look at our report, but will he arrange for a meeting with members of the Committee and the relevant Minister to discuss our findings?
Wes Streeting
I wish I could correct my hon. Friend and say that I have already read in detail the feedback from the Joint Committee on Human Rights, but he is right: I have not yet had a chance to do that. However, I can assure him that I and my hon. Friend the Minister for Care will look at the Committee’s report. We would be very happy to meet members of the Committee to discuss in further detail their findings and recommendations.
We want to ensure that the Bill is as strong as it can be, given the length of time that has passed since the Mental Health Act was reformed. Indeed, the Mental Health Act is as old as I am. [Interruption.] Thank you for those interventions. I assure Members heaping compliments across the Chamber that it will not affect investment decisions in their constituencies, but I am none the less very grateful.
There is a serious point here: whereas attitudes to mental health have come on in leaps and bounds in the past four decades, the law has been frozen in time. As a result, the current legislation fails to give patients adequate dignity, voice and agency in their care, despite the fact that patients have consistently told us that being treated humanely, and making decisions about their own care, plays a vital role in their recovery.
When patients are detained and treated without any say over what is happening to them, it can have serious consequences for their ongoing health. To quote one of the many patients who bravely shared their experiences with Sir Simon Wessely’s independent review:
“Being sectioned was one of the most traumatic experiences of my life. Sadly, as a result of being sectioned I developed PTSD”—
post-traumatic stress disorder—
“as the direct result of the way I was treated”.
Sir Simon’s review was published seven years ago. It shone a light on a group of people who had been hidden, ignored and forgotten. In the time that has passed since, the case for change has only snowballed. The Bill now takes forward Sir Simon’s recommendations.
The review stressed that legislation alone would not fix the system; culture and resources matter too. This was echoed in Lord Darzi’s investigation into the NHS, which uncovered some hard truths: a dramatic rise in the use of restrictive interventions on children; and 345,000 patients waiting more than a year for their first appointment with mental health services—more than the entire population of Leicester—of whom 109,000 were under the age of 18. This Bill does not solve every problem in our mental health services, but it marks a vital step in our plans to improve the quality of care, combat long-standing inequalities, and bring about a stronger focus on prevention and early intervention in mental health.
Peter Prinsley (Bury St Edmunds and Stowmarket) (Lab)
Does my right hon. Friend agree that while we are seeing record levels of mental health problems in our young people, investment in community services for people with mental health problems must be a priority?
Wes Streeting
I wholeheartedly agree with my hon. Friend. As he has heard many times from this Dispatch Box, we want to see a shift in the centre of gravity in the NHS out of hospitals and into the community as one of the three key shifts that will underpin our 10-year plan for health, which we will be publishing in the not-too-distant future.
The Mental Health Act is designed to keep patients and the public safe, but it is clear to anyone who has seen how patients are treated that it does so in an outdated and blunt way that is unfit for the modern age. It is too easy for someone under the Act to lose all sense of agency, rights and respect. It is sometimes necessary to detain and treat patients, but there is no reason why patients experiencing serious mental illness should be denied the choice and agency they would rightly expect in physical care. Not only should the health service treat all its patients with dignity and respect anyway, but giving people a say over their own care means that their treatment is more likely to be successful. In the foreword to his independent review, Sir Simon Wessely said:
“I often heard from those who told me, looking back, that they realise that compulsory treatment was necessary, even life-saving, but then went on to say ‘why did it need to be given in the way it was?’”
Another patient in the 2018 review said:
“I felt a lot of things were done to me rather than with me”.
We need to get this right. We need to give these patients a voice.
Jim Shannon (Strangford) (DUP)
I commend the Secretary of State for bringing this Bill before the House. On all occasions when I have inquired of him, he has been keen to share ideas and thoughts on legislation in relation to Northern Ireland. On mental ill health, deprivation and poverty, the figures for Northern Ireland are some of the highest in the United Kingdom, which worries me as the MP with responsibility for my constituents back home in Strangford. I know he will, but will the Secretary of State share all the ideas in the Bill with Mike Nesbitt—the Health Minister back home—so that Northern Ireland can also benefit?
Wes Streeting
I am happy to reaffirm that we have a really strong working relationship with Minister Mike Nesbitt and the Northern Ireland Executive, and we are keen to share insight wherever we can.
The hon. Gentleman makes a very important point, which refers back to the remarks I made about the limitations of the legislation. Reform of the statute book is important in terms of how the law treats people. But as well as reforming the model of care, clinical pathways and looking at new treatments, innovations and technologies, we also need to focus on prevention, attacking the social determinants of ill health, including mental ill health, of which poverty is a key driver of stress, anxiety, depression and worse. That is why the Government will keep such a focus not just in our 10-year plan for health, but more broadly across public policy.
The current legislation has left many people with a learning disability and many autistic people in mental health hospitals, when they could receive much better care elsewhere. Around four in 10 people with a learning disability or autism could be cared for in the community. The Bill aims to improve the care and treatment people receive when detained, while keeping patients and the public safe. Through the Bill, we are: strengthening and clarifying the criteria for detention and community treatment orders to better support clinicians in their decision-making; introducing increased scrutiny and oversight for compulsory detention and treatment; and providing patients with a clear road to recovery by introducing statutory care and treatment plans for all patients detained under the Act, except if under a very short-term section.
Jen Craft (Thurrock) (Lab)
Does the Secretary of State agree that a proper community treatment plan for those with learning disabilities and autism is not just reliant on the actions of his Department, but a cross-Government effort and an integrated care system at a local level?
Wes Streeting
My hon. Friend is absolutely right. I am very glad that my Department is working closely with other Departments across a range of issues, in particular with my right hon. Friend the Secretary of State for Work and Pensions on the link between employment, welfare and health, and with my right hon. Friend the Secretary of State for Education on the reform of special educational needs and disabilities, and the interface between health and education services—I could go on. The point is that a wide range of factors have an impact on people’s health and wellbeing. Indeed, people’s health and wellbeing can have an impact on a wide range of aspects of their lives, which is why we have to work in a mission-driven cross-Government way.
Alison Bennett (Mid Sussex) (LD)
I thank the Secretary of State for giving way; he is very kind. I was interested, when he was talking about the impacts of mental health on society at large, whether he has given consideration to the Carers Trust proposal, which would amend the Bill so that when a parent has a mental health crisis, checks and safeguards are put in place to ensure that any young carers in that family are suitably cared for?
Wes Streeting
I am grateful to the hon. Member for that intervention and for raising the very serious issue—an issue of increasing prevalence—of the impact of parental mental ill health on children and young people. We are very happy to look at the Carers Trust proposal, and to take representations on that and other issues as the Bill progresses through its Commons stages. We want to ensure that we get not just the legal basis of mental health provision in the right place, but practical care. As we think about children and young people’s mental health and wellbeing, we also need to take into account their parents’ mental health and wellbeing through that lens, too.
Patients’ choices and needs will always be taken into account, thanks to the introduction of a new clinical checklist. It requires clinicians to involve patients and those close to them in decisions affecting their care, while retaining the power to treat individuals compulsorily where absolutely necessary.
Richard Baker (Glenrothes and Mid Fife) (Lab)
Does the Secretary of State agree that that should be a case of “only when absolutely necessary”? In my previous role, I provided advocacy for the family of a young man who has been in a state hospital in Scotland for 17 years under a compulsory treatment order. His family live several hours away in north-east Scotland. That is, in my view, a horrendous infringement of his and their human rights. Will he share any learnings from the action the Government are taking, which is so welcome, on how community treatment can be placed effectively for people who are going through such horrific restrictions on their rights to family life?
Wes Streeting
My hon. Friend’s question raises two key issues with the provision of mental health services. First, we must ensure that the bar is set in the right place for compulsory treatment. Secondly, we must ensure that both compulsory and voluntary treatment in a hospital setting is within a reasonable distance of family, friends and loved ones. My hon. Friend powerfully describes the impact of such cases, where there is not just a deprivation of liberty, but an impact on an entire family. We need to do much better on both sides of the border when it comes to the appropriate placement of people in mental health settings.
There will always be times when patients hit crisis points and lack the ability to express what they want. To ensure that their voice is not lost and that professionals are working with patients, the Bill introduces duties to encourage people to make an advance choice document while they are well. This document provides a record of their wishes for use by mental health professionals, should the patient later experience a crisis that renders them incapable of making their own decisions.
Samantha Niblett (South Derbyshire) (Lab)
I was 11 years old when my mum first tried to take her own life; she was sectioned several times over the coming years, and until I was an adult. How will this new way of treating people and making that part of the community, as well as looking after the children of those impacted, be measured over time so that we know it is successful?
Wes Streeting
I am extremely grateful to my hon. Friend for sharing such personal lived experience of the issues we are debating this afternoon. I encourage her to take every opportunity to share those experiences directly with Ministers or through the passage of this Bill, which others in a similar situation will also have had, so that we can provide the best possible support for people experiencing a mental health crisis and for their loved ones, who also experience an enormous amount of pain and anxiety in supporting someone going through acute mental illness.
We are also updating the outdated nearest relative provisions to allow patients to choose someone to be their nominated person, which gives that individual important powers to represent the patient’s interests when they cannot represent themselves. One patient explained:
“My mother used to perform this role, but she now has Alzheimer’s and she lacks capacity. Under the current system, I cannot specify who I wish to serve as my nearest relative. The responsibility would automatically go to my oldest sister—a sister I do not get on with”.
Our reforms will ensure that this statutory role is not chosen for the patient, but is rather the choice of the patient.
Advocacy services are often a lifeline for those who find themselves in the vulnerable position of being detained, giving a voice to those who may otherwise feel voiceless. Patients have reported that an advocate can ensure that
“their voice and opinion is valued and listened to. They came to my meetings, valued my opinion and put my views across to other people. People listened to my advocate.”
We are also extending advocacy services to patients who come to hospital voluntarily and making changes to improve advocacy uptake among those who are detained, as well as working to change the culture of our health and care services so that everyone is listened to and so that patients do not have to rely on an advocacy service to get their voice heard.
Calum Miller (Bicester and Woodstock) (LD)
I am grateful to the youthful Secretary of State for giving way. In the past few months, I have had a number of constituents describe the difficulties they have had in transitioning from care provided by child and adolescent mental health services to adult mental health services—a critical transition. They specifically faced difficulties in accessing the same medication when they turned 18 that they had previously been reliant on as young people. Can the Secretary of State describe to me how either the Bill or the change in culture for which he is advocating will improve the situation for people like my constituents?
Wes Streeting
I am grateful for that intervention. The hon. Gentleman raises what is, frankly, the depressingly familiar issue of the transition from youth and adolescent services to adult services, which applies across such a wide range of public services. It is so frustrating that we are still, in this decade of the 21st century, describing a problem that was prevalent in the ’90s and noughties.
None the less, we are working to improve not just the law, but the performance in this space. Many of the changes we will be looking to make under the auspices of our 10-year plan are about better joining up of data, information and patient records, better care planning for patients and designing services around patients so that everyone—whatever their age or stage of treatment—receives joined-up services, with clinicians having a full picture of that patient’s experience. Hopefully, that will also help to deal with some of the cliff edges and bumps in the road that people can often experience when transitioning from one part of the NHS to another, whether that is from youth and adolescent services to adult services or the interface between primary and secondary care.
Helen Morgan (North Shropshire) (LD)
I welcome this piece of legislation, which I think is generally in a very good place. I have had a tragic situation in my constituency, where somebody who had been admitted to hospital in a suicidal state discharged themselves, after which, unfortunately, no follow-up care was provided, and they took their own life. It has been devastating for their family. Would the Secretary of State consider looking at how the community supports people experiencing a mental health crisis who might have discharged themselves, and how we can keep them safe in future?
Wes Streeting
I am very grateful to the hon. Lady for that intervention. The Bill deals to an extent with cases that would fall under the category she describes, in particular through reforms to community treatment orders. However, it would not necessarily cover the full extent of the sorts of people who might find themselves in that position, which is where I think we can use technology—which is not the answer to every problem in the health service, by the way. However, through better use of data, patient records and analytics, we will be better able in the future to predict risk and prevent tragedies as in the case the hon. Lady describes, which are a tragedy not just for those whose lives are cut needlessly short, but for those who live their lives with that intolerable grief and loss for the many years that follow.
It is a shameful truth about our society that people with a learning disability or autism are detained, sometimes for years, with little or no therapeutic benefit. The Bill will put an end to that injustice, limiting detentions so that people with a learning disability and autistic people are no longer detained beyond 28 days unless they have a co-occurring mental health condition that would benefit from treatment in hospital. This will require the necessary community provision in place to support people with a learning disability or autism, and we are working to set out what strong community services look like and on the resources required to implement them, so that there are robust alternatives to hospital care.
To help to plug the flow of inappropriate admissions to hospital, the Bill places a duty on integrated care boards to improve monitoring and support for people with a learning disability or autism who may be at risk of future detention. The Bill will introduce statutory care, education and treatment reviews to ensure that patients are safe and receiving the right care and treatment when detained, and that a plan to discharge them to the community is being worked up. We will also remove prison and police cells from the definition of “places of safety”. Police cells are for criminals, not patients in desperate need of medical help.
Throughout the development of these reforms, we have maintained the central purpose of the Mental Health Act—to keep individuals and the wider public safe. The vast majority of people with mental illness, including severe mental illness, present no risk to themselves or others, and, for the majority of people, treatment can be provided without compulsion. However, there are some people whose illness, when acute, can make them a risk to themselves, and sometimes to others.
No one knows this better than the families of Ian Coates, Barnaby Webber and Grace O’Malley-Kumar, the victims of Valdo Calocane’s violent rampage in Nottingham, whose campaign for justice and accountability has been truly awe-inspiring, or indeed the family of Valdo Calocane, with whom I have also spent time, listening to their experience of feeling badly let down by health services. As the independent investigation into the murders found, both he and his victims were failed by the health service, and their families have been left to live with the consequences with a level of pain the rest of us can scarcely imagine. I would like to place on the record my thanks to all four families for meeting me as my team and I worked on the Bill.
Thanks to the amendments that we are making to the Mental Health Act, decision makers will have to consider the risk of serious harm when making decisions to detain. That will ensure that any risks to the public and patients are considered as part of the assessment process. We will also introduce a new requirement for the responsible clinician to consult another person when deciding whether to discharge a patient, putting in place robust safeguards against the release of potentially dangerous people.
Finally, as I have said, legislation alone will not fix the wider issues of increasing mental health needs and long waiting times. To do that, the Government are investing in earlier intervention to meet patients’ needs and prevent them from reaching crisis point.
Iqbal Mohamed (Dewsbury and Batley) (Ind)
Will the Secretary of State give way?
Wes Streeting
I am just coming to my conclusion, I am afraid.
In the past 10 months, we have met the mental health investment standard for 2025-26; invested an extra £680 million in mental health services this year, which is a real-terms increase; funded mental health support teams in schools for almost an extra 1 million pupils; invested an extra £26 million to build new mental health crisis centres; funded NHS talking therapies for an additional 380,000 patients; and begun recruiting the 8,500 mental health professionals we promised in our manifesto. That is all part of the additional £26 billion this Labour Government are investing in health and care services—investment that was opposed by every party on the Opposition Benches; investment that is happening only because we have a Labour Government.
Mental health reform is not just about changing laws; it is about changing lives. The action we are taking will provide support and care to people at their most vulnerable, modernise our mental health services to keep us all safe, and create a safety net that any of us might need one day. I commend the Bill to the House.
Madam Deputy Speaker (Judith Cummins)
I call the shadow Secretary of State.
Edward Argar (Melton and Syston) (Con)
I thank the Secretary of State for bringing the Bill before Parliament. The last update to the Mental Health Act, in 2007, took eight years following the Richardson review, and this Bill has been a similarly long time in the making, so I welcome the speed with which he has moved on it since taking office. Although we may tussle on occasion, as I have said since the election, we on the Conservative Benches will not oppose for the sake of opposition. We will be constructive, working to improve legislation and supporting the Government where we believe they are doing the right thing, and I recognise the Secretary of State’s constructive approach to the Bill.
At the outset, let me join the Secretary of State in paying tribute to the families of Calocane’s victims in Nottingham for what they have done subsequently—their campaigning, their dedication and their work, including on this legislation—and for the incredible dignity with which they have conducted themselves in unthinkable circumstances.
As the Secretary of State mentioned, the Mental Health Act 1983—I will not miss the opportunity to allude to his youthfulness—governs the compulsory detention and medical treatment of people with severe mental illness for the safety and protection of themselves and those around them. He also set out that sadly, all too often, those with learning disabilities or autism have been conflated with that group. We must take this opportunity to address that, and the Bill rightly seeks to do so. In the more than 40 years that have followed the 1983 Act, healthcare, treatments and, crucially, our understanding of mental health illnesses have come on in enormous strides. It is not only important but right that our laws are updated to reflect the modern world and the knowledge that we have today.
We are debating measures that impact those with the most severe mental health issues and their families, but as was highlighted in interventions on the Secretary of State, we should not forget the broader context, the challenges posed by mental health issues more broadly, or the importance of continued investment in this space. We should also recognise the many organisations that do amazing work both to educate society about mental ill health and to support people with mental health illnesses.
Let me take this opportunity to pay tribute to my right hon. Friend the Member for Godalming and Ash (Sir Jeremy Hunt), who has just left the Chamber, for the work that he did on mental health as Secretary of State. I think it is fair to say that, away from the to and fro of party politics, the current Secretary of State shares my right hon. Friend’s passion and determination to address these issues. As he said, we have done much, but I believe we can and must continue to strive to do better.
Keeping legislation up to date is particularly important for a measure such as the Mental Health Act, which gives the state the power to deprive people of their liberties in order to protect the safety of the individual and those around them and to carry out treatment. Those powers should only ever be used when absolutely necessary, and it is therefore right that they are reviewed and updated to ensure that they remain relevant, proportionate and appropriate.
The most recent update to the Mental Health Act, in 2007 under the last Labour Government, introduced community treatment orders and independent mental health advocates and changed the detention criteria. Since then, as the Secretary of State alluded to, trends have emerged that have raised concerns. The overall number of detentions under the Act has been rising steadily. There were around 52,500 recorded detentions in England in 2023-24, including 963 of children aged 17 and under. That is a 2.5% increase on the previous year and around 14% higher than in 2016-17. In the same year, 2023-24, black people were 3.5 times more likely than white people to be detained under the Act, and seven times more likely to be placed on a community treatment order. The reasons for that are likely to be complex, and I will return to them later.
That is why in 2017, just 10 years after the previous update, the then Prime Minister, Theresa May—now Baroness May—commissioned an independent review of how the Mental Health Act was used and how it could be improved. The review considered not only the trends in detentions, but wider concerns about whether some processes were out of step with what should exist in a modern mental health system, including the balance of safeguards, patient choice and patients’ agency in their own care, and the effectiveness of community treatment orders. Sir Simon Wessely published the report of his review in 2018, and I take this opportunity to put on the record again our thanks for his important work.
Edward Argar
The previous Government published a draft Mental Health Bill based on the recommendations in the report, giving others the opportunity to have their say. The draft Bill was subject to pre-legislative scrutiny by a Joint Committee of Parliament, allowing Members of both Houses to thoroughly review it and make recommendations before the final version was introduced.
Given the importance of this area of policy, which can have such a profound impact on people’s lives, I believe it is right that we took the time to get this right. The work to update the Mental Health Act started under the previous Government and we had a commitment in our election manifesto to update the law in this area, and that has been carried on by the new Government. We continue to believe that this is the right thing to do, so I put on the record our in-principle support for the Government on the Bill.
I pay tribute to my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer) for his work in this space as a shadow Minister. Not only does he have professional expertise, but he has brought it to the House’s deliberations on this legislation. I suspect that we may hear from him a little later.
There are many areas of the Bill that we welcome, including the strengthening of the patient’s right to express a treatment preference, the expansion of access to independent mental health advocates, and the removal of police and prison cells as places of safety so that patients can be treated in an appropriate setting. That said, of course we will not stand back without scrutinising and seeking constructively to improve the Bill as it passes through the House. Part of our role as the Opposition is to engage constructively in the scrutiny of legislation—to ask questions, to probe further, to seek to prevent unintended consequences, and to identify potential problems and ensure that they are aired in Committee—in order to improve it for everyone’s benefit, and that is what we shall do. I know that my hon. Friend the Member for Hinckley and Bosworth (Dr Evans) will approach the Public Bill Committee in that vein.
We very much welcome efforts to improve patients’ voice and involvement in their own care, including through greater use of advance choice documents. In its current form, the Bill places a duty on NHS England and integrated care boards to make patients aware of their option to have such a document, but this could be as simple as having a poster on a noticeboard, for instance. It does not necessarily require a conversation. Introducing it as a legal right for patients who are being treated or for someone who is at risk of detention would mean that they have to be specifically told about the option, allowing them to make a deliberate decision. I suspect that in Committee we may gently press the Minister to go further in strengthening the patient’s right to have their voice heard. I have been on a number of Bill Committees, and gently hinting to the Minister areas where we might press further may make his and his officials’ lives a little easier when amendments are tabled in Committee.
We were pleased that peers passed an amendment to better protect children who require a nominated person, removing the discretion where a court order regarding parental responsibility is in place. However, we believe there is more we can do to support and protect children, particularly regarding age-appropriate settings for treatment. I hope that when the Minister for Care winds up, or in Committee, he will explore in greater detail the steps the Government are taking to reduce the number of children being treated on adult mental health wards and to ensure that lessons are learned at both national and local service provider level.
Thirdly, we are conscious that a number of elements of the Bill will require additional resources to be put in place. The removal of police and prison cells—sensibly—as places of safety will require sufficient alternative capacity for people to be treated when they are detained. What approach do the Government intend to take in addressing this?
Increasing the frequency with which patients can apply to the mental health tribunal to have their detention reviewed and widening automatic referrals will potentially increase demand and pressure on the system. We know that the legal system is already under pressure, and the impact assessment acknowledges that there will be impacts and costs, so is the Minister confident that the system has the capacity to handle the additional demands? If not, what steps are being taken with the Ministry of Justice to address that?
Iqbal Mohamed
The shadow Secretary of State raises an important point about resources. The updated impact assessment estimates that the cost of reform is £5.3 billion. With the Secretary of State having confirmed that mental health spending is falling as a share of NHS expenditure from 9.01% to 8.73%, does the shadow Secretary of State agree that without legislative safeguards to protect mental health funding, the Bill may not achieve the aims it sets out to achieve?
Edward Argar
The hon. Gentleman is right to highlight both the costs and the investment that is needed, but the cost does not detract from the importance of and need for the measures set out in the legislation. He points out that as a proportion of overall health spending, mental health spending has fallen slightly in the latest figures. I hope that the Minister in his wind-up will address how the Government will ensure that this legislation, which enjoys broad support across the House, has the resources behind it to deliver the outcomes we all wish to see in practice?
Edward Argar
I will regret doing so, but of course I give way to the Secretary of State.
Wes Streeting
I should point out for the record that mental health spending has increased in real terms this year, thanks to the decisions the Government have taken. As a proportion of spend on health services overall, it is true to say that it has decreased by 0.07%, but that does not take into account the fact that as well as investing heavily in our elective backlog and in clearing waiting lists, we are investing in general practice, which will benefit enormously people with mental ill health.
Edward Argar
The Secretary of State was kinder than he normally is, and I am grateful to him for acknowledging the reduction in the proportion of mental health spending—it is slight, but it is none the less a reduction. I hear what he says more broadly, but I hope that he and the Minister will reiterate their commitment to ensuring that the legislation succeeds, which we all wish for, and that the pressures it may place on parts of the system will be addressed and not simply be absorbed within the system. I suspect that the Minister will come to that in his concluding remarks.
While it is the right principle to direct more mental health patients away from in-patient hospital settings and to community treatment settings where clinically appropriate—this is key, and goes to the Secretary of State’s point—we must ensure that the NHS has the capacity to provide community treatments when the Bill is on the statute book. The Government accepted that the reforms will take a number of years to implement, given the need to recruit and train more clinical and judicial staff, but what is the plan and how much will it cost? Will it be phased in over a number of years?
The NHS workforce plan will nearly double the number of mental health nurses by 2031-32, but the Secretary of State has said that he intends to update the plan. It would be helpful if, during the Bill’s passage, he or the Minister could tell either the Bill Committee or this Chamber what the changes that he envisages making through this legislation will mean for the workforce.
We recognise the significance of the provisions limiting the detention of patients with a learning disability or autism. Under the Bill, they can be detained for treatment only if they have a co-occurring mental health condition that requires hospital treatment and meet the criteria in the Mental Health Act 1983. Autism alone would no longer justify continued detention under the 1983 Act; in theory, this will ensure that those with autism receive the appropriate support in the right setting, as we would all wish. What steps are being taken to ensure that there are sufficient services, with sufficient capacity, to properly support people with autism and learning disabilities? Can he confirm that under this legislation, there will always be a central role for professional clinical judgments on these matters?
This debate in part follows on from concerns being raised about racial disparities in the application of the Mental Health Act. Can the Secretary of State or the Minister provide more evidence to help the House better understand this issue? What research has been undertaken, or is being planned, to enable us to understand what is behind the statistics?
We welcome this important opportunity to look again at how we treat and protect people with the most severe mental illnesses, and to ensure that our laws remain relevant and proportionate in the modern world, empowering people and treating them humanely. Updating the Mental Health Act is the right thing to do, and we will work constructively with the Government to improve the safety, treatment, agency and, crucially, dignity of mental health patients who are detained, and of the wider public.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I add my thanks to the Secretary of State and his whole ministerial team for bringing forward this crucial legislation so early in this Government, alongside other positive measures to fix our NHS. It was Labour that built the NHS and saved it in 1997, and here he is with his team, fixing our crucial NHS.
I serve a community, in Bermondsey and Old Southwark, with a higher prevalence of mental health conditions and psychoses. We are fortunate to have South London and Maudsley NHS foundation trust on our doorstep. This legislation will be crucial for the service professionals working on the frontline, as well as all those who need support. My borough of Southwark has additional help, funded by Southwark’s Labour council and our integrated care board, including direct access to help through online systems, and a drop-in hub for young people—a means of support that allows them to avoid GP wait times and delays in accessing help. I am glad that this legislation adopts a similar principle of ensuring early access to help, but despite the additional support in Southwark, as the local MP, I see the impact that poor mental health has on people’s lives, which are blighted by ill health and discrimination. I am acutely aware that just 5% of people with schizophrenia are in employment, for example. This Bill offers a chance to tackle some of the issues, but it is overdue.
I look forward to working with local organisations and people with direct experience, including trade unions in mental health services, carers, Blackfriars Settlement, food banks, and the drop-in clubs that support people with mental health conditions throughout Southwark, which are doing fantastic work, often on a shoe-string budget. As the constituency MP, I also see the impact on whole neighbourhoods if someone’s ill health causes them to behave erratically, and sometimes antisocially—noise and drugs are often interrelated issues. There can also be police involvement, following cuckooing by criminals who take advantage of vulnerable people. I hope that the Bill will challenge that growing phenomenon. It would be good to hear from the Minister whether communities—including landlords and neighbours, where appropriate—can trigger interventions to support people in crisis.
Just two weeks ago, I joined a ride-along with the police 999 response team. Some might say that it was not the first time I had helped the police with their inquiries. On that ride-along, which was my third with the local police, I saw again the consistent and sad overlap between what they were dealing with and mental health crises. I ended my shift with those police officers at King’s College hospital, trying to seek support for one ill man. I hope that the Government will retain the extension of section 135 and 136 powers, delivered in a Lords amendment. That would ensure that there was trained and qualified support, which would reduce the time that police lose. The amendment would save thousands of hours a week of officers’ time in London alone, and police could be redirected to areas where they are more needed.
Going back further, in the run-up to the introduction of the Mental Capacity Act 2005, I was working at the Disability Rights Commission, and I recall that mental health organisations were almost envious of that legislation, given the need to reform the Mental Health Act. They wondered when access to advocacy and patient-centred treatment would be delivered for people with mental health conditions. It is sad that there have been missed decades in between, but I am glad that this Bill is before us today.
The advance choice documents are a step towards a return to the greater choice and control lost in recent years, as services declined under the last Government. The use of nominated persons, as outlined by the Secretary of State, also offers a great step forward, as does access to extended use of independent mental health advocates for those in hospital. That should be automatic, as Mind has advocated. It is great that the legislation is based on the Wessely independent review and the principles underpinning it.
On a more personal level, and going back even further, the reason I became more aware of politics was my mum’s diagnosis of schizophrenia in the early ’80s—at roughly the time when the Secretary of State was born. Then, Rethink was still called the National Schizophrenia Fellowship. Mum has been through the mill in the decades in between. I will not suggest that she has been detained more times than I have had hot dinners—hon. Members can see by my waistline that that is not true—but the fact that the Mental Health Act has not been updated since then is appalling. When I joined the Labour party in the early ’90s, I never dreamed that I could play a part in improving legislation as an MP. I want to flag a couple of concerns, based on family experiences.
Recently, Mum told us that she believed she worked at a bank. That was news to us in the family—no doubt, it was news to the bank—as she is 75 and has not had to work for some time. I can laugh about it, but it is upsetting that she is unwell; it is frustrating that the system is mad; and trying to access support for her is maddening for us as a family. Her GP denies that she is unwell and refuses to see her. The last time this happened, she was sectioned for six weeks until she was back in rude health—and believe me, she was very rude when she came out.
South London and Maudsley NHS foundation trust estimates that it costs £3,000 a week to keep someone in hospital until they recover. NHS England has put a figure of £20,000 on detaining someone with schizophrenia until they are well. Those costs are avoidable if GPs act faster. Will the Bill result in better trigger points? This is not about artificial intelligence; it is about using known data in the system, so that there is access to supportive interventions that help individuals who have a mental health condition; help their family avoid the pain and suffering that they share when an individual is unwell; save a community the misery of associated antisocial behaviour or other problems; potentially save the police a fortune, as a result of their no longer having to accompany people to hospital for treatment, where that can be avoided; and, of course, save the NHS thousands in avoidable hospitalisation and in-patient treatment.
GPs can be part of the solution, but too often, they pass the buck and avoid the issue, as the Gardenia surgery in Luton does, pretending that everything is okay, despite prescriptions being uncollected, which leads to the inevitability of mental ill health rising fast. I hope that the Bill will lead to better community care, as the Secretary of State has outlined, but I also hope that GPs and pharmacists will be supported in triggering outreach work from mental health trusts when someone does not collect their repeat prescription, for example. I hope that it will be confirmed clearly that this will be in the legislation, or that the Government will indicate a willingness to accept an amendment along those lines.
My final, linked point is that the Bill should come with Government targets for reduced readmissions and sectioning. If the Bill is successful, people will not be discharged and readmitted in quick succession, and patients known to the system will not require routine, cyclical readmission. With the right support, the dysfunctional system can be replaced. That will have huge benefits for people’s mental health, and will mean huge savings for the NHS. There were, I think, 52,000 detentions last year. I hope that the Government will set out how that figure will fall.
I really look forward to supporting the Bill’s progression. The Bill will be transformative for the people I serve in my community, and the people I love in my family. It will be transformative for millions of people across the country—people with mental health conditions, their families, carers and service professionals—and, if it is done right, it will save the NHS a fortune, too.
Madam Deputy Speaker (Ms Nusrat Ghani)
I call the Liberal Democrat spokesperson.
Dr Danny Chambers (Winchester) (LD)
I thank the Secretary of State for introducing this really important Bill, and the Minister for his proactive engagement with us earlier this week. Before I entered Parliament, I was a trustee of the veterinary mental health charity Vetlife, which cares for the mental health of the veterinary profession—I have had to clarify before that it is not a mental health charity for animals with mental health issues. I became a trustee of the charity because my really close friend Sarah, at the age of just 31, when she had her whole life and career ahead of her, took her own life; I took her place as a trustee. Getting the news that I had lost her was one of the most painful experiences of my life. Many hon. Members in the Chamber will have suffered similar experiences with their friends and loved ones.
I speak about Sarah because while we are in this place, we rightly often discuss mental health issues using statistics—we talk about waiting times, workforce shortages and the economic impact—but we must never forget that there are individual lives behind the numbers, and nearly every person in the country is affected in some way. That might be through their own struggles or those of a loved one, or through grief after someone they care about has lost their battle with depression.
To return briefly to statistics, veterinary medicine—the profession I come from—has a suicide rate four times the national average. It is a small profession where everyone knows everyone, and everyone has lost a friend or a colleague to suicide. I share that not just for awareness, but because it reminds us that certain groups are at much higher risk—they are more vulnerable than others—and we should do much more to identify and support them.
Sarah Dyke (Glastonbury and Somerton) (LD)
My hon. Friend, as a veterinarian, will know that farmers also suffer with significant mental health issues. My constituents are under immense pressure following the family farm tax and the sudden closure of the sustainable farming incentive. Alongside that, they work extremely long hours, and the unpredictability of farm work means that it is more difficult for them to access mental health support and doctors’ appointments. Does he agree that we should introduce regular mental health MOT checks at key points in people’s lives—when they are most vulnerable to mental ill health—particularly for those in rural areas where there are barriers to accessing support?
Dr Chambers
My hon. Friend will not be surprised that I agree with her; she may as well have read the next bit of my speech. She is completely right. Farmers, those working in agriculture, military veterans and their families, mothers in the first year after childbirth, people living in poverty and the LGBTQ+ community are just a few of the groups that we know are at heightened risk.
We already take a proactive approach when it comes to physical health; we have targeted cancer screenings for at-risk demographics. We should take the same approach to mental health. That is why the Liberal Democrats have long called for properly resourced community mental health hubs, which could reach people before they reached crisis point. We are also calling, as my hon. Friend just did, for regular mental health check-ups at key life stages—for example, when someone has just given birth or just been discharged from the Army.
Freddie van Mierlo (Henley and Thame) (LD)
My hon. Friend is outlining the treatment options for patients. New medicines are also incredibly important, and groundbreaking research is happening at the Warneford hospital in Oxfordshire, a mental health hospital that is in desperate need of investment. Treatment options and new medicines go hand in hand, so does he agree that the Government should get behind the Warneford and invest in it?
Dr Chambers
I agree with my hon. Friend and thank him for his intervention.
Mental health MOTs could help to catch at-risk people early, so that we can start treating them before the problems develop further. I am sure that for all Members present mental health issues are among the top areas in our email inboxes and our correspondence. We receive emails from desperate parents of young people who are left on waiting lists for years throughout their schooling, and from adults falling between the cracks of an overstretched system. We should probably acknowledge that these are not anomalies. They are the symptoms of a system that is under immense strain. This long-awaited Mental Health Bill is a very welcome step, but it cannot be the only step, because at the heart of our approach must be the simple principle that prevention is better than cure.
Victoria Collins (Harpenden and Berkhamsted) (LD)
I absolutely support the idea that we need to invest in prevention—I am 100% behind that—but I have also spoken to many constituents who have issues with emergency health care. One of my constituents, Ed, sadly took his own life. He went into A&E undergoing a psychotic episode and was left simply with a phone number and no assessment. Hours later, he was lost. We need to ensure that those who need emergency treatment get it on the spot, as well as investing in prevention. Does my hon. Friend agree with that principle?
Dr Chambers
I totally agree, and I will come on to the care of people once they have been discharged after an acute mental health episode, because it is a hugely emotive and problematic situation.
We need a comprehensive mental health strategy that sees mental health not just as a clinical issue but, as the Secretary of State said, something that needs to run through housing, education, employment and justice. Good clinical services are vital, but we cannot medicate or refer our way out of a mental health crisis. Many mental health issues are often rooted in deeper challenges including poverty, housing, insecurity, loneliness, debt and trauma. These are not medical problems, but they put people at huge risk of developing mental health issues, and if we are serious about prevention we must tackle these root causes head-on.
The Bill focuses very much on the rights and treatment of people once they are admitted to mental health units, which is essential, but what is just as important—as my hon. Friend the Member for Harpenden and Berkhamsted (Victoria Collins) has just highlighted—is what happens when they are discharged and what support they get in the community to prevent a relapse. In Winchester, we have seen a brilliant initiative between local NHS mental health teams and Citizens Advice. Teams from Citizens Advice are in a mental health unit called Melbury Lodge, and they help mental health patients with all their life admin—the bills, the correspondence—so that they are not discharged back into the community only to come home to a load of outstanding credit card bills and demands to repay their personal independence payments, for example.
What is remarkable is that every pound spent on that initiative saves £14.08 in cost avoidance for the NHS through shorter in-patient stays, fewer readmissions, better engagement of services once they are discharged and a reduction in medication use. This is a win-win for staff, patients and the taxpayer, but it is a pilot project and there is no funding secured for it to continue, despite the proven cost-saving benefits. We urge the Government to look seriously at rolling out such initiatives nationwide.
My hon. Friend the Member for Dorking and Horley (Chris Coghlan) has been passionately campaigning since entering this House to ensure that families have a greater input into medical decisions when there are questions over the mental capacity of vulnerable patients, and I invite him to make an intervention now.
Chris Coghlan (Dorking and Horley) (LD)
I thank my hon. Friend. As he knows, in my maiden speech eight months ago I pledged that Fiona Laskaris would succeed in changing the law that had prevented her from saving her autistic son, Christopher, from murder. Fiona is here today. Despite pleading for years, she was never able to obtain a mental capacity assessment for her son. As we heard from the Secretary of State, the Government are now seriously looking at an amendment that would both honour Christopher’s legacy and save lives. Does my hon. Friend support that amendment?
Dr Chambers
I thank my hon. Friend for that moving intervention and offer my condolences to those in the Gallery. We appreciate that the Secretary of State is seriously considering an amendment that might help save lives.
Early intervention cannot just be a slogan; it has to be the foundation of a functional system. Last week, I sat around a campfire with the amazing team at the Winchester youth counselling services. That charity has a nature therapy programme in which 11 to 16-year-olds can go camping, have walk-and-talk therapies and do bushcraft and outdoor cooking. While we were toasting our marshmallows, the team were talking about the free, confidential mental health support that they offer, providing services such as one-to-one counselling and a weekly wellbeing walk-in session. By immersing young people in nature, this programme helps to reduce stress and anxiety and fosters emotional wellbeing and resilience. Crucially, the services are accessible without the need for a doctor’s referral or diagnosis. Young people can self-refer, ensuring that support is available promptly when it is needed most. This is why Liberal Democrats have been calling for mental health hubs for young people in every community. We support the Government’s campaign for a mental health professional in every primary and secondary school—not just an occasional visit or a pilot scheme, but a permanent funded presence.
Edward Morello (West Dorset) (LD)
Just to follow up on my hon. Friend’s point about the importance of mental health hubs, in West Dorset the only child and adolescent mental health services centre is in Dorchester, and for many people in my constituency, especially young people, that means at least a 30-mile round trip to access services. In rural Britain, we are lucky if transport links exist, and those that do are often limited. That makes accessing services nearly impossible, which is what makes hubs so important.
Dr Chambers
I totally recognise the importance of that intervention.
We also need a system that is much easier to navigate. A psychiatrist came to see me in my office in Winchester and told me that his son had been referred to CAMHS. He said that despite the fact that he and his wife worked in the medical profession, they had really struggled to access the help that they needed. He said:
“If we can’t navigate the system, what chance does anyone else have?”
That is one reason that Liberal Democrats are calling for a mental health commissioner: someone to champion families, cut through bureaucracy and help people to get the support they need before things get worse. The system needs to be simplified, both for the parents and families who are trying to access the service and to allow the system itself to function.
For years, Liberal Democrats have campaigned for mental health to be treated equally with physical health, and we welcome the commitment to parity in the King’s Speech, but it must be backed by action. The Darzi report showed that mental health accounts for around 20% of the NHS case burden—as the Secretary of State acknowledged—yet it receives just under 10% of the funding. For this reason, we want to ensure that the mental health investment standard is maintained and strengthened, and not quietly scrapped or watered down. The Secretary of State also highlighted the scale of this challenge. Around 1 million people are on waiting lists for mental health services, but importantly, 340,000 children are on mental health waiting lists and some of them are waiting an average of 15 months for care, which is a huge chunk of their educational time and personal development. This is not a crisis that is waiting to happen; it is a crisis that is already here.
In this economic crisis, some people ask how can we afford to invest in mental health, but the real question is how can we afford not to do so, because we already pay the price in lost productivity, emergency call-outs, A&E admissions and—most tragically of all—lives cut short. We must spend to save.
The hon. Member for Bermondsey and Old Southwark (Neil Coyle) spoke about spending time with police. I have done the same thing—a fascinating and informative exercise. I encourage everyone to go on patrol with their police. In Winchester, the police say they spend up to 40% of their time responding to mental health-related incidents. We know that patients turn up to A&E in mental health crisis, many already on a mental health waiting list. I heard that the average amount of time someone spends in a mental health crisis in Winchester’s A&E, often needing individual supervision, is 18 hours. That is not sustainable, because we are using the most expensive part of our health system to do the work that should be happening earlier, which would be more cost effective for the taxpayer and provide better outcomes for patients.
Finally, I pay tribute to all those on the frontline: the nurses, counsellors, psychiatrists, doctors, therapists, support staff and charities who prop up a system that should be supporting them. We very much look forward to working constructively with the Government to improve the Bill, and we support it. We will keep pushing until we live in a country where mental health gets the same attention and care as physical health.
Dr Marie Tidball (Penistone and Stocksbridge) (Lab)
One of the reasons I stood for Parliament was to work hard to create a society that values disabled people, that treats us with dignity and respect, and that ensures there is nothing about us without us. It is right that this Government will fix the broken system to ensure that we give mental health the same attention as physical health. I am pleased to see the four key principles from the independent review of the Mental Health Act at the heart of the Bill: choice and autonomy, least restriction, the principle of therapeutic benefit and, most importantly, treating people as individuals.
After 14 years of a Conservative Government, over 2,000 autistic people and people with a learning disability are in mental health hospitals in England. Some 92% of those people are detained under the Mental Health Act 1983, and the average length of stay for in-patients is almost five years. This is a human rights scandal, as the Joint Committee on Human Rights concluded in 2019. The current situation is simply wrong. Autism and learning disabilities are not mental health conditions, and yet under the current Mental Health Act, autistic people and people with a learning disability can be detained in mental health hospitals indefinitely. In my 15-year career working with autistic people and those with learning disabilities, along with autism organisations up and down the country, including the National Autistic Society and the Autism Alliance, I have seen the tragedy of autistic people cycling through the mental health system because of those measures and the failure of public services to provide adequate social care on discharge from hospital orders. As an MP, I know from my constituency that too many people are still being detained who could be supported to live well in our communities by organisations such as Greave House Farm Trust and Action for Autism Barnsley which are on my doorstep.
The most significant change in the Bill is the removal of autism and learning disability from the definition of mental disorder under section 3 of the existing Act. This vital change means that autistic people and people with a learning disability cannot be detained for treatment unless they have a co-occurring mental health condition that requires in-patient mental health care. The Government have said that
“the proposed changes to the detention criteria for people with a learning disability and autistic people will only be switched on when systems are able to demonstrate a sufficient level of community support”.
It is crucial for that to happen quickly, through the Government working closely with autistic people and those with a learning disability, as well with as advocacy groups, to publish a plan to build sufficient support in our communities up and down the country.
My book on the treatment of autistic people in the criminal justice system demonstrated that ensuring that there is an appropriate level of services in the community is essential in preventing the needs of autistic people and people with a learning disability from becoming too complex, leading to admission to mental health hospitals. It also demonstrated the need to support safe discharge out of hospital. Critical to reducing the numbers of those currently detained in hospital under the current law are care, education and treatment reviews for adults and children who are autistic or have a learning disability, which will help speed up discharges, prevent admission and ensure that the person is being given appropriate care. I am delighted that the Bill will make those reviews statutory in in-patient settings. The responsible commissioner, clinician, integrated care board and local authority must have regard to the recommendations arising from them. As chair of the all-party parliamentary group on autism, I am aware that recommendations are often not followed in an expeditious manner. Therefore, there is an opportunity to strengthen the duty on responsible parties to follow recommendations from those reviews.
The Health Secretary has been moving mountains to work on our 10-year plan. I therefore hope that the Bill’s 10-year implementation period for the changes to detention criteria will align with his important work. He is also doing an incredible job to move to a prevention-led health system, and that provides an opportunity for an integrated approach to community support, including working with the Ministry of Housing, Communities and Local Government to ensure there is adequate housing in every integrated care system.
The exclusion and marginalisation of autistic people and those with learning disabilities through their institutionalisation in hospital perpetuates their exclusion from our society. I am proud that our Government are tackling these issues so early on in this Parliament, alongside their commitment to the mental health investment standard, the recruitment of 8,500 mental health workers, and work to deliver a long-term plan for the reform of adult social care. Society is an order of equality and non-discrimination. It is all the richer where autistic people and people with learning disabilities are included within it to fulfil their potential. I commend this Bill to the House.
Dr Ben Spencer (Runnymede and Weybridge) (Con)
I rise to speak in support of the Bill. To begin with, I need to make a couple of declarations. I have a family member who is a consultant psychiatrist. I am now a non-practising general adult psychiatrist with an endorsement and years in psychiatry, and I previously worked as a consultant psychiatrist. I took part in the 2018 Wessely review as a panel member on the tribunal working group, and I was on the pre-legislative scrutiny Committee in the last Parliament.
In a declaration of a more personal nature, this is an area that I feel passionately about. It is a great privilege to speak to this important piece of legislation and reforms going forward. The United Kingdom reforms its mental health legislation every 20 years or so. I did not want to correct the Secretary of State, but the first Mental Health Act was in 1959—I hope that was substantially before he was born, with reference to his earlier comments. The legislation has gone through various iterations from the original Lunacy Act and similar legislation in the 19th century. In the UK, we have always been at the forefront of reform to the law and to provisions and powers in this area.
It is important in this Second Reading debate to focus on what the Mental Health Act is and what it does. Members have talked more broadly about the challenges of delivering mental health care currently, but it is important to reflect that the Mental Health Act is very specific and precise. It is about the regulation of detention—sometimes for assessment, sometimes for treatment—of people with mental disorder, and has a range of powers on aftercare and guardianship. It is focused on detention and assessment, or treatment, of people with mental disorder. We need that because there are times when people with severe mental illness become so unwell that they are unable to recognise their illness. Their illness puts their health at risk—predominantly through self-neglect or non-treatment. It puts their safety at risk, again through self-neglect, as well as through suicide. And, less commonly but critically, it puts them at risk of causing harm to others.
The legal framework allows us to regulate compulsory treatment in that regard. It is absolutely critical that we have those powers so that, when people are so unwell that they do not recognise it and they lose agency, we can, as a compassionate society, take them into hospital and treat them, with a view to getting them back to themselves. I have used the 1983 Act countless times, applying it both to assessments and, as a section 12-approved doctor, to treatments, and I have used it as a responsible clinician. I suspect that I am one of the few Members of this House—certainly in this debate—who has had those roles and responsibilities.
In terms of framing, it is important to reflect that one of the key changes in the 1983 Act, which is such an important piece of legislation, was that it was about restricting powers and ensuring that there were strong procedures for reviewing detentions. As a former health professional in this area, I am certain that all professionals working in it are mindful of the scope of powers that the Act provides. When applying restrictions, people do not use these powers in anger or without a great degree of thought and contemplation. The most intrusive intervention available to us in the health service is to detain and treat people in hospital or in secure hospital settings. Those powers are not taken lightly.
A lot of concern was expressed at the start of the debate—and I am sure it will continue—about the way in which people have been treated in hospital. There have been some very high-profile scandals in which things have not worked well, to say the least, and care and treatment have been atrocious and abusive. However, people working in health and care in the UK are doing so because they want to see the best outcomes for their patients. Sometimes, they are limited in that because of the resources available. They do not use the Mental Health Act with a view to harming people, but with a view to helping them.
Being detained under the Mental Health Act is not a prime facie harm; it is a treatment and a good thing. If someone needs to be detained and treated in hospital, they need to be detained and treated in hospital. If I became so unwell that I needed to be detained under the Act, I would want to be detained. Thankfully, I am not in that position today—[Interruption.] At least I believe that I am not, although the shadow Minister, my hon. Friend the Member for Hinckley and Bosworth (Dr Evans), might have a different view on that. [Laughter.] Should I get to the point where I am so unwell that I cannot consider my own care, I would want the powers of the Mental Health Act to be used quickly, particularly if I were posing a risk to myself, my family and others, so that I can get better and back to living my life.
I pay tribute to Baroness May of Maidenhead, who kicked this off, and to Professor Sir Simon Wessely—a good friend—Stephen Gilbert, Sir Mark Hedley and Rabbi Baroness Neuberger for their work in the 2018 review. There is a lot of good work in the Bill, from the greater focus on advance care planning and the more frequent detention reviews, which I recognise may bring a workforce burden, to the provisions on nominated persons. I will not go into the detail in this Second Reading speech, but I will focus on a few general points on which I think a bit more work needs to be undertaken.
In some ways—I will have to message Sir Simon after this to ask his forgiveness—the Bill is a missed opportunity in that we have are not moving towards fusion law. For the benefit of those who are not all over the detail, at the moment the UK has two pieces of legislation regulating how to treat people in the absence of consent. The Mental Capacity Act 2005 came about from case law in the ’80s and ’90s and was codified in 2005. That Act broadly regulates physical health treatments for people who lack the capacity to consent—we have focused quite a lot on capacity in the recent debates on the Terminally Ill Adults (End of Life) Bill. The principles of the 2005 Act are autonomy and the functional capacity and best interests tests for people who lack capacity, meaning that we test someone’s capacity, and only if they lack capacity can we intervene in their best interests, sometimes by using deprivations of liberty.
The Mental Health Act arose from a very different pathway. In its first days, it was more about the regulation of asylums. The Act is about status and risk. The gatekeeper conditions for the current Mental Health Act are that a patient has a mental disorder of a nature and a degree that requires assessment in hospital because of the risk to their health and to the safety of others. Capacity does not feature whatsoever.
We have two pieces of legislation. One applies to the most severe mental disorders and deals with status and risk, and the other deals with autonomy and best interests. I strongly believe that the two need to be merged. We should use capacity and best interest frameworks to regulate treatment of mental disorder in the absence of consent—there are ways of doing that. I like the fact that we are starting to incorporate a bit more in the Bill.
Sojan Joseph (Ashford) (Lab)
Does the hon. Member not think that the deprivation of liberty safeguards, which, unlike the Mental Health Act, help to hold those who lack capacity in an environment that is not secure or locked, such as a hospital, are useful, and that bringing the two provisions together is unnecessary?
Dr Spencer
The hon. Member is of course very knowledgeable given his background as a mental health nurse. I would like to see in the Bill a provision setting out that, in order to detain someone for the purposes of health or safety, they must lack decision-making capacity for the detention to be authorised. For the prevention of harm to others, there are reasons to overcome autonomy in decision-making capacity, but I would like to see an additional component specifying that if the detention for assessment and treatment in hospital is purely based on health and safety and not on risk of harm to others, the patient must also lack capacity. Otherwise, people who have full and intact decision-making capacity can nevertheless come into the scope of the powers.
The liberty protection safeguards are a bit of a mess, quite frankly, and the DoLS were clearly a substantial mess. It is interesting that the legislative scrutiny of the Bill points out that it is a missed opportunity not to tidy up some of the interface between the Mental Health Act and the Mental Capacity Act—a point that I will come to a little later in my speech. In terms of parity of esteem, bringing forward fusion law and gelling the Acts closer together needs to be the direction of travel. I hope that we do not have to waste another 20 years until we get the opportunity something like that.
There is something else that we need to reflect on. It comes to my other points about the focus in the Bill, but I will reiterate it. The core focus of the Bill is on reducing detentions of people from black and minority ethnic groups, who are over-represented in detention. One of the key focuses in fixing that must be on socioeconomic deprivation—where we see socioeconomic deprivation, we see severe mental disorder following—but I worry that the Bill is a missed opportunity and will not do what is required to deal with those disparities.
There are three problems with the Bill, and two things that I wish to flag. I am sensitive to the concerns that have been raised about people with autistic spectrum disorders and learning disabilities, and the advocacy regarding such people being in hospital. Being in a general adult ward is a challenging environment as it is, and it is particularly challenging for someone with an ASD or a learning disability. People can get stuck in hospital not really going anywhere. That concern applies to most disorders—I do not think it is unique, given the lack of community support services. I disagree, however, with the focus on ASD and LD above all other conditions. If we want to talk about non-progressive conditions, I do not understand why a brain injury, or Korsakoff’s dementia for example, are not within the scope of this measure. I do not understand why, rather than using the Bill to take people out of section 3 of the Mental Health Act, something like a bolstered treatability test is not used, which is what was in the Act before it was modified in 2007.
Jen Craft
I am grateful to the hon. Gentleman, who has brought his wealth of experience to this place. Would he concede that the focus on learning disability and autism is perhaps because those disorders have very specific features? Being in an unfamiliar, over-sensory stimulating or noisy environment, with a break from routine, has an adverse effect on some people precisely because of the nature of their disability, and perhaps more so than for some of the other conditions he has mentioned. Indeed, it seemed something of a weird anomaly that learning disability and autism were classed as mental illness for the sake of the Mental Health Act. I am sure the hon. Gentleman will agree they very much are not.
Dr Spencer
I thank the hon. Lady for her intervention. Sensory over-stimulation can be a particular issue for those with autistic spectrum disorders. I have been concerned when I have looked after patients, and I have thought carefully about the challenges, particularly in general adult wards, of catering to the needs of people with autistic spectrum disorders or a learning disability. I would argue that that would apply broadly to anyone in a general adult hospital, irrespective of diagnosis—everyone has particular needs and sensitivities and we need to be mindful of that.
I suspect this is something that the hon. Lady and I will disagree on, but I would consider an autistic spectrum disorder and a learning disability to be a mental disorder. It certainly is under the ICD-10 classification of mental and behavioural disorders. One problem with how this issue is framed in the Bill is, for example, where Rett disorder, which is also a pervasive developmental disorder, would come into it. Does it come under the term “autistic”? Where does a not otherwise specified pervasive developmental disorder come into it? I am not sure whether how the terms in the Bill will operate in real life has been thought through. I do not understand why we are not pushing for such a provision for every disorder and condition that people have when they come into hospital. That is why we are not focused on something like a treatability test, or otherwise.
This has a specific real-life fall-out. If people need to be in hospital after 28 days and there is a deprivation of liberty, that is going to happen. It will not stop happening; with the best will in the world, and even with this Bill, it will keep on happening. People will either be detained under liberty protection safeguards, or they will end up being detained with anxiety related to their ASD or learning disability, which would place them within scope of the Mental Health Act.
A further challenge and disparity in the Bill is that it does not affect forensic provisions. People could be keener to pursue a criminal prosecution of people with ASD or an LD because that would enable a longer stay in detention than 28 days. That is why in the pre-legislative scrutiny we suggested that there should be an option to get a pre-authorisation for detention beyond 28 days by going to a tribunal, which we thought might deal with some of the concerns raised. Personally, I like the idea of pre-authorisation in general beyond 28 days, and it is something that Professor Richardson spoke about in her review back in the late ’90s. The Government recognise that there are challenges with this area, which is why these changes are in the schedules. There is a recognition that, frankly, this is not workable, and we will see as the Bill progresses that there are broader concerns about how it operates.
Another area of concern is nominated persons and parental responsibility. The Bill changes “nearest relative” to a “nominated person”, which means that people can choose who performs that important role under the 1983 Act. The nearest relative or nominated person can discharge someone from the powers of the Act, which would inevitably mean that they would be discharged from hospital—there are powers to bar people, but it is quite a high threshold. This measure is important because it will allow someone under the age of 18 to choose someone who is not their parent to have that important statutory power. We raised this issue in the pre-legislative scrutiny Committee. We could have a situation in which a 16-year-old with competence who is detained under the 1983 Act in hospital chooses their mate, or somebody else—not their parent or someone with parental responsibility—to have the power to discharge them from measures under the Act, which would inevitably mean them leaving hospital. The parent, who in such situations is often responsible in some way for the after care, would lose that power.
I am concerned, as were the Lords, about the impact of that measure on the Children Act 1989. I think there is a serious problem in changing this area of law—we do not have this in physical health—and introducing the ability to give a statutory power to a non-parent. I know the Minister will look into that in the Bill Committee, but I think the Government will have to row back on that. They could easily amend the Bill to say that if someone is under the age of 16, the nominated person must have parental responsibility unless there is a good reason for them not to have it. Sixteen and 17-year-olds are a bit different, especially when people start getting close to 18 and there are other children’s rights, but I cannot see why we should legislate to let someone under 16 choose someone who does not have parental responsibility to have that important power.
The third problem is that the Bill is silent on deprivations of liberty in A&E, which are ongoing. It has been a while since I worked in A&E, but there has always been the challenge of what to do with someone who turns up to A&E if the doctor thinks that they will probably need detaining under the Mental Health Act because they are suicidal or very unwell, and wants to keep them there while the assessment takes place. We can get through it using the Mental Capacity Act 2005, but it is messy. It would be a lot clearer for everybody if we said, for example, that section 5(2) of the 1983 Act, which allows for temporary detention, could apply to an A&E setting. There is a bunch of technical stuff about the interaction between deprivation of liberty and the Mental Capacity Act, but I suspect you will start giving me the evil eye, Madam Deputy Speaker, and telling me to move on if I start—[Interruption.] Madam Deputy Speaker says no, but I suspect that Members across the House might start doing that, so I will move on.
Let me flag two things in the Bill. It allows for a discharge from hospital under supervised conditional discharge to a deprivation of liberty. That is in response to the case of Secretary of State for Justice v. MM, which involves a problem with how the law currently operates. As far as I know, in mental health law we have never had a situation where deprivations of liberty in the community were authorised under the Mental Health Act—someone had to be in a registered hospital. That is a big Rubicon to cross. I see why the Government need to tidy up this area of law, but I am not convinced that we have realised what a big Rubicon this is to cross. The operation of the Mental Health Act has always meant that someone was detained in hospital, but when they are in the community they are in the community. Someone might have certain restrictions placed on them by a community treatment order, or otherwise, but they are not deprived of their liberty in their home or in some other community setting that is not a registered medical hospital. I think that measure needs a bit more reflection.
I believe that the majority of those who will undergo compulsory treatment under detention, certainly for a long period of time, under this legislation will be people with psychosis, such as schizophrenic forms of psychosis, schizophrenia and bipolar affective disorder, but lot of the debate and focus has been on non-psychotic illnesses. That is not to say that those illnesses are less important—they are certainly not less important, especially for those who experience them—but I am concerned that people with schizophrenia always get a raw deal. They are often marginalised by society and in terms of the amount of advocacy they have.
In fact, a lot of the evidence that we reviewed in the pre-legislative scrutiny Committee focused on non-psychotic disorders, perhaps because sadly people often turn their backs on people with psychotic illnesses. Sometimes those people find themselves in a situation where their illness is so debilitating that they cannot advocate for themselves, so there tends to be a bias towards disorders such as dementia, ASD and LD, where there is someone to advocate, such as CAMHS or families who might push a little bit more. I am not saying that any condition is more important—I really want to stress that—but as parliamentarians, we do not necessarily understand that the bulk of the conditions that the Bill focuses on concern psychosis.
Finally, I have spoken a lot about how psychosis can lead to people being detained in hospital and about the impact of that. Psychosis is a pretty terrible disease but it does not need to be: lots of people get better and it is one of the most treatable diseases. The Bill will help people to get better and we cannot lose sight of that.
Lauren Edwards (Rochester and Strood) (Lab)
I welcome today’s Second Reading of the Bill. I would like to focus on one aspect of the legislation: the removal of autism and learning disability from the definition of mental disorder under section 3 of the Mental Health Act 1983.
I recently visited a wonderful local charity, the Challenging Behaviour Foundation. It is the only UK charity specifically focused on the needs of children, young people and adults with severe learning disabilities whose behaviour may be described as challenging, and their families. On that visit, I was shocked to learn that under the Mental Health Act, autistic people and people with a learning disability can be detained in mental health hospitals indefinitely, just because they are autistic or have a learning disability.
I thank the hon. Member for Runnymede and Weybridge (Dr Spencer) for sharing his extensive professional experience, but I disagree with him on one point: in my view, autism and learning disability are not mental health conditions, and I do not believe that they should be treated as such in law, which is a view shared by a lot of people in the sector who I have spoken to in advance of the debate.
This issue is currently affecting a lot of people. As my hon. Friend the Member for Penistone and Stocksbridge (Dr Tidball) said, over 2,000 autistic people and people with a learning disability are in mental health hospitals in England today, the vast majority of whom are there under the Mental Health Act. Importantly, around 225 of them are under the age of 18, so this is affecting a lot of our young people.
Mental health hospitals are often inappropriate for autistic people and people with a learning disability. Once detained, they can get stuck in those settings for many years, which can be deeply overwhelming and damaging and lead to lifelong trauma. As my hon. Friend the Member for Penistone and Stocksbridge mentioned, the average length of stay for current in-patients is nearly five years, and we have to ask ourselves why that is. The latest available data shows that the key reasons for delayed discharge are a lack of suitable housing and a lack of social care. Charities like CBF continue to hear worrying stories of abuse, over-medication, unnecessary restraint and seclusion in these settings.
Back in 2011, “Panorama” uncovered abuse at Winterbourne View hospital, bringing attention to the fact that many people with a learning disability and autistic people were being detained in hospitals, when they could and should be living in the community. Since then, there have been numerous policy interventions and action plans from the previous Government. However, sadly they have not resulted in the changes promised and all national targets to reduce in-patient numbers have been missed; in fact, the numbers have increased.
Legislative change is clearly needed, and I welcome the change to detention criteria in the Bill that will mean that autistic people and people with a learning disability cannot be detained for treatment unless they have a co-occurring mental health condition that requires in-patient mental health care. However, on page 72 of the impact assessment, the Government say that the proposed changes
“will only be switched on when systems are able to demonstrate sufficient level of community support”.
Ensuring appropriate provision of services in the community is crucial to supporting autistic people and those with a learning disability, so that they can be discharged from hospital, and so that we can prevent needs from escalating, and prevent admission to mental health hospitals. However, if there is no comprehensive, fully resourced plan to build capacity in the community and enable this change to be “switched on”, this vital reform could be delayed for far too long. I urge the Government to publish a comprehensive plan to ensure that the change to detention criteria can be commenced, and to ensure accountability for this process. Ideally, commencement would be in 2027, in line with modelling in the impact assessment. I also ask that those changes be co-produced with the people who will be affected by them.
The previous Government’s “Building the Right Support Service Model” could act as the starting point, but I draw the Minister’s attention to the challenging behaviour national strategy group, co-ordinated by CBF, which has developed a co-produced, lifelong action plan that sets out not only the changes that need to be made to get community support right, but resources and best practice. I encourage the Minister to meet families to better understand the impact of inappropriate detention on people with a learning disability or autism and their families. I would be happy to help co-ordinate that through CBF.
Chris Coghlan (Dorking and Horley) (LD)
Eight months ago, in my maiden speech to Parliament, I said that Fiona Laskaris would succeed in changing the law that prevented her from saving her autistic son, Christopher, from murder. I am here today to honour that commitment. We are on the cusp of changing the law. We have got this far thanks to the National Autistic Society; MPs from across the Chamber working together to overcome injustice, including the right hon. Member for Godalming and Ash (Sir Jeremy Hunt), the hon. Member for Rotherham (Sarah Champion), the right hon. Member for Leeds South (Hilary Benn) and my right hon. Friend the Member for Kingston and Surbiton (Ed Davey); steadfast support from my party, the Liberal Democrats, and support from the Prime Minister and the Government, in a way that represents Parliament at its best; and Elisa Menendez and Romilly Weeks from ITV, who ran the story. Above all, we got this far because of the courage and determination of Fiona Laskaris to save others from the fate that befell her son, Christopher. Fiona and Cara, Christopher’s sister, are in the Gallery.
Christopher was not unlike many autistic children. He was a sensitive, intelligent, loving and compassionate boy, who once asked his mum to stop on the way to school to rescue a lamb that was stuck in a fence. I first met Fiona when I was eight. I stayed in my bedroom and ignored her, perhaps because I was angry that she was buying my home off my dad; my mum had died when I was a few months old, and I was a sensitive boy. Well, they moved in; Christopher grew up in my old bedroom, and he loved the house as much as I did, but as a young man living alone in Leeds, he struggled. Despite Fiona pleading for help for years, she was never able to attain for him the mental capacity assessment that he needed to determine his support requirements. Horrifically, he was exploited and murdered by a man who had just been released from jail. Christopher was 24. We are working with the Government on an amendment to the Bill to ensure that the views of family members are considered when determining an adult’s requirements for a mental capacity assessment.
Christopher’s story is not unique. King’s College London found that in 2022 alone, there were 95 preventable deaths of people with autism and learning disabilities in cases in which the Mental Capacity Act 2005 had not been correctly followed. It can be hard to grasp the scale of the special educational needs and disabilities crisis in this country, but tens of thousands of SEND children are out of school, including 1,800 in Surrey alone. We are losing autistic children, including my constituent Jennifer Chalkley, to avoidable suicide, and, at worst, we are abandoning autistic people in their 20s to murderers; we are failing a generation. How we answer their call for justice will serve as a measure of who we are, and I believe the answer is less a matter of money than of leadership. We know from Nobel laureate James Heckman that early intervention is exponentially more effective and economical in today’s brutalised system, which has cost the lives of Christopher, Jennifer and too many others.
Although this amendment is only a small part of the answer, it can save lives. If one grieving mother can change the law, perhaps we can change the other things, too. If we succeed, it will be above all because of the voices of broken but unbeaten parents, like Fiona, demanding change. Although Christopher had a difficult life, he had the most precious thing that any man can have: a loving and devoted mum. It is up to us to ensure that Fiona is a witness that in our country, it is possible for the vulnerable to be heard, for injustice to be overcome, and to find, beyond grief, hope.
Kevin McKenna (Sittingbourne and Sheppey) (Lab)
I commend the hon. Member for Dorking and Horley (Chris Coghlan) on a powerful and vital contribution to this debate. In fact, I commend everyone who has spoken so far, often from personal experience and expertise. This is unfinished business, and this Bill is long overdue.
I have been reflecting on my first placement as a pre-registration student nurse. I went straight into a mental health ward. I am not a mental health nurse; that was not the route I took, but not because anything I saw there particularly turned me off it. However, it was a remarkable experience. When I walked into the unit for the first time, I was shown a burned pool table; it had been burned down the day before. The staff apologised and we moved on. The staff were full of compassion, but also frustration, and one of the things that they were frustrated with was the Mental Health Act 1983. This is some time ago; we are talking about 1996. In one of my very first teaching sessions on that unit, I was told about all the things that needed to be changed in the Act, so it is slightly surprising that I have wound up in this place, with the opportunity to change and challenge those elements.
The points made to me then were particularly about the challenges for different communities, and the way that people from different ethnicities and cultures were assessed for mental ill health. The Bill will help to adjust that, and hopefully we can mitigate those problems, and move beyond and progress from the 1983 Act. Some things were not even properly on people’s radar then; for example, there was less understanding of neurodiversity, autism and learning disabilities, and the inappropriate way that they were covered by the Act. Many Members have talked about the large number of people who are autistic or have learning disabilities who are incarcerated. That has been described as an offence against human rights, and I believe that to be true, but I also believe that it will be challenging to overcome.
In 2019, the long-term plan for the NHS was brought forward by Baroness May, and several Members of this House had a key part in driving forward that change. It said that we should challenge the detention of people who are autistic in mental health locations that people are left in for a very long time. We heard from my hon. Friend the Member for Penistone and Stocksbridge (Dr Tidball) that the average length of stay of someone who is autistic or has learning disabilities and is detained under the 1983 Act is 4.7 years. That is a lot longer than many people with psychotic illnesses would need to be detained.
That long-term plan for the NHS had great intentions, and made suggestions for overcoming the issue and liberating people from detention. It was not just the pandemic that came soon afterwards that kiboshed them: it is really hard to drive change in the system when the Mental Health Act protects clinicians and senior people in the NHS in not driving forward that change that is needed. To drive it forward, we need a change to the Act, and that is what we have in front of us. I commend everyone who has worked hard on the Bill to ensure that patients’ voices are heard.
In my constituency of Sittingbourne and Sheppey, we have big mental health challenges. We have the highest suicide rate in Kent and, I think, the 37th highest suicide rate of any local authority area in the country. That means that 37 other Members in this House have even bigger challenges when it comes to suicide and mental health provision. I am sure that what many of those places and Members have in common is the challenge of economic deprivation and inequality, which—let us face it—is the biggest driver of poor mental health outcomes. That was mentioned admirably by the hon. Member for Runnymede and Weybridge (Dr Spencer), who talked at length about the complexities of the 1983 Act. I commend him for his insight on the challenges of changing that. We have to change things across the board—in housing, access to employment and transport, things that are way beyond the bounds of the Bill. We should use this Bill to drive that forward. We should look around our communities and see the creative approaches that we can use.
On Saturday, I had a lovely day out in the sunshine at Curly’s farm on the Isle of Sheppey in my constituency. It is an active farm, set up by two fathers to support their son, who has profound learning disabilities and autism. It brings in children with learning disabilities, autism, mental health challenges and behavioural challenges generally. It is something like the Challenging Behaviours Foundation, which my hon. Friend the Member for Rochester and Strood (Lauren Edwards) talked about, and which is also very active in my constituency; I was glad to host an event for it. The farm really shows us that when we get people out of institutional settings and outdoors into different environments, they can thrive in a way that they do not in school, or in healthcare settings. It is transformational to the lives of the children and young people who go there, who often go on to work in agriculture. I am sure that many other hon. Members see that.
Sojan Joseph
My hon. Friend is absolutely right to say that patients with challenging behaviours should not be detained in a mental health ward for many, many years. They should be in a different setting. Does he agree that we do not have enough support or accommodation for patients? We need to invest more in community settings for some of these patients with challenging behaviours.
Kevin McKenna
My hon. Friend has jumped ahead of me on that—not surprisingly, given his background as a mental health nurse. That is absolutely true. We do need to invest more, but we need to think beyond the NHS. Although this is the Mental Health Bill and it has “health” in its name, this issue is much bigger than the services that the NHS can provide.
There is a weakness in this Bill. The concern I have, which several other Members have mentioned, is that it does not tie us down to a tight timeline for this transformation. The Bill provides a get-out. That is done to ensure that services in the community are properly set up, but I worry that that the timeline will slip and slip. The time to move is now. People have been languishing for too long in settings that do not offer them a therapeutic way forward, and in places that are frankly inhumane and breach what we would all consider to be our human rights. The Minister is here and listening, and I recommend that he thinks about how we can get an active plan, so that we do not let this issue slip, but actively ensure support for services in the community, invest in them where needed, and foster them.
Jen Craft
I very much support what my hon. Friend is saying about making sure that there is an active plan. One of my concerns is that implementation of this Bill will be delayed until community support is ready. Does he agree that it would be welcome if the Minister offered a reflection on what good looks like in this space, and what ready looks like, so that we know what we are aiming for?
Kevin McKenna
I absolutely agree. We should flip this around from a delay until we are absolutely ready to an active process of deciding what good looks like.
Two weeks ago in my constituency, I ran a mental health conference. That was largely because, as I was going around as a new MP talking to every different organisation I could, mental health was right at the top of nearly all their worry lists, whether it was the food bank, the schools, the police, the prisons, or organisations in my community that had set themselves up to support people with mental health. I have a MenTalk in Sittingbourne and a MenTalk in Sheppey; they work in different ways, but that shows the level of pressure that exists locally. All of those organisations brought out mental health as their biggest worry, even if it was not their primary purpose.
Just bringing people together and getting them to talk together—people who perhaps had not talked to each other until that point—really made a difference. You could see it in the room on that day. I am sure I am way behind the curve compared with a lot of other Members who have been doing this sort of stuff already, but for me, it really showed that we have got to be active in pushing this forwards. What we have learned from 2019 and the long-term plan for the NHS is that it is the implementation that matters. It is not the words in the strategy; it is getting an implementation plan really tight and fast on the ground. Given that the impact assessment talks about 2027 as a key point, I would like to see a commitment in the Bill to produce a workable plan by 2027 at the latest—one that can give us the road map we need for the future. That has been called for by organisations such as Mencap and the National Autistic Society, so I really commend it to the Minister.
Gregory Stafford (Farnham and Bordon) (Con)
Despite having worked in healthcare for most of my career and serving on the Health and Social Care Select Committee, having listened to the speeches thus far this evening, I feel in awe of the experience of hon. Members on both sides of the House, especially the hon. Member for Sittingbourne and Sheppey (Kevin McKenna) and my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer). I also commend the hon. Member for Dorking and Horley (Chris Coghlan), who I know is supported by my right hon. Friend the Member for Godalming and Ash (Sir Jeremy Hunt), for his extraordinarily powerful speech.
This Bill is essentially about the duty of care not only to those who have mental health issues, but to the public, including the family, friends, carers, public servants and everyone else who interacts with those individuals. The duty of care also exists to protect those individuals from themselves. As many Members have said, our hope and ambition should be that as few people as possible find themselves in a crisis situation. I therefore entirely endorse and support the comments about ensuring that we have proper and well-funded mental health services, both in the community and in the acute setting.
Iqbal Mohamed
The hon. Member mentions support for the person needing help—to help themselves, and also to help society. Does he agree that more and more people are getting into situations where they do not feel that they are being helped, and that they just feel incarcerated and restricted?
Gregory Stafford
I agree with the hon. Gentleman that more can be done to help people in crisis. What I would say, however—I think my hon. Friend the Member for Runnymede and Weybridge also made this point—is that there are people who are at such a point that, unfortunately, they need to be incarcerated in order to be able to help themselves. Hopefully, they spend their time incarcerated not just away from society but being treated effectively and appropriately.
That brings me to the point that this is a balancing act and a difficult situation. I think all of us of all parties are clear that the current Act is no longer fit for purpose, especially when we think about forensic mental health. As such, I am glad that the Government are taking forward this legislation, which was started under the previous Government. The cross-party consensus we have heard this evening reflects the fact that this piece of legislation has come from both of the major parties. I am likely to be on the Bill Committee after the Whitsun recess, so I will not test the patience of the House by going through every single bit of the Bill I have some interest in or concerns about, but I will briefly raise three important areas, which I am pleased were raised by Members in the other place. A number of Opposition amendments were tabled in the other place which would have strengthened the Bill, and I hope they will be made in Committee in this place.
The first area is reducing unnecessary police involvement. The noble Lord Kamall and Baroness May tabled some amendments that in my view represent a very significant and much-needed shift in how detentions and removals under the Mental Health Act can be managed. Under the current framework, the power to detain individuals and move them to a place of safety—particularly under sections 135 and 136—is largely restricted and falls under the responsibility of police officers. Although those provisions are designed to protect the public, they can often result in the criminalisation of people in acute mental health crisis, even when there is no threat of violence or risk to others.
The amendments tabled in the other place would have allowed authorised and qualified health professionals such as paramedics, approved mental health professionals or specialised nurses to carry out those detentions and to move individuals under sections 2, 3 and 5 of the Act. That would relieve police officers of responsibilities that fall outside their core expertise while reducing the stigma and trauma associated with police-led interventions. It would streamline the process, ensuring that individuals were supported by professionals trained specifically in mental health care and would maintain police involvement only where there was a clear and present risk to safety. That would significantly change and strengthen the system, placing mental health crises more firmly within the domain of health rather than law enforcement.
Sojan Joseph
Sections 135 and 136 of the current Mental Health Act give the police the power to break into someone’s property or detain somebody in a public place where there is the possibility of the involvement of weapons. Does the hon. Member think that health professionals would be able to manage those kinds of situations? Would the police not be the best people to deal with those situations?
Gregory Stafford
I am sorry if I was not clear for the hon. Gentleman. I thought I had made it very clear that I was talking about situations in which there was no risk to other professionals. Clearly, in the situations he describes, the police are entirely the right people to be involved.
The second area that I want to touch on is that of strengthening safeguards for vulnerable children. What I would like to see introduced is an essential safeguard for children and young people within the mental health care system. As my hon. Friend the Member for Runnymede and Weybridge mentioned, the current legislation allows for a nominated person to be appointed to represent the child’s interests. In my view, though, it does not provide adequate protection against the risk that that person could be coercive, abusive or in other ways inappropriate, particularly in cases involving looked-after children or those with complex family dynamics.
As such, I would like to see amendments made that address that gap by establishing clear criteria for who can be appointed as a child’s nominated person. For looked-after children, the local authority would automatically become the nominated individual, ensuring oversight by a public body accountable for the child’s welfare. For other children, only individuals with legal parental responsibility—such as a guardian or someone named in a court order—should be appointed. Such measures would ensure that no vulnerable child would be exposed to undue influence during what may be one of the most difficult or disorienting times in their life. They would align mental health law with broader child protection standards and reinforce the principle that safeguarding must be at the heart of any mental health intervention involving children.
Finally, I want to see amendments made that would introduce more patient voice and accountability. I accept that in its current form, the Bill makes steps in the right direction, but I would like to see an amendment made mirroring the one that was tabled in the other place by the noble Lords Howe and Kamall. Such an amendment would introduce the valuable and forward-looking provision of a mandatory debrief session within 30 days of discharge from detention under part 2 of the Mental Health Act. That session would be led by an independent mental health advocate, and would provide patients with the opportunity to reflect on their experience, raise any concerns about their treatment, and offer feedback in a safe, supportive and non-judgmental setting.
That would be more than just a procedural addition; it represents a shift in culture, which I think we would all agree with, towards embedding patient voice and accountability in the mental health care system. It recognises the importance of empowering individuals after detention, supporting their recovery and learning from their lived experience to improve future services. Mental health charities and third sector organisations have strongly endorsed the proposal, so I hope the Minister will give some indication in his wind-up that he would support a similar amendment.
Taken together, these reforms prioritise professional clinical opinion, safeguard children from inappropriate influence during periods of acute vulnerability and elevate the patient voice in the post-care process. In doing so, they align the Mental Health Act closer to modern standards of care, international best practice and evolving public expectations. These amendments are essential to strengthening the Bill, ensuring that our mental health system becomes not only more effective, but more compassionate, responsive and just.
Jen Craft (Thurrock) (Lab)
The Mental Health Bill is a long overdue update to the Mental Health Act 1983, and I hope it will be the start of a much wider overhaul of a mental health system that is often not fit for purpose and has historically been treated as secondary to the physical health system. It is a system where too often patient voices are ignored, injustices are common and the use of detention is relied upon in the place of person-centred community care. Too frequently, those in acute mental health crisis cannot access the right support. They are refused help in the community, forced to rely on accident and emergency, and detained against their will as their mental health deteriorates. Incidence of detention is three times higher in the most deprived areas. Black British people are detained at 3.5 times the rate of white people, and those with learning disabilities and/or autism are at a unique and increased risk from detention and the impact that it can have on their lives. I will initially focus on that latter group. I declare an interest as the chair of the all-party parliamentary group on learning disability.
Under the 1983 Act, as we have heard, learning disability or autism in themselves can be a reason for detention. The hon. Member for Runnymede and Weybridge (Dr Spencer) said that we will disagree on this, and I am afraid that we will, because I do not think that learning disability or autism are necessarily conditions of the mind. A number of these conditions are genetic and also affect the physical health of a person.
Dr Ben Spencer
I appreciate the hon. Member giving way. There is a logical inconsistency, which is that people with autism and learning disability are looked after under mental health services for autism and learning disability. If the argument is, “Well, those conditions should not be within the scope of Mental Health Act”, one could make an argument that they should not be within scope of mental health services full stop.
Jen Craft
I thank the hon. Member for his intervention. I would welcome the opportunity to discuss this issue in more detail with him, although we will probably continue to disagree. People with learning disabilities and autism can suffer from mental health conditions as much as the rest of the population, but they have a unique set of challenges. I point out as a note to policymakers in general that they should not conflate learning disability and autism as one and the same thing. That is vital.
At the end of January 2025, 2,065 in-patients in locked mental health facilities were autistic or living with a learning disability. As one of my hon. Friends said earlier, the average length of stay for these patients is nearly five years. For those with a learning disability or autism, a locked mental health ward can be a living hell. For someone with sensory issues, a reliance on routine, a need for a specialist diet or equipment or myriad other needs, being in a busy, over-stimulating environment—often with strip lighting and minimal privacy—often means they are set up to fail from the very beginning.
Chris Vince (Harlow) (Lab/Co-op)
My hon. Friend is making an important speech, and I know that her experience in this issue is almost second to none. She is making a point about how those with learning disabilities being confined in the way she suggests could add to their mental health issues. Supporting them in the community would alleviate a lot of those mental health issues. In the long term, that is better for them and for the community.
Jen Craft
I will come to that point a little later, but that confinement is detrimental to their mental health. It can sometimes be hard to pick apart a co-existing or co-occurring mental health condition from the behaviour exhibited within that environment. This is part of the reason that it is all but impossible for some detained individuals, in the circumstances they are in, to demonstrate the behaviour change they need to prove they have become sufficiently well to be released.
My attention was drawn last year to the case of a young woman called Bethany, who was detained for the best part of half a decade under the Mental Health Act. She is an autistic young woman whose parents believed that her entering a secure unit was the best choice. However, she ended up being locked up for days, weeks and then months on end in a room with only a mattress on the floor. She was unable to see her family or her support network, and her parents were absolutely devastated at being unable to get her out of that environment and seeing her continually deteriorate. It is hard to imagine the anguish of people seeing someone that they love go through this. When this happens to someone or their family, how on earth can they ever again trust the system that put them there? Learning disabled people and autistic people who have been through that have their confidence in accessing support taken away. In turn, that can create a vicious cycle.
I strongly welcome the moves that this Bill makes towards removing learning disability and autism as a reason alone for detention. However, similar to my hon. Friend the Member for Sittingbourne and Sheppey (Kevin McKenna), I note that the Government have said that these changes to detention criteria will only be switched on when systems can demonstrate a sufficient level of community support. That is a source of real concern. As the NHS Confederation has warned, the
“success of the reforms will be dependent on the wider infrastructure to support”
the Bill. As others have said, there is no clarity on what a sufficient level of support means in practice. We do not know where we are heading or when we will have got there.
The most successful support for learning disabled and autistic people to live independently in their communities is integrated care that encompasses health, housing, occupation and much more besides. I would welcome the Minister’s assurances on how that will be delivered in the timescales set out and how we get from where we are now to where good is. The continual detention of people in this way should shame us all, and an end to that cannot come fast enough.
I sound a note of caution—I think this is fairly similar to that of the hon. Member for Runnymede and Weybridge—that the legislation continues to allow for the co-occurrence of mental health conditions to be a reason to detain someone with a learning disability and autism. That in and of itself could lead to this continual cycle where people are detained for longer than is necessary for their treatment while in an environment that is entirely counterproductive to them becoming well. We also need those with a specialism in learning disability and autism to be present in assessing whether an individual also has a co-occurring mental health condition.
Finally, I put a plea in to the Minister that there is a real need for those who live with a learning disability or autism to be properly consulted. A number of disabled people’s charities that are run by people with a learning disability, such as the “Bring People Home from Hospital” campaign, which is operating under the auspices of Inclusion London, do not feel that they have had sufficient opportunity to input. A very minor point is that some relevant documents related to this legislation have not been printed in easy read. If they have, it has taken a while for them to arrive. People who have a lived experience of these conditions are unable to contribute in a meaningful way.
More broadly, I welcome the legislation’s attempt to make progress in putting patient voice at the heart of care, particularly through advance choice documents, but there is scope to go further. The Royal College of Psychiatrists is advocating for a statutory right to an advance choice document, which the pre-legislative scrutiny Committee also recommended. That would ensure that all patients who would benefit from one would get one, with the aim of reducing detentions and involuntary treatment. While I recognise the importance of this step and this legislation alongside the Government’s investment in mental health crisis centres, a pledge to recruit 8,500 mental health staff and the Secretary of State’s commitment to the mental health investment standard, there is a desperate need to transform community mental health services to put patient voice and experience at its heart and avoid the need for detention orders in the first place.
As a member of the Health and Social Care Committee, I have had the privilege of hearing from some extraordinarily courageous individuals who shared their experience of living with a serious mental illness. It is in that same spirit that I will share my own experience now. I hope that it offers an insight into the limitations of our current system.
I was diagnosed with obsessive compulsive disorder as a teenager, and with bipolar disorder in my 20s. In two and half decades with these conditions I have received good care, but sadly that is the exception and not the rule. I have never been asked what it is that I want from treatment, what it is that I want for my life, and how I can be helped to get there. I have received care that is patronising, reductive, inconsistent and non-existent. During mental health crises I have had to tread a fine line between proving that I am ill, and sometimes extremely ill, and proving that I am not so ill that I need to lose my liberty, because I know that more often than not, treatment is based not on therapeutic care but on risk management. Like thousands of others, I have had to create my own care package and my own route to treatment, because I made the decision that I deserved to live, and I deserved to live well—and also that my children deserved their mum. However, I am very aware that my ability to do this is based on a number of privileges, in no small part a very supportive family, which so many do not have.
While I welcome the Bill for its advances in reducing the amount of detention and increasing the agency of those who are detained, I must call for a significant overhaul of community mental health services to prevent crises from occurring in the first place. We know that we can and must do better. I ask all Members to note that when we discuss people’s serious mental illnesses, we often talk as though they were “others”, which they are not. Let me say this: “There is someone standing here among you, a Member of Parliament, who has a serious mental illness. It does not prevent me from doing my job or from living my life; in some ways, it makes me better at it.” While the Bill continues its passage through Parliament, can we please bear in mind that we are talking about individuals, and individuals who will be affected by it, and that what we seek to do—and what I hope we will accomplish—is give people who live with serious mental illnesses the ability and the right to live the best lives that they possibly can, with all the support that we can make available?
Madam Deputy Speaker (Ms Nusrat Ghani)
The hon. Lady’s family must be very proud.
Ian Sollom (St Neots and Mid Cambridgeshire) (LD)
I wish to draw the House’s attention to the appalling case of a young man who was very badly failed by mental health services and, indeed, tragically lost his life as a result. Today I am representing his family, my constituents Graeme, Sam and Kaitlyn, who have been campaigning to ensure that no other family has to go through the distress that they have endured and continue to endure.
Declan Morrison was 26 years old when he died. He had complex needs, and required some of the most specialist care and support throughout his life. He had autism, associated severe learning disabilities, bipolar disorder and attention deficit hyperactivity disorder. He was non-verbal and required 24-hour residential care, which he had needed and received since he was 11 years old. Declan’s behaviour could be challenging, and at times he would injure himself—and sometimes, latterly, staff members caring for him. That is why it is so important that he was supported by those who knew him well, and who were able to understand his behaviour and therefore provide, as best they could, for his needs. His family were unable to provide him with the care he needed in their home, and had to put their trust in the system and specialist carers to make sure that he was looked after. Sadly, their trust was broken, with the most devastating consequences.
Declan was moved into his final residential home in May 2021 after the previous placement had become unable to meet his needs, although in a subsequent independent safeguarding adult review following his death, that decision was called into question. For a brief period, Declan seemed to settle into his new placement, but quite quickly staff at the care home raised concerns that they could not safely care for him owing to his behaviour, which had become particularly challenging. However, attempts to find an alternative single-space home for him, which he needed, failed. There was nothing available, not a single appropriate placement, so he remained in that placement for a further 10 months, with his mental and physical health worsening. I will not describe here what life was like for Declan and his family at this time, because it is too distressing.
Helen Morgan
My hon. Friend is making an important point about lack of provision. Does he agree that the 10-year timescale for ensuring that that provision is available is critical? If the Government could speed that up, it would be extremely helpful in instances such as this.
Ian Sollom
I entirely agree, and I will come on to make that very point.
Needless to say, events took a very dark and ultimately heartbreaking turn. In March 2022, a serious incident occurred: Declan became very distressed, and assaulted some staff members. Police were called, and a number of officers assisted staff to restrain Declan. As a last resort, he was detained under section 136 of the Mental Health Act and taken to the section 136 suite at Fulbourn hospital. Some may not be aware that under the law, patients who are placed in a section 136 suite should be there for no more than 24 hours, or 36 hours in extreme circumstances. Declan was there for 10 days—10 days in an emergency suite that was entirely unsuitable for a person with his severe needs; 10 days while more than 100 places were contacted; 10 days during which not one bed in suitable accommodation could be found locally, regionally or nationally for him. Finally, he simply could not cope, and he banged his head repeatedly against a wall, inflicting a catastrophic head injury on himself. He was taken to hospital and operated on, but he died some days later in April 2022, when his family made the heart-wrenching decision to turn off his life support.
It is painfully relevant that we are debating the Mental Health Bill today, because clauses 3 and 4 specifically address the detention of people with autism and learning disabilities, like Declan. The Bill would limit detention for treatment under section 3 of the Act, but I must ask the Minister: would these provisions have been enough to prevent Declan’s tragedy? His case highlights the critical importance of having appropriate crisis provisions and suitable community placements available, not just in theory but in reality. The coroner’s report on Declan’s death and the independent care review found major failings in the system that was supposed to protect and care for him. He was acknowledged to have been in crisis for months. Ultimately there was, and there remains, an enormous shortage of available placements for someone with Declan’s complex needs, both in the community and within the NHS. As Declan’s father told me, in words that I hope will be heeded, the reliance on the section 136 suite to contain autistic individuals while they are in crisis is abhorrent, and must be seen as a breach of the Human Rights Act.
Declan’s sister, Kaitlyn, has called for specific crisis provisions to be funded and created for individuals with autism who need a designated place of safety when experiencing a severe mental health crisis. Such provisions would need appropriately trained and experienced staff. In fact, one was created in Cambridgeshire following Declan’s death. Sadly, the funding was pulled and it closed, but it operated at 90% capacity when it was open, showing the very real and immediate need for this kind of provision to exist permanently and across the country.
The Bill places new duties on integrated care boards and local authorities to provide community support for people with autism and learning disabilities, but how will the Government ensure that the duties it outlines translate into sustainable services that prevent cases like Declan’s from ever happening again? Duties without resources are merely words on paper. Although it is welcome that clause 49 removes police stations and prisons as places of safety, Declan’s case shows that even designated section 136 suites can be wholly inappropriate for individuals with complex needs. How will the Government ensure that appropriate alternatives are in place before the provisions commence?
I note with deep concern that the Government anticipate that full implementation of the Bill could take up to 10 years, which is too long for vulnerable people to continue to be at risk. In the light of the coroner’s findings in Declan’s case, will the Government commit to prioritising the provisions relating to autistic people and those with learning disabilities, particularly the development of appropriate crisis services, as outlined in the Bill?
On behalf of Graeme, Sam, Kaitlyn and all those people like Declan, I ask the Government whether they are satisfied that the provisions set out in the Bill will prevent tragedies like this one from ever happening again. If not, I urge them to make changes to ensure that it will. For Declan and all those with autism and learning disabilities, who deserve better from our mental health system, we must make sure that the Bill delivers the change they need—not in 10 years, but now. Their lives depend on it.
Josh MacAlister (Whitehaven and Workington) (Lab)
It is humbling to contribute to a debate with contributions like that from the hon. Member for St Neots and Mid Cambridgeshire (Ian Sollom). I pay tribute to him for sharing Declan’s story in this place, and to my hon. Friend the Member for Thurrock (Jen Craft) for her very personal contribution.
I warmly welcome the fact that the Government are giving this issue the prioritisation that it richly deserves. The reforms will give patients greater choice and enhanced rights, and ensure that everybody is treated with dignity and respect throughout treatment. I will make three broad points about mental health services in England and how they relate to the passage of this Bill. The first is about Cumbria’s hidden crisis.
Cumbria’s suicide rate is 50% higher than that in the rest of the country. Over five people die from suicide every month in Cumbria—more than double the number of road deaths. Each one of these lives lost is a tragedy. They leave behind families, friends, co-workers, neighbours and emergency workers—a web of people in the community who try to make sense of the grief, loss and shock. Some fantastic local organisations in my constituency are working to bring that number down, including Every Life Matters, Andy’s Man Club and the West Cumbria Mental Health Partnership, but they are fighting a growing problem of depleted resources. It is in this context that we need excellent mental health services, so it was particularly welcome that, weeks after the general election last year, the Government funded a new initiative called Hope Haven, an open-access mental health hub with some accommodation attached to it. This new service is being built by brilliant local partners in my constituency as we speak, and I have high hopes for the contribution that it can make.
However, the new service has come at the same time that Cumbria, Northumberland, Tyne and Wear NHS foundation trust has made the regrettable decision to close Yewdale ward, an in-patient mental health ward in Whitehaven that is the only in-patient service in the area. If it does close, patients will need to travel for over an hour to reach the nearest in-patient service, and the community has very poor public transport options. I have called for the ICB to investigate the process that has been followed to reach the decision, so that we can pause the closure. If we are to improve mental health services across our country, the reforms need to work for rural, isolated and coastal areas too.
My second broad point is about the needs of people with experience of growing up in the care system and the link to mental health services. Care-experienced adults are hugely over-represented in our systems of mental health detention, assessment and treatment, so the much-needed reforms will be a particularly welcome change for this group.
Markus Campbell-Savours (Penrith and Solway) (Lab)
On the important issue of suicide and the extremely high rate in Cumbria, does my hon. Friend and constituency neighbour agree that it is extremely important that coroners work with, and provide information to, local authorities and local health services to ensure that we can deliver meaningful policies on anti-suicide strategies in areas like Cumbria?
Josh MacAlister
I thank my constituency neighbour for suggesting the types of solutions that we should look at. Some areas of the country have much higher rates of suicide than others, and we know far too little about why those areas have those trends.
Around half of children in care are expected to have some sort of mental health disorder, and they are estimated to be four to five times more likely than the rest of the child population to have a mental health need. Despite that, children in care are disproportionately rejected for support from CAMHS services, and this builds up unmet mental health needs for which we as a country are paying the price in social and economic costs further down the line.
Just one example of that is the surge in deprivation of liberty orders that we have seen in recent years. In 2017-18, there were 103 applications; in 2024, the figure was 1,280. Deprivation of liberty order applications often leave judges in our family courts with impossible choices over the secure accommodation option for children. Young people who grow up in the care system should receive the very best that our country has to offer, with help being speedy and tailored. Although wider changes are needed to make that a reality, humanising our mental health legislation in the ways set out in this Bill will make a difference.
Chris Vince
My hon. Friend has talked with real passion and expertise about children in care, and he makes some really important points. Does he agree that the mental health support we give to young carers—young people who support a family member—is equally important? They make such a huge difference to our communities and the NHS, and they too should be supported.
Josh MacAlister
Absolutely. We need to support young carers and young people in care. One of the common challenges facing both of those populations is that services sometimes fail to look at what support can be provided to the whole family unit, so I take my hon. Friend’s point.
Finally, I will say a few words about a sensitive issue that is a growing trend. Most weeks, I visit a school in my constituency, and there is a growing theme: teachers, and now parents, are raising concerns about the potential over-diagnosis or misdiagnosis of ADHD and mild autism. I raise this point for two reasons: first, because the risk is that the scale of the increase in diagnosis is so great that it may take away much-needed mental health services from those with acute and genuine need; and secondly, because we have yet to grasp the potential negative impacts of treating what may be social challenges as medical disorders.
Some 400,000 children are currently awaiting an ADHD assessment, and rates of diagnosis have risen sharply in recent years. Diagnosis varies dramatically depending on where someone lives, who does the assessment and, worryingly, the socioeconomic background of the individual.
Josh MacAlister
Yes, in a number of schools we have seen a growing number of ADHD and mild autism diagnoses that do not come with any form of treatment. That is in a system where there is an expectation that education, health and care plans will be filled and met by multiple agencies, and the families are often left battling the system, having to fight for a diagnosis to get that label and then finding that the help is not there. My argument is that those families—not all, but some of them—are battling a system that already has finite resources and now spends a huge proportion of its resources gatekeeping, when actually we should step back and look at what support the young person and their family need.
In the case of ADHD, the National Institute for Health and Care Excellence guidelines set out very clearly that, before an assessment is made, it should be established whether parenting support could be put in place to help. My guess is that, in many cases at the moment, that offer of parenting support is not in place before an ADHD diagnosis is made.
Diagnoses of autism have doubled in the last five years. I am not saying that that is incorrect, but I think the question needs to be asked, as part of the wider debate, whether that growing trend is a reflection of previously undiagnosed autism or, because of recent changes in the ICD-11 manual—the 11th edition of the “International Classification of Diseases”—people are being brought into that diagnosis who would previously have been supported in other ways.
I close by urging the Government to consider the implications of the reform of mental health services for those in rural and remote communities. They need to acknowledge the benefits that will come from these measures for those with a care experience, but also to think deeply about the need for residential care that can meet their need for a secure setting. They should also consider ways in which we as a country can have a full and rich conversation about the growing diagnosis of ADHD and mild autism, so that we can establish the best routes of support for the children crying out for support and the parents often battling against the system, who may be building up a future need for the crisis mental health services we have been speaking about this evening.
Iqbal Mohamed (Dewsbury and Batley) (Ind)
Before I begin, I want to pay tribute to right hon. and hon. Members for their extremely informed, personal and moving speeches in support of the positive elements of the Bill, and for making extremely important, constructive suggestions about how to make it even better than it is.
I stand today to speak in strong support of the Bill, and the urgent and long overdue reform of our mental health legislation. The Mental Health Act 1983, now 40 years old, was designed for a different era. While it has provided a legal framework for detaining and treating individuals in crisis, it no longer reflects our modern understanding of mental illness, patient rights or best clinical practice. As we have heard, the Act governs both civil patients and those involved in the criminal justice system, and it includes powers such as community treatment orders, but it is clear that the system it underpins is no longer fit for purpose.
The need for reform is stark and obvious. Patients detained under the Act often have little say in their treatment or about who is involved in their care. As we have heard, racial disparities are deeply entrenched, with black or black British people 3.5 times more likely to be detained and 11 times more likely to be placed under a community treatment order. The journey towards reform began with the 2018 independent review, led by Sir Simon Wessely, which identified rising detention rates, poor patient experience and systemic disadvantages for people with learning disabilities and autism. A draft Bill followed in 2023, and I commend the Government for taking forward the proposed Bill.
Each year, approximately 54,000 individuals are detained under the Mental Health Act. Alarmingly, as I have mentioned, black individuals are nearly four times more likely to be detained and 11 times more likely to be placed under a CTO. Furthermore, nearly 1,000 young people are detained annually, yet over half report that their hospital stay did not aid their recovery. These statistics are not just numbers; they are a call to action. There are serious concerns about the treatment of people with learning disabilities and autism. While the Bill rightly ends inappropriate detentions under section 3 of the Mental Health Act when there is no co-occurring mental illness, the delay in implementation due to the lack of resources raises fears of criminalisation, misdiagnoses, and exclusion from aftercare. We need a fully costed plan, with clear targets and accountability, to support this vulnerable group.
Mind, the leading mental health charity, has identified a further three critical areas in which the Bill must go further. The first is tackling racial disparities. The disproportionate detention of black individuals under the current Act is a glaring injustice. The Bill must include measures to reduce this disparity, such as limits on the use of community treatment orders, and the introduction of a “responsible person” to oversee treatment decisions. Additionally, a statutory duty to monitor and report on progress against these inequalities is essential. I therefore support the creation of a dedicated role to monitor and act on racial disparities in detention and treatment.
Secondly, the principle of least restriction is central to the Bill, yet it remains aspirational; there are no enforceable rights. Patients should have a statutory right to assessments and treatment, the ability to appeal treatment decisions, and expanded access to advocacy services. These rights are about not just legal protection, but respecting the dignity and autonomy of individuals facing mental health challenges.
Thirdly, young people detained under the Mental Health Act often find themselves without adequate support or a voice in decisions about their care. The Bill must include a transparent decision-making test, tailored for children and young people, to ensure that their best interests are at the forefront of all treatment decisions. There should also be safeguards and the standardisation of advance choice documents. The Government say that the implementation timelines could be up to a decade, but I urge them to implement each element of the Bill as soon as is practically possible.
This Bill is very welcome, and this is a pivotal moment in the history of mental health care in our country. It is a huge step forward, but it could go further. To truly transform mental health care, we must ensure that the legislation is not only progressive in its intentions, but robust in its protections. We have the opportunity to create a system that upholds the rights, dignity and humanity of every individual. Let us therefore not pass up this chance to make all the necessary changes. Let us amend this Bill to reflect the values of equality, autonomy and respect, and take this once-in-a-generation opportunity to build a fit-for-purpose mental health system that is fairer, more compassionate and more effective. I urge the Government to take this opportunity to address the gaps, take heed of the recommendations and concerns, and make the Bill right and proper.
Several hon. Members rose—
Madam Deputy Speaker (Ms Nusrat Ghani)
Order. I want to retain the tone of this debate, but to get everybody in, we will have a speaking limit of seven minutes, which is still quite a long time.
Sojan Joseph (Ashford) (Lab)
It is a pleasure to be called to speak in this Second Reading debate. Prior to being elected to this House, I worked for 22 years in NHS mental health services, and I am the chair of the all-party parliamentary group on mental health. This is an issue I care about deeply.
It has been widely accepted that the Mental Health Act is outdated, and the need to modernise it has been talked about for some time. I pay tribute to Baroness May who, when she was Prime Minister, commissioned Professor Sir Simon Wessely to undertake an independent review of the Act, and I commend this Labour Government for introducing the Bill without delay.
As Members will be aware, last week was Mental Health Awareness Week. The discussions I took part in showed how far we have come in removing much of the stigma around mental ill health, but I fear that a lot of stigma remains when it comes to discussing severe mental ill health, such as cases of schizophrenia. I therefore welcome the importance that the Government have attached to the Bill, and to updating the law so that it is fit for the 21st century. I hope that, through our deliberations, we can play our part in ensuring that severe mental ill health is treated with the respect and understanding it deserves.
The Mental Health Act provides the legal framework for the detention of people when their mental ill health means that they are at risk to themselves or others, so that they can receive appropriate treatment. The Bill looks to modernise that legal framework. I welcome clause 1, which adopts the four principles of treatment proposed in Sir Simon Wessely’s independent review. By adopting those principles, the legislation will give patients greater choice, enhanced rights and support, and ensure that being treated with dignity and respect is an integral part of their treatment.
This reform is long overdue. We talk a great deal about wanting to deliver personalised care in our health service. That should be the guiding principle in every part of the service, especially for the most vulnerable. Adopting the principles is about redressing the balance of power away from the system, so that the patient has more autonomy, and more say over their treatment. That will help to ensure that those in society with the most severe mental health conditions get better, more personalised care. I also welcome the statutory role that clauses 24 to 28 will give a nominated person, who will have a greater say over the patient’s treatment and care. Replacing the old hierarchical list of relatives with a person who has been selected by the patient, albeit that there will be certain safeguards in place, is an update to the legislation to reflect today’s world.
Clause 3 deals with the application of the Mental Health Act to autistic people and those who have a learning disability. The clause modifies the definition of mental disorder by introducing new definitions of autism, learning disability and psychiatric disorder. As a result, people with a learning disability or those who are autistic can no longer be detained or made subject to a community treatment order unless they have a co-occurring psychiatric disorder. This is a welcome and long overdue change. Under the Mental Health Act, autistic people and those with a learning disability have experienced inappropriate care, over-medication and extended periods of detention. As we look to modernise the Act, it is wholly appropriate to ensure that they cannot be detained unless they have a co-occurring psychiatric disorder.
However, concern has been expressed in parts of the learning disability and autism sectors that the change may have unintended consequences. For example, it may lead to an increase in alternative routes to detention. In particular, concern has been raised that people with high-risk behaviours who require treatment in appropriate and safe hospital environments may end up having to be dealt with by the criminal justice system if they cannot be detained under the Mental Health Act. These concerns were debated when the Bill was considered in the other place, but I would be grateful if the Minister could say whether the Government have given any further consideration to those points. I would also be grateful if he could give an assurance that he and his officials will engage with the learning disability and autism sectors as the Bill continues through this House.
In the other place, the Conservatives were successful in amending the Bill to allow the extension of police powers of detention under sections 135 and 136 to other specified healthcare professionals. The amendment provoked serious concern from representatives of healthcare professionals, and I understand it is not supported by the police either. The “right care, right person” model, put in place in 2023, has already reduced the time the police have to deal with mental health patients. Will the Government look into overturning that amendment? I would also be grateful if he said how the Government will build on the Bill to ensure wider reform of, and investment in, mental health, and how we can ensure that the aims of the Bill are accompanied by high-quality mental health services, especially community services for people experiencing poor mental health.
In preparation for today’s debate, on Thursday, as chair of the APPG on mental health, I was pleased to organise for a small group of Members a visit to the mental health centre at the St Charles hospital in Kensington. During our visit, we were able to spend time in the mental health crisis assessment service. This excellent facility is open 24 hours a day, seven days a week, for anyone in the area who is experiencing a mental health crisis. I recommend that such facilities be instituted across the country, especially in my constituency. In Ashford, there are no mental health emergency facilities. Over 2,600 people whose primary issue was recorded as mental ill health presented themselves at the A&E department at the William Harvey hospital in 2024. Such facilities would help to prevent that. I press for more support to be put in place, alongside the Bill.
Zöe Franklin (Guildford) (LD)
I welcome the direction of the Mental Health Bill. It marks a long-overdue shift in how we treat some of the most vulnerable in our society, recognising that people deserve more than crisis care—they deserve dignity, choice and autonomy. It has been a real privilege to be in the Chamber for this important debate, and to hear the very moving speech by my hon. Friend the Member for St Neots and Mid Cambridgeshire (Ian Sollom), and by so many others across the Chamber who shared their constituents’ stories, and their own.
The Bill rightly puts patients at its centre. It gives them more say in their treatment, improves the complaints process and introduces personalised care plans. Replacing the outdated “nearest relative” with a nominated person reflects a broader move toward a more respectful, person-centred system that listens, empowers and supports recovery. But here is the uncomfortable truth: however well-intentioned, the Bill will achieve little unless we confront the funding crisis already engulfing our mental health services. The Bill asks overstretched and underpaid staff to deliver changes that demand time and care when many are already at breaking point. My constituents across Guildford see that every single day. Jennifer came to me in despair over the care that her daughter Leah is receiving at a local mental health unit. Chronic understaffing and a lack of support mean that concerns go unanswered. Underfunding has created a cycle of inadequate care—treatment refused, early discharges to free up beds, and inevitable readmissions when Leah’s needs are left unmet. I have heard from Samantha, whose son suffered a psychotic episode that ended in tragedy—a stark reminder of what happens when crises go unsupported. I also want to mention the story of a young woman whom I will not name, but who made a series of attempts on her life until she tragically succeeded, after gaining access to a poison from overseas. I know this is not a unique story, and that multiple coroners have written to the Secretary of State for Health and his predecessors on this issue. Will the Minister agree to meet me to discuss the case and whether it may be possible to use the Mental Health Bill to prevent further similar deaths?
There is also the fact that across the country people are waiting months and sometimes years for mental health care. Children and young people are falling through the cracks, as CAMHS is overwhelmed and referrals are delayed; patients are sent miles from home due to local bed shortages; and police are left to respond to mental health emergencies because there is no one else to call. Our system is not just stretched; it is at breaking point. Yet the proportion of NHS funding going to mental health care is falling—despite soaring demand, despite mental illness making up a fifth of the NHS’s burden, and despite the Government’s promises. These are not just gaps in the system; they are failures of political will.
Iqbal Mohamed
As well as NHS funding for direct mental health services, does the hon. Lady agree that we should invest in preventive steps to help children to avoid the mental health anguish that they are suffering today?
Zöe Franklin
Absolutely. I know from my own caseload of too many stories of where if young people had received preventive care and support, they would not be facing the tragic situations they and their families are now living through.
This Government have scrapped key mental health targets, including goals for early intervention, therapy access and physical health checks for people with mental illnesses. I am sorry, but this signals a retreat at the very moment we need to advance.
I support the vision outlined in the Bill, but its success depends entirely on the foundation on which it stands. Without adequate investment, even the very best intentions will struggle to take root. Ensuring that people can exercise their rights and that staff can support them demands more than legislation; it demands real resources and sustained commitment from this Government.
We need a national effort to rebuild mental health care from the ground up, with early intervention for young people, trained professionals in schools and communities, continuity of care and a culture shift that treats mental health with the same urgency and seriousness as physical health. Failure is not an option—not for the thousands still waiting, not for the staff stretched to their limits, and not for the communities left to pick up the pieces. We can and must do better.
Darren Paffey (Southampton Itchen) (Lab)
I rise to support this important Bill. I have been incredibly humbled by some of the speeches, particularly from the hon. Members for Dorking and Horley (Chris Coghlan) and for St Neots and Mid Cambridgeshire (Ian Sollom) on the Lib Dem Benches, from the hon. Member for Runnymede and Weybridge (Dr Spencer) given his experience, and of course from my hon. Friends the Members for Thurrock (Jen Craft) and for Sittingbourne and Sheppey (Kevin McKenna).
This Bill is incredibly welcome. It is long overdue and deserves the urgency and seriousness it is being given. I have heard from families in my constituency who have waited months and sometimes years for help; in many cases, the waiting list for CAMHS in Southampton exceeds two years.
Alison Hume (Scarborough and Whitby) (Lab)
Recently, I met grandparents in my constituency who are caring for their grandchild, who was recently diagnosed with autism. Their grandchild is suffering from poor mental health and is unable to attend school, and the family is struggling to access support. I welcome the Government’s work so far in this area, including the pledge to have a specialist mental health professional in every school, but does my hon. Friend agree that a three-year wait for an appointment with CAMHS, as my constituents are facing, is completely unacceptable?
Darren Paffey
My hon. Friend makes an incredibly important point, and I fully agree that the wait facing many people is excruciating. I have had constituents come to me in tears because they do not know whether their children will make it to adulthood. The services are just not there, and they are subject to hugely long waits and often inadequate provision. These changes are crucial.
Of course, there are some truly commendable local initiatives in Southampton that are making a real difference on the ground. I pay tribute to services such as The Lighthouse, an invaluable out-of-hours mental health support centre for adults in crisis, and No Limits, a brilliant charity that has for many years provided a wide range of health and wellbeing support schemes to children and young people across the city. These organisations exemplify the compassion and commitment of professionals and volunteers to those who need their services. Let us be clear, though: however dedicated those services and the people within them may be, they are operating under immense pressure. Demand has outpaced capacity, and that is why national action is so urgently needed to match that local effort with investment, modernisation and the workforce expansion required to ensure that no one is left behind.
There are two essential pillars upon which real improvement in mental health provision has to be built: the legal framework, which the Bill rightly seeks to modernise, and, as colleagues from across the Chamber have mentioned, the funding that underpins the delivery of services. Reforming the law is a vital step, but without sustained investment in frontline mental health care we risk changing the rules without changing the reality for patients.
Lola McEvoy (Darlington) (Lab)
In my constituency we have a statistically significant suicide rate; I have mentioned several times in this place that I know seven men who have taken their own life. Does my hon. Friend agree that while funding is important, early intervention and preventive care in mental health services is also really good money, well spent?
Darren Paffey
As a former cabinet member for children’s services, I have learned through experience that early intervention will always be far better value for money than reactive services, which are obviously very necessary but often come too late.
We need both compassionate, up-to-date legislation and the resources to make it meaningful in practice. The Bill will bring our mental health laws into the 21st century. As has been mentioned, the Mental Health Act is as old as the Secretary of State—I am sad to say that both he and the Act are still younger than I am—and its provisions no longer reflect our understanding of mental health or the standards of dignity and agency that we now rightly expect. These reforms will put patient voices at the centre. I am pleased that for the first time patients will have greater rights to make their wishes known and to be involved in decisions about their own care. No one could make that case more eloquently than my hon. Friend the Member for Thurrock.
The Bill also rightly recognises the needs of children and young people, too many of whom are falling through the cracks. One of the major factors affecting their mental health is the pervasive presence of social media. There is growing and compelling evidence that addictive algorithms are leading to increasing anxiety, depression and low self-esteem. Add to that the impacts of cyber-bullying, social comparison and 24-hour peer pressure and it is little surprise that there is real damage to the mental wellbeing of our young people.
In my constituency, we have seen two tragic, heartbreaking deaths that were very much about mental health, in which online forces led people to the terrible decision to die by suicide. We must take action both to prevent and to react to poor mental health. The Bill gives young people the right to express their views in writing and requires professionals to take those views seriously. Every child deserves support, not silence, and the Bill will take us in the right direction.
As I have said, the reforms in the Bill are important, but will Ministers confirm that they will be backed up by the funding needed to deliver sustainable mental health services in England? I welcome the fact that the Government have committed an additional £680 million to mental health services this year. I urge Ministers to get that money out of Whitehall quickly and to the frontline, in Southampton and other places where it is desperately needed.
I am delighted that we now have a national plan to recruit 8,500 new mental health staff, which will include placing specialist professionals in every school. When I served as cabinet member for education in Southampton, we were proud to lead the way by introducing mental health support into our local schools with a pilot initiative, which has had a clear and positive impact. I am delighted that that successful approach is being adopted on a national scale.
I am also delighted that this Labour Government are developing Young Futures hubs across the country to provide the early support for which my hon. Friend the Member for Darlington (Lola McEvoy) made the case so eloquently, with the aim of keeping young people well and, importantly, out of hospital in the first place where possible. We have seen the scandal of learning disabled and autistic people being locked in hospital simply because there is nowhere else for them to go. The Bill will end that inappropriate detention and strengthen community-based support.
When more people die by suicide than in traffic accidents and when patients are left in police cells simply because there is nowhere safe for them to go, radical change is the only responsible path. We must strive to achieve that change through this Mental Health Bill.
Shockat Adam (Leicester South) (Ind)
It has been humbling to be part of this debate and to hear powerful contributions from hon. Members who have so much knowledge, in particular the hon. Member for Runnymede and Weybridge (Dr Spencer) and the hon. Members for Dorking and Horley (Chris Coghlan) and for St Neots and Mid Cambridgeshire (Ian Sollom), who made emotive speeches.
I welcome the Bill and the Government’s recognition that the current legislation is no longer fit for purpose. With over 54,000 people detained under the existing Mental Health Act, this is an opportunity to modernise a system that often fails to provide care fairly and effectively. We have heard brutal testimony of that today.
Although I support the direction of the Bill, one area that needs greater attention is the impact on young people. We are seeing a clear and worrying rise in mental health issues among children and teenagers, yet the Bill does not fully guarantee them the same rights and safeguards as adults. There is still no statutory test for decision-making capacity for under-16s. Without it, many young people could miss out on key rights such as choosing a responsible nominated person or accessing the protection around informal admission.
Current guidelines say that children should be placed on adult wards only in exceptional cases, but that is still happening far too often. In 2022-23, nearly 200 children were admitted to an adult psychiatric ward. These environments are not designed for them. Children who are placed there can lose access to education, peer support and age-appropriate care. This must change. It is not only adult wards that are of concern to me but the fact that many children are sent to live far away from their homes and support structures, even to other towns. We must have statutory provision to stop this happening.
Turning to racial inequality, the data continues to tell a stark story. Black people are nearly four times as likely to be detained under the Mental Health Act and seven times more likely to be placed under a community treatment order. Those orders were meant to reduce hospital readmission, but they often do not achieve that aim. Instead, they feel indefinite, coercive and difficult to challenge, and many say that they erode the trust between families and healthcare providers. That is why I support either abolishing CTOs altogether or ensuring that they are subject to regular independent reviews with clear criteria.
I also support the call to have a person in every trust who is responsible for race equity—someone with authority and visibility to ensure that training, policy and data are used effectively to address local disparities. We need national accountability too. That is why an annual report by the Secretary of State, broken down by protected characteristics, is vital. If we are serious about reducing inequality, we must measure, understand and act on it.
Finally, on autism and learning disabilities, I support the decision to remove the ability to detain people without a co-occurring mental health condition. However, there are real concerns that, without proper support in the community, people may end up being misdiagnosed just to fit the criteria for detention, or may be left without appropriate care altogether. We need a clear, costed plan for supporting integrated care boards and local authorities to deliver the care people need in the community. That means targets, proper funding and safeguards to prevent delays and poor outcomes. We cannot afford a system where a lack of planning results in another decade of delays for this vulnerable group.
The Bill is an important step forward, but it is not enough on its own. If we want meaningful change, we need investment, accountability and a stronger focus on the rights of the people who depend on mental health services every day. We are all responsible for ensuring that this legislation does more than just change the law. It must change lives.
Andrew Cooper (Mid Cheshire) (Lab)
It has been an absolute privilege to listen to contributions from Members with real expertise and experience. I wholeheartedly welcome the Government’s Mental Health Bill, and I am proud that this vital and, as we have heard, long-overdue Bill will modernise the woefully out-of-date Mental Health Act, which we know is linked to racial inequalities, poor care for people with learning disabilities and neurodivergence and which fails to give patients a proper voice.
By modernising the Mental Health Act and making it fit for the 21st century, the Government are demonstrating that they have the ambition, compassion and determination to ensure that patients have greater choice, autonomy, rights and support, and that all patients are treated with dignity and respect throughout their treatment.
There are many welcome measures in the Bill, from strengthening patient rights to reforming the use of involuntary detention and limiting the extent to which people with a learning disability can be detained, but to ensure that we tackle the crisis in—and transform the future of—mental health care as a whole, we must go further and build on these reforms. Nowhere is that need more urgent than in children’s mental health services where, alongside profound societal change, the damage to the capacity of the state made by the previous Government is most painfully visible, and where the cost of inaction is overwhelming.
The relationship between unhealthy online habits among adolescents and poor mental health is well documented. The World Health Organisation reported last year that
“potentially damaging social media use…has been shown to lead to depression, bullying, anxiety and poor academic performance”.
But those changes have occurred at the same time as huge reductions in the availability of youth services and other early intervention, the closure of safe community spaces, which provide access to trusted role models, and stark increases in relative child poverty and homelessness.
Earlier this month, I launched a constituency survey to hear directly from children and their families to better understand the state of local children’s mental health services. Some of the responses paint a bleak and harrowing picture of parents desperately trying to get their children the support they need. The initial results of the survey demonstrate that we must focus on two connected areas of reform, which I believe must be part of our wider plans to tackle the mental health crisis.
First, we must begin with early intervention as a system-wide principle, not an afterthought. Under the previous Government, the mental health system often failed to intervene in a timely, consistent and adequate manner. It is widely understood that early mental health challenges can significantly impact a child’s development, yet services for young children remain insufficient and poorly co-ordinated. For children in their early years and pre-school stages, support is often fragmented or entirely lacking. To address the gap, we need a cohesive early intervention strategy that does more to integrate early years health and education.
Additionally, we must go further by giving children access to mental health professionals in every primary and secondary school, making support not just accessible but familiar and trustworthy. Schools are often where issues are first identified, and they must also be where the support starts. It was brilliant to hear the announcement on Friday that that will begin to be rolled out, but it does need to be accelerated.
Secondly, we must overhaul how children access specialist care and tackle the systemic barriers created by high thresholds and long waits. Early intervention works only if there is a functioning system to refer into, but that system is broken. Over the last 14 years, services have been hollowed out, waiting lists have spiralled and thresholds for access have been pushed so high that even children in a clear crisis are being turned away. I have heard countless stories of children who are self-harming, experiencing suicidal thoughts or in deep emotional distress being told they do not meet the criteria for treatment. Families are left to watch their children deteriorate, terrified, helpless and too often unheard. That is not care; that is the cost of failure.
That is no reflection on the professionals delivering the care. My survey showed good levels of satisfaction, but there simply is not enough of it to meet demand. Unless we expand the service capacity and rethink how thresholds are applied, the most vulnerable children will continue to fall through the cracks, no matter how early their needs are identified. Early help must lead somewhere. That means ensuring that timely and specialist care is available for those who need it.
These two reforms are not stand-alone; they are interdependent. We cannot have meaningful early intervention without timely access to specialist care, and for as long as we do not address the root causes of poor mental health—child poverty, hollowed out youth services and weak online safety—the problem will continue to get worse. The Bill, along with a wider plan to tackle the mental health crisis, presents the opportunity not only to fix what is broken but to create something better: a mental health system that is accessible, equitable and fit for the future. I am proud to support the Bill.
Jim Shannon (Strangford) (DUP)
It is a real pleasure to speak in this debate, Madam Deputy Speaker. Thank you for allowing me the opportunity to make a contribution. I shall begin by saying that it is essential that we get this right. In his introduction, the Secretary of State outlined his case very well, and I welcome his policy, his strategy and his legal way forward here in Westminster. I also believe that that will set a trend for the rest of the regions of this United Kingdom of Great Britain and Northern Ireland, and particularly for Northern Ireland. I know that the Minister has direct contact every month with the Health Minister in Northern Ireland, Mike Nesbitt, and that a very constructive dialogue takes place between the Secretary of State here and the Minister back home. Hopefully, this will allow all the regions across the United Kingdom of Great Britain and Northern Ireland to ensure that we are all on the same page when it comes to mental health support and obligations. The Minister and the Labour Government have set a strategy in place that I welcome.
Mental health has increasingly, and rightly, come to the forefront of our minds. We are now taking it on board and teaching our children coping mechanisms from their early school days, for example with teachers practising breathing exercises with children and helping and guiding teenagers through exam situations. Those things are happening already; we have come forward in leaps and bounds. However, this is not a sprint. This is a generational marathon, and we are struggling to make the mile markers. That is why I welcome the whole premise and thrust of the Bill.
The “Mental Health in Northern Ireland Fundamental Facts 2023” report was launched around 18 months ago, and it contained some interesting stats to consider. The wide-ranging report shows that 30% of people in the most deprived areas are likely to have a probable mental illness, compared with 20% in the least deprived areas, and that poverty, particularly child poverty, is a key contributor. It also shows that 24% of children in Northern Ireland are living in poverty. Stable housing is also a key driver of wellbeing, and almost 70% of people experiencing homelessness have a diagnosed mental health condition. In my intervention on the Secretary of State earlier, I welcomed his agreement to share the Bill and its recommendations with the Health Minister in Northern Ireland, because I believe that its constructive, helpful recommendations will help us to achieve some of the aspirations and policies of the Government and the Minister here.
The report also highlights the association between poor mental health outcomes and adverse childhood experiences, with 47.5% of young people aged 11 to 19 experiencing at least one adverse childhood experience. Young people in the least deprived areas are more likely to experience no ACEs compared with those in the most deprived areas. One in five adults and one in eight children in Northern Ireland have a probable mental illness, according to the report, with rates in adults similar to other regions. However, our history of conflict and some 30 years of a terrorist campaign—with terrorists murdering and the IRA trying to kill Unionists and those who objected to their way of life—have repercussions and contribute to more complex mental health difficulties in the population.
This is a snapshot of any, and indeed all, of the regions in the United Kingdom. We are all facing the same difficulties and we all need a more effective solution and support for individuals and families. I have had many anxious parents whose children have been referred to child and adolescent mental health services. The waiting list in Northern Ireland has approximately 2,100 total waits for a CAMHS assessment, with 1,104—over half of that number—waiting for more than nine weeks. These are children who may be self-harming or have OCD and whose bodies are feeling the effects of obsessive hand washing when stressed. These are just some of the things that young people have to deal with. There are so many things that affect their education.
This is why I welcome the aims of new section 125A, which provides for the making of arrangements for ensuring that care, education and treatment review meetings take place for children. Education, hope and a future are essential and I welcome this aim. It is all about giving hope, and I think every one of us, as an elected representative, wants to give hope to our constituents—to the parents and to the children—of a better future. That is why we welcome this positive Bill.
I gently question whether the Bill goes far enough in its legal obligations for children’s reviews on education and health. I look to the Minister for his opinion on whether more should be done to ensure that children and vulnerable adults have a pathway to education and a better health programme, and therefore hope and a better future. We must not have a postcode lottery. Indeed, children and vulnerable adults in each region deserve the same rights and deserve dedication and services. I hope that while this Bill applies only in England and Wales, it will make changes for the good of the entire United Kingdom of Great Britain and Northern Ireland and will put in stone—I use that political term—a focus that all can benefit from. The Minister and the Secretary of State gave me a commitment in my intervention. I look forward to the Minister continuing his positive thoughts on how we can all gain because tonight is one of them good nights in this House.
Chris Webb (Blackpool South) (Lab)
I have spoken many times in this House about mental health because I see the impact of poor mental health every day in Blackpool—in our communities, our families and, tragically, our children and young people. Today I want to focus the House’s attention on them. As a mental health advocate and former chairman of an award-winning mental health charity in Blackpool, I have witnessed a growing and urgent need to support our young people. Now as the MP for my home town, in the midst of a severe mental health crisis, desperate parents come to me every day asking for help.
A mother recently contacted me about her 14-year-old daughter. In just four months, her child attempted to take her own life three times by overdose. The minimal support they had was hard fought for, and it was inconsistent and incohesive. The family are on constant high alert in case their daughter tries to take her own life again. As a new parent, I cannot comprehend how they must be feeling day to day. No family should be left in that situation, let alone have to fight for the help that should be there from the outset.
Earlier this month, I sat down with young people, parents, teachers, community leaders and the police to discuss the links between bullying and mental ill health. Among the brave young people who shared their stories was Elsie. She spoke about how bullying about her appearance began in primary school and intensified in secondary school. She became anxious and depressed and eventually stopped going to school. She was moved from top to bottom sets, and her academic attainment plummeted. She told me she hated herself, but because she was seen as one of the ones that was acting up, she was punished by the adults around her—she was seen as the problem. The real problem was that no one listened, and the painful truth is that her experience is far from unique.
When young people speak up about their mental health, our job is first to listen and then to act. That is why this Mental Health Bill matters. It delivers on the Government’s commitment to modernise the Mental Health Act and give people greater autonomy to ensure that everyone is treated with dignity and respect during their care. It strengthens the voice of patients, gives statutory weight to their rights to be involved in decisions about their treatment, increases scrutiny of detention and seeks to limit the use of the earlier Act to detain those with learning disabilities.
The most recent NHS figures show around 135 hospital admissions of 10 to 24-year-olds in Blackpool due to self-harm in the year to March 2024—a sharp rise from about 100 the year before. That is more than double the national average. Child in-patient admissions for mental health conditions in Blackpool are also significantly higher than the national average. Children in care, care leavers, young carers and those living in poverty are especially vulnerable and too often are the ones failed most severely. This inadequacy extends to detention. We know that people living in deprived areas are more than three and a half times more likely to be detained under the Mental Health Act than those in more affluent parts of the country. That is a staggering and unacceptable disparity and the sad reality for my constituents in Blackpool South.
The Bill takes a much-needed step forward, introducing a 28-day limit on detaining people with a learning disability or autism who do not have co-occurring mental health conditions. I support the reform, but it cannot come into effect until we have sufficient community services, which my community is crying out for. In that context, I welcome the plan to expand community-based support. The Government have committed to walk-in mental health hubs in every community, more accessible support workers and a specialist mental health professional in every school—all desperately needed in Blackpool. Those essential steps must be backed by funding, urgency and clear timelines, because right now our youth mental health services are stretched beyond capacity. Young people in Blackpool and across the country are too often placed on adult wards, sent far from home or left to fend for themselves until they reach crisis point.
Ms Julie Minns (Carlisle) (Lab)
My hon. Friend makes a powerful point. I have had a stark case in my constituency involving a young woman aged 15 with anorexia. Sadly, because we do not have the in-patient facilities in our area, she was detained and confined to a wheelchair. She did not feel that her wishes, or those of her mother, were taken into account during her stay. She was eventually placed in an in-patient ward out of county. Does he agree that one of the Bill’s strengths is that it will give my constituent a voice and a right to have her wishes heard?
Chris Webb
I completely agree. A family member of mine was recently suffering from a mental health crisis but could not be placed in Blackpool and had to go hundreds of miles away. That is not acceptable. Patients must have a greater say and they need more support.
Mental health charity Mind points out that children are being restrained, ignored and left to navigate a confusing system alone. That is not a system built on dignity or care. We must strengthen legal safeguards for children and young people. I urge the Government to introduce a statutory framework for assessing capacity in under-16s. Without one, their voices are too easily sidelined. Statutory care and treatment plans should be extended to every young person who receives mental health care. We need stronger protections for children placed in inappropriate or unsafe settings far from their families and communities.
In their consideration of these reforms, will the Government clarify how they plan to implement the new model of specialised mental health services for children and young people, particularly in the light of the abolition of NHS England? What specific provisions will be included for children and young people in the updated service specifications and legislative reforms? Will the Government commit to a series of sustained reforms of the wider system, so that children and young people can access effective early support in their communities before they ever reach crisis point? The Bill cannot be seen in isolation from the wider challenges facing young people’s mental health. Reforming the Mental Health Act is crucial, but it must be matched by real-world changes to services, staff and support on the ground.
Elsie’s story of unchecked bullying at school affecting her mental health and future prospects matters—as do the thousands of untold stories from children across the country. They deserve a system that listens to them, values their voices and responds with the care that they need. They deserve support that meets them wherever they are, not once they have already reached the edge. They deserve the dignity, compassion and care that the Bill aspires to deliver. Let us ensure that we do not waste this opportunity.
Laura Kyrke-Smith (Aylesbury) (Lab)
May I say how humbled I am to follow such powerful and personal contributions from many hon. Members? I welcome these long-overdue reforms of the Mental Health Act. I am extremely proud to be part of a Government who are moving so quickly to ensure that people who experience severe mental illness are given more autonomy and choice, are always treated with dignity and respect, and are given enhanced rights and support under the Bill.
Mental health is a theme of so many of the conversations that I have—and of the support that I try to provide—in my Aylesbury constituency, whether with Fay, Tyler, AJ and Dhwani, the young people who joined my recent work experience programme and devised the fantastic “Breaking the Silence” campaign to improve mental health understanding for young adults; with the residents at Bearbrook Place, which is run by Connection Support and offers supported accommodation for adults facing homelessness, who told me that their mental health challenges contributed to them becoming at risk of homelessness, and that it was their ongoing mental health recovery gave them the most confidence that they could live independently again; or with the people who go along to the fantastic drop-ins provided by the Space charity in St Mary’s church, many of whom experience mental challenges as a result of unexpected life events, health struggles or social isolation.
I could go on, but this evening I will focus on how the Bill should improve the experience of pregnant and new mums struggling with severe mental illness. That subject is particularly close to my heart, as I lost one of my best friends, Sophie Middlemiss, to suicide shortly after the birth of her little girl—her third child. I speak to many parents about it, including the fantastic Amy Scullard, who runs the PANDAS perinatal mental health group in Aylesbury. In this period of pregnancy and the year after birth, almost one in four people struggle with their mental health. For many people, their experience is relatively mild and they will recover, but some people, often without any prior mental health challenges and without warning, will experience extremely severe mental illness. Suicide, tragically, is the leading cause of death for women in that period from six weeks to a year after birth.
I wish to highlight three aspects of the Bill that will be important for people who experience serious mental illness at that stage of their lives, and who will end up falling within the scope of the Bill. First, the fact that patients will be able to choose a “nominated person” to represent them is a vital step forward. It is crucial. I have seen at first hand how, at the point at which people are severely unwell, they are unable to make the best decisions for themselves. Formalising the ability of someone to play that role on their behalf, and with more powers to challenge the system, could make a positive difference to their care.
Secondly, I am pleased that the Bill will make individualised care and treatment plans statutory. Every person is different—our attitudes to mental health have evolved a huge amount since the Mental Health Act was last updated—and ensuring that they have a personalised care plan that accounts for their particular circumstances is crucial. So too is the fact that the Bill creates a duty to inform and support patients in making advance choice documents before they become ill, from a place of good health.
Thirdly, I am pleased that the Bill aims to reduce the significant racial inequalities that exist under the current Act. Those inequalities also drive significant differences in perinatal healthcare outcomes more broadly. Black people are more than three and a half times more likely to be detained under the Mental Health Act than white people, and more than seven times more likely to be placed on a community treatment order. That has to change. The Bill introduces measures that should have a positive impact for people from ethnic minorities, for example through the introduction of advance choice documents, as well as by tightening the criteria for detention and compulsory treatment.
I am conscious of the time, Madam Deputy Speaker, but I wish to make a point about the implementation of the Bill. For people experiencing severe mental illness in the period after birth, mother and baby units can be a crucial part of their recovery, as well as having significant benefits for the parent-infant relationship. Too often, however, whether or not a mum can access one of those units remains a postcode lottery. I believe we must get to a point where all women who have given birth within the 12 months prior to compulsory admission are given the option of being admitted to a ward where they can remain with their baby.
I am so pleased to see the Secretary of State’s commitment to the mental health investment standard, and all the funding that will be needed properly to implement the measures in the Bill. I hope that provision for that group of women at severe risk of serious mental health illnesses will be considered. I will conclude by noting that for all those who experience milder struggles with their mental health, it is clear that there is a whole lot more we need to do beyond the Bill. I know Ministers are conscious of that, and a lot of vital work is under way, including more mental health support in schools, the recruitment of additional mental health support workers, and the roll-out of family and youth hubs. Such community provision and services are essential. The Bill is for those people who struggle with the most severe mental illness and require intensive, specialist support. For them, the Bill represents a crucial step forward, and I am proud to support it.
David Burton-Sampson (Southend West and Leigh) (Lab)
I thank all Members who have spoken so far to share their professional experience, leaving me feeling very under-qualified to speak on this matter, and those who shared their deeply personal contributions. We all know the shocking statistics associated with mental health. Indeed, the cost of poor mental health is calculated at £300 billion a year in England, and the life expectancy of people with a severe mental illness is around 15 years shorter than for those without one.
I wish to draw Members’ attention to men’s mental health, which is an often neglected and overlooked area. Men’s mental ill health frequently goes unrecognised or untreated, leading to severe consequences. Men face unique challenges and are often less likely to seek help. About 12.5% of men in England have a mental health disorder. Only 36% of NHS referrals for psychological therapies are for men, and many men fear judgment for discussing mental health. Men can feel pressured to appear strong, leading to shame, fear of judgment and a reluctance to take time off work for mental health reasons.
To add to that list of mental health disparities, we must add racial inequalities, as has been pointed out by many hon. Members. Black people in Britain are nearly four times more likely to be sectioned than their white counterparts, and the NHS’s race watchdog has warned that discrimination is playing a part in those high figures. Racial discrimination can prevent black and minority ethnic communities from accessing the care they need. We know that black African and Caribbean communities face particular barriers to accessing specific mental health services. They are less likely to self-refer to psychological talking therapies and less likely to be referred to such services by their GPs.
In addition, the racism, racial violence and hate crimes that threaten many such communities have an additional impact on the mental health of community members, often leading to more severe mental illness, compounded by social injustices, discrimination and disadvantage. I recently visited Rochford hospital, a community and mental health unit that serves my constituency, where I saw for myself the disparity; there were a significant number of young black people on the ward—a mix that certainly does not match the make-up of our local area.
We know the terrible toll that poor mental health can have, which can wreak havoc on people’s lives. My constituency of Southend West and Leigh lies within Essex, a county that is unfortunately the unwelcome focus of England’s first public inquiry into mental health deaths. The Lampard inquiry is investigating 2,000 mental health deaths in Essex between 2000 and 2023, which is yet another shocking statistic. It aims to examine the failures in care in Essex and hopefully ensure that they are not repeated elsewhere.
The inquiry has reported that the alleged failings are on a deeply shocking scale and the Essex partnership university NHS foundation trust has had to apologise for the harm caused to those affected. The director of the charity Inquest, Deborah Coles, which provides support on state-related deaths, told the inquiry that
“many NHS trusts were more concerned about their reputation”
than about the care that they provided for their patients. She pointed to an “overuse in restraint”, segregation and seclusion, once again especially with black patients.
As we have heard, the Government are committed to driving down poor mental health, and the Bill is among the steps they are taking. I welcome the measures outlined in the Bill, particularly the involvement of patients in decision making throughout their care and the strengthening of their voice. For too long, patients have been ignored. Given some of the emerging themes from the Lampard inquiry, I also welcome the measures on increasing the scrutiny of detention to ensure that it is used only where necessary and only for as long as necessary, and on the importance of having a nominated person in place. The Secretary of State talked about prevention, and I welcome the other measures that the Government are bringing in, such as the first men’s health strategy, which will also focus on mental health.
The most tragic figures are on the terrible toll of people who take their own lives as a result of poor mental health. Men are disproportionately affected by suicide—the statistics are horrifying. Of the 6,069 registered deaths caused by suicide in 2023, 75% were men. Suicide remains the leading cause of death for men under 54. These are not just statistics: real lives are being lost. Sadly, I have had personal experience of the trauma caused by male suicide and the devastating impact that it has on the family and friends who are left behind.
In November, my close friend Sam, a bubbly, charismatic, well-liked and much-loved guy, with a whole future ahead of him, unexpectedly took his own life, two days before his 34th birthday. His loss is still felt by many, and there are so many unanswered questions. We must fix this system. I speak today in Sam’s memory, and in memory of everyone else who has been let down by the level of mental health support available. I never again want to receive a call to say that someone close to me has been lost in this way. We must do better, and I am hopeful that we are starting to head in the right direction.
Michael Wheeler (Worsley and Eccles) (Lab)
I begin by offering my heartfelt thanks to everyone who has taken part in this debate and offered their professional and powerful personal experiences. I said in my maiden speech that we must never be afraid to learn from those around us, and I certainly have learned an awful lot today.
I know from experience that poor mental health touches nearly every one of us at some point in our life, but despite that being a widespread experience, it remains deeply personal, and is too often isolating. That is why I wholeheartedly support this Government’s aim of transforming mental health care in this country and finally placing mental health on an equal footing with physical health. Achieving that will require significant investment in frontline services, a shift towards preventive care and a healthcare system that puts the individual needs of patients at its heart. I welcome the Government’s announcement of plans to recruit an additional 8,500 mental health staff, and the £26 million investment in new mental health crisis centres. However, even where there are the strongest frontline services, some individuals will always require more intensive, tailored support. We must do all that we can to help those people in their time of crisis.
Reform of the Mental Health Act 1983 is long overdue. Sir Simon Wessely’s independent review in 2018 made it clear that we must give patients greater freedom of choice over their care and treatment, as well as more ownership of it, and involvement and engagement with it. The Bill does just that; it replaces outdated practices, through which patients were treated as passive recipients of care, with ones that treat them as active partners in their care. It introduces choice, autonomy and enhanced rights and support.
Patients will be given a voice through personalised care and treatment plans, which will be placed on a statutory footing. The plans will include measurable objectives for treatment and recovery, with clear pathways towards discharge. They will be reviewed regularly, so that any changes in the patient’s condition or needs are promptly addressed. There is also the welcome use of advance choice documents, which will enable patients to record their treatment preferences in advance, so that their voice is heard even if they lose the capacity to make decisions during a crisis. Just as importantly, this Bill recognises the vital role of support networks, replacing the “nearest relative” rule with the right to choose a nominated person. That will ensure that no one faces the system alone.
However, alongside that welcome increase in support, we must ensure stronger safeguards, because no one should be detained unless absolutely necessary. That is why I welcome the Bill’s move to raise the threshold for detention, and to more clearly define what constitutes a mental disorder; that will ensure that detention is always a last resort. Additionally, there are vital new protections for people with autism and learning disabilities, which so many of my hon. Friends have spoken about so eloquently. The provisions ending the use of police and prison cells as so-called places of safety is a positive step. The reform of section 136 will ensure that those in crisis receive appropriate care and are not treated like criminals. These reforms represent a meaningful change in how we support people at their most vulnerable, and will make a real difference to thousands of lives each year.
People experiencing a health crisis deserve dignity, respect and far better treatment than the system provides for them. Society has made great progress in de-stigmatising mental health, and it is time that our laws reflected that. Through this Bill, we can move closer to a modern, compassionate healthcare service.
Chris McDonald (Stockton North) (Lab)
I echo the remarks of previous speakers; it has been a privilege to listen to the depth of personal and professional expertise expressed in this debate. I do not share that expertise, as I think will become abundantly obvious in a short moment.
What do you get if you put a group of men in a room and ask them to talk about mental health? Half of them leave, and the other half run into the corners of the room. I do not know whether that rings true for the men in your life, Madam Deputy Speaker, but when I heard that, it reminded me of myself. I heard it from a chap called Graham in Norton in my constituency, rather than from Graham Norton. Graham has set up a men’s shed in Norton, which is a national scheme. It is a remarkable place where men can come together and talk about mental health, but they do so by engaging in other activities.
For those who have not been to one, a men’s shed is just like your shed—it has all the great things your shed has—but your mates are there as well. In the men’s shed in Norton, you can make model boats, or make things using the 3D printer, and it has the most amazing workshop, which includes a fantastic pillar drill. It made me think that I need a pillar drill for my workshop, to help my mental health. I met many men there; some were bereaved, some were suffering from serious or terminal illnesses, and others were feeling lonely. They gave me plenty of tea, and we had a really good chat—a really positive and uplifting chat—and there was a great deal of mickey-taking as well, which you always find when you get a group of men together.
That sort of facility is incredibly important for all the reasons we have heard about in discussions about men’s mental health. Not least among those, as we have heard a number of times this evening, is the fact that for men of my age, suicide is the most prevalent reason for death. We heard that from my hon. Friends the Members for Darlington (Lola McEvoy) and for Whitehaven and Workington (Josh MacAlister). In my constituency of Stockton North, men wait more than three months over the national average for treatment for mental health conditions—as do women; in fact, everyone does. Some form of talking therapy would really help with many conditions, which is why I want to take a moment to talk a bit about psychotherapy.
Melanie Ward (Cowdenbeath and Kirkcaldy) (Lab)
My hon. Friend mentioned men’s sheds. I was delighted to visit the Kirkcaldy men’s shed in my constituency recently to see the amazing work that the people there do. Listening to this debate, I have been struck by the positive changes that this Bill will bring, and by the contrast with Scotland. The people I speak to from almost every local service raise the issue of the mental health crisis across Fife, be they from the NHS, charities or the police. NHS Fife has asked for funding from the Scottish Government to sort out our mental health crisis and was told to not even ask. That is such a contrast with where we are in this place, and I am sure my hon. Friend agrees that action needs to be taken in Scotland and in Fife.
Chris McDonald
I absolutely agree with my hon. Friend. It will not be very long before voters in Scotland have the opportunity to contrast the Scottish Government with what a Labour Government deliver, and hopefully they will chose the latter.
I mentioned psychotherapy. For a profession that has been around since the time of Freud, it is remarkably unregulated; there is no professional register, no form of legally enforceable complaint, and no way to ensure that someone found guilty of misconduct is stopped from practising. In fact, anyone can call themselves a therapist. In 2007, the previous Labour Government considered some form of regulation for therapists, and I encourage the Government to include such regulation in the Bill; it would be the ideal place for it. Since 2007, there has been a strong increase in private practice, and in legal cases arising from issues to do with psychotherapy. Of course, there are also online influencers. Professor Dame Til Wykes—an expert in this area—described them as “selling snake oil”. As my hon. Friend the Member for Southampton Itchen (Darren Paffey) mentioned, that is another reason why we need stronger safeguards and regulation of social media for children.
Essentially, an unqualified psychotherapist could do harm, but the issue is more likely to be the missed opportunity to do good—perhaps a failure to diagnose a more serious condition or, frankly, a missed chance to save somebody’s life. Regulation is supported by the profession. Chloe, a professional, urged me to raise this issue with the Secretary of State; I am doing that now, as he is in his place. This is an opportunity to restore confidence in the profession, and for us all to pick up where the last Labour Government left off.
As I say, half the men in a room will run out of it when mental health is mentioned. What is the answer to that? Graham gave me the answer: “Put a broken lawnmower in the middle of the floor. A big conversation will ensue, and two hours later, all the men will know each other’s names, and the names of each other’s families. They’ll have talked about how they are feeling and whether they are doing okay. You probably will not have a repaired lawnmower, but you will have lots of suggestions.” There is a good reason for that: men generally are not good speaking face to face, but they can speak shoulder to shoulder.
Dr Simon Opher (Stroud) (Lab)
I am delighted to speak about this new Mental Health Bill. It follows up on the Mental Health Act 1983, which is as old as our Secretary of State, as we heard. What I have heard throughout the debate is that mental health affects us all in some way. It touches all of us, whether personally or through people we know really well.
I welcome the greater protections under the Bill, especially for people with learning disabilities. I also welcome early intervention, the stress on out-of-hospital care and the idea of advance choice. People who have repeated psychoses know exactly what they want when they are well. When they become ill, they can become paranoid about their family and their friends, and they are not rational. That is one of the reasons why sometimes they need to be detained under the Mental Health Act. If they have an advance choice document, they can at least say what they would like while they are in a normal state of mind. That is important, and I look forward to that measure.
I like the fact that police stations are being removed as a place of safety. I am concerned about how sections 135 and 136 of the Mental Health Act are being used. I notice that there are some schemes in which mental health workers go out with the police and work together with them, and that is crucial. A close relative of mine became extremely unwell, though it was not quite as awful as what happened to the hon. Member for St Neots and Mid Cambridgeshire (Ian Sollom). First, they were sectioned in an A&E department, and then no bed could be found for 48 hours for this poor relative of mine. The heroic nurses and consultants had to look after someone who was acutely psychotic. That simply is not is not tolerable in our system. We need to find a place quickly for people who are mentally ill, and we have to make sure that they get the best treatment, so that they can get better quickly, while protecting the rest of the NHS.
This close relative of mine was moved to a bed 140 miles away from her family. We must ensure that we get more sufficient beds and more local provision. I know that will take time, and that mental health provision is not in a good state, but I hope that with this legislation and our new Labour Government, we can change that, so that people do not have to travel out of area for mental health provision.
I am impressed by the idea of crisis hubs. I have worked with the Stroud crisis team for many years as a GP, and I have always felt that, given a bit more strength and a bit more resource, they could keep a lot of people out of hospital and from being sectioned, but they need that resource. They also need close working with consultant psychiatrists.
Claire Young (Thornbury and Yate) (LD)
One of my constituents waited more than eight hours in a mental health crisis for 111 to get back to them, in which time their mental health deteriorated. Previously, they accessed a dedicated local support line, which gave them prompt access to professional support. Does the hon. Member agree that prompt access to support in a crisis is vital to reducing the need for the greater degrees of intervention covered by this Bill?
Dr Opher
That is certainly true, but we need to be careful, because part of the issue is the resources for mental health, rather than the Mental Health Act. We must not blur the two. The current Government are putting 8,500 mental health workers into the system, and I am delighted about that. Hopefully, it will prevent the waits for mental health assessments that people are having to put up with.
I want to say something about “appropriate medical treatment” and “therapeutic benefit”, to which the Bill refers. Some 8.7 million people in this country are on antidepressants, and about 25% of those people are trying to get off them. The harm that these drugs can do includes an increased risk of suicide when people are first going on to them and when they are coming off them, as we have seen in a couple of recent, tragic cases. They can also cause fairly long-term sexual dysfunction. I am asking the Medicines and Healthcare products Regulatory Agency to put proper warnings on its leaflets, and I am also asking for a special service to help people come off antidepressants, because doing so is extremely difficult and most GPs are not particularly well informed about the best ways of doing it. It has to be done extremely slowly.
My hon. Friend the Member for Whitehaven and Workington (Josh MacAlister) talked about ADHD and autism, and what should be done about neurodiversity. I feel that we should be extremely careful in mental health services not to over-medicate people with so-called neurodiversity, and I look forward to speaking to my hon. Friend about that. I had to nip out of the Chamber for half an hour earlier, to talk to the head of a neurodiversity taskforce which will report in July. What I think it needs to do is bring about a much more supportive service rather than going straight for medication, which is what seems to happen when people are referred to private psychiatric clinics. At present, the level of Ritalin-like substances with which people with ADHD are treated has increased by a factor of 500%—and, interestingly, that increase has occurred in social class 1 rather than social class 5. There is something here that we need to get a grip on: we need to provide proper services for people with ADHD.
I was interested by the comment from the right hon. Member for Godalming and Ash (Sir Jeremy Hunt) about families. When it comes to mental health, families are crucial, and I would like to adapt the Bill slightly to make them much more central and responsible. The concept of a family could be extended to certain other people whom a person, when well, could nominate, but families are the crux in a lot of psychiatric care. Their input must be valued, and they must be involved.
This is a very good Bill, and it is about time we had it. I support all its greater protections, and I believe that it will reduce the number of compulsory detainments.
Jim Dickson (Dartford) (Lab)
I thank everyone who has taken part in the debate, from the Secretary of State onwards. It has been moving and inspiring to see the House united on the need for change. It has been particularly useful for me to benefit from the professional expertise and the personal experience of so many Members who have spoken. My hon. Friend the Member for Sittingbourne and Sheppey (Kevin McKenna), the hon. Member for Runnymede and Weybridge (Dr Spencer), my hon. Friends the Members for Ashford (Sojan Joseph) and for Thurrock (Jen Craft) and the hon. Member for St Neots and Mid Cambridgeshire (Ian Sollom) have all educated and moved me with their experience and knowledge.
It has long been known that the Mental Health Act 1983 is not fit for purpose, and I pay tribute to all the work that has been done so far, including the excellent review undertaken by Professor Sir Simon Wessely, commissioned by the former Member of Parliament for Maidenhead when she was Prime Minister. I know that the intent of the Bill both to strengthen the voice of patients and add statutory weight to their right to be involved in the planning for their care and to inform their choices about the treatment that they receive is strongly welcomed by Members on both sides of the House. Also welcome are the steps that the Government have taken since the election to start to transform mental health services with new funding—mentioned by the Secretary of State—and the plans to recruit 8,500 new mental health workers.
Before I deal with the substance of the Bill, may I ask the Minister whether, when he winds up the debate, he will be able to provide some reassurance about the future of the patient and carer race equality framework, which I believe is vital to the achievement of equality of outcome in mental health, and which I believe would be more effective as part of the Bill than simply as guidance? I know that that is the strongly held view of many of the experts by experience who have worked on PCREF.
One thing I know from my time in a previous role, when I helped to develop mental health services in Lambeth over two decades, is that a disproportionate number of people from African and Caribbean-heritage communities are detained under the Mental Health Act, as has been said by others. Figures highlighted by Mind show that rates of detention for black or black British groups are over three times those for the rest of the population. Similarly, black or black British groups are more than 10 times more likely than white groups to be subject to community treatment orders.
In Lambeth, working with organisations such as Black Thrive—set up by my great former colleague Dr Jacqui Dyer, among others, to radically change mental health services in south London and elsewhere—we showed that hearing people’s voices, early intervention, reducing stigma among African-Caribbean communities, and focusing on keeping people well via work and training provided by membership organisations, such as Mosaic Clubhouse, can prevent people from becoming ill and from tragically coming into the mental health system for the first time via the criminal justice system.
I welcome the changes in the Bill and the commitment from the Minister in the other place to improve data on outcomes and on patients’ experience of community treatment orders. Despite the passing of the Mental Health Units (Use of Force) Act 2018—otherwise known as Seni’s law—which was brought forward by my right hon. Friend the Member for Streatham and Croydon North (Steve Reed), the use of force in mental health settings remains too frequent, and that must be addressed as well.
Prevention work and intervention to address mental health needs at the earliest possible stage are critical, because if someone faces mental health problems when they are young, it can hold them back at school, damage their potential and leave them with lifelong consequences. That is why I warmly welcome the work that the Government are doing to bring vital services into schools so that they can intervene early, support pupils and help prevent conditions from becoming severe. It is really encouraging that mental health support teams should reach 100% coverage of pupils by 2029-30—the end of this Parliament.
Young people in Dartford, where I ran a well-supported engagement event last month, will absolutely welcome the introduction of Young Futures hubs in communities in England to deliver support for teenagers who are at risk of being drawn into crime or facing mental health challenges by providing open-access mental health support for children and young people in communities. I have seen that approach achieve excellent results at the Well Centre, a mental health centre run for young people in Herne Hill as part of Lambeth Together’s care partnership.
I very much look forward to seeing this legislation progress through the House and become law with the support of all Members. I will support it 100% as it does so.
Dr Luke Evans (Hinckley and Bosworth) (Con)
A rough road is not the same as a collapsed bridge. Both slow you down, but one stops you entirely. There is a simple distinction that is often missed in the public discourse: the difference between mental wellbeing and mental health. Every one of us faces challenges that affect our mental wellbeing, such as stress, burnout and grief, but fortunately not all of us experience diagnosable mental health conditions. Recognising that nuance helps us talk more openly and responsibly about what support is needed, for whom and where.
At the heart of this Bill are the most vulnerable people in our society. Tonight we have debated not how Parliament serves the powerful, but how it protects the most vulnerable while upholding freedom, how it safeguards the public without surrendering to fear, and how it balances the need for control with the imperative of compassionate care. Mental incapacity may dim a person’s ability to choose, but the law must never let it extinguish their right to matter.
Reform of mental health law must recognise that protecting someone from themselves or others is not carte blanche to own their life, but simply involves borrowing the reins for a time to steer the person to recovery, and handing them back when agency is restored and they are fully equipped to chart their path once more.
We have heard personal testimonies in today’s debate. The hon. Member for South Derbyshire (Samantha Niblett) talked about her mother being sectioned, the hon. Member for Bermondsey and Old Southwark (Neil Coyle) talked about his mother being sectioned for schizophrenia, the hon. Member for Winchester (Dr Chambers) talked about his friend who died of suicide, and the hon. Member for Dorking and Horley (Chris Coghlan) talked about his friend who was murdered. The hon. Member for Thurrock (Jen Craft) spoke about her personal experience with OCD and bipolar, the hon. Member for Aylesbury (Laura Kyrke-Smith) talked about her post-natal depression and the suicide of a friend, the hon. Member for Southend West and Leigh (David Burton-Sampson) talked about his friend Sam who died from suicide, and the hon. Member for Stroud (Dr Opher) spoke about his close relative who was sectioned for psychosis. It shows that this discussion has got to the top of the nation and that it is at the very heart of every part of our communities.
The hon. Member for Winchester talked about the problems of suicide for the professions, particularly doctors, vets and farmers. The hon. Member for Bermondsey and Old Southwark said that he has had a ride-along three times with the police. I am pleased he is getting on so well with the police, but, more importantly, he made the very valid point that that is not a role for the police. The hon. Member for Penistone and Stocksbridge (Dr Tidball) talked about autistic people and learning difficulties, using her specialist abilities from her professional aspect as chair of the APPG. My hon. Friend the Member for Runnymede and Weybridge (Dr Spencer), whose CV is as long as the Bill itself, talked about compassionate treatment, how to use the legislation and, most importantly, the scope of the powers, in essence because of the need to be precise when using such powers.
The hon. Member for Rochester and Strood (Lauren Edwards) talked about the importance of support for learning disabilities and autism. It is really important that this is about community, given that last week was Mental Health Awareness Week, for which the theme was community. The hon. Member for Dorking and Horley spoke passionately about Fiona’s campaign for Christopher’s case, and we will look closely at that amendment in Committee. The hon. Member for Sittingbourne and Sheppey (Kevin McKenna) is a nurse who also brings his professional experience to this House. He and I both came into this House to try to change the NHS, and while we chose different sides, there is clearly passion there.
My hon. Friend the Member for Farnham and Bordon (Gregory Stafford) talked about his experience of improving the system and policies to improve mental health care. The hon. Member for Thurrock—a member of the Health Committee, as I was—talked passionately about OCD and bipolar, and how important it is to show that people can achieve whatever they put their mind to, no matter how high the barriers in front of them. The hon. Member for St Neots and Mid Cambridgeshire (Ian Sollom) told a passionate and moving tale about Declan, and the tragic story, which really helped bring to life what can, unfortunately, go on in this country. The hon. Member for Whitehaven and Workington (Josh MacAlister) spoke about the higher level of suicide in his area, and the importance of making sure that that is identified.
The hon. Member for Dewsbury and Batley (Iqbal Mohamed) talked about the racial discrepancies, which is really important. The key thing is evidence of why that is happening, and to make the legislation effective off the back of that. The hon. Member for Ashford (Sojan Joseph) talked, as a mental health care nurse and chair of the APPG, about personalised care, which is so important. That leads me to the hon. Member for Guildford (Zöe Franklin), who also talked about putting the patient at the centre. The hon. Member for Southampton Itchen (Darren Paffey) talked about local services such as Lighthouse and No Limits, again showing the community support, and the hon. Member for Leicester South (Shockat Adam) talked about the placement of children, at which we will be looking very closely in Committee. The hon. Member for Mid Cheshire (Andrew Cooper) pointed out the impact that social media can have on young people’s minds. The mental wellbeing of this House would not be the same without hearing the dulcet tones of the hon. Member for Strangford (Jim Shannon) from the back Bench.
The hon. Member for Blackpool South (Chris Webb) talked about the mental health charities that he has seen at first hand and about how people suffer. The hon. Member for Aylesbury rightly shone a spotlight on maternal health, which often gets missed in this conversation. The hon. Member for Southend West and Leigh talked about men’s mental health—a passion of mine—and he was right to point to the men’s mental health strategy that the Government are bringing forward, and in which I encourage everyone to take part. The hon. Member for Worsley and Eccles (Michael Wheeler) rightly talked about learning from others, and we have definitely done that in this debate. The hon. Member for Stockton North (Chris McDonald) talked specifically about the men’s shed, and I look forward to seeing his campaign on Labour for lawn mowers in its next manifesto.
The hon. Member for Stroud and I have both seen more than a handful of patients with mental health issues in our time, and I love his idea, which I hope will be brought forward, about having management plans already decided by the patient, so that when they are in crisis, that has already been dealt with. Last but not least, the hon. Member for Dartford (Jim Dickson) talked about the accumulative attention across this House that has led us here today, which is really important. We heard that the first mental health Act was introduced in 1959, but I am shocked—not once, but twice—to find I am the same age as the Mental Health Act 1983 and that I share the same year as the Health Secretary.
In 2007, the previous Labour Government introduced community treatment orders and independent mental health advocates, all aiming to increase the support for people at risk of being detained and allowing patients who have been detained to be discharged to communities if certain conditions allowed. However, valid concerns were raised, and Members on both sides of the House have agreed that more needs to change. I am pleased that the Bill builds on the work of the previous Government, who made significant strides in addressing the long-standing disparity between physical and mental health.
As has been mentioned, former Prime Minister Baroness May commissioned the independent Wessely review into the 1983 Act. I, too, pay tribute to their work in this journey. His report built on the principles of choice and autonomy, least restriction, therapeutic benefit, and people as individuals. The Conservative Government worked to create a draft Bill, which as we heard underwent significant scrutiny—we even have Members here who were part of it—recognising the need to get it right. Much of the Wessely report’s recommendations are here in front of us tonight, built around advance choice documents, improving advocacy, reform of community treatment orders, and changes around autism and learning disabilities, to name some of the 150 recommendations. On behalf of His Majesty’s official Opposition, I am pleased to stand here today and say that we support the principles behind the Bill. We will work constructively with the Government to scrutinise and improve it in Committee, and ensure that we pass good legislation that will do what is intended.
The Minister understands that progress in principle must become progress in practice, so I would like to jog his memory about some of the questions asked by my right hon. Friend the Member for Melton and Syston (Edward Argar). Does the Minister believe there are enough treatment facilities, particularly in the community? Are there adequate places of safety for people being detained once police and prison cells are removed? Does the mental health tribunal system have capacity to deal with more cases? And what will happen following the abolition of NHS England, which commissions specialist mental health services? Does he believe in hitting the mental health investment standard? Will he commit to doing so going forward? To that end, will he set out a timetable for this House, the services and the public to all work towards, to be held account to?
There is little greater moral burden than deciding for someone who cannot decide for themselves where care ends and control begins. Make no mistake, this is what this House is grappling with tonight and throughout the passage of the Bill. Involuntary care should never be the first instinct or answer, but a resort to prevent harm to both the individual and those around them. Compassionate care, therefore, demands precision. Without precision, we simply have sentiment. As His Majesty’s Opposition, we will endeavour to ensure that the Government’s sentiment becomes a commitment.
The Minister for Care (Stephen Kinnock)
It was truly a privilege to be in the Chamber this evening to hear so many moving, powerful and thoughtful contributions. It really was Parliament at its best, and it is an honour for me to close the debate.
The Bill has been a long time coming. Patients, practitioners, campaigners and charities have all long awaited the introduction of this legislation and have played a hugely important role in getting the Bill to this point. I would like to put on record my thanks on behalf of the Government and pay testament to their commitment to change. I thank Members in both this House and the other place, including our brilliant and esteemed colleague Baroness Merron, for all their work.
As the Bill started in the other place, it has already been through extensive detailed scrutiny under the eyes of peers, many of whom were there when the Act was last revisited in 2007—I am sure they will enjoy me reminding them of that. It is testament to the cross-party consensus that has so far underpinned the Bill that the debates were constructive and largely led to the betterment of the Bill. I trust that this collegiate spirit will now continue in this House, and I thank the Opposition and the Liberal Democrats for the constructive spirit in their approach to this debate.
Every speech we heard sought to improve processes and outcomes for patients and their loved ones, and there is broad cross-party support for the overall ambitions of the Bill. However, some specific issues and queries were raised in the course of the debate that need addressing. Many hon. Members asked about our implementation plans, rightly stating that legislation is only as good as its application. Indeed, we know that community service provision is very far from where it needs to be—an issue that we intend to address alongside the implementation of the Bill.
Our first priority after Royal Assent will therefore be to draft and consult on the code of practice. It is essential that we listen both to practitioners and to those with experience of the Act when we draw up the statutory guidance.
Helen Hayes (Dulwich and West Norwood) (Lab)
The review of the Mental Health Act 1983 is very welcome. It started its life close to my constituency with the work of Professor Sir Simon Wessely, who drew on the experience of many residents in south-east London, particularly with regard to his work on racial inequalities. As the Minister is talking about the implementation of the Bill, I wonder whether he can reassure my constituents, who want to know that this Bill will do the job of eliminating racial inequality from mental health services, by committing to putting the patient and carer race equality framework on the face of the Bill.
Stephen Kinnock
We are already working to reduce inequalities under the Mental Health Act. The patient and carer race equality framework is now a contractual requirement for all providers of NHS-commissioned care. It will support trusts to improve their interaction with racialised and culturally diverse communities and improve governance, accountability and leadership on improving experience of care for those communities and drive concrete actions to reduce racial inequalities within mental health services.
Given that our first priority after Royal Assent will be to draft and consult on the code of practice, it is essential that we listen both to practitioners and to those with experience of the Act when drawing up the statutory guidance that supports the Act’s application. We will therefore engage with people with lived experience, their families and carers, staff and professional groups, commissioners, providers and others to do this. The code will be laid before Parliament before final publication.
Alongside the code, we will develop secondary legislation that will be laid before Parliament, subject to the parliamentary process as set out in the legislation. We have already published policy papers that set out more information on some of the delegated powers in the Bill and provide an early indication of what we intend to set out in regulations. We recognise the appetite to deliver after years of delay and the importance of parliamentary scrutiny and accountability in this crucial work. We have therefore committed to laying an annual written ministerial statement on progress, so that hon. Members will have ample opportunity to hold us to account for progress made and milestones achieved.
We have covered a wide range of topics and questions this evening, and I will not be able to cover all of them in the time allocated to me. I will therefore limit my comments to two areas that have come up repeatedly, namely the implementation plan and the treatment of people with autism and learning disabilities.
Melanie Ward
I thank the Minister for giving way. He is talking, rightly, about the importance of the implementation of legislation. He will be aware that new measures came into force two months ago under the Online Safety Act 2023, which introduced legal powers to remove online content that promotes suicide. Ahead of this, I wrote to Ofcom about a platform that is actively promoting suicide and suicidal ideation, and has been linked to the deaths of almost 100 young people and adults. The Ofcom chief executive replied to say that Ofcom was opening an investigation. Does the Minister agree that it needs to get on and remove this kind of content across the UK?
Stephen Kinnock
Of course, we have the Online Safety Act, and there are measures within that legislation that address this issue. However, my hon. Friend is absolutely right that it is time to crack on and deal with this deeply troubling issue. I pay tribute to her excellent work, and I hope she will continue to press Ofcom to do the right thing, and to do it rapidly.
We know that implementation will take time, as the pre-legislative scrutiny Committee recognised. We estimate that it will take around 10 years to fully implement all Bill’s measures, due largely to the time needed to train specialised workforce groups, including second opinion appointed doctors and tribunal judges, and the need to ensure that the right community support is available for people with a learning disability and autistic people. This timeframe necessarily spans multiple spending reviews and multiple Parliaments, so I am limited in the detail I can give today about future spend and timelines.
However, we have set out in the impact assessment what we think is required in both time and funding. We expect the process of drafting and consulting on the code of practice to take at least a year. Alongside the code, we will develop secondary legislation, which will be laid before Parliament. We have already published policy papers, which contain more information on some of the delegated powers in the Bill and provide an early indication of what will be set out in regulations.
We will then need time to train the existing workforce on the new Act, regulations and code, which will likely be in 2026 and 2027. Although we will commence some clauses, such as on supervised discharge, two months after Royal Assent, the first major reforms, including clauses concerning grounds for detention—excluding the changes to part 2 for people with learning disability and autistic people—and nominated persons, are expected to follow the training in mid-2027. The timelines for later phases are inevitably less defined, but we will expand the workforce and improve community support with the aim of implementing the reforms increasing the frequency of mental health tribunals from 2030-31. These timelines are indicative, and we will iterate the plans as we get more certainty on future funding and wider workforce plans.
The other issue that came up a lot is the treatment of people with autism and learning disabilities. Again, implementation should be well planned to ensure that the proposed legislative changes have the intended effect. The proposed changes to the detention criteria will be commenced only when strong community services are in place so that the alternatives to hospital care are robust. Members will understand that robust implementation plans are dependent on the final legislation that is passed and on future funding, which is subject to future spending reviews.
However, local systems do not need to wait for legislative changes to come into force to begin putting in place the necessary community services for people with a learning disability and autistic people. There is renewed funding in 2025-26 within ICB baselines to continue improving community support provision for people with a learning disability and autistic people.
We should recognise that the Bill is the result of the independent review commissioned by the now Baroness May of Maidenhead during her premiership. Many important contributions have also come from those with lived experience of the Act and their loved ones. It takes real courage to speak openly about those experiences and to channel pain into change.
As my right hon. Friend the Health Secretary said in his opening speech, the Government have demonstrated their commitment to funding mental health properly, and that commitment has been translated into real, tangible delivery: the £150 million multi-year capital investment to improve mental health urgent and emergency care pathways; 600 new or expanded crisis alternative services nationally, including crisis cafés, safe havens and crisis houses, providing an alternative to A&E or psychiatric admission; £26 million in capital investment to open new mental health crisis assessment centres, which aim to provide accessible and responsive care for individuals in mental health crisis; and 8,500 more mental health workers.
We are also committed to improving early intervention and shifting care to the community to support people to live well and thrive. We have committed to improve support for young people, with Young Futures hubs, making support workers more accessible to children. We are piloting in England the 24/7 neighbourhood mental health centre model, which builds on learning from international exemplars.
It is a privilege to be leading this transformational legislation through the House. I know that, because it matters so much, many people will have views on what is needed to get it right, and I look forward to further debates in that constructive and improving spirit. I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Mental Health Bill [Lords] (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Mental Health Bill [Lords]:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 26 June 2025.
(3)The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Consideration and Third Reading
(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.
Other proceedings
(7) Any other proceedings on the Bill may be programmed.—(Anna Turley.)
Question agreed to.
Mental Health Bill [Lords] (Money)
King’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Mental Health Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of any increase attributable to the Act in the sums payable under or by virtue of any other Act out of money so provided.—(Anna Turley.)
Question agreed to.
Mental Health Bill [ Lords ] (First sitting)
Tuesday 10th June 2025
(1 month ago)
Public Bill CommitteesMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2025 - (10 Jun 2025)
The Chair
We are sitting in public and our proceedings are being broadcast. I remind hon. Members to switch off or silence their electronic devices. Tea and coffee are not allowed during sittings.
Before we move on to line-by-line scrutiny of the Bill, we will first consider the programme motion on the amendment paper, and then a motion to enable the reporting of written evidence for publication. In view of the time available, I hope to take these initial matters formally, without debate. The programme motion was discussed yesterday by the Programming Sub-Committee for the Bill.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 10 June) meet—
(a) at 2.00 pm on Tuesday 10 June;
(b) at 11.30 am and 2.00 pm on Thursday 12 June;
(c) at 9.25 am and 2.00 pm on Tuesday 17 June;
(d) at 11.30 am and 2.00 pm on Thursday 19 June;
(e) at 9.25 am and 2.00 pm on Tuesday 24 June;
(f) at 11.30 am and 2.00 pm on Thursday 26 June;
2. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 3; Schedule 1; Clauses 4 to 24; Schedule 2; Clauses 25 to 41; Schedule 3; Clauses 42 to 54; new Clauses; new Schedules; Clauses 55 to 59; remaining proceedings on the Bill;
3. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 26 June. —(Stephen Kinnock.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Stephen Kinnock.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room.
We will now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room and on the parliamentary website. It shows how the clauses, schedules and selected amendments have been grouped for debate. The purpose of the grouping is to avoid undue repetition in debate.
I remind the Committee that the Member who has put their name to the lead amendment in the group is called first. In a stand part debate, the Minister will be called to speak first. Other Members will then be free to indicate, by bobbing, whether they wish to speak. At the end of a debate on a group of amendments, new clauses or schedules, I shall again call the Member who moved the lead amendment or new clause. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or new clause or to seek a decision.
If any Member wishes to press any other amendment, new clause or schedule to a vote, they will need to let me know. I shall use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debate on the relevant amendments. I hope that that explanation was helpful.
Clause 1
Principles to inform decisions
Question proposed, That the clause stand part of the Bill.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Vickers.
I thank the many hon. Members who spoke on Second Reading. It is clear that in this place, as in the other place, the Bill will proceed in a collaborative and constructive spirit, with the single motivation of getting the reforms right. On Second Reading, we heard numerous powerful accounts from hon. Members arising from their personal experience of supporting family, friends or constituents with a serious mental illness, a learning disability or neurodiversity, or drawing on their own experiences to underscore the importance of the need for reform. I was heartened to hear from so many Members who set out the positive impact of the changes that the Bill will introduce, particularly the vital changes to ensure that patients’ voices are heard and that—as we would expect in any modern mental health service—the patient is at the heart of all decision making.
In our manifesto, we committed to modernising the Mental Health Act 1983 to give patients greater choice, autonomy, enhanced rights and support, and to ensure that everyone is treated with dignity and respect throughout their treatment. I am proud that we included this critical Bill in our first King’s Speech, and I look forward to constructive engagement with the Committee on this important legislation.
I will also take a moment to thank the Liberal Democrat Member, the name of whose constituency escapes me, and other MPs who have shone a light on the experiences of Fiona Laskaris and other families. No one should lose a child in that way. I thank Fiona for meeting me and I commend her tireless campaign efforts. The engagement that my officials and I have had with Fiona and the hon. Member has been incredibly valuable. Unfortunately, the Bill is not the appropriate vehicle to address those concerns, but I have committed to continuing engagement with Fiona and the hon. Member to further explore those issues and how we might tackle them.
Dr Danny Chambers (Winchester) (LD)
I know that my hon. Friend the Member for Dorking and Horley (Chris Coghlan) has been pushing forward on that very emotive and difficult issue of capacity; he brought it up in his maiden speech and has been campaigning tirelessly on it. My hon. Friend said that the Minister was very constructive in his engagement on the issue, which we very much appreciate. Even though we cannot include it in the Bill, we look forward to working on it.
Stephen Kinnock
I thank the hon. Member for that intervention, not least because it gave me the opportunity to remember the constituency of the hon. Member for Dorking and Horley—please pass my apologies to him for forgetting that important point. He has been a tireless campaigner and I believe that we can find a way forward; this Bill is just not the correct vehicle for it.
Dr Luke Evans (Hinckley and Bosworth) (Con)
I also want to assess the amendment that could potentially have been tabled. The Opposition were struggling to see how it would fit in, and it looks as if there is a crossover with the Mental Capacity Act 2005. Can the Minister set out why he felt that it did not quite fit into this area and how it could be taken forward, so that with cross-party work outside this Committee we can see how we can make it happen?
Stephen Kinnock
There were a number of technical and drafting issues. The Public Bill Office ruled that the amendment, as drafted, was out of scope. One of the key concerns was about the unintended consequences of the relationship between physical disability and mental disorder. The drafting of the amendment could have caused confusion, because it could have started to bring physical disability into the scope of the Bill, which is clearly not what it is about. There were a number of technical and drafting issues, but I do not think that they are insurmountable. We can get to where we need to be, just not through a legislative vehicle.
Gregory Stafford (Farnham and Bordon) (Con)
I support the comments of the Minister and the hon. Member for Winchester on the issue. On a cross-party basis, I know that my right hon. Friend the Member for Godalming and Ash (Sir Jeremy Hunt) has taken a close interest. Could he also be included in those discussions?
Stephen Kinnock
Yes, absolutely. We had a very constructive meeting with the right hon. Member for Godalming and Ash, along with the hon. Member for Dorking and Horley, and we are certainly open to working with that team of people, who are clearly focused on getting the results that we all want to see.
Clause 1 will make it a statutory requirement for the Secretary of State to include, in the statement of principles in the Mental Health Act code of practice, the wording of the four principles identified by the independent review. Those principles are choice and autonomy, least restriction, therapeutic benefit and the person as an individual. This will ensure that the review’s principles underpin the implementation of the Mental Health Act 1983 and are considered when making decisions related to care, support or the treatment provided to patients under the Act.
Embedding the principles in day-to-day practice will help to drive the culture change envisaged by the independent review. We are including the principles in the Act so that they govern the content of the code of practice and can changed only by Parliament. The Government are firmly supportive of the four principles, which were co-designed with service users during the independent review. They have informed every decision made in developing the Bill. We have embedded the principles in measures throughout the Bill, such as via the inclusion of therapeutic benefit in the detention criteria and several measures to improve patient choice and autonomy, including new treatment safeguards, introducing advance choice documents and the right to choose a nominated person.
I turn to clause 2. The code of practice for Wales already includes a statement of principles, although it is not a statutory requirement under section 118 of the Mental Health Act 1983 for Welsh Ministers to do so. Clause 2 will amend section 118 to extend subsection (2A) to Wales, along with the new subsection (2B) inserted by clause 1. To do so, clause 2 will also make amendments elsewhere in section 118 to clarify the application of each subsection, which will be to the Secretary of State in relation to England, to Welsh Ministers in relation to Wales, by virtue of the transfer of devolved functions, or to both.
The extent of the Mental Health Act is England and Wales, and there are separate codes of practice for England and Wales. Both codes of practice currently include a statement of principles, although the principles themselves vary slightly. Clause 2 will place a statutory requirement on Welsh Ministers to include the wording of the four principles identified by the independent review in the statement of principles when preparing the Mental Health Act code of practice for Wales.
As in clause 1, we are putting these principles explicitly in the Act so that they govern the content of the code of practice and so that they cannot be changed except by Parliament, or by the Senedd in respect of Wales. The Welsh code is already required to undergo scrutiny by Senedd Cymru, but clause 2 will also update the position in relation to the Senedd Cymru scrutiny procedure for the Welsh code. I commend clauses 1 and 2 to the Committee.
Dr Evans
It is a pleasure to serve under your chairmanship, Mr Vickers. I thank the Minister for his collaborative tone on some of the difficult amendments that we have discussed.
I will open where the shadow Secretary of State, my right hon. Friend the Member for Melton and Syston (Edward Argar), left us on Second Reading. As he rightly emphasised, the importance of updating the Mental Health Act cannot be overstated. I fully share his view that it was right to take the necessary time to get this legislation right. The cross-party commitment to reform in this area, spanning both previous and current Governments, reflects a shared recognition of the urgent need to modernise our approach to mental health, particularly for those who are most vulnerable.
I welcome the Bill’s focus on enhancing patients’ voice and autonomy, including through the expansion of independent advocacy and the shift away from using police and prison cells as a place of safety. Those are positive and overdue steps. At the same time, as my right hon. Friend outlined, the Opposition’s role is to engage rigorously and constructively with the details of the Bill. Over the next few weeks, I look forward to working with colleagues on the Committee to ensure that, for example, the principle of patient choice is embedded not only in policy but in practice, such as through the use of advance choice documents.
We will continue to scrutinise the Bill in good faith, proposing improvements where needed, with the aim of delivering the strongest possible protections and outcomes for patients, their families and the community. How we begin a conversation often determines whether it becomes dialogue or dispute, so I hope that the Committee can take a constructive and productive look at what lies ahead of us.
I support clause 1, which will rightly update section 118(2B) of the Mental Health Act 1983 and embed a refreshed code of practice at the very heart of the mental health framework. This is not merely a procedural amendment; it is a statement of values, placing humanity, dignity and recovery at the centre of how we treat some of the most vulnerable people in our society, who are profoundly affected by mental health legislation. It is vital that the framework guiding professionals be clear, principled and rooted in respect for individuals.
Why do we need these changes? For too long, the Mental Health Act has been criticised as outdated and insufficiently centred on patient autonomy and dignity. Concerns raised by successive independent reviews, clinicians and, crucially, by people with lived experience have pointed to inconsistencies in how decisions are made, which can often result in over-restriction, lack of patient involvement and insufficient therapeutic focus.
The independent review of the Mental Health Act, which was published in 2018, made a landmark contribution by recommending the adoption of the four core principles in front of us today: choice and autonomy, least restriction, therapeutic benefit and recognition of the person as an individual. These principles are designed to shift the culture and practice towards one that respects autonomy while safeguarding wellbeing and public safety.
The historical context is that the Mental Health Act has undergone several amendments since its introduction—notably, in 2007, updates were made to some of the detention criteria and safeguards—but it was clear that the Act remained predominantly paternalistic. The 2018 independent review was a comprehensive, evidence-based re-examination of the entire Act, informed by extensive consultation, including with patients, families and clinicians. It concluded that embedding the principles formally into the law and code of practice was essential to modernise and humanise mental health law.
The four key principles—choice and autonomy, least restriction, therapeutic benefit and the person as an individual to be treated with dignity—are not abstract ideals. They are the foundations of compassionate, lawful and effective care. They echo the spirit of the UN convention on the rights of persons with disabilities and signal a move away from paternalism and towards genuine co-production of care plans. Involvement ensures that decisions are not made about patients without them. The principle of choice and autonomy reminds us that the mental illness must not be a justification for blanket restrictions. The principle of least restriction challenges us to find community-based alternatives before defaulting to detention. Therapeutic benefit ensures that care is not custodial, but meaningful healing. These principles are what most of us would hope to see for our own family.
Anna Dixon (Shipley) (Lab)
I thank the hon. Gentleman for his comments. Does he agree that the Wessely independent review setting out these four principles gets right the balance that even though people may need to be detained, they should not lose their personhood and control, and that embedding these principles in this updated Bill will ensure that those rights are enshrined in law?
Dr Evans
The hon. Member is absolutely right. The key part is about trying to change not only the legislative framework, but the culture around clinicians and society as a whole. We saw that impact in 1983, we saw it in 2005 with the update on capacity, and we saw it in 2007. Now is the right time to look again at this, and it is well overdue.
I am glad that it has taken a while to ensure that the Bill has been thoroughly thought out. As we heard in the House of Lords debate, this is exactly the kind of framework that we need to make sure that society moves forward in a collaborative way that puts the patient at the centre, but also protects the wider community. Given some of the high-profile incidents that we have seen, we must also make sure that relatives, the community and the wider public at large are all protected.
As the Minister has rightly highlighted, the core principles must be the default for everyone. Clause 1 therefore represents an important step forward: by requiring the Secretary of State and the Welsh Ministers to include the four principles explicitly in the code of practice and by making it a legal duty for decision makers to have regard to them, the clause will strengthen the ethical foundation of mental health law. However, we must be honest about the challenges. The success of the principles depends on the culture, not just the codification. Training, supervision and leadership across clinical settings will be essential to bringing the values off the page and into practice.
These principles will also require resource backing. We cannot call for the least restrictive or most therapeutic interventions while community mental health services remain as they are. A plan for investment and a timeline for delivery will be imperative, or else we risk embedding principles we cannot fulfil. Members on both sides of the House understand that. I know that the Minister will have to think carefully about setting out a timetable, but it is key.
We must also guard against tokenism. We must guard against lofty principles being left unenforced and becoming rhetorical wallpaper. If we are to legislate for these values, we must look for accountability, with regular auditing, patient feedback mechanisms and a duty on the provider to report on how the principles are being upheld. Those are all areas that His Majesty’s Opposition will scrutinise.
To that end, I wish to raise several important questions for the Government and the Committee to consider. The first is about enforcement and accountability. How will the Government ensure that decision makers truly have regard to the principles in practice, and is there a robust mechanism for monitoring compliance and addressing breaches?
The second question is about balancing conflicts. In some cases, principles may conflict: for example, the imperative to respect patient autonomy may clash with the need to impose restrictions for safety. How does the code intend to guide practitioners to navigate these difficult trade-offs?
The third question is about care and interested parties. Although the clause highlights patient involvement, what explicit protections and roles will be afforded to carers and other interested parties, and how will their sometimes divergent perspectives be balanced?
The fourth question is about training and resources. Embedding the principles requires more than words on paper. What investments are planned to equip practitioners with the skills and understanding necessary to apply these principles sensitively and consistently?
The fifth question is about the timeline and consultation. The explanatory notes mention that the code must be consulted on and presented for scrutiny. What is the proposed timeline for that process, and how will people with lived experience continue to be involved?
Stephen Kinnock
I thank the shadow Minister for his questions. I will answer to the best of my ability, but I may need to write to him on one or two points.
On enforcement and accountability, the code of practice is underpinned by the Bill and is therefore legally binding. Any divergence from the code of practice would need an extremely strong justification. That could well end up being a matter for the courts. I think that we will see a fairly strong line of sight from this primary legislation through to the code of practice and its implementation. Enforcement and accountability will be provided on that basis.
On balancing conflict, we will consult on the code of practice. Consultation will launch as soon as the Bill becomes an Act. That will be an important part of getting to the nub of some of these nuanced issues. It is quite difficult to put all that down in a document—a lot is about the culture, as the shadow Minister said—so we need an approach that has sufficient flexibility, but with clear outcomes and accountability. The consultation process will help us to get that.
Dr Evans
I agree with the Minister. Does the Department have a rough idea of the timetable for putting in place the code of practice? How long will the consultation need to take? When will it be implemented? How many rounds go with it? How wide is it to be—will it consult across England and Wales, or just in England?
Stephen Kinnock
We expect the entire process to take about a year from Royal Assent. My colleague Baroness Merron made a strong commitment from the Dispatch Box in the other place that we will present a written ministerial statement to the House every year. That will be the opportunity for us to report on the progress of all the measures that need to be implemented. A pressing task is to build the community capability required in this shift from hospital to community, which is very much part of the Bill and of our broader strategy for mental health and, indeed, health across the board. We need to report every year on that, but the first year will also be a report on the consultation and its conclusion, including the conclusion of a draft code of practice. We expect that to take approximately 12 months.
That, in some ways, has also answered the shadow Minister’s question about training and resources. A big part of the reason for the 10-year implementation period is the time that it will take to do the training and the training needs analysis, to identify trainers to deliver the training, and to get the system up to speed. That will be a fairly large chunk of the 10-year process.
Dr Evans
The Opposition appreciate the timescale taken to skill-up in this area, but the workforce plan is soon to be announced by the hon. Member’s Government. Has any consideration been made of what the capacity might look like, and of the crossover between having this legislation not quite in place—although likely to happen, upon Royal Assent—and its impact on updating the workforce plan on mental health?
Stephen Kinnock
The shadow Minister is tempting me to reveal the details of the workforce plan. While I have a huge amount of respect for this Committee, I do not think that it is where we will launch it. Absolutely, however, that is built into our thinking about the plan. There is a huge mental health challenge in our country, and those with acute and severe disorders and conditions which the Bill is designed to address are absolutely a part of that. A skilled and compassionate workforce is required, and I pay tribute to the amazing staff, mental health professionals and others who work in this area, often in incredibly challenging circumstances. We recognise and value that. The Bill does need to hook up with the workforce plan, and we are focused on that.
On Wales and the risk of divergence, the shadow Minister makes an interesting point. I guess it is about ensuring that that there is devolution, but not divergence, in the sense that we have a framework here—much of the legal framework is reserved—but the delivery of mental health services is devolved. That balance has to be right, but it is something that the two Governments have been working on since devolution started in 1998. There is a fairly mature and sophisticated culture in the interface between the two Governments. The shadow Minister is right to flag that point, and I am more than happy to seek some assurances from officials and write to him. However, as things stand, I do not see any particular risks.
Dr Evans
The Minister is right that there is shared working. However, part of the problem between devolved nations, such as Scotland and Wales, is that the datasets and definitions of data are often changed. Actually, the comparison of data across the UK can be quite hard to manage. Given that we are talking specifically about mental health, including some of the most at-risk people with the most severe mental health illnesses, will the Government commit to pushing for shared data that is comparable between Scotland and Wales, which we are legislating on in this case, to ensure that there is data transparency, so no one country can hide behind a different comparison or by saying, “We are looking at apples and pears”?
Stephen Kinnock
It is important that we do not see devolution as a wall between the two countries; in fact, we should be sharing information and best practice—nobody has a monopoly on good ideas. The Welsh Government have achieved some things, particularly in mental health, that England could learn from, and vice versa. There is no reason why the data cannot be shared from my own practicable and pragmatic point of view. There may be some issues with data protection, but data protection law really should be implemented in the same way right across the board because it is reserved.
Dr Evans
I entirely agree, and I hope that data is and will be shared. The question is about the definitions and standards, such as those used for waiting times. We often use the A&E waiting time of four hours. When it comes to the most vulnerable patients who will potentially be on waiting lists, or looking at specific data, if it is categorised differently in Wales, Scotland and England, that makes it very hard to see where best practice is so that it can be shared. That is the Opposition’s concern. I know that both sides of the House have shared that concern in my five years in Parliament. Is there a mechanism to address that issue either in the Bill or in the Minister’s wider portfolio?
Stephen Kinnock
I see. I am sorry; I had misunderstood the shadow Minister’s point. I thought it was about sharing data on particular patients, especially those who are crossing borders. The point about waiting lists is a more difficult issue. The Welsh Government have taken a view on how best to define them. For example, I know that ambulance waiting times have been quite controversial because there is a different definition in Wales to England. Many feel that the definition adopted by the Welsh Government sets the bar at a higher standard, which can then sometimes framed, in the hurly-burly of politics, as failing more than they would be if they had used a different metric, but they have chosen to use that metric.
In the context of devolution, it is up to the Welsh Government to decide how best to evaluate the Welsh health service and its performance. I take the shadow Minister’s point on having the best alignment that we can, but when it comes to this UK Government, we will determine how performance is evaluated for England, and the Welsh Government will determine how best to evaluate performance for Wales. I think that the Welsh media, the UK media, this Parliament and the Welsh Parliament will then decide who is failing and who is succeeding.
Aphra Brandreth (Chester South and Eddisbury) (Con)
I represent an English constituency on the border with Wales; on some streets, one side is considered Welsh and the other English. Does the Minister recognise that it matters to people in England and Wales that there is consistency across both parts of our fantastic country, and that it is not sufficient to say that what happens in Wales will affect only Welsh people, or what happens in England will affect only English people?
Stephen Kinnock
I absolutely accept the point that there are deeply integrated communities on that border. A huge number of people live in England and work in Wales, or live in Wales and work in England. However, the fact of the matter is that health is a devolved policy area. It is, therefore, up to the devolved Administrations to determine how they want to measure the performance of their respective systems. It would be a violation of the principles of devolution if one Government in our United Kingdom were to dictate to another how they should evaluate their devolved policy areas—whether that is health, education or any other devolved area. I hope that I have responded to the best of my ability.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.
Clause 3
Application of the Mental Health Act 1983: autism and learning disability
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
I beg to move amendment 56, in clause 3, page 3, line 19, at end insert—
“(4) The Secretary of State may by regulations update the definitions in subsection (2) in response to scientific advancements.
(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
This amendment would allow the definitions for mental disorder, autism, learning disability and psychiatric disorder to be updated by secondary legislation as science evolves.
It is a pleasure to serve under your chairmanship, Mr Vickers. I rise to speak to amendment 56, which is in the name of my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer), who has extensive clinical experience. The amendment provides for a narrowly drawn but important power, namely, to update, via regulations and subject to affirmative procedure, the statutory definitions in clause 3, in response to developments in scientific and clinical understanding.
I recognise that any clause that confers powers on the Executive to amend the statutory definitions must be treated with due caution. There could be concerns that changes could be made without broad clinical consensus. However, on this occasion, I believe that my hon. Friend, who brings to the debate the weight of his clinical expertise, has struck the right balance. The proposed power is tightly scoped. It is triggered only by new scientific knowledge. It cannot be exercised on ministerial whim. Crucially, it is subject to the full rigour of parliamentary approval under the affirmative resolution procedure. It is not a case of Executive overreach; it is a recognition that the pace of medical and neuroscientific research is such that legislation risks obsolescence unless we allow for responsible adaptation.
One need only look at the evolution of our understanding of conditions such as autism spectrum disorder and complex post-traumatic stress disorder to appreciate how quickly definitions can move on. Clearly, any change must reflect best practice and take place under broad consultation. However, I argue that we are not opening the back door to arbitrary change; we are safeguarding the front door against stagnation. For that reason, I support the amendment.
Dr Evans
I rise to speak to amendment 56, tabled by my hon. Friend the Member for Runnymede and Weybridge. The amendment proposes to grant the Secretary of State the power to update the definitions of “mental disorder”, “autism”, “learning disability” and “psychiatric disorder” by secondary legislation, subject to affirmative resolution by both Houses of Parliament. Currently, the Bill sets out fixed definitions of those terms in the primary legislation—the Mental Health Act, as amended. Those definitions can be changed only through further primary legislation. That means that any further change, reflecting new scientific knowledge or evolving clinical consensus, would require a full legislative process. Given that the Act was passed in 1983, and we are here more than 40 years later, I think that the problem is clear.
Anna Dixon
Does the hon. Gentleman recognise the work of the World Health Organisation in producing the international classification of diseases and ICD-11, which provides a scientific, evidence-based update, including on psychiatric disorders, autism and other neurodevelopmental disorders? Has he considered whether that is an appropriate reference point for the Bill?
Dr Evans
The hon. Member makes a good point. We have had ICD-10 and DSM-5, which aim to codify those disorders. Part of the problem is that someone with Korsakoff syndrome, which is brain damage from alcohol, or with Rett’s disease would potentially come under the scope of these definitions. That makes it very difficult. What about acquired brain injury? That is an emerging field—the House has looked at it and has put a strategy in place. However, there could be problems in the legislation going forward.
The amendment is asking, I think, how we scientifically proof the Bill so that we do not need to introduce further primary legislation. That is the question that the Government need to grapple with. As a doctor, I have seen the difficulties and practicalities of these definitions, and of trying to put people in a box. For example, where does Asperger’s fit on the autism scale? What does that look like on the spectrum of conditions? Are we trying to codify that? These are the real, pragmatic problems of putting definitions in place. That means it is all the more important to look at definitions, but, as the hon. Member for Shipley has rightly pointed out, the definitions have already moved on while we have been discussing the Bill. Introducing a mechanism that allows the House to update the legislation in keeping with advances in scientific knowledge is really important. The question is whether this is the right amendment to do that.
The amendment would allow the Secretary of State to make updates through regulations—secondary legislation—which would thereby enable a more flexible and responsive approach. Importantly, it requires that any such regulations must be laid before Parliament and approved by both Houses, which maintains parliamentary scrutiny and democratic oversight.
The potential benefits of this approach are clear. It offers the possibility of allowing the law to evolve and stay aligned with scientific evidence and clinical best practice without undue delay. That could prevent outdated or overly rigid definitions from adversely impacting vulnerable people, and better reflects the complexities of mental health conditions. It would allow the law to keep pace with advances in the scientific understanding of autism, learning disability and mental disorders, without the need for primary legislation. It could help ensure that the definitions remain clinically accurate and relevant, improving how the law is applied and reducing the risk of outdated criteria causing harm or confusion.
As the hon. Member for Shipley pointed out, that is part of the problem. As new criteria come up, there is a delay in the uptake of definitions. From my experience in clinical practice, keeping up to date with definitions can sometimes be a challenge. It is part of the personal development plan to make sure there is that understanding, but there is always a drip through as change in practice comes through, along with clinicians being comfortable and happy to use the new definitions. With any new medication, it is important to understand the side effects and the pros and cons of what it is trying to achieve, and to be able to explain that fully so that a patient can consent when taking that medication. The same applies when trying to explain a condition to patients. If there is a change and a new aspect to the way in which a definition is being applied, it is important that we have some flexibility.
The affirmative procedure preserves Parliament’s role, offering safeguards against unchecked ministerial power. However, there are some important considerations and potential drawbacks. Definitions of mental health conditions have profound legal and social implications. Delegating this power, even with parliamentary approval, risks politicisation or inconsistent application if regulations are used too frequently or without adequate consultation.
Secondary legislation typically receives less parliamentary debate and public scrutiny than primary legislation, even with the affirmative procedure, which may not suffice for such significant changes. There is also a risk that the changes could be made in a reactive or piecemeal way rather than with a coherent legislative framework, potentially leading to legal uncertainty or unintended consequences.
Given those points, I have several questions for the Minister. How do the Government propose to keep the legislation updated, given that we are only updating the Mental Health Act now, 40 years on? Do they have a mechanism in mind to ensure that any updates to the definitions are accompanied by robust clinical and expert consultation, while reacting to advances in medical understanding? Would the Government consider a formal review mechanism such as a mandated periodic independent review of the definitions? That could solve the problem of legislation becoming outdated, and put the safeguards in place. If there is a difference in the scientific community, we need to make sure that any changes are broadly in agreement with the direction of travel of scientific knowledge.
Furthermore, in considering the need for balanced, flexible and democratic accountability, the Government could introduce a sunset clause on any regulations, so that any changes would be revisited and renewed by primary legislation within a set period, unless Parliament agrees otherwise.
Crucially, to my knowledge, there are no standing statutory bodies or panels tasked with reviewing or advising the Government on the legal definitions of mental health conditions. There is an argument that without a dedicated expert body to guide the Secretary of State, we cannot be sure that any changes are robustly evidence-based and clinically sound. Currently, we have the National Institute for Health and Care Excellence, the royal colleges, the Department of Health and Social Care and the intermittent mental health review bodies, but have the Government considered establishing a formal advisory mechanism to address problems in the future? The Opposition can see the argument both ways, but to govern is to choose, and it would be useful to understand the Minister’s thoughts on this area.
Anna Dixon
The hon. Gentleman seems to be overcomplicating the need for additional scrutiny. Will he acknowledge the work of the World Health Organisation to review the evidence on a global basis and update the definitions of psychiatric disorders?
Dr Evans
The hon. Member is correct about the way in which the world looks at this issue. The problem is that we are sat here debating definitions in legislation that is 40 years old. Will we be here in 40 years debating definitions that have moved on? The amendment suggests that, somehow, we need to try to ensure that legislation is flexible and updated enough, and has the scrutiny and safeguards in place. That relates to not just health, but any part of government that we tend to look at in the House.
I wanted to speak to the amendment to probe the Government on how they will safeguard the legislation. I do not have all the answers, but this is important. I do not want to see my successors—the hon. Member for Hinckley and Bosworth from whatever party—sat here debating this issue in 40 years’ time because the definitions that we happen to set today have become outdated and have unintended consequences.
That is the balance that I am looking for. I do not see a body across the UK, given that this is UK legislation, that fulfils this role. It could be a transitory role or fully established. A psychiatrist could take it on, or it could come under NICE. With the abolition of NHS England, it could be a new role for the Department of Health to take on. All those are viable vehicles that could potentially look into the definitions. I want to ensure that what we pass in Parliament actually translates into the real world for clinicians, patients and the public.
The Opposition can see the argument both ways, as I mentioned. Perhaps it would be useful to have an expert panel, with representatives of clinicians, legal experts and service users to support regulatory updates. I put those questions to the Minister and I look forward to his answers.
Stephen Kinnock
I am grateful to the hon. Member for Solihull West and Shirley for moving the amendment on behalf of the hon. Member for Runnymede and Weybridge, and to the shadow Minister for speaking to it.
As this regulation-making power would amend primary legislation, it would signify a Henry VIII power that the Government consider to be unjustified. We have significant concern that it could change the way in which the Bill applies to people with certain conditions without appropriate consultation or parliamentary scrutiny. The serious matter of detention for compulsory treatment should be considered in primary legislation.
The hon. Member for Solihull West and Shirley spoke about the need to stay in touch with our evolving understanding of these terms and conditions. My view is that the Bill does that. We have modified the meaning of mental disorder by including new definitions of autism, learning disability and psychiatric disorder. That acknowledges the advancement in our understanding of learning disabilities and autism, and how the Bill should apply in respect of those conditions. Any future change to the definitions should be a matter for Parliament, informed by strong evidence and consultation with the public.
For those reasons, I ask the hon. Member for Solihull West and Shirley to withdraw the amendment.
Dr Shastri-Hurst
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
Currently, a person with a learning disability can be detained for treatment under section 3 of the Mental Health Act when their learning disability
“is associated with abnormally aggressive or seriously irresponsible conduct”.
A person can be detained under section 3 on the basis of being autistic, which is classed as a mental disorder under the Act. However, we know that people with a learning disability and autistic people may sometimes be detained because of needs that have arisen due to insufficient community support, rather than for treatment of a mental health condition, and compulsory treatment in hospital settings is rarely likely to be helpful, particularly for autistic people.
Clause 3 and schedule 1 will insert new definitions in the Act and make amendments using those definitions throughout the Act. Those amendments will remove, for the purposes of part 2 of the Act, learning disability and autism from the conditions for which a person can be detained for compulsory treatment. It will be possible to detain someone for treatment under part 2 only if they satisfy the conditions set out in section 3, as amended by the Bill. These include that they have a “psychiatric disorder”, which is a
“mental disorder other than autism or learning disability”.
The changes will not apply to section 2 of the Act, under which a person can be detained for a maximum of 28 days for assessment to understand whether they have a psychiatric disorder that warrants detention under section 3. The revised detention criteria will not apply to part 3, so people in the criminal justice system can continue to be diverted to hospital, where appropriate, to access the specialist support they may need.
We recognise the importance of implementation in ensuring these reforms have their intended effect. For this reason, the proposed changes will be commenced only when there are strong community services in place. I commend the clause and schedule to the Committee.
Dr Evans
It is a pleasure to speak to clause 3, which brings forward the vital and long overdue changes to the way our laws treat autism and learning disabilities under the Mental Health Act. The clause responds to a persistent injustice: the inappropriate detention of autistic people and people with learning disabilities in mental health hospitals, often for years at a time, without meaningful therapeutic benefit. Those individuals are not mentally ill, yet they have too often been detained, medicated and restrained as if they were.
As the law stands, individuals with learning disabilities and autistic people can be detained both for assessment, under section 2 of the Act, and for treatment, under section 3. Notably, people with learning disabilities may be detained under section 3 when their condition
“is associated with abnormally aggressive or seriously irresponsible conduct”,
whereas that does not currently apply to autistic people. Evidence and reports show that some such detentions can be lengthy and may not always provide therapeutic benefit. That raises concerns about the appropriateness of detention on the basis of disability alone. In my time on the Health and Social Care Committee, we looked specifically at this topic and produced a report, some of which has influenced the Bill.
The clause aims to directly address the issue of lengthy detentions for such individuals. For the first time, the law will clearly define autism and learning disability—something that has not happened for 40 years. As science has moved on, legislation must follow. Autism will now be recognised as a “lifelong developmental condition” that affects perception, communication and interaction, and learning disability will be defined as “significant impairment” of intellectual functioning.
Supported by schedule 1, the clause seeks to clarify and refine that position by introducing formal definitions of “autism”, “learning disability” and “psychiatric disorder”. Crucially, it removes autism and learning disability as stand-alone grounds for compulsory treatment and detention under section 3. Instead, detention for treatment will be permitted only if a person has a co-occurring psychiatric disorder—that is, a mental disorder other than autism or learning disability. Additionally, the change applies to community treatment orders, meaning that they cannot be applied solely on the basis of autism or a learning disability. However, the Act makes it clear that the changes do not apply to people detained under part 3 of the Act who are within the criminal justice system. For that group, autism and learning disabilities with serious behavioural consequences remain grounds for detention and treatment disorders.
The Bill introduces the new term, “psychiatric disorder”, meaning any mental disorder excluding autism or a learning disability. That distinction matters because detention under section 3 of the Act—compulsory admission for treatment—will no longer be permitted solely on the basis of someone being autistic or having a learning disability. From now on, a person may be detained only if they have a co-occurring psychiatric disorder or their learning disability is associated with “serious behavioural consequences”, such as
“abnormally aggressive or seriously irresponsible conduct”.
That reflects a fundamental shift in the philosophy of the Act from using hospitalisation as a containment tool to ensuring that any detention has a clear clinical and therapeutic purpose.
This reform is rooted in the recommendations of the 2018 review of the Mental Health Act, which was led by Professor Simon Wessely, and has been championed by groups such as the National Autistic Society. It represents a more modern understanding, as we currently see things, so there are many positives—it protects people’s rights, preventing detention simply for being different, it promotes community-based care rather than institutionalisation, it modernises the law in line with current clinical understanding and it seeks to end the harm caused by prolonged non-therapeutic hospital stays, which often involving over-medication and restraint.
However, I also sound a note of caution: the clause alone will not be enough. There is rightly concern about the provision for robust community services. We risk creating legal protections that are admirable on paper but ineffective in practice. I know that the Minister appreciates this dilemma. If people cannot get the right support in the community, they will still end up in crisis, and possibly still be detained—just under a different part of the law.
There are also concerns about ambiguity. The phrase “serious behavioural consequences” may be open to a wide interpretation. Without clear guidance and training, we risk inconsistencies and even potential loopholes that could undermine the intent of this reform. I commend the Government’s intention to protect autistic people and people with learning disabilities from potentially inappropriate detentions, and to ensure that compulsory treatment is targeted to those with mental disorders warranting hospital care.
The emphasis on therapeutic benefit and the principle of least restriction aligns well with the human rights standard and the UN convention on the rights of persons with disabilities. However, I have several questions that I hope the Government will be able to address. How will clinicians reliably distinguish between behaviours arising from autism and learning disabilities and behaviours arising from co-occurring psychiatric disorders, given the complexity of presentations in this population? Is there, or will there be, clear guidance and training to support those assessments? For individuals with severe autism or learning disabilities who display challenging behaviours but do not have a diagnoseable psychiatric disorder, what alternative pathways and supports are envisaged to ensure their safety and wellbeing without resorting to detention?
On the issue of patients under part 3 of the Bill, I know the Government’s rationale for maintaining broader detention definition criteria, but will there be additional safeguards or oversight to ensure those patients are not subject to unnecessarily prolonged or restrictive detention? The removal of “social functioning” from the definition of learning disability is intended to create a clearer distinction from autism, but could the changes create any unintended legal or clinical ambiguities in practice?
The changes could introduce some unintended consequences. Previously, impairments in social function were considered part of the learning disability definition, which helped capture individuals whose social difficulties accompanied intellectual impairments. Without that, there may be legal and clinical uncertainty for people with borderline or overlapping conditions. For example, someone with moderate intellectual impairment and significant social difficulties might no longer clearly fit the learning disability definition. Similarly, autistic individuals with mild intellectual disability who experience social challenges could find their diagnosis and legal status less certain. Those ambiguities risk inconsistent assessments and potential gaps in access to appropriate care unless the Government provide clear guidance to clinicians and tribunals on how to navigate complex presentations. What plans are in place to monitor and evaluate the impact of the changes on detention rates, patient outcomes and the availability of community-based alternatives?
In closing, this is an important clause that moves us closer to a system that respects autonomy, delivers appropriate care and upholds the rights of neurodivergent people. But we must be mindful that passing this legislation must not be seen as the end of the job. As the Minister understands, it is the beginning. If we are to drive reform, the Government will need to set out the funding and workforce pathway for the services that will deliver it. We must train professionals, empower families and support voices of lived experience at every level. Only then will clause 3 deliver on its promise not just to change law, but to change lives.
I turn to schedule 1. Schedules are an important and yet often overlooked part of the legislative process. It is worth reminding the Committee that a schedule is a part of a Bill’s function, like a detailed appendix. It contains the granular, often technical amendments that give practical and legal effect to the broad principles set out in main clauses. In other words, the clause tells us what Parliament intends to do and schedules show us how it will be done: amending existing statutes, updating definitions and ensuring consistency across legal frameworks.
In this Bill, schedule 1 is particularly consequential. It does the heavy lifting of applying the reforms in clause 3 to the existing Mental Health Act 1983, especially with regard to how we treat autism and learning disabilities within the scope of mental health law. Let us be clear that the schedule is not simply technical. It is transformational in what it attempts to do. Where the 1983 Act spoke broadly of mental disorder, schedule 1 now creates a more precise legal category—“relevant disorder”—defined to include psychiatric disorder, autism and learning disability with serious behavioural consequences. That matters enormously. In fact, it is one of the key reasons for the review of this entire piece of legislation. Individuals with autism or learning disabilities have been subject to compulsory powers, including detention, as we have heard, in the absence of any co-occurring mental illness. That is a practice with which the Committee should rightly be uncomfortable.
Schedule 1 amends not only the criteria for compulsory admission under section 3, but those for guardianship, community treatment orders, tribunal discharge and even the treatment provisions in part 4 of the Act. This breadth shows that clause 3 is not merely a rhetorical shift; it is being operationalised throughout the entire Act. With such significant implications, the schedule raises serious and legitimate questions that I am sure will form the backbone of the ongoing discussions in Committee over the next few weeks.
First, what is the threshold for serious behavioural consequences? Will that be clearly defined? Without precision, we risk substituting one vague standard for another. Secondly, do the transitory provisions offer enough clarity for frontline practitioners, in particular approved mental health professionals and tribunal panels who will be making decisions in grey areas between new and old law? Again, what about the cross-border issue between Wales and England? Thirdly, given the change from mental disorder to psychiatric disorders in some sections but not others, what is the Government’s rationale for that linguistic differentiation? Is there a risk of confusion among legal and clinical practitioners? To clarify—I am happy to share this with the Minister—I went through it and there appear to be a few occasions where the definition was changed, but some areas where it was not. Now, that may be my naïve understanding as a mere shadow Minister, but I would welcome the clarification and I am happy to pass them on to the Clerks to ensure that, if we are going to update the Bill, all parts are updated. Finally, and critically, do we have the workforce, training and services in place to support this cultural and clinical shift away from paternalism towards community-based and rights-respecting alternatives?
Schedule 1 shows us that reform is not just about good intentions, but getting the detail right. It is about ensuring the law reflects modern clinical understanding and human dignity. I support the direction of travel, but I gently remind the Minister to ensure that the operational mechanisms of the schedule are tested, clarified and, where necessary, strengthened. We owe that to the individuals and the families for whom we are producing this legislation to improve their lives.
Anna Dixon
It is a pleasure to serve under your chairship, Mr Vickers. I will make a few brief remarks on clause 3. For many of us, the detention and long-term institutionalisation of people with autism and learning disabilities is a shameful part of the NHS’s history. The Bill, and particularly this clause, will finally make it very clear that that is no longer acceptable. It is a further shame that, despite the Winterbourne View report in 2012, so little progress has actually been made on providing for people to be cared for in the community and closer to home.
Stephen Kinnock
The red thread that goes through all those questions, from both my hon. Friend and the Opposition spokesman, is very much about how we are going to build a clear and strong understanding of what good community support looks like, and then build towards it so that we achieve the aims that we set out for ourselves. In many ways, that is a difficult question to answer in this Committee, because an important part of the answer will come from the consultation on the code of practice that will be launched as soon as the Bill gets Royal Assent.
The Government believe passionately in making policy on the basis of evidence, so we need that consultation and input for the code of practice. We need a clear definition based on engagement with those who are at the cutting edge of delivering these services, so that we can define the new reality that we want to work towards, and then implement it step by step.
I apologise to Committee members for the fact that in some ways that is a step beyond what we are doing here in scrutinising the Bill. We will, I hope, pass the Bill, and then it will get Royal Assent. From that day, we will be straining every sinew to get community services to where they need to be.
Jen Craft (Thurrock) (Lab)
I do not want to speak outside the scope of the clause, but I would very much welcome a commitment from the Minister on ensuring that people with learning disabilities and/or autism are part of the process of the consultation to produce guidance on what good community services look like, and that they are engaged with from the start in a very real and meaningful way.
Stephen Kinnock
Absolutely, and I pay tribute to my hon. Friend for her outstanding work in the all-party parliamentary group; I am looking forward to meeting with the APPG as soon as diary time can be organised.
There is absolutely no point in the Government making policy in an ivory tower in Westminster or Whitehall. Policy must be evidence-based and based on the real, lived experience of patients—we are very committed to building a patient-centric national health service—and practitioners. If we try to make policy without involving the voices of those people, the policy will fail; we know that from bitter experience.
David Burton-Sampson (Southend West and Leigh) (Lab)
It is a pleasure to serve under your chairship, Mr Vickers. I, too, have received messages from organisations in my constituency that welcome clause 3 and clause 4, which I will speak to later. On the implementation, however, they have made it very clear that it is really important to hear the voices of the individuals who will be impacted and their families. As we work with the ICBs, local authorities and commissioners to implement these new regulations, I seek an assurance that the voices of the community will be heard.
Stephen Kinnock
My hon. Friend is absolutely right that those voices must be heard. One example is that we must produce a code of practice to ensure that approved mental health professionals are better supported in their decision making, including when assessing whether somebody with a learning disability or an autistic person has a co-occurring mental disorder. At the heart of the process are the assessment and the definition, and the pathway that flows from that. That code of practice can be developed only on the basis of dialogue and engagement with precisely the people he has talked about.
Dr Shastri-Hurst
Building on the Minister’s last point, can he reassure the Committee that any consultation will have a strong focus on ensuring that practitioners have the training and, most importantly, the resources that they need to achieve a seamless transition from one set of regulations to another?
Stephen Kinnock
I can give the hon. Gentleman that assurance. We are moving to a nuanced position that is about defining where there are co-occurring conditions and where there are not. I think everybody recognises that that is, by definition, a complex process, so the training and the code of practice that go around it will be vital.
Sojan Joseph (Ashford) (Lab)
In the past, many people with mental health disorders have been detained in hospitals for months or even years because of a lack of proper social care provision in the community. Will the Minister also ensure that local communities, which will be providing social care for patients who are discharged from hospital, are part of that discussion?
Stephen Kinnock
It is absolutely a team effort. Sadly, when people have severe and acute mental health disorders, a multi-agency effort is often required to support them and to help them to get the treatment they need. The process should not be about trying to isolate people. We are keen to ensure that people stay in mainstream society and remain as integrated as possible, because that is often an important part of supporting their mental health condition.
All of that means that local authorities, mental health professionals, social workers, and often children’s social care professionals or adult social care professionals are important in the process—it requires a team effort. That integrated approach will be really important as we build the community services that we want to see.
Gregory Stafford
On the point made by the hon. Member for Ashford about local authorities, given that the Government are devolving and reorganising local government structures across parts of the country, how will the Minister ensure that the standards around this issue—and other health and social care issues—are maintained? That restructuring means that we will have a whole load of new local authorities that do not necessarily have experience of dealing with this area.
Stephen Kinnock
The devolution Bill and the process of reorganising and restructuring are based on two really strong principles: that it is up to us through legislation to create the outcomes that we need to see delivered across the country and that there are clear standards and targets that we need to see met. But the implementation work needs to be done to deliver those desired outcomes and targets. Local authorities are empowered to do that, which is why we are seeing, for example, a lot of breaking down of ringfencing. The Government are keen to massively reduce the amount of ringfencing, because that has become a straitjacket for local authorities, integrated care boards and others in how they can best manage their portfolio of activities and deliver that devolved power and responsibility.
The answer to the hon. Gentleman’s question is that we want to devolve. We are absolutely committed to decentralising and we believe that is an important part of modern governance. Of course, that has to be done within a framework of set targets and the development of community services that the Bill commits to. All of that will come together to enable those at the coalface, who are best placed to understand them, how to deliver those services to their communities.
Stephen Kinnock
I just need to turn to the question asked by my hon. Friend the Member for Shipley. On strong duties, the code of practice flows from the primary legislation and therefore has a statutory power. There is no stronger power to ensure that people with learning disabilities and autism get the treatment, service and support that they require. The system will have a statutory duty to ensure that that happens within the framework of the legislation.
My hon. Friend is right that the transition from children’s to adult services is a major challenge. I am engaging with colleagues in the Department for Education about that to ensure that conversations about the transition happen upstream. We do not want a situation where an individual is looked after until they are 18 and then handed over without any prior conversations and engagement. We want the handover from one service to the other to be as seamless as possible. Our commitment to dynamic support registers will help in this context. They will be an important tool for understanding the needs of individuals who are at risk of admission and for getting that information into the system across the board prior to any detention.
My hon. Friend also asked about carers who so often pick up the baton in the gaps in community provision. She is absolutely right to flag that. We owe a huge debt of gratitude to the millions of unpaid carers across our country, many of them dealing with extremely challenging family situations. The system would simply collapse without them, so she is right to pay tribute to those people.
Dr Evans
I want to expand a little on the practicalities and respond to the question asked by my hon. Friend the Member for Farnham and Bordon about local authorities. I declare an interest because Leicestershire is one of the 21 county councils going through a devolution process. About 85% of its budget deals with special educational needs and social care. It is part of an ICB where the mental health team and primary and secondary care come together, but there is oversight from NHS England.
With so many moving parts, including the legislation we are putting in place, the budgetary constraints for ICBs, and the fact that we are getting rid of NHS England, there is a real worry among Opposition Members that things could drop through the gap, or more likely, that because we are moving all these things at the same time, we do not decide which is the fixed point that leads where others follow. If we are trying to cut costs in the ICBs, if NHS England is going over the next two years, and if devolution of responsibilities is also happening over the next couple of years with unitary councils forming, we will create a sticky situation for who is actually leading on this issue. At the heart of it are the clinicians and the patients who could fall through the gap.
What consideration has been given to the top-down strategy for how to incorporate all that? The Minister has talked about a red thread that runs through it all, but is there a running plan? Different Departments, agencies and areas of the country are involved. They are trying to come together to manage their budgets, legislation and policies. It is a complex situation to work through. The imperative part—the legislation—is almost the easier part to get in place; it is the delivery that is all-important. Can the Minister explain further how those three things tessellate?
Stephen Kinnock
I do not know whether I will be able to answer the hon. Gentleman’s question in its entirety, because quite a lot of that is being led by my colleagues in the Ministry of Housing, Communities and Local Government—in the English devolution Bill, for example. On the part of his question relating to the Department of Health and Social Care, we came to the view following the general election last year that NHS England was an unnecessary layer of bureaucracy. We think it is important that there is a clear line of accountability from the Secretary of State to Ministers, to ICBs, to trusts and to the system per se for delivery. That line of accountability was being blurred by NHS England, which is why we have removed it from the equation.
The hon. Gentleman is right that there are a lot of moving parts, but, by definition, a reform agenda creates change and some turbulence. We believe that is the only way we will get the system to where we need it to be so that we can deliver the three big shifts in our 10-year health plan: the shifts from hospital to community, from sickness to prevention and from analogue to digital. Many of the questions he is asking will be answered in the 10-year plan. He does not have long to wait for that to be published; it is coming very soon.
I reiterate that the principle underlying all of this is about empowering, devolving and giving agency to those closest to the communities they serve, because they are best placed to deliver. That all has to fit into the Bill, but the fundamental principle underpinning the Bill is the right one: it is about devolution, and about being patient-centric. The Bill deals with a cohort of people whose needs should drive the services that we design and deliver.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 4
People with autism or learning disability
Dr Chambers
I beg to move amendment 1, in clause 4, page 4, line 41, at end insert—
“(iv) housing.”
This amendment ensures that housing needs are considered as part of care, education and treatment review meetings.
The Chair
With this it will be convenient to discuss the following:
Amendment 51, in clause 4, page 4, line 41, at end insert—
“(iv) accommodation and relocation, and”.
This amendment ensures that the impact of accommodation and relocation is considered in care and treatment reviews for patients with autism or learning disabilities.
Amendment 2, in clause 4, page 5, line 23, at end insert—
“(v) the patient,
(vi) the patient’s nominated person, and
(vii) the patient’s independent mental health advocate.”
This amendment would ensure that nominated persons and independent mental health advocates receive copy of a care, education, and treatment review meeting report for children and young people with autism or a learning disability.
Amendment 3, in clause 4, page 5, line 31, for “12” substitute “six”.
This amendment would shorten the length between care and treatment reviews from 12 months to six months.
Amendment 4, in clause 4, page 7, line 6, at end insert—
“(iii) housing, and”.
This amendment ensures that housing needs are considered as part of care and treatment review meetings.
Amendment 5, in clause 4, page 7, line 32, at end insert—
“(v) the patient,
(vi) the patient’s nominated person, and
(vii) the patient’s independent mental health advocate.”
This amendment ensures that nominated persons and independent mental health advocates receive a copy of a care and treatment review meeting report.
Amendment 6, in clause 4, page 7, line 40, for “12” substitute “six”.
This amendment would shorten the length between care and treatment reviews from 12 months to six months.
Amendment 7, in clause 4, page 8, line 12, leave out “must have regard to” and insert
“have a duty to carry out”.
This amendment ensures that integrated care boards and local authorities responsible for a patient's treatment and care have a duty to implement recommendations arising from a care and treatment review.
Dr Chambers
It is an honour to serve under your chairmanship, Mr Vickers. I will speak to amendments 1, 51 and 4 together, as they all relate to housing. Amendment 1 ensures that housing needs are considered as part of care, education and treatment reviews. Amendment 51 ensures that the impact of accommodation and relocation is considered in care and treatment reviews for patients with autism or learning disabilities. Amendment 4 ensures that housing needs are considered as part of care and treatment reviews.
Appropriate housing is critical for people’s wellbeing and cannot be viewed as separate from effective and safe care. Ensuring that housing or any temporary or crisis accommodation supports the safety and independence of people with a learning disability should be a key part of care, education and treatment reviews. We believe that it is essential for fulfilling the duties of the Bill.
Without that provision, it will be far harder for patients to leave detention and for care to be facilitated in the community. If people with learning disabilities who are detained risk being discharged into insecure or inappropriate housing, their recovery from mental ill health could be jeopardised. Patients should be viewed in their whole context, not just as a collection of conditions or symptoms. Housing is among the most fundamental social needs that should be considered.
Zöe Franklin (Guildford) (LD)
I rise to speak to amendments 2 and 5, which, in summary, would ensure that patients, named persons and independent mental health advocates would receive a copy of a care, education and treatment review meeting report for children and young people with autism or a learning disability.
Patients, along with all those tasked with helping to represent their wishes, should be able to see transparently what has been judged to be safe and appropriate care for them. Being given the opportunity to understand why their care or treatment is changing or remaining the same should be a basic right for patients, yet as it stands they are often frozen out of seeing that final report. Similarly, the nominated person, whether that is a friend, a mother, a sibling, or another parent, often has care of the patient; they know the whole person better than any NHS institution, and will often have a far fuller understanding of the patient’s history.
Gregory Stafford
I have a lot of sympathy with what the hon. Lady is trying to achieve with these amendments. My question is about how she would ensure, within the context of the provisions, that the patient’s confidentiality would be maintained where it needed to be.
Zöe Franklin
The hon. Member raises an interesting and pertinent point. There will always need to be balance when addressing the issues around patient confidentiality. I have seen from my own casework that when families who have been through mental health crises with their loved ones have not been involved in that process, unfortunately the crisis has lasted much longer and been more significant because those around them have been unable to support the individual. I do not have the answer, but we need to work collectively to find a way to strike that balance in order to address the needs of the patient.
Gregory Stafford
Moving on from the confidentiality point, if there is going to be sharing—again, I have a lot of sympathy with the amendments—how would the hon. Lady ensure that disagreements between family members and the patient are safeguarded against?
Zöe Franklin
That presents challenges, but again, I would refer back to my own casework, and I am sure there are Members on the Committee who will have had the same experience. There are examples across the UK where health boards and providers find ways to appropriately share information with families and other carers to get the best outcomes for patients. I simply ask that, when the Minister and colleagues in this space have those examples, they share them. I know that there are some areas where this is already done effectively, particularly in Scotland, and I seek to reference those examples.
My final point on amendments 2 and 5 is that we need to ensure that those around a patient are given the opportunity to raise concern or the alarm when part of the report does not meet the patient’s needs. We need to address the patient’s full needs, and to ensure that they are both reflected in the reports and met.
Aphra Brandreth
Like my hon. Friend the Member for Farnham and Bordon, I have a lot of sympathy with some of the things that the hon. Lady is trying to achieve through the amendments. If there is to be an additional requirement for six-monthly rather than annual checks, how will the balance be struck to ensure that there is a focus on care rather than on the administrative burden that might be required?
Zöe Franklin
Helpfully, I was about to move on to a point about amendments 3 and 6, which would shorten the length between care and treatment plan reviews from 12 to six months.
We need to reflect on the fact that sometimes we do not get it right when we support an individual. In such circumstances, it is particularly important that we are able to have reviews every six months, rather than 12. It does not have to be a detailed, full-scale review. If all involved in the patient’s care come to the conclusion that the care needs are being met, that review could be incredibly short. If someone’s care is inadequate or inappropriate, it is not right that they should have to suffer unnecessarily for a year without the changes that are needed. Halving the time between the care and treatment reviews ensures that patients are not left languishing and instead have care that truly reflects their individual needs. I would reiterate that a six-month review can be incredibly short, and it also benefits patients by making them aware of where their care is not working for them, so that it can be reviewed.
Dr Shastri-Hurst
I have a certain degree of sympathy for the amendments, but I am sure the hon. Lady will recognise that patients and their families often find the review process overwhelming in and of itself. Bringing it forward to six months, when such reviews would often not be required, can cause a huge amount of stress and place pressure on those family units and patients. Of course, reviews can be brought forward when clinical need requires it. To stipulate that within the legislation puts an enormous burden upon those families and, most importantly, the patients.
Zöe Franklin
I return to my point that a review can be short when clinicians and those involved in a patient’s treatment deem it appropriate. Again, where the system is working for a patient, it is good and proper that we do a short review, and they can then carry on with their treatment. When it is not working, why should the patient struggle on for 12 months alongside their families, who will also be struggling?
Zöe Franklin
No, I will move on to amendment 7, which I also want to cover. This amendment is very important, as it would ensure that the integrated care boards and local authorities responsible for a patient’s treatment and care would have a duty to implement the recommendations arising from a care and treatment review. The legislation states “must have regard to”, but we believe that that is too weak and could see crucial parts of care and treatment reviews left unimplemented.
As it stands, this part of the Bill could be considered to be implemented even if no adequate resourcing was required, with the care and treatment review left as an empty exercise. One of the key parts of this legislation is to ensure that resources are there to implement treatment for patients. Will the Minister reassure us that adequate resources will be provided to ensure that patients’ treatment needs are met, that training for clinicians and others supporting an individual is made available through resourcing, and that we do not again find ourselves in a situation like the current one, in which patients too often struggle because there are not the resources to meet their care needs?
Dr Evans
I rise to speak to Liberal Democrat amendments 1 to 7 and 51 to clause 4. I welcome the intention behind the amendments, which aim to enhance the care and treatment review process for people with autism and learning disabilities, particularly by addressing housing and accommodation needs and ensuring that key advocates receive reports.
There are positive elements of the amendments that are worth highlighting. I understand the good intent of including housing and accommodation considerations explicitly in reviews, as it recognises that a person’s living situation is often central to their wellbeing and recovery. Additionally, ensuring that nominated persons and independent mental health advocates receive reports promptly promotes transparency and patient advocacy. Shortening the review intervals from 12 to six months could lead to more responsive care planning.
However, I have some significant reservations about the statutory implications of blurring housing, for example, so directly with the care and treatment review process. Housing is traditionally managed under separate statutory frameworks from health and social care, so to embed housing as a statutory element within these reviews risks creating confusion about which agency holds responsibility and may expose health bodies or commissioners to legal obligations that they are neither funded nor structured for.
I have a few questions for the Liberal Democrats. In their eyes, how would the Government ensure clarity over the statutory duties applied to housing recommendations arising from the reviews? Would that not risk delaying or complicating discharges if housing issues became a statutory sticking point within health-led care reviews? Moreover, housing provision often depends on local authorities and housing departments that have their own complex eligibility criteria and resourcing constraints. Are we confident that ICBs and responsible commissioners would be able to co-ordinate effectively across these boundaries, especially given the patchwork of funding and powers in play?
Gregory Stafford
To take that point slightly further, given that pretty much every local authority has a different set of criteria by which to determine people’s housing needs, how would, for example, an ICB that potentially crosses multiple local authorities with differing housing needs be able to understand the complexities within the current structure, and ensure that the patient is served best?
Dr Evans
Those are exactly the kind of practical questions that we really need to think about when we definitively put into legislation what that would look like. My constituency now has several boundaries across the borders with Warwickshire and Staffordshire, which causes problems when it comes to deciding who will look after what. On the criteria, my hon. Friend raises another point: will there be a regulatory fight or even infighting between the ICB and the local authorities to determine whose criteria cover what, and who trumps who? To top that off—I raised this matter with the Minister earlier—I would be interested to understand how the Liberal Democrats would deal with that problem, given that the Government are pushing through their devolution agenda. We have already heard about the complexity of everything tessellating together. That makes it very interesting, to put it politely, to consider how it would work in practice.
On the related point of the duty imposed on ICBs and local authorities to have regard to review recommendations, I note that amendment 7 would insert the phrase
“have a duty to carry out”.
I have concerns in this area too, which I will raise in later comments, but let me explain a little further. The aim is to address accountability, but the Liberal Democrats’ solution would change the provision from “must have regard to” to “have a duty to carry out”. There is an important distinction here: a duty to “have regard to” requires that recommendations may be properly considered and responded to but does not legally compel implementation; a duty to carry out, however, would impose a legal obligation to act on every recommendation, regardless of feasibility, availability or agreement.
That raises a crucial question: if the Government intend to hold ICBs to account for meeting those needs, how would they ensure that the necessary resources, powers and accountabilities for the mechanisms are in place? What oversight would the Liberal Democrats establish to guarantee not just consideration but effective delivery, and how would conflicts be resolved where recommendations are impractical, or local capacity is lacking?
Perhaps a more balanced approach would be to strengthen the duty to respond with clear timelines and a requirement for transparency about decisions, while investing in cross-sector co-ordination mechanisms and adequately resourcing local authorities and housing providers. We could provide statutory guidance to clarify roles and responsibilities, and enhanced oversight to monitor outcomes, rather than simply prescribing an inflexible duty to implement.
In essence, a duty to respond means that the responsible body, whether an integrated care body or the local authority, must formally consider and reply to the recommendations arising from the care and treatment review. It does not legally compel it to carry out every single recommendation, but it requires the body to explain what it will and will not implement, and why it cannot implement a recommendation. That promotes transparency and accountability without creating unrealistic legal obligations. For example, an ICB might say, “We will implement recommendations 1, 3 and 5 within six months, but recommendation 2 is not feasible due to current resource constraint.” That kind of structured response is both practical and responsible.
Gregory Stafford
It is a pleasure to serve under your chairmanship, Mr Vickers. As I have indicated, I have a lot of sympathy with the amendments, but some practical constraints need to be teased out.
Amendment 1 seeks to ensure that housing needs are explicitly considered during a care, education and treatment review meeting. I can see the pros of that. Clearly, a holistic approach recognises that stable housing is fundamental to mental health and recovery, especially for vulnerable individuals. Addressing housing barriers may reduce unnecessary hospital admissions. Likewise, it could lead to improved discharge planning, ensuring that patients are not delayed in hospital due to a lack of suitable accommodation. All Governments, of every colour and political party, want to see collaboration between health, social care and housing services, and the amendment brings those things together.
As I said in an intervention, however, local authorities and NHS bodies such as ICBs may face challenges to co-ordinating housing assessments within the CETRs. As my hon. Friend the Member for Hinckley and Bosworth mentioned, his constituency crosses a number of local authority boundaries, while my seat of Farnham and Bordon, with two thirds of it in Surrey and one third in Hampshire, has that same issue. The county councils are wonderful and Conservative run, but Waverley is run by Liberal Democrats.
The hon. Member for Winchester, who moved the amendment, recognised the issue of implementation capacity, but there are also likely to be resource constraints. These days, local authorities spend most of their money on social care, education and the bits of health that sit within their remit, so there may be insufficient housing stock or funding to meet the identified needs that the amendment would bring forward. There are therefore practical implications.
Dr Evans
Thinking that through, how does my hon. Friend feel that existing statutory requirements to provide accommodation will balance out if we provide another statutory requirement on accommodation in these plans? Does he worry, as I do, about creating a risk, for example, of pitting someone with severe learning disabilities against a homeless person if there is resource rationing thanks to the practicalities of how many houses we have? Members throughout the House agree that we need to build more houses, but until that happens, such local authorities have the resources issue.
Gregory Stafford
I agree. Even if the Government build the number of houses that they propose—I have some scepticism—there will always be the potential conflict or disagreement on prioritisation in the housing register and list. As my hon. Friend says, that might well lead to local authorities having to change their criteria, which are not necessarily consistent across local authorities, and, as in his example, potentially pitting a homeless person against someone with mental health needs.
The amendment would also have the potential for scope creep. I have a lot of sympathy with what it is trying to achieve, but expanding CETRs to include housing might dilute their focus and overburden the process. I am interested to hear from the mover and supporters of the amendment how they would ensure that the CETR continues to have that core focus on the health and wellbeing of the individual, rather than potentially be bogged down in the mire of housing issues.
Moving on, amendment 51 would ensure that the care and treatment of individuals with autism or learning disabilities explicitly considered the impact of accommodation and relocation in the planning and decision-making process. Again, I have a lot of sympathy with that. It would promote holistic care planning, reduce trauma and disruption, support continuity of care and, I think, align with the person-centred principles throughout the Bill, which all of us support. Again, however, amendment 51 might complicate discharge planning, if suitable accommodation were limited.
Dr Shastri-Hurst
Does my hon. Friend share my concerns that not resolving housing and accommodation at the point of discharge could lead to a delay in transition? Patients would remain in hospital for longer than might be beneficial to them.
Gregory Stafford
I agree entirely. That could be the unintended consequence of amendment 51: in essence, if the housing provision is not there, discharge will be delayed. From my understanding of the amendments in the group, those who tabled them are trying to speed up and improve discharge. My hon. Friend is absolutely right that we need to think about the practical implications of the Bill.
The amendment would require co-ordination among health, social care and housing services, which may be challenging in under-resourced areas. Frankly, because parts of those organisations are not used to working in the ways that the amendment would require, it might fall over without suitable training, the necessary lead-in time and a practical understanding of how it will work.
Amendment 4 would ensure that housing needs are formally considered during the care and treatment review meetings for adults with autism or a learning disability, without an EHCP. I understand that the aim is to support more effective discharge planning and reduce the risk of unnecessary or prolonged hospital stays. That is entirely in keeping with what we should be trying to do in the Bill. Holistic care planning reduces delays in discharge, improves cross-sector collaboration and supports community-based care, which we all support.
Once again, however, there is potential for complexity in the implementation. New processes may be required to involve the housing authorities. Resources and local housing shortages could limit the amendments’ practical impact. Another layer of complex review processes could add to that administrative burden. If there is inconsistent local capacity, the effectiveness of the amendment will almost certainly vary depending on the local housing infrastructure, which could lead to a postcode lottery, for want of a better phrase, in who receives the adequate care and housing.
Amendment 2 would ensure that children and young people with autism or learning disability, as well as their nominated persons and independent mental health advocates, receive a copy of the care, education and treatment review meeting report. I have a lot of sympathy with that. It potentially increases empowerment and transparency, ensuring that patients and their advocates are fully informed, which could enable better participation in care decisions. It has a legal and ethical alignment with the principles of the Mental Capacity Act 2005 and the UN convention on the rights of persons with disabilities, both of which emphasise supported decision making. It might also improve advocacy, as independent mental health advocates can more effectively represent a patient’s interest when they have access to the full report.
Aphra Brandreth
My hon. Friend is making valuable points about the benefits of the amendment. For vulnerable individuals, family involvement is often extremely important, but does he agree that that must be balanced with ensuring that potential disagreements do not put at risk what is best for the individual?
Gregory Stafford
My hon. Friend makes a key point that I was about to address. Clearly, where there is a supportive family structure with the best interests of the individual at heart, the amendment will work extraordinarily well. However, we have to be realistic about the practical implications.
Not every patient has a strong family structure around them. Unfortunately, some patients may even have family members who, for financial or other reasons, actively do not have their best interests at heart. There is a potential concern around confidentiality. I ask the hon. Members for Winchester and for Guildford how they would balance that conflict in practical terms, especially when the CETR includes sensitive clinical information that could be used in a way that is not beneficial to the patient by someone who does not have their best interests at heart. As my hon. Friend the Member for Chester South and Eddisbury points out, disputes can happen if patients or families disagree with professional assessments or recommendations.
Finally, although this is probably not the strongest point, we should think about the administrative burden. Given the increased workload that we are putting on all our health and care workers and services, there will clearly be an administrative burden in sharing these reports.
Gregory Stafford
I knew it began with S and was somewhere that is not Surrey or Hampshire—because where else would you want to be, Mr Vickers? The amendment would potentially increase the workload, because more frequent reviews place additional pressure on professionals and services.
Dr Shastri-Hurst
Does my hon. Friend agree that there is a risk that the amendment would not only increase the workload of practitioners, but divert attention from patient care?
Gregory Stafford
My hon. Friend is entirely correct. We operate in a resource-confined area. It does not matter what the resource envelope is; it will always be confined. If we use resource to service the very laudable aims of the amendment, it will take resource and money away from another area.
Dr Evans
Would my hon. Friend speculate on a question that I hope will be answered by the hon. Member for Winchester? It is about the evidence base behind choosing six months instead of 12. GPs would do learning disability reviews every year, for example, and it is an annual thing with asthma and in similar areas. Is the hon. Member for Winchester aware of an evidence base for why it should be six months? There may not be one—often these can be arbitrary, in terms of just giving a clinical judgment—but I wonder whether there is a specific reason for choosing to reduce the period between reviews to six months.
Gregory Stafford
My hon. Friend attributes to me a level of clairvoyance that I do not possess, but I am sure that the hon. Member for Winchester or the hon. Member for Guildford will pick up that point.
The resource implications are not just about the funding. They are about increased workload and the pressure put on the professions and services. As my hon. Friend the Member for Solihull West and Shirley said, the amendment would divert attention away from delivering care, if it is not balanced properly. My hon. Friend the Member for Hinckley and Bosworth is right to ask, “Why six months?” Why not nine months, eight months or any other period? Is there a clinical basis for six months?
Jen Craft
On a small point of clarification, the six-month criteria are based on the current NHS guidance around CETRs. It is loose guidance; it is not statutory. The reason that it is six months as opposed to 12 months is that that would bring us closer in line with the guidance.
Gregory Stafford
I thank the hon. Member for her helpful intervention. If that is correct, I will draw my comments on that point to a close.
Amendment 6 concerns CETR frequency. It seeks to change the timetabling of these reviews. The same issues, both positive and negative, run through it as in amendment 3.
Amendment 7 would strengthen the legal obligation on integrated care boards and local authorities by requiring them to implement recommendations from the care, education and treatment reviews rather than merely considering them. That would ensure that review outcomes lead to concrete action and improved care. I do not think that anyone in the Committee could possibly disagree with that point. It would lead to greater accountability and would ensure that CETR recommendations are not ignored or delayed. That would clearly improve outcomes, because it would increase the likelihood that patients receive timely and appropriate care.
The amendment would also introduce stronger legal clarity. By removing “must have regard to” and replacing it with
“have a duty to carry out”,
it would remove ambiguity around the responsibilities of the ICBs and local authorities, supporting the rights-based care and the principles of transparency and enforceability in service provision that we all support.
I hope that the hon. Members for Winchester and for Guildford will be able to clarify the problem of resource pressures, which applies to all these amendments. Local authorities and ICBs may struggle to implement all the recommendations due to funding or capacity constraints. What would be the legal sanction for ICBs and local authorities if, through no “fault” of their own—although one might argue that they should have the necessary resources in place—they genuinely do not have the resources to implement all the recommendations? I would hope that such a sanction did not put them into further financial difficulty.
The reduction in flexibility concerns me. It may limit professional discretion in cases in which recommendations are impractical or outdated. It may require new systems for monitoring and enforcement, and if recommendations are not implemented it could increase the likelihood of legal challenges.
Anna Dixon
The hon. Member is going into some detail on these amendments. There is a duty where EHCPs are in place. Local authorities have had their funding cut over many years, so they have found it difficult to meet their EHCP obligations for the many children with SEND needs. Is there not a similar risk that the amendments will put duties on local authorities that they will not be able to meet unless they have sufficient resources? There must be some flexibility as well as duty on local authorities and the NHS to balance their duties and responsibilities with resources.
Gregory Stafford
I will do my best, Mr Vickers. The hon. Lady raises some good points. She made a slightly party political point, but I will forgive her because I made one earlier. Maybe that is our party politicking done for the day.
As the vice-chair of the all-party parliamentary group for SEND, I recognise the issues that the hon. Lady has raised. I would be surprised if there were any hon. Member on this Committee who did not recognise her point. Across the piece, there is a significant problem with the process and the funding of EHCPs. I look to the Minister; I know it is not his responsibility, but I understand that the Government are introducing something around EHCPs.
I will draw my comments to a close, but I ask the hon. Members for Winchester and for Guildford to address those concerns.
Mental Health Bill [ Lords ] (Second sitting)
Tuesday 10th June 2025
(1 month ago)
Public Bill CommitteesMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2025 - (10 Jun 2025)
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 10 - Question accordingly negatived.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 51, in clause 4, page 4, line 41, at end insert—
“(iv) accommodation and relocation, and”.
This amendment ensures that the impact of accommodation and relocation is considered in care and treatment reviews for patients with autism or learning disabilities.
Amendment 2, in clause 4, page 5, line 23, at end insert—
“(v) the patient,
(vi) the patient’s nominated person, and
(vii) the patient’s independent mental health advocate.”
This amendment would ensure that nominated persons and independent mental health advocates receive copy of a care, education, and treatment review meeting report for children and young people with autism or a learning disability.
Amendment 3, in clause 4, page 5, line 31, for “12” substitute “six”.
This amendment would shorten the length between care and treatment reviews from 12 months to six months.
Amendment 4, in clause 4, page 7, line 6, at end insert—
“(iii) housing, and”.
This amendment ensures that housing needs are considered as part of care and treatment review meetings.
Amendment 5, in clause 4, page 7, line 32, at end insert—
“(v) the patient,
(vi) the patient’s nominated person, and
(vii) the patient’s independent mental health advocate.”
This amendment ensures that nominated persons and independent mental health advocates receive a copy of a care and treatment review meeting report.
Amendment 6, in clause 4, page 7, line 40, for “12” substitute “six”.
This amendment would shorten the length between care and treatment reviews from 12 months to six months.
Amendment 7, in clause 4, page 8, line 12, leave out “must have regard to” and insert
“have a duty to carry out”.
This amendment ensures that integrated care boards and local authorities responsible for a patient's treatment and care have a duty to implement recommendations arising from a care and treatment review.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Ms Furniss.
I thank the hon. Members for Winchester and for Guildford for tabling this group of amendments. I will address each in turn, beginning with amendments 1, 4 and 51. We recognise that a lack of appropriate housing can be a barrier to discharge for some patients. That is why we have put the important reviews on a statutory footing. I am pleased to provide an assurance that the Bill already makes provision for any relevant recommendation about a patient’s discharge, including meeting their housing needs.
Statutory guidance will assist the responsible commissioner to determine who to involve in review meetings. That will include guidance on when the involvement of partners such as housing departments and organisations may be appropriate. Placing a specific requirement to consider the housing needs of every patient would mean that housing would have to be considered in every case, even if it is not a relevant issue. Potentially, that could divert focus from factors more relevant to the patient’s care and treatment.
On amendments 2 and 5, the Bill makes it clear that a copy of the review report must be provided to those who have a legal duty to have regard to the review recommendations, so that any recommendations are implemented as appropriate. The patient should receive the report, in line with good practice. However, we are concerned that requiring a longer list of people to receive the report in every case might increase the chance of patients withdrawing their consent for a review to be held, especially if they do not wish for those people to see the report. We recognise that it is often appropriate for the report to be provided to other people, such as those listed in the amendments, but the Bill was amended in the other place to make it clear that a copy of the report may be provided to other persons not listed in the legislation, with the patient’s consent.
Amendments 3 and 6 are unnecessary. The current drafting provides that review meetings take place at least once every 12 months. That is in addition to the requirement that arrangements must be made for an initial review meeting to take place within 14 days of admission for children and for some people aged 18 and over, and within 28 days for other adults. We also know that more frequent reviews may not be appropriate for all patients. For example, for a patient who is unable to be discharged for a long time, reviews that focus on discharge may be rather distressing.
Commissioners should use their judgment to determine whether the individual needs of a patient might mean that a more frequent review is appropriate. NHS England policy makes it clear that patients, their families and advocates can request a review meeting at any point. Statutory guidance will provide commissioners with further information on factors to consider when determining whether more frequent reviews should take place. For example, current practice, in line with NHS England policy, is that children under 18 should have a review meeting at least every three months—that will be made clear in the guidance. We consider it preferable to set out that information in statutory guidance, which can provide detailed case studies and be readily updated in line with emerging best practice, including on frequency and considering particular circumstances.
Dr Luke Evans (Hinckley and Bosworth) (Con)
The Minister makes a fair point about best practice. However, did the Government consider any mechanism for how best to share best practice across areas? Especially as the Bill also covers Wales, as heard this morning, it might be useful—across the integrated care boards—to understand the Government’s thinking on how to ensure that best practice in exemplar places, where care is really good, can be shared to help places where care might not be so good.
Stephen Kinnock
The shadow Minister is right, and one of the overarching objectives of this Government is to take the best of the NHS to the rest of the NHS. We are very keen to ensure that we identify best practice right across the board in all the services that we provide, and that it is then replicated and scaled up. We also recognise, though, that every community and area of the country is different, so it is not about exporting and importing best practice. It is more about looking at those exemplars and asking, “How could we use some of this, without reinventing the wheel?” That is absolutely the culture of how we want our health service to run—I think it is a cultural point.
Dr Evans
The Minister makes a good point about the differences in the country, one of which is how the Care Quality Commission looks at the standards. Especially as the CQC is under new leadership, will it be taking a role in looking at how best practice is implemented while ensuring standards?
Stephen Kinnock
The CQC has a key inspection role, which is an important check and balance in the system. I would rather see the incremental building of a culture of excellence across the board, including within upstream institutions, ICBs, local authorities, healthcare professionals, mental health professionals and social workers. We need to create a collaborative approach across the board so that best practice is developed within a culture of excellence. One would hope that the CQC, when it does its inspections, is then finding positive results. Of course, it also plays an important role in identifying, investigating and holding to account when things are not going as they should.
Finally, I will address amendment 7. The Bill requires named persons and bodies to have regard to the review recommendations. This is a well-established duty that clinicians, integrated care boards and other public bodies are used to applying and already exists within the Act. Where effective care and treatment is the central aim, we expect careful consideration of all recommendations. Where these bodies decide not to accept a relevant recommendation, we expect them to have a very good reason.
It is inappropriate to place an absolute duty on a body to follow recommendations in every case, as flexibility is required to depart from a recommendation where appropriate, for example if a recommendation is outside the body’s purview or not in the patient’s best interests. As currently drafted, the Bill already requires that certain named persons or bodies carefully consider the recommendations and give them appropriate weight. Where a body does not consider a recommendation appropriately, that may be subject to review by the courts. In the light of all this, I therefore thank the Liberal Democrats—
Dr Evans
The Minister is right about the absolute nature of the Liberal Democrat amendment, but we talked about the duty to respond requiring a body to set out why it has decided to take action or not. The Minister seemed to allude to that, but he then jumped to talking about being challenged in court. Is there a hybrid version within that duty to respond so that it could stipulate the setting out of why the body is accepting the recommendations or not, because that may well help transparency?
Stephen Kinnock
I see where the shadow Minister and the amendments are coming from, but there is a risk of over-embroidering the Bill if we try to load additional duties on to something that we believe is already happening. It is a very well-established duty that clinicians, integrated care boards and other public bodies are used to applying, and this already exists within the Act. I think there is an element here of “If it ain’t broke, don’t fix it.”
If there is compelling evidence that it is not working, clearly we need to intervene as a system, which is about real leadership at the ICB level. As things stand, we feel that this amendment is surplus to requirements for the reasons I have set out. I thank the hon. Members for Winchester and for Guildford for this exchange of views, and I hope that they are content to withdraw amendment 1.
Dr Danny Chambers (Winchester) (LD)
It is an honour to serve under your chairpersonship, Ms Furniss. I know that the hon. Member for Farnham and Bordon will have spent his lunch time anticipating the responses to his long series of questions. The tension is palpable— I hope he is excited to hear our replies.
Dr Chambers
Unfortunately, I was busy meeting Brian May and talking about farming, so I have not had a chance to work up a really good response.
The point of the Liberal Democrat amendments is to recognise that mental ill health requires holistic care and that many non-clinical factors directly influence mental health. Although the Bill’s scope is understandably narrow, very much focusing on people once they are admitted to hospital for treatment, we need to recognise that, if someone is discharged back into the situation from which they were admitted, they are very likely to have a relapse and to need treatment again. Some of those factors are non-clinical. For example, people living in poverty—those in the lowest 20% of income—are more than twice as likely to suffer mental health issues than those on an average income.
We strongly support the Bill, but we need to recognise that, on its own, it will not improve mental health or do anything to prevent people from developing mental health issues. If our amendments are not within scope or are not appropriate for the Bill, we urge the Minister to work with other Departments, such as the Ministry of Housing, Communities and Local Government, to ensure that this good piece of legislation, which we support, can be successful.
The hon. Member for Farnham and Bordon made a point this morning about local authorities. He is right that local authority reorganisation is a challenge, especially when it comes to providing accommodation for young people and for people being discharged from mental health care centres. It is also an opportunity, because the current situation is not fit for purpose. Hampshire county council is struggling to provide the care these people need. Housing, which often affects young people’s mental health, is probably the single biggest issue that comes up in my inbox and when I knock on doors.
I thank the hon. Member for Hinckley and Bosworth. As a clinician, his point about the evidence base, especially when it comes to reviews, is really important. We are discussing a Mental Health Bill that may not be changed significantly for another 40 years, so it is important that we use the best evidence. As a long-time trustee of an evidence-based medicine charity, I am passionate about this.
I thank the hon. Member for Thurrock for pointing out that clinical guidelines suggest six-month reviews. Yearly reviews are used for many medical conditions, and I would argue that a year is also an arbitrary period, rather than one based in evidence. Why six months and not a year, or why a year and not six months?
Dr Evans
The hon. Member is correct to establish the evidence base and the guidance. Broadly, we need to balance that with the logistics and the impact on the clinician, the patient and the resources. Move too far one way and it becomes a tick-box exercise or more resource-heavy; move too far the other way and the safeguards that we are trying to implement are lost or watered down.
When I look at the amendments, that is the balance I am trying to understand; if the guidelines are written with that in mind, that makes sense. The job of this House is to scrutinise the numbers and decide whether we agree that they are right, or whether we should push a bit harder—whether we should tighten the safeguards or relax them a little to allow clinicians more freedom of choice.
I guess that is the purpose of the Bill—getting the right boundary between the safety of the individual patient, support for the wider public, and making sure that clinicians have the freedom to make their judgment so that we are not stepping on expert opinion or, worse, creating bureaucratic processes. I hope the hon. Member understands that is why we are probing further on the rationale.
Dr Chambers
I completely agree with everything the hon. Member just said. Atul Gawande did a fantastic piece of work on checklists that emphasised the need for them not to become tick boxes. They are meant to involve active thinking and decision making.
I thank the Minister for reassuring us about housing. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Dr Chambers
I beg to move amendment 8, in clause 4, page 8, line 27, at end insert—
“(ba) the person is under 18 years old and satisfies the conditions in (b)(ii).”
This amendment inserts a new subsection that extends the duty on integrated care boards to establish and maintain a register for those at risk of detention to all children and young people under the age of 18.
The Chair
With this it will be convenient to discuss the following:
Amendment 47, in clause 4, page 9, line 20, at end insert—
“(6) The risk factors specified in regulations under subsection (5) must include—
(a) homelessness;
(b) addiction;
(c) domestic abuse;
(d) miscarriage and traumatic birth;
(e) experience of armed conflict; and
(f) bereavement.”
This amendment would specify risk factors for detention for people on the register of people at risk of detention under Clause 4.
Amendment 9, in clause 4, page 9, line 29, at end insert—
“(c) seek to ensure that the needs of children and young people can be met without detaining them under Part 2 of this Act.”
This amendment extends the duty on integrated care boards and local authorities to exercise their marketing functions in a way that seeks to ensure that children and young people’s needs can be met without detaining them.
Dr Chambers
Amendments 8 and 9 would insert a new subsection to extend to all children and young people under the age of 18 the duty on integrated care boards to establish and maintain a register of those at risk of detention. Amendment 9 would extend the duty on integrated care boards and local authorities to exercise their marketing functions in a way that seeks to ensure that children and young people’s needs can be met without detaining them.
Far too many children are unable to access the mental health care they need, leaving them more vulnerable to experiencing a mental health crisis that then requires detention, which all too often ends in tragedy. Child and adolescent mental health services are in a state of near collapse, with many children unable to access the care and treatment they need until their mental ill health has reached the point of crisis. Waiting 15 months in great mental distress is far too long, especially for children. It is a huge disruption not only to their personal development but to their education. Waiting up to two years for treatment is a huge proportion of a 12-year- old’s life.
We are pleased that the Bill, as it currently stands, includes specific provisions to prevent people with learning disabilities from requiring detention under the Act. The Government should take that approach for more people, especially our young people. Early intervention, delivered through regular check-ups and cutting waiting times for treatment by community services, is critical. We should not pretend that acute mental health services and in-patient care exist in a vacuum. The pressures they face are directly impacted by the quality of community services. We need stronger steps to ensure that fewer people require detention in the first place, especially children.
We are pleased that the Government are taking steps towards having mental health support in every school, for which we have long campaigned. We would like them to go further by ensuring a dedicated professional in every school. We are alarmed that the targets for mental health are being dropped, so I press the Government for assurances that the upcoming 10-year plan will ensure that children who are referred can expect swift and efficient support and treatment, with binding duties on health bodies to deliver that.
Alongside this Bill, what requirements and resources will ICBs have for preventing mental health crises? As part of that, will the Department make specific changes to CAMHS?
Dr Evans
The hon. Gentleman makes a pertinent point about the pressure on CAMHS. In Leicestershire, about 45% of CAMHS referrals are for things like autism and ADHD, and the problem is that it takes a lot of services away from those who have eating disorders or depression, or who self-harm. Does he believe there is scope to reorganise services to make sure they are appropriate where there needs to be treatment? A child suffering with severe anxiety and self-harming tendencies should not be on a pathway with someone who has autism, for example. Has he given any thought to how this Bill might be a way of opening that door?
Dr Chambers
On the surface, what the shadow Minister says seems logical and makes sense. I am not a mental health clinician, so I want to be really careful about pushing in one direction. Whether someone has an eating disorder or is waiting for a diagnosis of something like ADHD, the waiting times are too long. We must better structure a system that ensures that everyone gets healthcare when they need it, rather than prioritising what we perceive as most important.
One of the most heartbreaking things that I hear from parents in Winchester, who are worried sick, is that young teenagers with an eating disorder have been told that they have to hit a lower BMI to reach the threshold to qualify for treatment. That is essentially saying that someone has to be sicker for longer. No one would ever say, “We’ll wait until your cancer reaches stage 4 before we start treatment,” but that is happening with eating disorders. The treatment will end up being longer, more complicated, more costly for the taxpayer and maybe less successful.
A question often comes up—the hon. Member for Farnham and Bordon alluded to this—about the pressures on local authorities to deliver mental health care. Actually, the question is “How we can afford not to deliver it?” People with mental health disorders are ending up in A&E or prison and costing police time. It costs £52,000 a year to keep someone in prison, yet apparently we cannot afford to give them the community interventions that might stop them going there in the first place.
David Burton-Sampson (Southend West and Leigh) (Lab)
The Labour Government are working on a range of early interventions for young people in the area of mental health and to stop them spiralling into crime, such as the Young Futures hubs and introducing mental health support in every single school. The hon. Gentleman makes a valid point, but it sits outside the Bill, and there is plenty that the Government are doing. Regrettably, there will always be a need, at certain times, for a young person to be under a section 2 notice and to be brought into care for a period of time, for their own safety. That is unavoidable and will be the right thing for that individual, but there is so much work being done outside this Bill to help young people and others with their mental health.
Dr Chambers
We support all efforts to keep young people happy and healthy in their communities. I visited Winchester Youth Counselling recently, where pupils can self-refer to talk through their issues. That does not involve any clinical personnel. It is hugely impactful and cost-effective and is part of the community. We support those community hubs.
Amendment 47 would specify risk factors for detention for people on the register of people at risk of detention under clause 4, including homelessness, addiction, domestic abuse, miscarriage and traumatic birth, experience of armed conflict, and bereavement. For anyone, including people with learning disabilities, life events can have a profound impact on mental ill health and can drive mental disorders. Well over a third of women with mental health problems have been a victim of domestic violence, and 50% of rough sleepers have mental health problems. The disastrous impact that bereavement can have on anxiety and depression, which are key factors in suicide, has been well documented.
It seems obvious, frustratingly, that public services do not currently reflect that key fact. There are no registers of bereaved children to ensure that they get the right support in the community and in school. There are no registers of veterans, despite their far higher risk of mental ill health and suicide. Women who have suffered a miscarriage do not receive an automatic referral, including to mental health services. The Government need to ensure that people can get mental health assessment and support at key points in their life, including the most traumatic moments.
Dr Chambers
I do not know the best place for it to be held. That is an important point. For a lot of the issues that Members are bringing up, we are not expecting there to be answers today. However, we want to ensure that they are all being considered, given that the subject might not return to Parliament for another 40 years.
Jen Craft (Thurrock) (Lab)
I have a question about the list of risk factors that has been provided. Is there not a concern that it might be too prescriptive or restrictive, and that putting it in primary legislation prevents local authorities or ICBs from widening it, from having registers and risk factors that might be appropriate to their areas, and from focusing on what the appropriate level of care is that they are best placed to meet?
Dr Chambers
That is a very insightful point. The list could be longer and is not meant to be exclusive. I am not sure of the answer to the hon. Lady’s question but, taking a step back, we know that the single most common cause of death in women 12 months after giving birth is suicide, and there is no proactive automatic care. If a person is addicted to alcohol, they are admitted to hospital for treatment for their physical symptoms. When they are physically well enough to go home and they are discharged, there is no automatic enrolment or follow-up in mental health care. I would not want to bring in a system, as the hon. Lady says, that ends up being too prescriptive. However, at the moment, we have one that is not prescriptive enough. I could list a handful of demographics of people who desperately need that proactive care.
Sojan Joseph (Ashford) (Lab)
The purpose of this part of the legislation is for ICBs to keep a register of anyone who is diagnosed with autism or a learning disability. Patients who are already under a clinical team already have a risk assessment, which covers all the areas that the hon. Gentleman is specifying. As a result of the amendment, would we not be duplicating information about risks that already exists for most patients with their clinical teams?
Dr Chambers
The point of having an at-risk list is that ideally there is proactive contact with people—perhaps in quite a soft way, and perhaps through community hubs, as we have discussed—before they demonstrate a severe mental health crisis. I assume that the people the hon. Gentleman is talking about have already been admitted to hospital and have received treatment, and that they are being followed up after they have been discharged. That is not a proactive list; it is a reactive register. Am I correct? I apologise if I have misunderstood his question.
Sojan Joseph
Anyone who is under the care of a clinical team for their mental health has a risk assessment. That is basic paperwork, which is completed by the clinicians. That risk assessment covers everything that is specified in the amendment. The purpose of this part of the legislation is for ICBs to have a register. However, ICBs will not be providing direct care; that will be provided by the clinicians. Those patients who are under any clinical team have a risk assessment that covers all the points in the amendment. My point is that the amendment would duplicate some of that paperwork.
Dr Chambers
I will not argue with an esteemed Member who has the hon. Gentleman’s background in mental health. I take his point as it stands.
Gregory Stafford
I have been listening carefully to the hon. Member’s argument. I do not disagree with anything in it; I just fail to see how the amendment fits with the clause that we are discussing, which I think may be the point that the hon. Member for Ashford is making.
As far as I can tell, clause 4 is about producing a register of people who have a learning disability or autism, who are at risk of being detained for a mental health episode and for whom those risk factors are active, for example because they have been sectioned before or have presented at A&E. Those are specific incidences. What the hon. Member for Winchester is talking about is more wide-ranging; it is not about touchpoints in the same sense. I can see how he could potentially say, “Well, domestic abuse has led to a mental health episode and therefore to a presentation at A&E or in the system.” However, if we put in societal factors, for want of a better phrase, we could end up putting most people on the list, because most people will have experienced a bereavement. I get what the hon. Member is trying to do, but I fail to see how the amendment matches the overall purpose of clause 4.
Dr Chambers
I thank the hon. Member for his intervention. In my maiden speech, I focused primarily on mental health and on the fact that there are so many demographics of people who we know are at significantly higher risk of suicide and mental ill health than the general population. Whether the issue is more appropriately addressed in the Bill or outside it, but using the Bill as a mechanism to highlight it and to cause the proactive engagement of other relevant Departments and other pieces of legislation, I am determined that we are not going to discuss the biggest piece of mental health legislation in 40 years and not even have a discussion about how we proactively engage with groups of people who we know are at very high risk of mental health issues.
Dr Chambers
I will carry on, if that is okay.
Our social and health services need to see the whole person, including their social needs and the factors in their environment that threaten their wellbeing. Trying to treat a mental disorder but failing to account for that person’s lack of housing, which drove their anxiety and depression in the first place, is doomed to fail. A lack of support for a child who has lost their parents at a young age could lead to significant harmful consequences further down the line.
There are a huge range of areas that require change, but for now we would like to press the Minister on three specific issues. We understand that some of them may turn out not to be within the scope of this Bill, but it is still important that they be addressed in some capacity.
Will the Government finally implement a register of all bereaved children to ensure that they get the support they need? Will the Government ensure that all women who go through miscarriage, stillbirth or traumatic birth access mental health support quickly and effectively? Will the Government establish a veterans register to ensure that those who have served in the armed forces and who face particular challenges as a result get the tailored mental health support that they need and do not reach the point of requiring detention?
The Chair
I need to remind the hon. Member that issues that are not within the scope of the Bill are not within the scope of the debate—but we have let you get away with it this time.
Dr Evans
I rise to speak to Liberal Democrat amendments 8, 47 and 9 to clause 4, which seek to expand the scope of the at-risk register, define risk factors and protect children and young people from unnecessary detention under the Mental Health Act.
Let me start by acknowledging the intent behind the proposals. There is genuine merit in ensuring that those who are at risk of detention, particularly children, are visible to the system before crisis point. That view is shared on both sides of the House. I also share the concern that we are too often intervening too late, after a child or young person has already reached breaking point; I would add families to that, because they also bear a lot of the brunt, especially when it comes to waiting. By extension, when there are waiting lists, as the hon. Member for Winchester mentioned, the clinicians themselves—often the GP—will struggle to deal with patients and families when they do not have the clinical expertise necessary for the most severe interventions.
Amendment 9, which would include all under-18s at risk of detention on the register, reflects that preventive ambition. Likewise, the proposed list of risk factors, including bereavement, homelessness and domestic abuse, rightly recognises the social determinants of mental ill health, which are all too often overlooked. However, I have some reservations about the proposals in their current form.
First, on the register for all under-18s, expanding the duty so broadly raises serious questions about safeguarding, data protection and deliverability. Children and young people are already subject to multiple overlapping systems, from social care to CAMHS and education, health and care plans. Before laying on a new national register, we should ask what safeguards will be in place, who will manage the data, and how it will integrate with existing responsibilities such as those under the Children Act 1989 and the special educational needs frameworks.
Secondly, although I agree that we must understand the drivers of detention, the list of mandatory risk factors, including miscarriage, bereavement and even armed conflict—all of which are profoundly serious—could widen the scope of the register so far that it loses operational focus, as we have heard. That is why the Opposition have tabled a later amendment to define it as childhood trauma instead, which is a more encompassing way of dealing with it. Also, we risk casting the net too wide without necessarily improving outcomes for targeting the right support or, conversely, missing something. For example, looking at that list, I would argue that gang violence or gang involvement is a key factor that Members on both sides of the House would agree is very pertinent, and yet it is not mentioned. Therein lies a problem.
Thirdly, amendment 9 seeks to prevent the detention of children and young people unless it is absolutely necessary, which is a principle that I wholeheartedly support, but how do the Lib Dems propose that it be enforced? What levers are in place if a service fails to deliver that community-based service? Without resourcing CAMHS, investing in crisis alternatives and reforming commissioning models, the duty risks being symbolic rather than systemic. In essence, the hon. Member for Winchester is trying to make the point that we should have these discussions.
Although I support the goals of the amendments—visibility, prevention and early support—I am not sure that the specific mechanisms in them are the best way to safeguard achieving them. Instead, I wonder whether consideration has been given to piloting regional early intervention panels for under-18s at risk of admission, building on existing safeguards in educational frameworks, rather than creating separate registers. Alternatively, we could include risk indicators in statutory guidance, rather than setting them rigidly in legislation, which I think was the point made by the Government. That would allow some clinical judgment and flexibility. Above all, we must ensure that ICBs are not just given duties, but held to account. How are they are going to deliver them? That means having the right metrics and oversight and a strong role for advocacy and families.
Anna Dixon (Shipley) (Lab)
The shadow Minister is making some useful observations about best practice. One of the real injustices that we are seeing with detention at the moment is the racial disparities in detention rates. One could argue that such a disparity is a potential risk factor, but behind it is something that we should be addressing through dealing with inequalities in the mental health system, particularly the unwarranted variation in practice from clinicians perhaps making discriminatory judgments in these cases. Does the shadow Minister agree that that is another reason why we should not be over-specifying some of these points where we see associations between risk factors and detention rates under the Mental Health Act, and that therefore we should not be including them in the Bill?
Dr Evans
I entirely agree with the hon. Lady’s end point and with the thrust of what she says. Causality is not causation, and we need to be very careful. When we get to the later clauses of the Bill, that will be at the forefront of our discussion.
We cannot deny the reason we are having this legislative debate in the first place: the observation that black men in particular are subject to community treatment orders far more than any other group in the country. However, we must not make a lazy causal analysis and say, “Well, just because that is the case.” For example, black men have a higher risk of prostate cancer, and white people a higher chance of coeliac disease, because of the genetic basis. Is there something in that? Is there systemic bias by clinicians, as she hinted? That all needs to be explored.
The hon. Member for Shipley beat me to the punch when it comes to my closing statement. We owe it to our children and young people not to legislate in haste, so I welcome the spirit of the amendments, and I welcome the debate, but we must be careful to ensure that we are truly legislating for and defining exactly what we know. Otherwise, we risk creating other inequalities and unintended consequences or, worse still, a system that becomes even more flabby and difficult to manoeuvre through. That is the last thing we want for our patients, clinicians and the public.
Gregory Stafford
It is a pleasure to serve under your chairmanship, Ms Furniss. I have some criticisms of the specifics of the amendments tabled by the hon. Member for Winchester, but I entirely support him and congratulate him on the passion with which he spoke about them. As I remember, his maiden speech touched on a number of these issues. Whether they are within the scope of the Bill is for the Clerks and the Committee to decide, but he made several extraordinarily good points that I hope the Government will take away. If the Bill is not the appropriate place for them, there should be another avenue.
The lead amendment is about the ICB register. It would insert a new subsection to extend the duty on integrated care boards to establish and maintain a register for those at risk of detention to cover all children and young people who meet certain risk criteria. As drafted, the duty to maintain a register under clause 4 may not explicitly include all under-18s. Therefore, the amendment would ensure that children and young people are proactively identified and supported before reaching a crisis point that might lead to detention.
Clearly, there are positives. As the hon. Member stated, early intervention might help to prevent unnecessary detention by identifying risk earlier, which is especially important for children. Likewise, there is a strong argument about equity and care to ensure that young people receive the same proactive planning as adults. That would clearly lead to improved safeguarding through better tracking of vulnerable minors in the mental health system. A corollary to that would be better data collection on youth mental health needs, which I think we would all support. We would be able to use that information to support more informed policymaking and resource decisions.
As my hon. Friend the Member for Hinckley and Bosworth highlighted, however, and as I highlighted in the debates on other clauses, there would clearly be a resource demand, especially on ICBs, from expanding registers and services. Likewise, there is the complexity of implementation, because defining who qualifies as being “at risk” may be subjective. I therefore ask the hon. Member for Winchester, when he sums up on the amendments, to give us some indication of how “at risk” would be defined, or whether that would simply be down to the mental health professional or some other medical professional. There are also, of course, privacy and consent concerns related to maintaining a register for minors. Again, the hon. Member may have thought about some practical things that could assuage my concerns about that.
There may also be a risk of stigmatisation. We have to be very careful, especially with children and young people, because being labelled or treated differently due to being on the register would not help their mental health. We would have to have some really strict privacy and data-sharing controls to ensure that they were protected within the proposed system.
As I said in my intervention, I entirely support the aims of amendment 47 because it would specify the risk factors for detention for those on the register of people at risk of detention under clause 4. The criteria for identifying such individuals are left to be defined in regulations as the Bill stands. The amendment would mandate in law specific evidence-based risk factors—which I agree are risk factors for the issues that the hon. Member is talking about, particularly those linked to trauma and social disadvantage—rather than leaving them to discretion.
At a general level, the amendment recognises the role of trauma and social determinants in mental health crises—I congratulate the hon. Member on clearly explaining some of the factors. Going back to our debate on the previous group of amendments, that would improve the early identification of individuals at risk, promote preventive care, strengthen equity and provide clarity and consistency. However, like my hon. Friend the Member for Hinckley and Bosworth, I am concerned about prescribing a relatively small list and therefore limiting the clause’s flexibility—there may be risk factors that are not listed in the amendment or ones that we have not even thought of.
Jen Craft
Does the hon. Gentleman agree that the Bill makes allowances for the Secretary of State to introduce appropriate risk factors via regulation, and that it is more appropriate to list the risk factors that ICBs should take into account in secondary legislation issued by the Secretary of State than in primary legislation, as amendment 47 seeks to do?
Gregory Stafford
I agree with the hon. Lady; that is my understanding, but perhaps the Minister can confirm that when he sums up. The flexibility in the clause is one of its strengths.
Dr Evans
Does my hon. Friend share my opinion that it makes sense to agree with the Government? The impact of social media and the evidence coming out about using mobile phones and about the impact of certain sites have been debated in this House for the last five years—since I have been here—and there have been advances. Legislation has been brought forward, but there is a growing consensus on both sides of the House that it never quite keeps up. Allowing the Secretary of State to add risk factors as they come up, even in policy guidance, might be a shrewder way to future-proof the Bill against those difficulties. In 1983, we were not discussing or even thinking about the likes of Facebook, yet here we are. With the advent of artificial intelligence, who knows where we will be in another 40 years?
Gregory Stafford
I entirely agree with my hon. Friend. To touch on his point about social media, it is a very useful tool, but is deeply pervasive and can cause the bullying, harassment and mental health issues that he describes. As far as I can tell, the risk factors in amendment 47 would not cover something like that unless it was part of something else—for example, part of domestic abuse, armed conflict and so on.
Anna Dixon
This discussion of the list of risk factors throws up a concern for me: one of the risk factors that has been facing families and other constituents of mine in Shipley for some years is the inability to get appropriate support for their children from children’s social care, for example, because there are very long waiting times for child and adolescent mental health services. Even when people have EHCPs, they are often not fulfilled. Does the hon. Gentleman recognise that we need to address special educational needs and disabilities and children’s social care and put those things in place, as the Government are doing? Children with autism and learning disabilities will remain at high risk of much more complex mental health needs if they do not get the support they need at an early stage.
Gregory Stafford
Once again, the hon. Lady tempts me to make a party political point, but I shall resist. On her general point, there are factors, such as the ones she described, that would not necessarily fall within the list in amendment 47. [Interruption.]
Gregory Stafford
Thank you, Ms Furniss. I was coming to my closing remarks on amendment 47. Suffice it to say that some of the concerns that I raised on amendment 8 about the administrative burdens, the data sharing, and the potential safeguarding and privacy concerns transfer through. Again, perhaps the hon. Member for Winchester could give some reassurance on that when summing up.
Amendment 9, as far as I can tell, would extend the duty on integrated care boards and local authorities to exercise their marketing functions in a way that seeks to ensure that children and young people’s needs can be met without detaining them.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
Does my hon. Friend agree that, although the intention behind the amendment may be worthy, there is a lack of clarity in the drafting? In particular, it is unclear what “seek to ensure” means and how that would be legally defined.
Gregory Stafford
My hon. Friend is right; although a number of the Liberal Democrats are entirely worthy, there are some concerns about the drafting, which could give rise to ambiguity, legal loopholes and definitional issues. In that example, I do not think that “seek to ensure” is helpful. When the hon. Member for Winchester is summing up, perhaps he might explain how “seek to ensure” can be robustly defined within the law, or if it cannot be, suggest a different form of wording that he may wish to use in a future amendment if this amendment fails to be agreed.
Part II of the Mental Health Act 1983 covers the powers to detain individuals for assessment and treatment. Detention can clearly be traumatic, especially for children and young people. Amendment 9 reflects a growing consensus that detention should be the last resort— I think hon. Members on both sides of the House agree with that—and that community-based preventive and therapeutic alternatives should be prioritised. Again, I think it would be very hard to disagree with that ambition.
On the positive side, community-based care is clearly better than detention in most cases, and, if we can get to a point where people are assessed earlier, as is the intention of some of the other amendments, clearly—hopefully—that would lead to community-based care and not detention. The amendment would also protect children’s rights and support the trauma-informed approaches to mental health that were raised previously regarding amendment 47.
The amendment could also reduce the long-term harm associated with institutionalisation and potentially coercive treatment. As we have heard from Members on both sides, that would align with best practice in child and adolescent mental health services and it would promote and encourage a system of accountability by making ICBs and local authorities responsible for proactive care planning. All of that is extraordinarily laudable.
On the potential downsides, there is an ambiguity about the enforcement of the amendment, as my hon. Friend the Member for Solihull West and Shirley said, because of the lack of legal force or clarity in some of the phraseology. There would be also resource implications and, if there are resource limitations at the ICB or local authority level, that might hinder their ability to provide adequate, community-based alternatives.
I do not say that as an excuse for not supporting the amendment, but the hon. Member for Winchester has to understand the reality of the world we live in. Although I want local authorities and ICBs in every area to be entirely fully funded and resourced—and frankly, I do not think the Government’s cut of 50%, or indeed more in some ICBs, will do anything to help community-based care—there would be resource challenges. There would also be implementation challenges in areas where mental health services are already underfunded or overstretched that could lead to delays in care.
This is the key question that I ask the hon. Member to respond to in his summing up. Members on both sides of the House want to ensure that all people of all ages get the best, most appropriate mental health care as early as possible. But in an imperfect world, if there are potential delays in care because community services are struggling to find alternatives to detention, the unintended consequence could be that someone may not be treated at all because of the onus on defined community-based care rather than detention. Will the hon. Member explain how that would work?
I draw my remarks to a close by saying I, certainly, and the Opposition, entirely agree with the ambitions of the amendments. However, some practical and legal issues would need to be ironed out before I could wholeheartedly support them.
Stephen Kinnock
Again, I thank the hon. Member for Winchester for his amendments. I understand the intent behind amendments 8 and 9, but the clauses on registers and the associated duties on integrated care boards and local authorities are specifically aimed at people with a learning disability and autistic people, because of the detrimental outcomes that these groups of people may suffer when detained.
We recognise the concern around the treatment of children and young people, which is why we have several provisions in the Bill aimed at improving their care. However, dynamic support registers are particularly tailored to the needs of people with a learning disability and autistic people, and have been established in NHS England’s policy for some time. We do not have evidence that they would be an appropriate mechanism for wider cohorts.
We do recognise that bereavement, miscarriage, the experience of trauma and difficult life transitions can all have a bearing on mental health. However, access to mental health support is based on clinical need, not on the circumstances that might give rise to that need.
Dr Evans
The Minister is right about the registers, but I did notice that the Children’s Wellbeing and Schools Bill introduced the unique identifier number. That came about after the Lord Laming report into Victoria Climbié, who was “lost in the system.” It also builds on the work of the Children’s Commissioner, which found that around 10,000 children are not in school. Is there a role for getting some of the identifiers that we are looking at here in place along with that unique identifier number?
Equally, how does that unique identifier input into the Bill’s provisions on risk registers, now that that piece of legislation has passed Third Reading? There will be an interaction, but the unique identifier is much broader and the dynamic support register is held slightly differently. What work have the Government done to ensure that there is bridging and understanding about what that would look like, not only in the short term but in the long term?
Stephen Kinnock
The dynamic support register is specifically focused on people, both children and adults, who have learning disabilities and people who are autistic. I think it is quite a separate thing. I am not familiar with the detail of that education legislation but, as the hon. Gentleman says, it is a very broad identifier not based at all on the clinical conditions of the persons, as I understand it, whereas this is very focused and specific for people with the conditions that we are debating. I do not think that there would be a connection between the two.
Dr Evans
Let me take the example of a young person with deteriorating or fluctuating problems. They may be in school or out of school. We know that people with autism and learning disabilities are at greater risk of abuse and of being taken advantage of. If the Minister is not aware of it, would he look at how this duality could work, because clearly there is scope?
One benefit that the Government argued for in having this unique number was that it could be shared across these registers. It sounds as if there is work that could be done. The Minister is absolutely right, and I am not suggesting merging the two, but on the risk register, there could be a nice piece of crossover work to pull that all together, so that the information moves across agencies. What we know from people with severe learning disabilities, autism and mental health issues is that they are often in contact with multiple agencies at multiple times—from social services to, potentially, the police, the NHS, dentistry and, of course, educational settings, which might be multiplicitous. Is that a consideration that the Minister will take forward?
Stephen Kinnock
The hon. Member makes an interesting point. I am certainly happy to discuss that with officials, just as long as everybody is clear that there are two very different things going on here, with different types of risk and therefore different agencies. But I am all in favour of joined-up government wherever we can deliver it.
I turn now to amendment 47. It is important that robust measures are in place to support people with a learning disability and autistic people who are at risk of admission. That is why the Bill will, for the first time, put dynamic support registers on a statutory footing and, via regulations, set out the factors that the Secretary of State considers increase the probability of someone being detained. That is the most appropriate approach in order to provide sufficient flexibility for updates in line with emerging best practice, evidence and clinical and commissioner understanding.
As the factors are likely to be updated regularly, returning them to Parliament at every such instance would be disproportionate and unmanageable. Additionally, although putting them in primary legislation would not prevent the Secretary of State from providing and updating a longer list in regulations, having some factors but not others in the Bill could be perceived to give them primacy—for example, having a history of in-patient admissions or presenting in A&E in crisis. That could have unintended consequences and divert support from those most at risk.
We will of course engage with expert stakeholders, who are best placed to advise on what the list of risk factors for detention should be, taking into account the existing NHS England policy on dynamic support registers. I am pleased to provide assurance to the Committee that current NHS England policy provides examples of factors such as those in the amendment—for example, having no fixed address, having drug and alcohol addiction and having had significant life events such as bereavement and abuse. For those reasons, I hope the hon. Member for Winchester will not press his amendments.
Dr Chambers
I know how much the hon. Member for Farnham and Bordon enjoys speaking in Bill Committees—we were on the Tobacco and Vapes Bill Committee together a few months ago—and I am really pleased that our amendments have given so much material for discussion. I really appreciate the input from Members on both sides of the Committee; it has been really insightful, useful and constructive.
It has been rightly pointed out that the current state of local authorities—their funding and their capacity—means that they might not be able to deliver the more holistic care we are pushing for in the amendments, but I do not think that the Mental Health Bill should be limited by the current state of local services and funding. If that is the underlying problem, that is what should be addressed, not the measures in the Bill.
Gregory Stafford
I accept that we should aim for the pinnacle and the best. What I was trying to say was that because the amendments restrict us, rather than giving us the space to, hopefully, reach the pinnacle, or to explore other options if we cannot, they could have unintended consequences if we cannot reach that pinnacle.
Anna Dixon
The hon. Gentleman may want to take these points together. We drew attention to proposed new section 125. Subsection (1) relates to integrated care boards, while subsection (2) relates to local authorities. They do exactly what he wants: strengthen the requirements on ICBs and local authorities to better meet the needs of people with autism or learning disabilities in order to avoid detention. The very essence of the Bill therefore provides the duties that the Minister reassured us on in response to my earlier point. The expectation is that commissioners will meet needs as identified in these dynamic registers.
Dr Chambers
I thank both hon. Members for their input and their valid points. We appreciate the Minister addressing these concerns. We will not press amendment 9 or 47, but we would like to vote on amendment 8.
Question put, That the amendment be made.
Zöe Franklin (Guildford) (LD)
I beg to move amendment 20, in clause 4, page 9, line 38, at end insert—
“125ZF Registers: duty to maintain crisis accommodation
(1) In exercising its functions under section 125E, an integrated care board must seek to ensure that there is appropriate crisis accommodation for people with autism or a learning disability within its area.
(2) For the purposes of this section, ‘appropriate crisis accommodation’ means accommodation which—
(a) is designed to meet the specific needs of people with autism or learning disability during periods of acute mental health crisis;
(b) is staffed by persons with specialist training in supporting people with autism or a learning disability;
(c) maintains appropriate staffing ratios determined by guidance issued by the Secretary of State; and
(d) provides a safe alternative to detention under section 136 of this Act.
(3) The Secretary of State must issue guidance about the exercise of functions under this section, and integrated care boards must have regard to this guidance.”
This amendment would require integrated care boards to establish and maintain appropriate crisis accommodation specifically designed for people with autism or learning disability as one of its duties in relation to registers of people at risk of detention.
The Chair
With this it will be convenient to discuss the following:
Amendment 10, in clause 4, page 10, line 5, at end insert—
“125FA Report: sufficient commissioning services for people with autism or learning disability
(1) Within four months of the day on which the Mental Health Act 2025 is passed, the Secretary of State must lay before Parliament a plan to allocate sufficient resources for commissioning services regarding the treatment and detention of autistic people and people with learning disabilities to ensure operability of provisions in this Act.
(2) The plan must include—
(a) revised assumptions of the number of autistic people and people with learning disabilities who may require detention under this Act;
(b) the actions that the Secretary of State will take to ensure community services are available to meet demand after the 28-day detention period;
(c) plans for data collection to support commissioning sufficient services;
(d) plans to allocate appropriate resource to ensure operability of services, including, but not limited to, financial resource;
(e) plans to ensure that responsible bodies and individuals receive the necessary training to carry out support, diagnostic, and treatment plans.”
This amendment requires the Secretary of State to present a plan within four months to ensure sufficient services, resources, data, and training are in place to support autistic people and those with learning disabilities under the Act.
Amendment 22, in clause 4, page 10, line 5, at end insert—
“125FA Assessment: provision of services for people with autism or learning disability
(1) Each financial year, an integrated care board must—
(a) conduct an assessment of the availability and adequacy of services within its area for people with autism or a learning disability who have specified risk factors for detention under Part 2 of this Act;
(b) publish the results of the assessment; and
(c) publish an action plan to address any gaps in provision identified.
(2) The assessment under subsection (1) must include consideration of—
(a) the availability of appropriate crisis accommodation;
(b) the availability of appropriate community support services;
(c) the adequacy of training for responsible bodies and individuals to carry out support, diagnostic and treatment plans; and
(d) the experiences of people with autism or a learning disability who have specified risk factors for detention under Part 2 of this Act and their families or carers.
(3) The integrated care board must consult the following in conducting the assessment—
(a) persons with autism or a learning disability who have specified risk factors for detention under Part 2 of this Act and their families or carers;
(b) the relevant local authority or authorities;
(c) providers of relevant services; and
(d) such other persons as the integrated care board considers appropriate.
(4) The Secretary of State must issue guidance about the conduct of assessments under this section, and integrated care boards must have regard to this guidance.”
This amendment would require integrated care boards to conduct and publish annual assessments of the provision available for people with autism or learning disability at risk of detention and to prepare action plans to address any identified gaps.
Amendment 24, in clause 4, page 10, line 5, at end insert—
“125FA Report: services for people with autism or learning disability
(1) The Secretary of State must, within 12 months of this section coming into force and annually thereafter, prepare and lay before Parliament a report on—
(a) the availability of appropriate accommodation for people with autism or learning disability detained under this Act;
(b) the number of instances where appropriate accommodation could not be found within statutory timeframes;
(c) the progress towards implementation of sections 3 and 4 of the Mental Health Act 2025 and the impact of any delays to implementation on people with autism or a learning disability; and
(d) progress made towards meeting the needs of people with autism or a learning disability without detaining them under Part 2 of this Act.
(2) In preparing the report, the Secretary of State must consult—
(a) people with autism or a learning disability who have specified risk factors for detention under Part 2 of this Act and their families or carers;
(b) integrated care boards;
(c) local authorities; and
(d) such other persons as the Secretary of State considers appropriate.”
This amendment would require the Secretary of State to report annually to Parliament on the availability of appropriate placements for people with autism or learning disabilities and on progress implementing the relevant provisions of the Act.
Amendment 21, in clause 58, page 68, line 15, at end insert—
“(5A) The Secretary of State must by regulations make provision for sections 3, 4 and 21 to come into force in full no later than two years after the day on which this Act is passed.”
This amendment would establish an accelerated implementation timeline for provisions related to autism and learning disabilities, requiring them to be fully implemented within 2 years.
New clause 11—Costed plan to ensure community provision for individuals with learning disabilities and autism who are at risk of detention—
“(1) Within 18 months of the day on which this Act is passed, the Secretary of State must publish a fully costed plan for how Integrated Care Boards and local authorities will ensure provision of adequate community services for individuals with learning disabilities and autistic people who are at risk of detention under Part 2 of the Mental Health Act 1983.
(2) As part of the development of that plan, a formal consultation process must take place to determine how the decision to enact the relevant parts of this Act will be made.
(3) The consultation must include input from relevant stakeholders, including—
(a) individuals with learning disabilities and autistic people;
(b) carers for people with learning disabilities and autistic people;
(c) healthcare professionals; and
(d) advocacy groups.”
This new clause requires a costed plan to ensure that ICBs and local authorities are able to provide adequate community services for individuals with learning disabilities and autistic people at risk of detention under Part 2 of the 1983 Act, informed by a consultation with a range of stakeholders.
Zöe Franklin
It is a pleasure to serve under your chairmanship, Ms Furniss. I am grateful to my hon. Friend the Member for St Neots and Mid Cambridgeshire (Ian Sollom), and I am sure many in this room will remember his passionate speech about his constituent Declan Morrison, who has inspired many of these amendments. I am grateful to my hon. Friend for his help with my notes.
Amendment 20 would require integrated care boards to establish and maintain appropriate crisis accommodation specifically designed for people with autism and learning disability, as one its duties in relation to registers of people at risk of detention. Currently, just over 2,000 people with autism or learning disabilities are detained in mental health hospitals for an average of five years. Over half of delayed discharges are due to a lack of suitable housing or accommodation.
The crisis provision created in Cambridgeshire after my hon. Friend’s constituent Declan passed away was operating at 90% capacity before funding was withdrawn. When we hear Declan’s story, we realise the severe implications behind the amendment and why it is being put forward. We must also recognise that there has been a significant increase in section 136 use over the past 10 years. Many of the suites being used are outdated, unable to keep up with demand and unfit for purpose.
The amendment would therefore make appropriate crisis accommodation a statutory duty, and I hope all Members would agree that there is a desperate need for such accommodation, specifically for autistic people and those with learning disabilities. It would also require there to be specialist training for staff. We have already referenced today how important training is when it comes to protecting those who are in crisis and who need support. Finally, it would provide for safe, alternative detention under section 136, preventing situations such as that experienced by the hon. Friend’s constituent, where a vulnerable person is held in inappropriate emergency settings for extended periods.
Amendments 10 and 22 are both designed to ensure that there are sufficient resources for people with autism or learning disabilities. On amendment 10, it is crucial that community services are properly resourced to meet the needs of people with autism and learning disabilities. Too many of us will have seen how inadequate community services make detention and in-patient care much more likely, which is worse for the person detained, far more costly and unsustainable in the long term. Our amendments place duties on the integrated care board at the local level, and the Secretary of State at the national level, to be transparent about gaps in provision and to take steps to eliminate them.
Amendment 22 would require an integrated care board to conduct an assessment of the availability and adequacy of the relevant services within its area for people with autism or learning disabilities who have specified risk factors for detention, and to set out a plan to respond to those findings. There is currently an absence of suitable placements, with over 100 places that were contacted having no single bed available. We cannot continue with such a situation, given the significant implications when things go wrong.
Through those amendments, we are asking for an assessment, because there is currently no systematic assessment of whether services match demand, which is crucial to ensuring that the Bill is workable in the long term. It is also acknowledged that it may take 10 years to fully implement the Bill and to ensure that additional clinical and judicial staff are trained.
Amendment 21 was also tabled by my hon. Friend the Member for St Neots and Mid Cambridgeshire. It would establish an accelerated implementation timeline for provisions related to autism and learning disabilities, requiring those provisions to be fully implemented within two years. Currently, just over 2,000 autistic people and people with learning disabilities are detained in mental health hospitals who are being let down by the system.
The Government have sadly already missed the targets, and we cannot afford to wait another decade—people’s lives are too important. In fact, the UN Human Rights Committee has called on the UK to end the detention of people with disabilities based solely on their disability. Every day that we wait means more people at risk of tragic outcomes. As I said, the amendment would establish a two-year deadline, and it recognises that these are some of the most urgent reforms in the Bill. I ask the Government to consider them as a priority.
Finally, amendment 24, which was also tabled by my hon. Friend the Member for St Neots and Mid Cambridgeshire, would establish an accelerated implementation timeline of services related to autism and learning disabilities, by again requiring them to be implemented within two years. I reiterate what we heard in the Chamber, which I am sure we will all hear in our inboxes and in conversations with our residents: it is crucial that we implement these changes at pace; otherwise, we risk failing individuals with autism and learning disabilities further.
Dr Evans
I will direct my remarks at new clause 11 and the amendments spoken to by the hon. Member for Guildford. New clause 11 seeks a clear, costed and consultative plan to help ensure that integrated care boards and local authorities are properly equipped to deliver the community-based services that individuals with learning disabilities and autism need and, of course, deserve, so that they are not unnecessarily detained under part 2 of the Mental Health Act.
Let me begin by recognising the good intentions across the House when it comes to reducing inappropriate and prolonged detentions in mental health settings. There is broad consensus that detention should be the last resort. However, good intentions must be matched by a concrete, deliverable plan because, as the evidence has shown, too many people are being held in hospitals or other facilities, not because of clinical need, but because the right community support simply is not there.
Gregory Stafford
My hon. Friend is making an excellent case for new clause 11, which could potentially solve funding issues I have raised. He mentioned the NHS 10-year plan. Will he suggest that the Minister looks at ensuring that, if new clause 11 is not passed today, the details in it are fed through into the plan? When it is published, which the Minister has indicated will be relatively soon, the information and outcomes my hon. Friend is trying to achieve through the new clause could be in it.
Dr Evans
Far be it from me to tell the Minister what to do, but if I were a wise Minister, I might look at where my predecessors had benefitted from further information and where they may have stumbled. The Bill has been looked at for a number of years by many people from outside and inside the House. Many have been involved throughout its progress, including a former Prime Minister, who tabled amendments in the other place. There is definitely the ability to learn from what the last Government found and to use that information in the kinds of plans that we need.
Anna Dixon
The hon. Gentleman elaborates on the great history of the previous Conservative Government. From where I am sitting, the record is less rose-tinted—but perhaps I am wearing different spectacles. Might he return to the substance of new clause 11, which, it seems to me, is about community provision? I return to the points that I raised earlier about proposed new section 125E. I do not see what new clause 11 adds to the Bill in regard to duties relating to the commissioning of services. I encourage him to address the specifics of the amendment.
Dr Evans
I shall be interested to know what the hon. Lady’s rose-tinted spectacles show when we consider Scotland or Wales. One of my biggest frustrations in debates about the NHS is that in each nation health is devolved, each is run by a different political party, and each has challenges. We in this place enjoy the political football, scoring points without seeing what is blindingly obvious: that across the board, across all the countries, health and mental health services are struggling to keep pace and keep our population healthy with the workforce and technology provided.
Dr Evans
Let me address these points, then I will be happy to give way. When we come to clause stand part, I will address the other amendments, but I specifically said that my comments would be on new clause 11. When scrutinising the Bill, it is important that we talk about how we will deliver, as the hon. Member for Shipley rightly pointed out. It is entirely right to try to put together a plan to ensure that the Government are held accountable. We are not saying how the plan should be formulated; we simply stipulate that a plan should be formulated and introduced. That is a very different argument.
My concern about previous Lib Dem amendments was that they were too specific. We have to get the balance right. New clause 11 simply provides that the Government have 18 months to introduce a fully costed plan, so that we can again have a debate in this House. Especially as a spending review will, I believe, be announced tomorrow, we need to consider how we will match budgets in the future. We accept that it is a 10-year project.
Dr Evans
I am still addressing the hon. Lady’s first point. The Conservatives understand that it will take a long time to put in place, but a credible plan is needed. There was a credible plan in place, as I have said, in the 2011 and 2016 strategies, with the funding to match. I use that as an illustration because it is provides an apt evidence base for the new clause. Otherwise, I might well be challenged by someone saying, “What is your evidence base of a delivery network and a delivery ability from a Government?” I hope that by talking through these points, I am giving the Government the chance to learn from the mistakes we made and from the way we took forward mental health. Regardless of political party, I hope hon. Members that the debate has moved on a long way from when we started in 2010 with the work done partly under the coalition Government. I will now take the intervention.
Jen Craft
I thank the hon. Gentleman for reflecting on the fact that mistakes were made by the previous Government—acknowledgment of that is often sorely lacking. I respect the fact that he says that the debate has moved on, but does he accept that while the debate may have moved on, policy to enact actual change for people who are detained under the Mental Health Act, particularly those with learning disabilities and autism, has not kept pace? The number of people in locked units, under detention, has remained solid, without much wavering, for the past 14 years. Despite the acknowledgement that this is a scandal, and we should all hang our head in shame that it continues to this day, not much has been done to get them out of those units.
While we look back on the history of the past 14 years, focusing specifically on the people who are detained under the Mental Health Act, let us remember that Lord Darzi pointed out in his report that some of the facilities are more redolent of the Victorian era than of a modern mental health care service. Perhaps those who were in government in those 14 years should reflect on why that is the case.
Dr Evans
There is quite a lot to unpack in the hon. Lady’s intervention. As I pointed out, reflecting on what the previous Government learned is also important—for example, when considering Wales. Objectively, the data shows that Wales is struggling more than England, and the same is true of Scotland. Wales and Scotland have been run by different parties from England for a long time, so my natural inclination is to attack back and say, “Well, actually, the Conservatives did better,” but my fundamental point is that we all need to do better because we have seen the problems rising. As I mentioned, over the last 10 years the number of people turning up in mental health facilities has increased by a quarter.
On the hon. Lady’s point about people with autism and learning disabilities, I sat on the Health and Social Care Committee that looked specifically at that issue. We looked at some of the best models in the world, including that of Trieste, where community care is in place. When we took evidence, we found that most people were supportive of that model, but fearful people did come forward to say that the community was not the best place for their daughter, son, husband or wife. Managing the nuance is really important. It takes time to get this right. In 2018, when the last Government looked to legislate on this issue, there was pre-legislative scrutiny, which does not always happen in this place. It was done because there was fundamental agreement that we must get the legislation right, because it applies to the most vulnerable people.
The hon. Lady is right that Lord Darzi identified three shifts that will be really important, but when he looked at this issue, he missed a fundamental point. His report starts from 2010, but when I was a junior doctor— I qualified in 2007—we had issues that affect the culture now: for example, how we managed MRSA and C. diff. That was not a brilliant time to be a patient. The medical training application service fiasco affected doctors applying for jobs so much that in 2004 the Government had to apologise and change the system, because so many people who wanted to get into specialist training could not go through that service.
We are still paying for IT infrastructure that the last Labour Government tried to introduce. The last report, in 2018, said that that cost the taxpayer almost £14 billion. We wonder why, when we try to make a shift to introduce more tech, as recommended by Darzi, people in the NHS are reticent, but they have been burnt by IT projects before. They have seen what happened under a Conservative Government, a coalition Government, and a Labour Government. All that has an immediate and impregnable effect on the legislation and the practicalities that we are dealing with today.
I am not trying to talk facetiously about the legislation; the point is to give some pragmatic direction and to actually say something tangible. On that basis, I look forward to the Minister hopefully supporting proposed new clause 11, which would give the Government the flexibility to have a plan that they choose, as is their democratic right, but also the safeguards to know that it will be delivered and we will not have more delay. There is a balance between making legislation in haste and making sure that we avoid inaction. Would the hon. Member for Shipley like to intervene?
Anna Dixon
Yes, briefly. I was trying to get the hon. Gentleman back to the point, which is people with autism and learning disabilities, rather than mental health policy in general. The point of reference I used earlier was the failure to deal with Winterbourne View in 2012. My hon. Friend the Member for Thurrock made the point very well: if we get down to it, we are talking about community provision for people with learning disabilities and autism. Too many people remain institutionalised, too far from their family, friends and community. I was pointing at that failing. I encourage the hon. Member to get back to that point. Would you like to give clarity on what is within scope of the group of amendments that we are currently debating, Ms Furniss?
Dr Evans
You may want to set me straight, Ms Furniss, but as we have agreed, I will directly address those points in the clause 4 stand part discussion. The hon. Member for Shipley rightly talks about community settings, but where does she think primary care staff come from? They come through medical training. When we talk about the Darzi impact, it is important that we fully understand why people choose not to go into mental health or primary care and become a GP. Without establishing that, which is a problem that this Government have to deal with, we will run into real problems when it comes to delivery.
Aphra Brandreth (Chester South and Eddisbury) (Con)
My hon. Friend is making an excellent speech. The new clause is incredibly important. We do not want vulnerable people to slip through the cracks and not receive the right support, and it is really important to ensure that there is consultation with the right stakeholders. I recently met with Down Syndrome Cheshire, and last year I met with the Cheshire West and Chester SEND accountability group. They said that one of the things they value most is being listened to so that they can inform the process. Does my hon. Friend agree that that is a really crucial part of new clause 11?
Dr Evans
My hon. Friend speaks to the heart of what we all know from our constituency day jobs, where many of us here in this place speak to outside organisations and families. On Second Reading, the hon. Member for St Neots and Mid Cambridgeshire talked passionately about the impacts and the sorry stories that we have all heard about. The whole point of this Bill is to make mental health care patient-centred, but also family and advocate-centred. That is a driving thrust of what the Secretary of State for Health and Social Care was asking us for, and it is why we have enshrined the individual in the first clause of the Bill.
My hon. Friend is absolutely right: if we are committed to the principle enshrined on the front of the Bill, we need co-production. That must be more than a tick-box exercise. If the Government believe that the necessary plan is already in place, will the Minister say where that is covered, and would he put that plan in the House of Commons Library? Is it fully costed? Has it been fully consulted on? Will it be published within 18 months and incorporated in the NHS long-term plan? If not, how will the ICBs and local authorities be expected to deliver? How will the changes to NHS England affect plans to deliver the legislation? Having the legal duty to produce a costed plan will provide a focal point and fulcrum to build around, to ensure that the most serious mental health conditions receive the attention they need.
I know the Minister cares deeply and wants to do his best. He wants the legislation to be enacted as swiftly as possible. I also recognise the commitments and priorities facing the country, but this new clause is about turning good intentions into action. I simply aim to strengthen the hand of the Minister when it comes to negotiating with the Chancellor about funding, so that he has the evidence base required to bolster his position. I hope hon. Members across the Committee, especially on the Government Benches, see it as a supportive, sensible, balanced and practical solution to have this debate and then campaign with the Chancellor to get the money needed for the services.
Turning to the Lib Dem amendments, I begin by recognising the genuine intent behind amendments 10, 22, 24 and 21. Addressing the needs of people with autism and learning disabilities, particularly ensuring appropriate crisis accommodation and reducing unnecessary detention, is unquestionably important. That said, I have specific concerns about legislating for service provision in the Bill.
I understand why we do not legislate for the number of intensive care units, hospices or detox centres in the health system. There is an argument that that might be a good idea. Those are critical services, yet their commissioning and capacity are generally managed through policy funding decisions and local planning, rather than through statutory duties. Introducing a statutory duty for crisis accommodation risks unintended consequences. It may limit the flexibility of integrated care boards to respond to local needs, and could impose significant new resource burdens without clear funding commitments. That risks setting a precedent for increasingly prescriptive legislation across health and social care, which we should approach cautiously. We do not want to pit one condition against another.
On the proposed requirement on the Secretary of State to produce a commissioning plan within four months, I acknowledge the desire for a timely response. The choice of a four-month deadline, however, seems arbitrary and may not allow sufficient time for robust consultation and realistic planning. We need to be mindful that rushed plans can undermine long-term success.
On the proposed reporting requirements, although transparency is vital, I highlight that new clause 11, which we are proposing, would provide stronger and more detailed mechanisms to hold the Government to account on implementation and resource allocation, while allowing flexibility. We should focus on supporting those provisions rather than layer on multiple overlapping reporting duties, which risk duplication and confusion. In conclusion, the amendments raise important points and I look forward to the Minister’s response.
Sojan Joseph
I will briefly trot through the proposed amendments and new clause. We all know that the closure of learning disability hospitals was a gradual process. The reason was the institutionalisation of some of those patients, as seen in the Winterbourne View scandal. The aim was to create new community-based housing to look after people with learning disabilities and autism. Amendment 20 seeks to create appropriate fully staffed crisis accommodation. Will the Lib Dems clarify whether they are looking to create more in-patient settings? Are we going back to where we were years ago, or should we work with the new plan to create more community-based accommodation?
Not all patients with a learning disability or autism need detention or community-based accommodation. Many of them are looked after by their family members, so we also need to look into the support we are providing to carers, so that we can keep those people at home with their family member’s support.
I will keep this brief: as a member of the all-party parliamentary group on adult social care, I recently met with many people who have lived experience of this. They want their views to be heard. They are not asking for more hospital settings; they are asking for more support, including for carers. I was pleased to see that the Minister for Care was there to engage with those people.
In the new NHS 10-year plan, the focus is on moving care from the hospitals to the community. Can the Minister clarify how we can make that happen? We have talked about that for many years, but we have never seen it happening. In my own experience practising in a mental health ward, many patients with a learning disability and autism were detained and, as the hon. Member said, kept in hospitals because we could not find a suitable place for them to be discharged to—it was not that they needed the hospital.
I think we are all talking about the same thing, but we need to find a solution. That is why the new NHS 10-year plan and its focus on moving care from the hospitals to the community is important. Again, can the Minister clarify how we will do that? The Government have already started the work, and the new commission, led by Baroness Casey, should also be looking into where we will find the social care support for carers and the community provision for people with learning disability, rather than just creating more crisis accommodations.
Dr Evans
The hon. Member mentioned Baroness Casey, for whom I have the utmost respect, but herein lies the problem: she is still currently undertaking a review for the Home Office that has now been delayed and has not concluded. This is at the same time that she is supposed to be looking at social care. The whole idea of an amendment that asks for a statutory plan is to stop these kind of slippages. Given his point about wanting to see progress, is that something that he would consider if he were voting on this new clause?
Sojan Joseph
I hope that Baroness Casey completes her commission work and gives us her report. It was promised in the Chamber that the initial report would be available within a year. Regardless of whether she is taking up another role, I hope there will not be any delay and that we get that report and a detailed report within three years. I am looking for a solid plan to fix this problem forever. I am not looking for sticking plasters or an immediate fix, but we need a plan, perhaps including a national care service. These are the people who are looking for a long-term solution to these problems.
The hon. Member asked about how I will vote; unfortunately, I will not be supporting new clause 11. The Government have already started some work, which is why I am specifically talking about the NHS 10-year plan to move care from hospitals to the community, along with the social care commission, which is looking into how we can get good progress on that. This is the answer; we need to get a long-term solution to this problem.
Dr Shastri-Hurst
It is a pleasure to serve under your chairmanship, Ms Furniss. I rise to speak to Liberal Democrat amendments 20, 10, 22, 24 and 21, and set out why, although I think they are honourable in their intent, I am unable to support them today.
I will start with amendment 20. The purpose of the amendment is to require ICBs to ensure the availability of specialist crisis accommodation for people with autism and learning disabilities. The aim is to provide a safe and therapeutic alternative to detention, which I think we would all agree is a sensible course of action. Section 136 of the Mental Health Act 1983 allows police to remove an individual who is experiencing a mental health crisis from a public place to a place of safety. That can, on unfortunate occasions, lead to detention in inappropriate settings, which may include police cells. That can obviously be deeply harmful, particularly to those with conditions such as autistic spectrum disorder or other learning difficulties.
Jen Craft
I will be reasonably brief, as Members have covered a lot of what I was going to talk about.
The intent behind amendments 10 and 24 and new clause 11 is to address the issue raised by a number of organisations, such as Mencap, the National Autistic Society and the NHS Confederation, around the delay in particular clauses being switched on for people with autism or with a learning disability due to insufficient community services. The concern is that there is not, as yet, an articulation of what sufficient community services look like or how we will know when we have reached that point, so that we can turn on parts of the Act. There is a sufficient community backing in place for that to happen. Therefore, I would welcome the Minister’s thoughts on how we will know that we have reached the point where we can address the issues that clause 3 looks to tackle.
As the Conservative Members mentioned, there are concerns about funding and access to fairly scarce resources, and a concern that rolling out this provision could put undue burdens on people who are unable to deliver certain parts of it.
However, it would definitely be welcome to have an understanding of where we are heading, what “good” looks like and how we are going to get there, and what the Minister might see as a road map for community services to reach the point where clause 3 can be switched on, so that autistic people and people with a learning disability do not need to be detained under the Mental Health Act purely because there is insufficient support for them in the community to enable alternative provision. I would welcome any thoughts from the Minister about how those concerns about the operability of the Bill can be addressed. If they will not be addressed via these amendments, how will they be taken forward?
Aphra Brandreth
I rise to make a few remarks on new clause 11, which would require a costed plan to ensure that ICBs and local authorities are able to provide adequate community services for individuals with learning disabilities and autistic people at risk of detention under part II of the 1983 Act.
We need to ensure that there is a fully cost-effective plan with accountability to support those with learning disabilities. For instance, Cheshire West and Chester council, one of the local authorities in my constituency of Chester South and Eddisbury, has let down parents, families and those with learning difficulties because of its poor management. It has come at the cost of adequate provision, particularly in school places, and therefore puts more people at risk of mental health problems because they are not getting the support they need in the community.
With the measures outlined in new clause 11, we could go a long way to ensuring accountability. I am sure the Minister will agree that we need to ensure that commitments are backed by funding for the good of those who need SEND support. I urge all those on the Committee to reflect on the value of the new clause. Crucially, it would also require the costed plan to be informed by a consultation with a range of stakeholders. That is incredibly important, because we need to listen to the lived experience of those who are often extremely vulnerable to ensure that they receive the right support. In my intervention, I referred to some of the important groups in my constituency. Down Syndrome Cheshire and the Cheshire West and Chester SEND Accountability group are just two examples, but there are so many more. They are clear that they value being listened to, so that they can inform the process.
The new clause would ensure a costed plan, where commitments are not just words, but backed by funding. Crucially, it would mandate a formal consultation process to inform the plan, incorporating the view of a broad range of stakeholders, including those with lived experience such as those I mentioned in my constituency. There are individuals, carers, healthcare providers and advocacy groups whose voices all matter. We need a plan that is costed so it can be delivered, and that, crucially, reflects the needs and rights of those most affected. I fully support the new clause.
Stephen Kinnock
I thank hon. Members for this set of amendments, which draw attention to the important matter of implementation and community support for people with a learning disability and autistic people. I heard this issue raised many times on Second Reading.
I will begin with amendment 20. I am grateful that this important issue has been raised. Although he has not been appointed to the Committee, I know that the hon. Member for St Neots and Mid Cambridgeshire has spoken powerfully and movingly about the tragic circumstances surrounding the death of Declan Morrison, his constituent, and the need to ensure effective and timely community-based support.
Proposed new section 125E of the Mental Health Act, provided within the Bill, already requires integrated care boards and local authorities to seek to ensure that the needs of autistic people and people with a learning disability can be met without detaining them. That should be driven by the specific needs of the local population, informed by the dynamic support register. That requirement already covers any relevant needs for crisis accommodation. We expect, and will set out in statutory guidance on dynamic support registers, that they will cover any relevant needs for crisis accommodation.
In contrast, the amendment seeks to place a prescriptive legal requirement to ensure provision of a specific service in all circumstances, irrespective of what people in the area actually need. That would have the unintended effect of restricting integrated care boards in designing provision and allocating resources in the most effective way to meet people’s needs.
Anna Dixon
I thank the Minister for setting out so clearly the importance of the annual ministerial statement. Does he envisage that the statement will also give an update on the extent of community provision available and the execution of the transition of people with learning disabilities and autism from institutional settings to community settings closer to home? Is that within scope of the statement?
Stephen Kinnock
I think the short answer to my hon. Friend’s question is yes. The written ministerial statement will be an update on the work done over the preceding 12 months, but it absolutely will also be a forward plan, so it will set out the next actions that the Government will take, what the broader, long-term change delivery process will be, the institutions that will need to change and how they will change.
A number of colleagues have also asked the question, “What does good look like?” In many ways, it is absolutely right that we, as a Government, are being held to account on the content of the Bill, but there will be a really important accountability moment 12 months after it gets Royal Assent, which will be that written ministerial statement. I fully expect every colleague in this room to read that in great detail and hold the Government to account, both on what has been achieved over the preceding 12 months and, importantly, on what the forward plan looks like.
I think that covers most of what I wanted to say, although one additional point I would make is that the amendments could have the unintended consequence of requiring Government and local areas to set out unfunded or speculative plans ahead of any funding settlements, which would affect their credibility. It is more effective to set out plans when they are ready, when we have a clear line of sight on funding and deliverability.
We also need time to engage with expert stakeholders to inform implementation planning. We know that sufficient community services cannot be achieved without wider system reforms beyond health, and details contained in any plan must also consider the context of the 10-year health plan and the independent commission into adult social care, chaired by Baroness Casey. For that reason, I thank hon. Members for their contributions and invite them to withdraw amendment 20 and not to press amendments 24, 10, 22, 21 and new clause 11.
Dr Chambers
I thank everyone for all their insights into our amendments; they were very useful and constructive. I will address a couple of them briefly.
First, I thank the hon. Member for Ashford; we totally agree that we want to be moving mental health care—any care, actually, but mental health care specifically—back into the community and have more community care. We are not advocating for more hospital care. There is a specific point to amendment 20: my hon. Friend the Member for St Neots and Mid Cambridgeshire, who is in the Public Gallery, had a tragic case of a constituent, which resulted from there not being enough available safe places for someone in crisis to be cared for.
A lot of our amendments have rightly been criticised for possibly being outside the scope of the Bill, because this Bill is for when people are in a mental health crisis, and a lot of our amendments are about how we can improve community care. To me, amendment 20 appears to be very in scope, because it addresses a failure of someone who was admitted for mental health care.
I thought that the insightful comments on most of our amendments from the hon. Member for Solihull West and Shirley, given his legal and medical background, were very useful, and we will take those on board. The only one that I would disagree with, and I think he might feel the same, is on amendment 20 specifically. His main criticisms of that were that it might result in variability across the nation, that there are currently staff shortages and that there could be implementation delays. I do not see any of those three reasons to be strong enough to not want to maintain crisis accommodation.
I thank the Minister for his comments and his serious consideration of all our amendments. We will press amendment 20 to a vote, but will not press any of our other amendments.
Question put, That the amendment be made.
Zöe Franklin
I beg to move amendment 25, in clause 4, page 10, line 5, at end insert—
“125FA Training standards
(1) The Secretary of State must by regulations make provision about training standards for responsible bodies and individuals working with people with autism or a learning disability in—
(a) mental health hospitals;
(b) places of safety designated under sections 135 or 136 of this Act;
(c) crisis accommodation; and
(d) such other settings as the Secretary of State considers appropriate.
(2) Regulations under subsection (1) must—
(a) specify minimum training requirements;
(b) require training to be co-produced with people with autism or learning disability and their families or carers;
(c) require regular refresher training; and
(d) include training on de-escalation techniques and alternatives to restraint.
(3) The Secretary of State must publish guidance about the standards set out in regulations under subsection (1).
(4) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”
This amendment would require the Secretary of State to produce guidance on minimum training standards for staff working with people with autism or learning disabilities in mental health settings and require that training be co-produced with people with lived experience and their families.
Amendment 25 was, again, tabled by my esteemed colleague, my hon. Friend the Member for St Neots and Mid Cambridgeshire. It would require the Secretary of State to produce guidance on minimum training standards for staff working with people with autism or learning disabilities in mental health settings, and would require that the training be co-produced with people with lived experience and their families.
I suggest to all colleagues on the Committee, particularly those who heard my hon. Friend’s passionate speech on Second Reading, that we need to reflect and learn from the tragic story of his constituent Declan, in which insufficient training sadly contributed to Declan’s death. Autistic people in hospitals risk being subject to unnecessary restraint, over-medication and solitary confinement. That raises real concerns about whether there is sufficient training available to staff working with them. I acknowledge that enormous numbers of incredible professionals work with individuals who are in crisis, but when such tragedies happen, we need to reflect on whether training is sufficient.
Across mental health hospitals, places of safety and crisis accommodation, training is crucial to ensuring good outcomes for those in crisis. Some 92% of people with learning disabilities or autism in hospitals are detained under the Mental Health Act, yet many staff lack specialist understanding. Research shows that training is most effective when it is developed with people with lived experience.
The amendment would ensure that all staff working with autistic people and people with learning disabilities receive specialist training. It would require co-production with families and people with lived experience, with which Conservative colleagues have already said that they agree. That would include mandatory training in de-escalation techniques and alternatives to restraint; create consistent national standards, rather than the unfortunate postcode lottery; and address fundamental staff knowledge gaps that contribute to inappropriate treatment. I ask the Minister to accept the amendment, which would enable us to ensure that those providing crucial mental health support to those in crisis have the appropriate training to prevent tragedies like the loss of Declan.
Jen Craft
I rise to share a few brief reflections. I appreciate that the intent behind amendment 25 is to make sure that the relevant training is in place. I assume that the hon. Member for Guildford has in mind something similar to the Oliver McGowan training provided across hospital trusts, which mandates that all healthcare providers spend a certain amount of time training with someone who has lived experience of autism and of learning disabilities, in order to make sure that the very different ways in which people with autism or learning disabilities might present do not overshadow what they are attending hospital to demonstrate. Particularly for mental health, we all know that diagnostic overshadowing can be fairly significant. In a locked setting, someone with a learning disability or autism may be unable to demonstrate behaviours that show they are improving or getting better, which can undermine the care they receive.
I would just question whether primary legislation is the best vehicle by which to provide for this. We have spoken at length about how the NHS workforce plan and the 10-year plan are coming forward. I wonder whether this would be better placed within that wider framework. Training could be taken forward either as part of continual professional development, or for medical professionals at the start of their career.
Natasha Irons (Croydon East) (Lab)
On the point about training in the round for NHS staff, or any staff dealing with someone in crisis, might it be about taking a more contextual safeguarding approach that relates to not just the one setting? I agree with the point about looking at the 10-year plan, and making sure that mental health training is provided for all staff, because we know that people can present in very different ways, in many different contexts across the health system.
Jen Craft
I think there is a concern about having a prescriptive mandate in primary legislation, rather than using a vehicle that could implement real change. Again, I would welcome the Minister’s thoughts on how to ensure that those working in a mental health environment have sufficient training on learning disabilities and autism. We need to make sure that those with a specialism in learning disabilities and/or autism are present and people have access to them, so that things like diagnostic overshadowing do not continue to occur.
Sojan Joseph
I rise briefly to speak about training in our health settings. There is, in fact, too much mandatory training in NHS and care settings; the issue is that we are not complying with it. We also heavily rely on agency staff, whose training often nobody monitors. It is not that we are short of training. As my hon. Friend the Member for Thurrock mentioned, the Oliver McGowan training was rolled out across the NHS.
Gregory Stafford
I want to be clear about what the hon. Gentleman is saying. My understanding of the amendment, for which I have a lot of sympathy, is that the mandatory training will be around appropriate care in the settings listed. I think he is talking about manual handling or data protection stuff. As someone who worked in the NHS for seven years, I entirely agree that there is a lot of “mandatory training” that could be scrapped to make the NHS much more efficient. The amendment is specifically about ensuring that there is appropriate training for those who are working in the settings listed. I hope that he is not saying that he does not think that there should be training for mental health professionals. I am sure he is not saying that, but that is how it is coming across.
Sojan Joseph
Not at all. I am not claiming that there should not be training for people who work in any settings; I am saying that more and more training has been added every time we learn something and yet compliance with the training requirement is not being monitored. That is the point I am making—not that we do not need the training.
I support training, because appropriate training is necessary, but we also need to ensure that the people who work in those settings are compliant with the training. That is the larger point I am making. This is not about the amount of training we might want to add to this legislation; we need to ensure that existing training is completed by the staff working in those areas.
Stephen Kinnock
The Health and Social Care Act 2008, as amended by the Health and Care Act 2022, already requires that all CQC-registered health and adult social care providers ensure that their staff receive specific training, appropriate to their role, on learning disability and autism. The associated code of practice has been consulted on and is expected to be published and laid before Parliament soon.
The code sets out four standards that outline minimum training requirements, including expectations of training content at different levels; that training is co-produced and co-delivered alongside people with a learning disability and autistic people—that addresses the point made by my hon. Friend the Member for Thurrock about co-production and things not being done in an ivory tower; and that staff complete training at least every three years. To set out separate standards in secondary legislation, as the amendment asks, would cut across that existing legal requirement and the forthcoming code. Inadvertently, that could lead to confusion. I hope that that satisfies the hon. Member for Guildford enough to persuade her to withdraw the amendment.
Zöe Franklin
Having had a conversation with my hon. Friend the Member for Winchester, I can say that we will withdraw the amendment. However, we hope that the Minister will ensure that the provisions addressing the need for training in such situations will come soon, and with a timeline, so that all members of the Committee understand when we will see the statutory guidance. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Dr Evans
It is a shame that the hon. Member for Shipley is not in her place to hear me speak to the rest of the clause 4, having considered the amendments to it first—[Interruption.] Oh, she is here just in time. I am grateful to the Government and the Chair, as the clause stand part debate allows things to be more structured.
I want to discuss proposed new part 8A of the Mental Health Act 1983, which will introduce welcome changes to provisions specific to people in England with autism or learning disabilities who are subject to detention under the Act. At the outset, let me say that the Opposition welcome the Government’s recognition that people with autism or learning disabilities require a tailored and rights-based approach within our health system. We know—the evidence points clearly to the fact—that such individuals have been inappropriately detained in institutional settings, often for years, without the care and support that they truly need. The creation of a statutory care, education and treatment review in legislation was a step in the right direction. It therefore makes sense in this part of our proceedings to discuss such reviews.
The background is really important to understanding what the measure will do. Care, education and treatment reviews were introduced in 2015 as part of the Transforming Care programme, a joint initiative between NHS England and the Department of Health and Social Care under the last Government. The TCP was launched in response to the Winterbourne View scandal, which we have heard mentioned a few times, where serious abuses of people with learning disabilities and autism in private hospitals were exposed.
The purpose of CETRs in the Transforming Care programme was to ensure multi-agency oversight of care plans for people with learning disabilities and/or autism, particularly those with complex needs detained in in-patient or secure settings. They were there to promote person-centred care by involving patients, families and a broad range of professionals; to identify barriers to discharge and support safe, timely moves to community or less restrictive settings; and to improve care quality and reduce inappropriate long-term in-patient stays.
The implementation timetable started in 2015 with CETRs introduced as a mandatory part of the TCP, initially focusing on children and adults with learning disabilities and/or autism in in-patient settings. In 2017 to 2019, CETRs were expanded and refined, with NHS England producing guidance and a framework for conducting reviews consistently. Ongoing, CETRs are now embedded across the health and social care systems, extending beyond learning disabilities to other groups with complex mental health needs, including secure mental health services.
CETRs are multidisciplinary independent reviews designed to improve the care and treatment of people with complex mental health needs, particularly those detained in secure hospitals or secure settings, such as children and young people with learning disabilities, autism or complex mental health needs, or in other in-patient settings where there are concerns about the appropriateness of their care, treatment or placement. The purpose is to ensure that the care, education and treatment plans are appropriate, person-centred and holistic; to identify and address any barriers to overcoming recovery and discharge; to promote co-ordinated working between health, social care, education and other relevant services; and to support the least restrictive care principle, one that we have now enshrined in the Bill—helping people to move to less restrictive settings where possible.
There are, however, some complications. The number of CETRs has increased over recent years, especially with the growing recognition of the need for better oversight of complex needs. Several hundred CETRs take place annually across England and Wales, primarily within secure and specialist mental health services. Exact numbers are quite difficult to pin down and vary by service user populations, health trusts, NHS England monitoring and the reporting of the activity.
What is a CETR made up of? That is really important. A typical CETR involves a multidisciplinary panel including independent clinical reviewers such as a senior psychiatrist or clinician not involved in direct care; representatives from social care services; educational specialists, especially for children and young people; advocates or independent mental health advocates; the patient or service users themselves, where possible, to ensure their voice is central; family members or carers where appropriate and with consent; and commissioners and other relevant professionals involved in the person’s care pathway.
Under the review process, the panel examines the individual care, the treatment, the education and progress. It assesses whether the current placement and treatment plan are meeting the person’s needs and whether there is scope to support transition to less restrictive or more appropriate settings. Recommendations may be made on changes to care, treatment plans, discharge or support arrangements.
CETRs are a very valuable safeguard. They bring together the independent clinicians, the social care professionals, the educators, the advocates and, crucially, the patients and their families to review the care and treatment being provided. The aim is to ensure that the treatment is person-centred, appropriate and geared towards recovery, while also exploring opportunities to move people to less restrictive environments when safe to do so. That said, while CETRs are increasingly used, questions remain about their consistency, effectiveness and impacts on outcomes. On page 12 of the explanatory notes, paragraph 46 states that
“recommendations are not always being acted upon”,
which is contributing to
“the perpetuated detention of people with a learning disability and autistic people, often without therapeutic benefit.”
That is really significant. To that end, how many CETRs are conducted annually and what are the mechanics in place to ensure that the reviews lead to meaningful change in care, rather than becoming a procedural exercise? I must admit that I struggled to find that information. If I, as someone looking into it, am struggling, there is a concern about how wide that information and data is.
Gregory Stafford
Given that we have discussed the proposed new sections in depth, I do not intend to dilate upon this clause for long. Suffice it to say that the Opposition, notwithstanding the questions asked by the shadow Minister, support the clause, which is essential to ensure the safeguards and progress that we are trying to achieve through the Bill.
Clearly, the clause is prevention-focused and helps avoid unnecessary and traumatic hospital admissions. It leads to better planning because it supports tracked admission of services tailored to individual needs. It also has an element of legal accountability, given that it makes it a legal duty for ICBs to monitor and support at-risk individuals. It is also data driven because it encourages the use of real-time data to inform care decisions.
That being said, a number of the concerns that we raised during debate on the amendments apply to the clause itself. In the Minister’s summing up, can he touch once again on the privacy concerns, as well as the resource demands and the risk of stigma? By that, I mean that being placed on a register could be seen as labelling or pathologising. How do we ensure that the register does what it is supposed to without that risk? Can he also touch on some of the vague criteria and definitional phrases, such as “at risk”, and how they might potentially lead to inconsistent application?
Stephen Kinnock
I am conscious that we will be voting imminently, so I will try to rattle through. Going back to my phrase “the red thread”, the thread running through all the shadow Minister’s questions is delivery. The proof of the pudding in all legislation is whether we convert it into action in a way that best delivers for the interests of the British people, and in a way that absorbs the risks, builds resilience in the system and ensures that we are constantly monitoring, evaluating, reviewing and learning from what is happening on the ground and, through a constant process, improving delivery.
The shadow Minister asks some very good questions, but the problem is that so many will relate to the work that we need to do at pace as soon as the Bill receives Royal Assent. This is a sequential process; we first need the legislation and the comprehensive spending review, so that we know our funding package. We then need to start work consulting on the code of practice, getting that feedback and shaping a plan that defines what good community services look like, because we all know that we are a million miles from having good community services at the current time. We are in a state of crisis and the system is on its knees; we are very conscious of all those facts. There is an immense urgency with all this.
The shadow Minister asked about evaluating and updating pathways and CETRs, duty to respond, the information collected, managing the risks, preventing paternalism and ensuring that people do not get labelled. All those things will have to be set out and explained in the project plan. That is something we will all be working very hard on as soon as the Bill gets Royal Assent.
One of the shadow Minister’s factual questions was on how many CETRs have been issued. I cannot give him that number, but I can tell him that, as set out in the impact assessment, 86% of in-patients received a CETR in the last year. If my answer that this is about delivery does not satisfy him and he thinks there are issues that relate directly to the Bill rather than to the implementation plan, I am happy to write to him on that.
Dr Evans
I appreciate what the Minister is saying. The blue threat, or blue and yellow thread, running through the debate is the question of how much needs to be in the primary legislation. The argument from the Conservative side has been that, while some of the Lib Dem amendments are too restrictive, the danger is that the freedom and flexibility at the Government’s end is too loose. I trust the Minister implicitly—but, having seen Ministers on our side come and go, there could be a change within Government or a change of colour of Government, and no Government are bound by the one that went before.
I am trying to get the balance right by asking questions around procedure to assess whether some of these things should be in the legislation. I agree that there has to be a balance. That is why the Opposition chose to say 18 months, as opposed to four months; it was to have accountability and safeguards in place and to urge good delivery, but not to curtail the ICBs or clinicians—the people delivering stuff—and make them simply check boxes.
I appreciate the Minister’s offer to write to me. I would be grateful for that data, because where we find it will be important in future debates and in his future written or oral statements. I hope he understands that these probes are to make sure that we get the balance right between primary legislation, what is going in the code of practice and what is well intentioned, but could be left to blow in the wind.
Stephen Kinnock
That is a valid question, and one that has probably been asked in pretty much every Bill Committee that has ever taken place. It is always a challenge to get the balance right, having the right level of steer to the system in primary legislation without tying the hands of the system. Everything is constantly evolving, particularly in the age of technology in which we live, so it would be foolish to tie our hands too tightly given the changing nature of the landscape we are working in.
My answer to the question—I say this personally and from the point of view of the Government—is that we are satisfied that we have the balance more or less right. That is in the eye of the beholder, and not everybody will agree, but we feel that clause 4 gets that balance right, and sends clear signals to the system through primary legislation. The proof of the pudding will then be in the eating, and that is for the code of practice, the regulations and the programme planning. On that basis, I commend the clause to the Committee.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Grounds for detention
Dr Shastri-Hurst
I beg to move amendment 52, in clause 5, page 11, leave out lines 20 to 22 and insert—
“(b) in the case of a patient who lacks capacity or competence to consent to admission for assessment (or for assessment followed by medical treatment), serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained by a constable or other authorised person, or in the case of a patient who does not lack capacity or competence to consent to admission for assessment (or for assessment followed by medical treatment) serious harm may be caused to the health or safety of another person unless the patient is so detained by a constable or other authorised person; and”
The Chair
With this it will be convenient to discuss the following:
Amendment 53, in clause 5, page 11, leave out lines 27 to 29 and insert—
“(b) in the case of a patient who lacks capacity or competence to consent to admission for medical treatment, serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment, or in the case of a patient who does not lack capacity or competence to consent to admission for medical treatment, serious harm may be caused to the health or safety of another person unless the patient receives medical treatment,”
This amendment, along with Amendment 52, would add to the grounds for admission to hospital for assessment or treatment that the patient must lack the capacity to consent to that admission, if they would not be detained due to being a risk to others.
New clause 24—Application in respect of patient already on hospital grounds—
“(1) The Mental Health Act 1983 is amended as follows.
(2) In section 5(1) (Application in respect of a patient already in hospital), after ‘or,’ insert ‘that the patient has attended a hospital or been brought to a hospital to seek help or admission as a patient or,’”
This new clause would allow people who have attended or been brought to a hospital to seek help or admission as a patient to pursue an application for admission under the Mental Health Act.
Dr Shastri-Hurst
All the amendments in this group have been tabled in the name of my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer). Amendments 52 and 53 deal with grounds for detention and treatment—specifically, with how those grounds differ depending on whether a patient has the capacity or competence to consent.
At the heart of both amendments is the simple but vital proposition that capacity matters, not only ethically, but legally. The ability of an individual to make decisions about their own care must shape the basis on which the state may act against their will.
The revised wording introduces an important distinction between the two scenarios, where a patient lacks capacity and where they retain it. In the first case, where a patient cannot consent because they are unable to understand or weigh up the relevant information, then serious harm either to the patient or to others may justify detention or compulsory treatment. However, in the second case, where capacity is intact, the threshold for overriding a person’s autonomy is rightly higher. In such circumstances, the justification for intervention must rest solely on the risk of serious harm to other people.
This is more than legal tidiness; it is a matter of fundamental rights. The law should not permit the detention or forced treatment of a capacitated individual on the basis of a paternalistic judgment about their own safety—that is not a liberal mental health framework, but an arbitrary power. These amendments achieve something critical: they preserve the protective duty of the state, particularly to those who cannot protect themselves, but they do so without blurring the line between necessary intervention and justified intrusion. They are grounded in legal precedent, echoing the principles found in common law, the Mental Capacity Act and article 5 of the European convention on human rights. They introduce clarity where ambiguity once stood, and they ensure that the Bill reflects both compassion and constitutional restraint. [Interruption.]
The Chair
Order. We are now expecting three Divisions. I will therefore suspend the Committee for twenty-five minutes, until 5.30 pm—[Interruption.] Four Divisions? We have only been informed about three. [Interruption.] Yes—we would like you all back at 5.40 pm.
Chris Bloore (Redditch) (Lab)
On a point of order, Ms Furniss. Could we have some clarity on what adjourning the Committee right now would mean? Several members of the Committee have not returned from the Division, and it would be good to know the implications if we adjourn now.
Aphra Brandreth
The Conservative members of the Committee all came back at 5.40 pm, when we were asked to return.
Stephen Kinnock
My understanding was that we would all come back after the final vote, which was on Third Reading.
The Lord Commissioner of His Majesty’s Treasury (Taiwo Owatemi)
I am the only one who can move the Adjournment.
Gregory Stafford
That is not true. Any member of the Committee can move the Adjournment.
Gregory Stafford
On a point of order, Ms Furniss. I called for a Division on the Adjournment before several members of the Committee who are now in the room came back. What is your ruling on whether members who were not here when the Division was called will be allowed to vote?
Chris Bloore
With the greatest of respect to the hon. Member for Farnham and Bordon, I clearly asked my question before the Question was put. We therefore have not divided yet.
The Chair
You wanted to know what adjourning now would mean for the progress of the Bill, and it would mean that we have to restart where we finished, so Thursday could be a longer day.
Dr Evans
Further to that point of order, Ms Furniss. To follow up on what the Government Whip, the hon. Member for Coventry North West, said, when a vote was called—although I appreciate that it was not carried on the voices—a number of members of the Committee who have since returned were not present.
Ms Furniss, could you speak to the Clerk to clarify at what point the Committee divided? There was a very clear point at which the Adjournment was moved. I appreciate it is your call whether the Question was carried on the voices, but you said that it seemed to have been carried, which implies that the Committee should now adjourn. I appreciate that there are some difficulties.
Taiwo Owatemi
Members have 15 minutes to get back when a Division is called in the House. The 15 minutes had not elapsed when the Adjournment was moved. How can the vote be allowed to stand when the rules say that members of the Committee have 15 minutes to get back?
Gregory Stafford
Ms Furniss, your ruling, as I am sure Hansard will show, is that we were required to come back at 20 minutes to 6. Opposition members of the Committee were back at 20 minutes to 6, and few others were here. You did not suspend the Committee again when the House divided on Third Reading because you were not here, and therefore the 15-minute rule cannot apply.
Taiwo Owatemi
When the previous vote was called, I made it very clear to the Committee that we had three votes plus a vote on Third Reading.
Gregory Stafford
The Chair said that we must be back here at 20 minutes to 6, and that the Committee would be suspended until that point. We have not been suspended since then.
The Chair
Arguing about whether we were here or not is not moving us on, is it? We need to know what we are going to do now, so let us stop there. I think the Government Whip will agree that if we adjourn the debate now, the business will resume on Thursday. The Committee has another eight sittings after that, so you should have time to catch up. That is what it would mean.
Question put, That the debate be now adjourned.
The Chair
I call Dr Neil Shastri-Hurst to continue speaking to amendment 52 and the other amendments in that group.
Dr Shastri-Hurst
It seems a lifetime ago since I was last on my feet. I am sure the Minister was waiting in anticipation for the crescendo of my speech. He heard my observations on amendments 52 and 53, and I know he will be mindful of ensuring that the balance between intervention and detention is held in equilibrium. I would be grateful if he addressed the points I raised before the interlude in his response.
New clause 24 would amend section 5(1) of the Mental Health Act 1983 to clarify that a formal application for detention can be made not only for a patient already admitted to hospital, but for individuals who have attended or been brought to a hospital seeking help or admission. It would therefore expand the legal basis for initiating detention procedures under the Act.
The new clause makes an important distinction. While the Act currently allows for the detention of an individual who is already an in-patient, there is ambiguity about whether that applies to individuals who are on hospital grounds—who have attended A&E, for example—but have not yet been formally admitted as a patient. In those cases, the Act fails to capture people who arrive voluntarily or are brought to such an institution during a crisis.
New clause 24 seeks to close that gap by explicitly allowing an application for detention to be made in such circumstances, ensuring that a timely intervention can occur when necessary for safety or treatment. A number of significant benefits would arise from the new clause. It would provide firm legal clarity; remove any ambiguity about when detention procedures can begin; allow timely intervention, enabling quicker responses for an individual in crisis who is already at hospital but has not been admitted; reduce the risk of harm by allowing earlier application of safeguards; and align the legal framework with the reality of hospital procedures. The distinction between those who are in attendance at a hospital and those who have been admitted in a state of crisis is a false one.
Dr Evans
Like me, my hon. Friend has served as a clinician on the frontline. As this point is sometimes lost, can he explain the practicalities of what turning up at a hospital versus actually being admitted means? They are two distinct things. Can he walk us through what the process entails?
Dr Shastri-Hurst
My hon. Friend is right. An individual can attend an emergency department to be assessed and be seen by a doctor before a decision is made on whether that patient should be admitted to that hospital, transferred to a tertiary centre or discharged back into the community. New clause 24 seeks to provide clarity and certainty for practitioners on that grey area and, crucially, it seeks to provide a safeguard for patients who have yet to be formally admitted to an institution—a hospital, community placement or wherever—but need a crucial intervention.
Dr Evans
Amendment 52 would amend clause 5 to introduce an important distinction in the grounds for detention under section 2 of the Mental Health Act, namely on whether a person has the mental capacity or competence to consent to admission. This amendment, tabled by my hon. Friend the Member for Runnymede and Weybridge, raises questions that go to the heart of how we balance liberty and protection, autonomy and risk in our mental health system.
Under the current Mental Health Act, and indeed under the Bill as drafted, an individual can be detained for assessment if they are experiencing a mental disorder and if serious harm could be caused to themselves or others unless they are detained. There is no distinction based on whether they have the capacity to consent to care. In other words, a person who has full understanding and decision-making ability may still be detained against their will to protect them from themselves.
The amendment proposes a change to that approach, so that if someone lacks the capacity to make a decision about admission and treatment, the current protection should apply—they can be detained if they are at risk of harming themselves or others. But if someone has capacity, understands what is happening and what the risks are, and still refuses care, they should be detained only if they pose a risk to others and not just to themselves.
I will give a brief example to try to bring that to life. Imagine a young adult, aged 22 and living with long-standing depression. They have attempted suicide in the past, but they now clearly and repeatedly say that they do not want to be admitted. They understand the risks, are coherent, consistent and judged by clinicians to have capacity. Under the Bill as it stands, that person could still technically be detained, but under this amendment they could not unless they pose a risk to someone else.
Why does this amendment have merit? There is much in it that is compelling. It puts autonomy at the centre of the mental health framework, which the Committee discussed and agreed on earlier. It aligns more closely with the Mental Capacity Act 2005, which already allows people to make unwise decisions so long as they understand what they are doing. It also echoes the principles in the UN convention on the rights of persons with disabilities, which calls for supported decision making over substitute decision making. It could reduce unnecessary or overly paternalistic detentions, especially of people from marginalised groups who are already disproportionally affected by coercive care.
Gregory Stafford
I am interested in the points that my hon. Friend is raising. Could he give any examples of the situations he is talking about? It would help the Committee, and certainly help me, to understand the practical realities of what he is talking about.
Dr Evans
I will try to elucidate a little further. We know that some people have fluid capacity, such as those with dementia or depression. How do we ensure that people have safeguards for themselves and the wider community, while respecting their capacity and allowing them to be masters of their own destiny? The Bill literally says that we want to see individual autonomy, and by definition, there is always a balance to be struck. The Bill shifts more to the paternalistic side, which brings some challenges because it could create gaps in protections, as I will explain.
There are clinical situations in which a person in mental health crisis—for example, in the early stages of a manic episode or a severe personality disorder crisis—may present with superficial capacity but be at grave risk of harm. Are we confident that clinicians can assess capacity accurately in real time, in often pressured and emergency contexts? Might we inadvertently tie the hands of practitioners trying to prevent suicide or serious self-injury? If capacity becomes the gateway to protection, what support and guidance will be provided to ensure that it applies fairly, consistently and safely?
That is important when we talk about detention, because detaining people is one thing; the next thing is how we get them out. To understand that, it is worth focusing on the crucial interaction between the Bill and liberty protection safeguards. It is worth my briefly explaining to the Committee what LPS are, how they evolved and why they matter. Liberty protection safeguards are the new legal framework that replaces the old deprivation of liberty safeguards, or DoLS. DoLS were designed to protect people who lack capacity, but had become widely criticised as complex, slow and limited mainly to hospitals and care homes.
In response, the Conservative Government introduced LPS through the Mental Capacity (Amendment) Act 2019, to simplify the process and extend protections to community settings such as supported living and people’s own homes. Given that we are talking about Darzi’s shift, that is important. With that context, I turn to the key concerns before us today: how the Bill interacts with LPS, especially when individuals move from hospital detention to community care.
To illustrate why this matters, let us consider the case of Mrs A. She is a 55-year-old woman with bipolar disorder and mild dementia. She was detained under the Mental Health Act after a severe manic episode put her at risk. While in hospital, the Act governed her detention and treatment. After several months, Mrs A stabilises enough to be discharged, but because of her dementia, she lacks the capacity to consent to her care arrangements in the community. She requires supported living, with 24/7 care, which means that she will continue to be deprived of her liberty, but now in the community. Because she is no longer detained under the Mental Health Act upon discharge, the liberty protection safeguards must authorise the deprivation of liberty in the community.
This requires careful consideration. An LPS assessment and best intention decisions are required, and formal authorisation must be in place before she leaves hospital. This transition point is critical, because without clear protocols, Mrs A could find herself deprived of liberty without lawful authorisation—a breach of her human rights. Information sharing between hospital staff, community providers and local authorities may be delayed or incomplete. There may be confusion among professionals about who is responsible for co-ordinating the handover. Training gaps might lead to the inconsistent application of safeguards.
The Bill reforms detention in hospitals, but there is some opacity regarding how the handover to LPS in the community will be managed. Will the Bill ensure a seamless transition, with no gaps in safeguards? If it does not, then how will this be provided? Will there be statutory duties to mandate information sharing and co-ordinate reassessments? How will professionals across health and social care be trained to navigate both systems effectively?
The Bill rightly aims to reduce inappropriate detentions and enhance patient autonomy in hospital, but protections under LPS in the community must be equally robust to maintain dignity and rights post discharge. How will the Government guarantee parity of safeguards across settings? The Bill also seeks to address disproportionate detention rates among ethnic minorities. We must be equally vigilant that the reforms and the wider LPS regime do not perpetuate inequalities once individuals leave hospital. We therefore need to ask the questions: what monitoring is done and what safeguards will be in place?
On detention, I gently ask the Minister to clarify the Government’s plan to manage the vital interface between the Mental Health Act and LPS, even as the Bill stands, to embed clear statutory duties, guidance and accountability to protect all individuals like Mrs A throughout her care journey.
What is the Government’s view on distinguishing between those with and without capacity in the context of detention for self-harm risk? Has the Department assessed the clinical and operational implications of requiring real-time capacity judgments before detaining someone at risk to themselves? Will the Government consider a limited override provision in extreme cases where the risk is immediate, catastrophic and the capacity assessment is finely balanced? We will see more of these kinds of cases as we go forward, with more and more people living with the likes of dementia or acquired brain injuries.
If the Government do not support the amendment as drafted, might they consider refining the code of practice to provide clear guidance on how capacity, autonomy and right to self are waived? The amendment presents a thoughtful and principled intervention. It is not perfect in my eyes, but it challenges us, rightly, to consider whether our mental health laws strike the right balance between protection and personal freedom.
Amendment 53, like its partner on section 2, reflects a growing consensus that the law should better respect the autonomy of people with mental health conditions, especially when they have the capacity to make informed decisions. In introducing a necessary distinction, if someone can truly understand the consequences of refusing treatment and they pose no risk to others, should the state override their decision on their own behalf? The amendment would add a capacity-based distinction into section 3, mirroring the earlier amendment on section 2. Specifically, if a patient lacks capacity to consent to a medical treatment, they may be detained if there is risk of serious harm to themselves or others. If a person has capacity, they may be detained only if there is risk to others. In short, if a person is mentally unwell but understands the consequences of refusing treatment in this case and only poses a risk to themselves, they would not be eligible for detention under this amendment.
Imagine a woman with anorexia nervosa who is dangerously underweight, has a good understanding of her condition and the risk, and refuses in-patient treatment. Under the Bill as it stands she can be detained, but under the amendment if she is judged to have capacity and only poses a risk to herself, she could not be detained under section 3. Therefore, there are huge and far-reaching consequences to the amendment. The wider science is moving towards capacity, but it needs to answer some of these questions. Some are even being grappled with now—take the Terminally Ill Adults (End of Life) Bill. This truly cuts to the heart of humanity and I am sure there are varying views not only across the Committee, but across society. Similar questions will arise when it comes to capacity.
To that end, the question posed is not simple. In some cases, such as severe anorexia or chronic suicidal tendencies, capacity may be technically present but clinically contested. The stakes could not be higher. The amendment challenges us, and therefore the Government—and rightly so—to ask: are we doing enough to balance liberty and care? Do we have the right clinical tools, legal thresholds and ethical safeguards in place?
New clause 24 is on a different but related subject. This Back-Bench amendment relates to the application for admission in respect of patients who are already on hospital grounds but have not yet been formally admitted. This is really important, because it comes down to the ability. As my hon. Friend the Member for Solihull West and Shirley said, when it comes to the mechanism this is the day-to-day reality. Someone, just because they turn up in A&E, is not under the care of A&E per se until they are admitted. That is when the clinicians will take control. If they just give their name, at what point do we have that grey area? That is the matter of contention in day-to-day working.
Currently, under section 5(1) of the Mental Health Act, applications for detention or admission can be made only in relation to patients who are already admitted to hospital—that is the key part. This leaves a grey area for people who come to hospital voluntarily, perhaps by walking into A&E and seeking help or being brought by an ambulance or the police, but have not yet been formally admitted. The amendment would explicitly allow applications for admission to be made as soon as someone attends or is brought into hospital to seek help, even before formal admission.
Gregory Stafford
I rise to speak to amendments 52 and 53, tabled by my hon. Friend the Member for Runnymede and Weybridge and moved by my hon. Friend the Member for Solihull West and Shirley. Clearly, both my hon. Friends have significant clinical experience, and I bow in many ways to their expertise. However, the amendments cause me some concerns.
Amendments 52 and 53
“would add to the grounds for admission to hospital for assessment or treatment that the patient must lack the capacity to consent to that admission, if they would not be detained due to being a risk to others.”
Clearly, both amendments would introduce a capacity-based distinction in the grounds for detaining a person for medical treatment under the Mental Health Act, as my hon. Friend the Member for Hinckley and Bosworth mentioned. That would ensure that, for patients who lack capacity or competence, detention is justified if serious harm may be caused to themselves or others unless they receive that treatment. For patients who have capacity or competence, detention is justified only if serious harm may be caused to others unless they received that treatment.
The amendments build on the principle of autonomous individuals, which we have talked about and which, as my hon. Friend said, is in the Bill. People should not be detained solely for their own protection if they are capable of making informed decisions about their care. As my hon. Friend said, that aligns with the Mental Capacity Act and broader human rights principles, aiming to ensure that detention is used proportionately and, most importantly, ethically.
Where the two amendments improve the current legislation is around the strengthening of patient autonomy by limiting the detention of capable individuals to cases where others are at risk. The amendments align the Bill with the human rights principles and the Mental Capacity Act, and clarify a number of legal thresholds for detention, reducing ambiguity in clinical decision making. That will help clinicians to make more sensible and consistent judgments when it comes to who should or should not be detained. Obviously, the amendments promote a proportionality element in the use of coercive powers, and support the person-centred care that we want.
However, I am concerned that the amendments may increase complexity when assessing capacity in applying the correct legal tests. It will absolutely require training and guidance. Government Members have been concerned about mandatory training, and I make no apologies for hoping there would be significant training on this for clinicians when acting in this role, to ensure consistent application of these services. While I accept that the provisions clarify the legal thresholds, I think there is a potential for legal challenges if the distinction is misapplied or misunderstood, hence the need to return to my point about having the correct training. I hope the Minister is able to address some of those concerns, rather than just dismissing the amendments outright.
New clause 24 was tabled by my hon. Friend the Member for Runnymede and Weybridge and moved by my hon. Friend the Member for Solihull and West Shirley—
Gregory Stafford
I am doing my best—I will get it right by week three, I promise.
New clause 24 would allow people who have attended or been brought to hospital to seek help or admission as a patient to pursue an application for admission under the Mental Health Act. As other Members have mentioned, section 5(1) of the Mental Health Act allows for the detention of individuals who are already in-patients. However, there has been ambiguity about whether that applies to individuals who are on hospital grounds but not yet formally admitted; for example, those who arrive voluntarily or are being brought in during a crisis. New clause 24 seeks to close that gap by explicitly allowing applications for detention to be made in such circumstances, ensuring that a timely intervention can occur when necessary for safety or treatment, according to my hon. Friends the Members for Solihull West and Shirley and for Runnymede and Weybridge.
I listened carefully to my hon. Friends on the benefits of the new clause, and I accept some of them. However, I have some concerns about deterring people from turning up to a hospital setting, either for some other treatment or to visit friends or relations. I am worried that people would be concerned that they would be forcibly sectioned or detained without their consent by just turning up. There is a real risk of overreach in new clause 24. If we go back to the point about autonomy, people need to have assurance about when and where they will potentially be detained when they seek voluntary help.
The line between voluntary attendance and involuntary detention is the nub of the new clause. While I accept the arguments that have been made by my two hon. Friends, I am not thus far convinced that the balance in the clause is correct, but I am hopeful that the Minister can give some clarity.
Anna Dixon
I have a great deal of respect for the hon. Member for Runnymede and Weybridge. I have worked with him on some aspects of the Terminally Ill Adults (End of Life) Bill; he brings great expertise as a psychiatrist, and an understanding of the Mental Capacity Act that is perhaps greater than mine and that of some Members of the Opposition. However, even though I respect the hon. Member for Runnymede and Weybridge, does the hon. Member for Farnham and Bordon recognise that we need to ensure compatibility between the Mental Capacity Act and the Bill before us? I hope the Minister will be able to assure us that the legal checks have been done and that the proposals before us are compatible. Given that pre-legislative scrutiny was carried out under the previous Government, I am sure that process fully got to the bottom of these issues, and I therefore hope that we can move on.
Gregory Stafford
Just in case my hon. Friend the Member for Runnymede and Weybridge is not following this Bill in Hansard, I will pass on the hon. Lady’s compliments to him. Like her, I have great respect for him; I am not trying to denigrate his great work on the amendments and the new clause. All I am suggesting is that, from a layperson’s perspective, there are some elements that need tightening up, if not changing altogether. I take the hon. Lady’s point about pre-legislative scrutiny, but obviously these amendments and the new clause were not part of that because they have only just been tabled. I therefore think it is entirely appropriate to be debating them now.
Dr Evans
I have spoken to my hon. Friend the Member for Runnymede and Weybridge and looked into this issue a bit further. Psychiatry is already looking towards future capacity and trying to bring the two pieces of legislation together. I believe that Scotland has already moved in that direction. We are therefore into the cycle of chasing legislation for something behind us. I appreciate the concerns, but that is why the Government need to be alive to these situations. At the end of the day, the nub of the issue is patients getting caught up between capacity and safety under the Mental Health Act. Does my hon. Friend agree?
Gregory Stafford
I thank my hon. Friend for his extraordinarily helpful intervention. I was not aware of the changes, and I certainly had not heard of fusion before, or about what is going on in Scotland. Of course, if the new clause had already been enacted in another part of the United Kingdom in some form, I would be much more comfortable with it. But, as I said in relation amendments 52 and 53, if the new clause is to pass in its current form in this Bill or in some future form in another Bill, there has to be a focus on proper training and guidance. Because there is potentially such a legal quagmire, we must ensure that people understand the legal framework within which they can do this.
Stephen Kinnock
Once again, I am grateful to the hon. Member for Solihull West and Shirley for moving the amendments and the new clause on behalf of the hon. Member for Runnymede and Weybridge.
I will first speak to amendments 52 and 53. The new detention criteria explicitly require decision makers to consider the risk of serious harm and the likelihood of harms occurring in order to justify detention. It is right that clinicians have the power to intervene when a patient is at risk of seriously harming themselves, both when they do and when do not have mental capacity.
If we were to accept the amendments and the new clause, we think that patients would be left without the protections that the Mental Health Act provides. For example, let us consider a patient with a serious eating disorder who is assessed as having capacity but is refusing treatment. If there were no longer an option to detain that patient under the Mental Health Act, that could leave clinicians and families without a route for treatment, potentially leading to tragic results.
The pre-legislative scrutiny Committee highlighted concerns about cases where the concept of capacity had been used to justify denying individuals care that they had sought voluntarily, particularly in relation to very ill and potentially suicidal patients. That goes against the spirit of the Mental Health Act and could fall short of professional standards.
Patient choice is, of course, critical, and the changes that we are making recognise that when patients have a say in their treatment, they are more likely to engage. We also think that it is right that when those decisions put people at risk of serious harm, including risk to their own life, there is a duty to intervene.
We recognise that detaining and treating patients with capacity without their consent is a very serious step to take. However, we think that it is right that we intervene when someone is a risk to themselves, not just to other people. That is in line with the Government’s commitment to delivering a cross-sector suicide prevention strategy for England. We should deprive somebody of their liberty and detain them only as a last resort. The threshold of serious harm in the new criteria reflects the gravity of that decision.
Dr Evans
I am grateful to the Minister for how seriously he is taking this issue, and I agree that there is not necessarily a consensus even within the Opposition. Having the debate is therefore really important. It may be useful to collect data on the number of incidents and where these handovers are. Would the Government commit to that? We would be better able to have this debate, and to decide how much of a problem this is and to work out what the solutions are. Again, I struggle to find data that indicates where this is an issue, but I have spoken to clinicians who I know and colleagues who I have worked with when I have seen it. It happens enough that I was aware of it as a bog-standard GP who has worked in A&E, but it is clearly not rampant and we are not seeing it every single day. Would the Government commit to collecting data on it? If so, in what format would it come?
Stephen Kinnock
I ask the hon. Gentleman to clarify his question about data collection. Is he looking for clarity on the number of people who are judged to have mental capacity but who trigger the deprivation of liberty condition because they are seen to be either of severe risk of harm to themselves or to society?
Dr Evans
That would be a very useful piece of data, but I was in fact talking about new clause 24 and the grey area of hospital detentions. That data is probably easier to collect. I specifically ask the Minister to keep in mind the collection of data on those who turn up to A&E but end up having to be taken out of the hospital to be sectioned, for example. That is the nub of the issue and the practicality of what is going on. In a number of incidents, although the law is set in a way that is supposed to be helpful, the interface unfortunately becomes very difficult.
The Minister has rightly pointed out that there are different ways to deal with this. The new clause is one such potentially heavy-handed way of dealing with it. At the same time, it comes from the good place of trying to address what clinicians deal with in A&E day in, day out. However, we need some data and some teeth behind that to understand and appreciate how much of a problem it is and to then come up with a solution. I hope that clarifies my question.
Stephen Kinnock
That does clarify it. I will absolutely discuss that with officials. It is clear that we need a complete picture of the prevalence of people reporting to emergency departments and then having to be extracted from them and put into other facilities. That is an important point. We clearly need to think more about this issue and consult further. Obviously, understanding the data is a very important part of that. I cannot give the hon. Gentleman a nailed-on commitment to do that, but I give him a nailed-on commitment to discuss it with officials. It is possible that the data is already out there. We need to find that out.
We have heard concerns that there is a lack of clarity about what legal powers are available to health professionals to hold someone in emergency departments until they can be assessed. However, it is a complex issue that requires extreme care and caution. We have committed to continue to explore the issue. We will engage with stakeholders to understand how the current legal framework is applied, and identify solutions to the problems raised. We will provide further guidance on the existing legal framework, including the handover process from police to health, in the next revision of the code of practice. We are also taking steps to address current operational pressures. NHS operational and planning guidance for this year tasks local health systems to improve patient flow through mental health crisis pathways and to reduce waits of more than 12 hours in emergency departments.
Anna Dixon
Will the setting up of more health settings—places of healthcare and of safety—help to address the issue?
Stephen Kinnock
Yes, I think that is right. We have a commitment to creating—either building or repurposing—facilities for more acute mental health settings. We have also created the 111 mental health line. We have a commitment to 8,500 more mental health specialists. We are committed to having a mental health-trained person in every school in the country.
I hope that all those wraparound measures will help in the overall role that we play in the community, and identify people with challenges in a way that will help to support them and, one hopes, avoid them getting to the acute stage. My hon. Friend is absolutely right to point to some of the wraparound measures that the Government are pushing forward.
For the reasons that I have outlined, I ask the hon. Member for Solihull West and Shirley not to press amendments 52 and 53 and new clause 24 to a vote.
Dr Shastri-Hurst
I have listened carefully to the Minister, who has addressed the issue with his usual thoughtfulness. I ask that he looks into sharing that data, particularly around new clause 24, but on the basis of the reassurances that he has provided, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned.—(Taiwo Owatemi.)
Mental Health Bill [ Lords ] (Third sitting)
Thursday 12th June 2025
(1 month ago)
Public Bill CommitteesMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 June 2025 - (12 Jun 2025)
The Committee divided: - Ayes: 11 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 11 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 11 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 11 / Noes: 4 - Question accordingly agreed to.
The Minister for Care (Stephen Kinnock)
I beg to move amendment 26, in clause 5, page 11, line 22, leave out—
“by a constable or other authorised person”.
One of the tests for detaining a person under the mental health legislation is that harm may be caused, or that treatment is not possible, without detention. This amendment and amendments 27, 28 and 29 remove wording stipulating that the detention that is necessary must be detention by a constable or other authorised person (as defined).
The Chair
With this it will be convenient to discuss the following:
Government amendments 27 to 29.
Clause stand part.
Stephen Kinnock
It is a pleasure to serve under your chairship, Ms Furniss.
Government amendments 26 to 29 seek to remove previous amendments to the clause tabled by Lord Kamall, Earl Howe and Baroness May of Maidenhead, which added police and other authorised persons to sections 2, 3 and 5 of the Mental Health Act 1983, giving the police additional powers to detain people under the Act where they currently have no powers to intervene. We do not support extending police powers in that way, and we understand that the police do not support an extension either. It would not be appropriate to involve police officers in clinical decision making about whether a person meets the criteria for detention for assessment or treatment under the Act, or to involve them unnecessarily in the temporary detention of patients who are already in hospital to enable a Mental Health Act assessment to take place. We also seek to remove clause 50 from the Bill; we look forward to discussing that at the appropriate time on a future day in Committee.
I will now move on to clause 5 in its entirety. The grounds for detention provide decision makers with criteria that must be applied when deciding whether it is appropriate to detain, or to continue to detain, a person under the relevant sections of part II of the Mental Health Act, covering civil patients. The clause will replace the existing criteria, which the independent review of the Mental Health Act found were too vague, and will take forward changes recommended by the review. It will strengthen and clarify the criteria to require a risk of “serious harm” to justify detention. Consideration must also be given to the nature, degree and likelihood of the harm. For a patient to be detained for treatment under section 3, there must be a “reasonable prospect” of therapeutic benefit.
The code of practice already directs clinicians to consider the “nature”, “likelihood” and “severity” of harm. We believe it is right to formalise those considerations by putting them in primary legislation. We have not defined serious harm in the Bill. We will work with stakeholders to provide guidance on that in the code of practice. We are not seeking to raise the bar on detention, which could put patients and the public at risk. However, we think that when the serious decision is taken to deprive someone of their liberty, and potentially to treat them against their wishes, there needs to be consistent consideration of the potential risk of harm to a person or to others to justify that.
The revised risk criteria will not apply to part 3 patients. There are already tailored risk criteria for patients in the criminal justice system. Those are considered by the court and the Secretary of State for Justice, and allow for all relevant factors, including public protection, to be considered on a case-by-case basis. For those reasons, I commend Government amendments 26 to 29 and clause 5 to the Committee.
Dr Luke Evans (Hinckley and Bosworth) (Con)
It is a pleasure to be here on day two in Committee. I will first address clause 5 and then the Government amendments.
The clause marks significant reform to the legal foundations of mental health detention in this country. At its core, the clause seeks to update the grounds for detaining individuals under the Mental Health Act. It will amend several critical sections—sections 2, 3, 5, 20 and 145—to ensure that detention is used only when absolutely necessary and in line with the principle of least restriction, which was put forward in the Wessely review and is now in the Bill.
Let me outline what the changes will do in practical terms, as the Opposition see it. Under section 2 of the Mental Health Act, “Admission for assessment”, detention will now be justified only if “serious harm” may occur to the “health or safety” of patients or others. The decision must weigh the “nature, degree and likelihood” of that harm, a much more structured and risk-based framework than previously existed. Under section 3, “Admission for treatment”, we will see a clearer threshold. Detention will be permitted only if “serious harm” may occur without treatment, if the treatment is necessary, if the treatment cannot be provided unless the individual is detained and, crucially, if appropriate treatment is available.
Section 5(4), on emergency hospital detention, will be updated to align with the same “serious harm” test, recognising that even urgent situations demand clear legal justification. Section 20, which governs the renewal of detention process, will be brought in line with the same standards, such that they apply not just once but every time detention is extended. That is an important safeguard. A statutory definition of “authorised person”, those empowered to detain, will be introduced in section 145, ensuring that such persons are appropriately trained and regulated.
Those changes respond to real and long-standing concerns. The 2018 independent review of the Mental Health Act warned that our current criteria are too broad and that they allow for detention that is often unnecessary, sometimes prolonged and, in too many cases, distressing for patients and families. Clause 5 seeks to change that by grounding detentions in a clear, evidence-based assessment of risk and necessity.
The clause has significant advantages. It will introduce stronger safeguards against inappropriate detention and will shift the focus away from diagnosis alone and towards the actual risk of serious harm. It will offer greater clarity for professionals, giving them structured criteria for making decisions that are ethically and legally sound. It will enhance patients’ rights by aligning the law more closely with the principles of autonomy and proportionate care.
However, with every reform there are challenges, and we must not ignore them. The terms “serious harm” and “likelihood”, although essential, remain open to interpretation. We must ensure that the forthcoming code of practice offers clear, detailed guidance that minimises subjectivity and inconsistency in their application.
Furthermore, there is a question mark over public safety, which the Minister seemed to point to but which I want to explore a bit further. We have not tabled an amendment, but I am keen to understand how this works. Given that the definition is potentially ambiguous and in practice quite difficult to judge, has the Minister considered inserting the words “cumulative” or “escalating”? To be clear, this is a call not to water down those safeguards, but to shore them up with a safety net, so that this reform does not inadvertently trade off liberty against safety, especially in communities.
We need to ensure that we are not inadvertently introducing a real risk that someone, particularly someone on the margins of eligibility, may fall through the cracks. There are individuals whose behaviour is escalating and whose pattern of deterioration is known to services, but who do not yet meet the “serious harm” threshold at the time of assessment. I have seen this at first hand as a clinician—a picture that goes round and round. These are some of the most complex situations that one will ever have to deal with in one’s clinical career. The words “escalating” or “cumulative” may help to give further clarification to clinicians on the frontline.
For those on the margins, what consideration have the Government given to the notion of a duty for professionals to produce a risk management plan in any case in which detention is considered but not authorised, so that we do not simply assess and walk away, but assess and act in a community setting? That would not lower the threshold, but contextualise it. It would ensure that detention remains a measure of last resort, but not too late a resort.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
My hon. Friend is making a powerful point about some of the challenges around the interpretation of the Bill. Does he agree that there needs to be a clear plan for the training of professionals so that there is consistency across the board?
Dr Evans
My hon. Friend is spot on about training. It is one thing to enshrine these measures in primary legislation; it is another thing to have the training and interpretation that go with them. One of the reasons that we have not tabled an amendment on the matter, as yet, is that there could be some concerns about what “cumulative” or “escalating” behaviour looks like. Ask any clinician and they will say that they have seen patients who are on the borderline and are struggling. It can be unclear whether they are within or outside the definition; they could be wavering between the two, given the state of their mental health. That is a real concern, but the broader pattern of identifying the picture of what is happening could be helpful and important.
One way to address the issue would be to review the data and legislation. Would the Government consider carrying out a review two years after the implementation of the Bill, specifically to look at the working of the legislation through the lens of public safety? I hope that there will be no concerns, but that would provide a backstop and a legal safety net. We do not want to wait another 40 years if there are changes that need to be made.
Gregory Stafford (Farnham and Bordon) (Con)
I entirely agree with my hon. Friend’s request to the Government for a review two years after implementation. Does he agree that it needs to be cross-governmental? The Home Office and other bodies such as the Ministry of Housing, Communities and Local Government and the NHS will need to be involved.
Dr Evans
My hon. Friend makes an incredibly important point. We heard on day one how these services interact, and that is completely correct. We need to look through the lens of public safety, because while we are quite rightly enshrining the autonomous nature of the patient as an individual, there is also the question of what we look at as a society. It includes the likes of local councils, mental health care and NHS care. Schooling could also be involved, as well as the judiciary and the Home Office. I think it is reasonable to ask the Government to look at that, in the light of recent high-profile cases, and say, “What are we doing? Does the legislation really do what we think it does?”
Clause 5 is a good step forward, but we must make sure that it is fit for purpose and that we have a review mechanism in place. I do not think that it necessarily needs to be in statute yet, but it will be interesting to hear the Minister’s response. Conducting a review on such a change, through the lens of patient safety, would be very useful.
There is also the matter of resources, which we keep coming back to. Change in detention criteria will rightly push us towards community-based alternatives—that is the whole point of what we are doing—but unless those alternatives are properly resourced with staffing, crisis services, housing and follow-up care, we will risk replacing one form of system failure with another. I appreciate that the Secretary of State is committed to reporting each year to the House, but will the Government publish a timetable and framework to support the implementation?
As we heard from my hon. Friend the Member for Solihull West and Shirley, training is also critical. Professionals need the tools and time to learn the framework. They need support, implemented in real time, often under pressure and in complex, high- stakes circumstances.
Clause 5 is a welcome and thoughtful step in modernising mental health law. It will strengthens patients’ rights, sharpen clinical practice and bring us closer to a system that balances safety, liberty and humanity. However, we must be mindful about the risk of delayed intervention. In borderline cases in which the threshold is not clearly met but concerns remain high, we must ensure that there is still a route to timely, compassionate support. Otherwise, we may swing the pendulum too far in the opposite direction, from the overuse of detention to the underuse of care.
On Second Reading, I said:
“There is little greater moral burden than deciding for someone who cannot decide for themselves where care ends and control begins.”
Clause 5 typifies that burden: we are deciding who should be detained and why. I said:
“Make no mistake, this is what this House is grappling with”,
and indeed it is what our Committee is now looking at in detail. I also said:
“Involuntary care should never be the first instinct or answer, but a resort to prevent harm to both the individual and those around them.”
I said that compassionate care demands precision not only in its delivery, but in its design. I concluded:
“Without precision, we simply have sentiment.”
I promised then, as I promise now, that
“we will endeavour to ensure that the Government’s sentiment becomes a commitment.”—[Official Report, 19 May 2025; Vol. 767, c. 850-851.]
That neatly sets the scene for discussing Government amendments 26 to 29.
Gregory Stafford
Before my hon. Friend moves on to the amendments, I want to press him on the point about training, which my hon. Friend the Member for Solihull West and Shirley brought up. I support the change to the thresholds for detention but, given that it is potentially quite a significant change, what level of training will be required? Does my hon. Friend the Member for Hinckley and Bosworth have any suggestion about how long it will take to train the relevant professionals so that there is consistency when the Bill becomes law? Does he feel that there should be a period of cooling off or training time before this part of the Bill is implemented, so that the training can catch up?
Dr Evans
My hon. Friend makes an important and poignant point. The Government have rightly stated that this change could take up to 10 years to implement, but we need to ensure that the most important safeguards are set out. Elsewhere, the Government have suggested that they will be in the code of practice. When we were discussing section 5 of the Mental Health Act and other issues, I said to the Minister that we need a constructive timetable, not only to know what the roll-out will look like but so that we can consult with the professions and ensure that they are able to deal with it.
Later, we will again discuss the interface between the Mental Capacity Act 2005 and the changes that bring in new tests. That will be really important. We will also discuss the change of statutory safeguards for electroconvulsive therapy and changes to the statutory safeguards around who the second clinician will be—there is quite a feast of movements through this legislation. Make no mistake: that is what the country wants, but the Government must clearly set out some rationale for the timetable.
Unfortunately, the Opposition’s proposal for a costed plan was defeated. We wanted to set out some kind of concrete timetable over 18 months to ensure that we do not slip back, and to give the Government the flexibility to make the necessary cultural and legal changes. I hope that that addresses some of my hon. Friend’s concerns, but he was right to put that point to the Minister.
I oppose Government amendments 26 to 29, which would remove the reference to detention
“by a constable or other authorised person”,
and to delete the proposed definition of “authorised person”. I support the argument advanced powerfully in the other place by Baroness May, whose experience as a former Home Secretary gives her deep insight into the interaction between policing and mental health. Of course, it was under her premiership that the entirety of this discussion was progressed. I thank her for everything she has done, although I am not quite so thankful for the workload that it has created for me in my evenings and weekends. Her central message was clear: we must stop treating mental health as a policing issue and start delivering the right care from the right person in the right place. I wholeheartedly agree, as I am sure the Committee does.
I understand what the Government are trying to achieve. On the face of it, the amendments are technical. They seek to ensure that detention under the Bill is solely based on necessity where there is a risk of serious harm or the need for urgent treatment, and that it is not tied to who is doing the detaining. On paper that sounds reasonable, but in practice those changes will remove vital clarity and will risk baking in a system that has already failed too many people in mental health crisis.
Let us look at the problem with removing “authorised person”. The Bill, as amended in the Lords, wisely recognises the need to broaden the group of people who can respond to mental health incidents so that they include not just police officers, but trained and equipped professionals, mental health nurses, paramedics and approved mental practitioners—people who are qualified to care, not just to detain. The definition of “authorised person” in clause 5(7) ensures that only those with training competence and safety considerations are empowered to act, so it provides a framework for accountability, not a free-for-all. By removing the framework, the Government amendment would create a legal vacuum: it tells us that someone must be detained, but not by whom. In doing so, it would leave NHS trusts, police forces and local authorities with a lack of legal guidance and with a risk-averse default to the police.
I think we agree that the police should not be the first responders. As Baroness May has reminded us, and as many officers have told me, the police are routinely called out to mental health incidents, not because they are best placed to respond but because there is no one else available or authorised. That is neither fair to the police nor fair to the individuals in crisis. A police uniform can escalate distress. A custody cell is not a place of recovery. An officer guarding a patient in accident and emergency for 29 hours, as the Metropolitan police have reported, helps no one—not the patient, not the police and not the public. The 2019 College of Policing snapshot found that 95% of mental health-related calls did not require a police response. That is staggering. It underlines why we must build up the capacity and legal authority of clinical professionals, not erase them from the statute.
I turn to the Government’s argument and why it falls short. The Government’s case is that removing the phrase
“by a constable or other authorised person”
will de-emphasise the police and make the law more flexible. Ironically, however, removing the clarity about who may act risks re-entrenching police dominance in these scenarios, simply because no one else will feel legally empowered to intervene. The Government argue that the definition is unnecessary or potentially restrictive, but I say the opposite: a well-drafted enabling definition gives confidence, clarity and a lawful mandate for healthcare-led responses. This is not about excluding the police altogether. There will always be situations in which an immediate threat to life or serious violence requires a police presence, but that should be the exception, not the structure around which our mental health law is designed.
Gregory Stafford
I think, from what my hon. Friend has said and what the Minister said at the outset, that Members on both sides of the Committee want the same thing, which as far as possible is to keep the police out of the making of these decisions, unless of course—I made this point on Second Reading and was intervened on by the hon. Member for Ashford—someone with a mental health issue has a firearm or something like that. The clear point of dispute is about whether the phrase that was placed in the Bill in the other place achieves that. Would my hon. Friend not agree that someone who has served as Home Secretary and Prime Minister and the noble Lords, who have vast experience in healthcare over many years, have probably got the definition right, which is why the Government should support the wording currently in clause 5?
Dr Evans
My hon. Friend is right: we agree that this is not a place for the police unless there is an absolute sign of criminal intent. The problem is that what happens is a member of the public sees something, reports it to the police and, naturally, it is the police, the fire service or the paramedics who come forward. If a person is unsure about someone behaving in an irrational manner, which by definition someone with a mental health issue could well be doing, the likelihood is that they will call the police and the police will be the first responders. We know that they tend to be the fastest to respond.
Slightly widening and refining the definition of who can respond would allow us to build a framework and culture that might encourage a first responder—we often say that the AA is the fourth emergency service; it may well be that mental health services would be the fifth emergency service and could respond. That is what we need for service provision. The idea behind this is to try to crowbar the police out of that position, unless absolutely necessary, as my hon. Friend rightly says. Allowing a new framework would be good for safety and good for the police, because they would be freed up to do other stuff. More importantly, it would get the care as quickly as possible to the people who need it the most.
Anna Dixon (Shipley) (Lab)
I think there is some agreement between us, in the sense that obviously a police officer is not necessarily best placed to deal with those who are in mental distress. Having spoken to my local police team, I know that they would much rather there were frontline mental health professionals with the capability to take a person to a place of safety that is not a police station. We will come on to that in relation to later clauses, but does the hon. Gentleman agree that we already have some highly skilled professionals who are closely involved in these decisions in the form of approved mental health professionals? The vast majority of them—95%—are social workers. They play a very strong and excellent role, particularly to counterbalance the narrower clinical health perspective that there may sometimes be. Does he agree that, in a way, we already have in place some highly skilled individuals who are closely involved in making sure that these decisions are made in the best interests of the patient and the public, but also with clinical input?
Dr Evans
The hon. Lady makes an incredibly important point about the range of people who can and do respond in such cases. The Opposition are not saying that is a problem; we want to support them by giving them the legal backing and framework to step up to be the first port of call. Unfortunately, by default it is always the police, because they are the only ones whose ability to deal with such situations is covered. The amendment aims to create a culture so that the people she mentions have the confidence to deal with them, and the accountability so that we can say, “The police should not be there first; it should be the first responders that we have.” We are starting to see cross-fertilisation; we are simply providing a legal framework that says that this should be the way forward by default and design, not an exception where people are working around the system.
I think we are on the same page here. It is about the nuances of how we do this, and whether it requires primary legislation. The House of Lords voted that it requires primary legislation, and the Opposition share that belief. That is why I am asking Government Members to reconsider when the amendment comes to a vote whether the balance is right because we would give people the security, legal certainty and ability to do exactly what they want to do, which is to care for patients, not worry about whether there will be some criminal side to the situation, and what the police interaction could be.
Anna Dixon
Obviously, the Lords amendment puts the role of the police into law. I think we agree that we do not want to have the police’s role enshrined in legislation. Over the implementation period for this important Bill, the idea is that community health services will be in place, including urgent response for those who find themselves in crisis. We need to remove this provision to make sure that the default position remains for community support.
Dr Evans
The hon. Lady points to the fact that the police are named, as they should be. Imagine if we took out the police completely—whowould then have the power to restrain, restrict and detain people under the Mental Health Act? That is the whole point of having the provision. What we are trying to do is refine and constrict the definition to make it clear for everyone in this country exactly who is entitled to do what. Emergency incidents could happen outside this House—would the police and mental health responder be there? That will come down to the clinical judgment of the 999 responder, the call handler and the clinician there, so I do not want to make it too restrictive. At the same time, we have to consider the evidence that is right under our nose, which is that 95% of the time the police are being called out inappropriately for mental health conditions. I guess that is the rub of what we are trying to sort out.
Our responsibility in this House is not only to write good law, but to enable better systems of care. That means ensuring that the law empowers the right professionals to act at the right time, and centring the needs of the individuals in crisis, not just managing risk from the top down. I therefore ask the Minister to reconsider the amendments. Instead of deleting the definition of “authorised person”, let us work to try to strengthen and clarify it to support a wider, safer and compassionate response to mental health crises. Let us seize this opportunity to reset the balance between policing and care, which the police themselves are asking for and our continents desperately need.
Much was made of the amendment in the other place, and I am grateful to the Lords Minister, Baroness Merron, for writing to Baroness May with an explanation of her concerns about the changes. The letter is dated 3 June and a copy was kindly laid before this House and the Committee. It is worth working our way through some of the issues raised. I fully recognise the Government’s concerns within it, and I agree with the need for extreme care when legislating on the deprivation of liberty, but I express reservations about the Government’s decision to overturn the amendment.
According to the letter, the Government’s central concern seems to be the unintended extension of police powers. The Government argue in the letter:
“Your amendments to clause 5 would give the police additional powers under the Mental Health Act. We do not support extending police powers in this way, and we understand that the police do not support this extension either.”
That is also what the Minister has said in Committee. Respectfully, that is a mischaracterisation of the amendments. The original Lords amendments do not extend the powers of the police; they reflect current practice where the police are often involved in detaining individuals in mental health crises.
Sojan Joseph (Ashford) (Lab)
Does the hon. Member agree that, since detentions under sections 2, 3 and 5(4) of the Act often happen in clinical settings, are completed by consultants, psychiatrists and social workers, and do not involve police, we do not actually need police presence on these occasions?
Dr Evans
I bow to the hon. Member’s expertise on this; the problem is that all the evidence shows that the police are the first there. I would like to see much more of him and his colleagues being able to respond and carry this out. We are giving them the legal certainty to do so. That is the argument for making sure that we have codified safeguards around who is and is not able to make such decisions. At the moment, it is purely the police who are called out to these situations, but this gives us another legal weapon with which we could fight this inappropriate use.
The aim is to codify the safeguards around who can exercise detention, ensure accountability and, importantly, enable health-led alternatives to police detention. Are the Government confident that the decision does not leave a legal grey area around which profession or agency has the statutory power to detain, especially during urgent community or hospital-based crises?
On the authorised person category in the section 135 and 136 powers, the Government say in their letter:
“Extending these powers to ‘authorised persons’…could potentially lead to staff, patient and public safety issues.
That is precisely why the Lords amendment included a tightly defined category of authorised person, subject to the Secretary of State’s regulation, mandatory training and safety provision. The intent is to ensure that when a professional, such as a trained mental health nurse, is better placed to respond than the police, they can do so lawfully and appropriately.
The Government say:
“Section 135 and 136 powers have been designed for police officers who have specific training, equipment and access to rapid support”.
Many frontline NHS and social care professionals, including AMHPs, crisis team members and community psychiatric nurses, already respond to acutely distressed patients in highly volatile environments. They lack the police powers, but not the clinical expertise. The amendments would bring clarity and lawful backing to the situations they already manage. Take, for example, a mental health nurse in a community who arrives at a person’s home to conduct an urgent assessment. The individual is clearly experiencing psychosis, and is at immediate risk of self-harm. Under the current law, the nurse must call the police, delaying the care and potentially escalating the situation. Under the amendment, they could lawfully detain, provided they are authorised and trained.
There are also confusions over the emergency response roles. The Government letter states:
“There is a very real risk of confusion over who should respond in an emergency if multiple agencies have the same powers, which could lead to delays.”
That concern is valid, but confusion is far more likely under the current law, where roles are unclear and NHS professionals must sometimes act unlawfully or wait for overstretched police. A regulated and accountable authorised person category, established in law and detailed in the code of practice, would clarify responsibilities, not blur them. Have the Government done any modelling of the delays and safety risk caused by not empowering suitably trained healthcare professionals to act in urgent situations?
The letter also highlights concerns from stakeholders that this is
“a radical proposal with a number of serious and potentially dangerous consequences and should not be pushed through without proper consideration”.
These proposals were not developed in isolation; they were advanced in the House of Lords, where the former Mental Health Act reviewers, legal experts and mental health professionals carefully considered their scope. They are also consistent with the direction of the 2018 independent review, which emphasised reducing coercion, racial disparity and the overuse of police powers.
The “right care, right person” initiative already expects health professionals to step in, but—unless I stand corrected—the initiative is not underpinned by any legal reform. Without amending the Act, health staff are still expected to take on crisis care without the powers of protection that they need to safely or lawfully do so. How can we expect health-led responses to mental health crises without giving health professionals the power in law to act?
Turning to guidance and the code of practice, the Government say that they will issue further guidance on police handover protocols and the legal frameworks. While guidance is welcome, it is not a substitute for statutory reform. Guidance cannot grant powers to detain or protect professionals from liability. We can have legal clarity with this framework.
If the Government want to push ahead with removing the amendments, will the Minister consider committing to a formal consultation with NHS England, the AMHP leads, frontline staff and patients on creating a legally robust authorised persons role? Would he consider piloting models of community-based urgent response teams that include AMHPs and trained nurses with delegated powers? Would he legislate for police exit strategies in A&E and community crisis responses that are enforceable, not just guidance based? Given our discussion about new clause 24, there is clearly scope for a sensible piece of work in the grey area to improve the interface for patients, clinicians and police. I think that is one we can all agree on.
Gregory Stafford
I agree with my hon. Friend. I think we agree on both sides of the Committee that, where appropriate, police should not be the first responders to this issue, although, obviously, there will be situations where they should be. If the Government push ahead with removing the amendments, is there any indication in the Bill, or indeed elsewhere from the Government, of what they will do to achieve what Members on both sides of the Committee seem to want, which is to avoid, as far as possible, having the police as the detainers and responders? If there is nothing else, I cannot see why the Government would want to remove the amendments made by the noble Lords in the other place.
Dr Evans
My hon. Friend is absolutely right. Under the last Government, the “right care, right person” initiative was launched with the Humberside police force to try to ensure appropriate care, but that is an example in isolation.
One solution would be to include guidance in the codes of practice, but it would not have the statutory footing to allow that legal certainty, which is the concern. Another would be to include something in the annual statement that we will receive from the Government. We should work collaboratively to try to find a decent piece of work to look for the evidence base and build a delivery plan to help the police extract themselves from situations, when appropriate, and care givers to insert themselves. It is admirable to share a problem that is difficult not just in England but in Wales, Scotland and Northern Ireland.
I agree that the Government are right to proceed with caution, but caution is not the same as inaction, especially when lives are at stake and the law no longer reflects the reality of mental health care. The amendments are not about expanding police powers; they are about reducing the need for police involvement by giving others the lawful authority to act. Although maths may not be my strong point, I am not blind to the make-up of this Committee; I realise that the change will inevitably happen. I want to press the Minister on how he proposes to reduce the burden on the police to safeguard them from thousands of hours spent dealing with mental health crisis issues. In extreme cases, they are not appropriate responders.
This is the key issue to improve so many aspects of our society. We could improve the working life of the police, allowing them to do what they are paid to do, trained to do and passionate about: policing and protecting their communities. We could improve life for the public, because it would free up the police to tackle crime and keep them safe. Most importantly, we could provide the correct care to those patients at their biggest time of need. I hope the Minister will set out how the Government plan to achieve that.
Sojan Joseph
I rise to support the Government amendments, which will simply remove the words
“by a constable or other organised person”.
On Second Reading, I highlighted my concern about the amendments made to the Bill in the other place that sought to extend police powers of detention under sections 135 and 136 of the Mental Health Act to other organised persons, including medical practitioners, approved mental health professionals, mental health nurses or doctors and further healthcare and social care professionals.
I know that the noble Lords who introduced the amendments intended to remove the need for the police to be present at mental health incidents in the absence of any risk. However, they would grant the police greater powers; as an unintended consequence, they would also apply to detentions under sections 2, 3 and 5 of the Mental Health Act, where the police currently do not have power to intervene.
A section 2 application is completed by two doctors and a social worker, and the patient may already be in a clinical setting. Section 3 relates to somebody who is already receiving treatment or already has a known diagnosis in a clinical setting. Doctors’ powers extend to that section; the police currently do not have any role in completing a section 3 application. Section 5(4) provides nurses with a holding power for a patient who is already in the clinical setting, where the nurse believes that the patient is at immediate risk; again, the police have no role.
If we did not make the Government amendments, we would give more power to the police to get involved under those sections of the Mental Health Act and put more pressure on police services.
Gregory Stafford
I am interested in the hon. Member’s argument, but it seems to be entirely the opposite of the one he made when he intervened on me on Second Reading. He said then:
“Sections 135 and 136 of the current Mental Health Act give the police the power to break into someone’s property or detain somebody in a public place where there is the possibility of the involvement of weapons. Does the hon. Member think that health professionals would be able to manage those kinds of situations? Would the police not be the best people to deal with those situations?”—[Official Report, 19 May 2025; Vol. 767, c. 815.]
In that intervention, the hon. Member was pressing for police involvement; now, he seems to be arguing that he wants to take the police out of these settings. I am a little confused by his stance.
Sojan Joseph
What the hon. Member read is absolutely right. I was talking about sections 135 and 136. I am talking here about sections 2, 3 and 5. I absolutely stand by what I said about sections 135 and 136, and I am happy to come to that. As a former mental health nurse, I certainly would not support giving the police greater powers under sections 2, 3 and 5 of the Mental Health Act.
I am also opposed to the amendments passed in the other place because I believe that the extension of legal powers held by the police to other healthcare professionals would represent a major shift in the roles and responsibilities of healthcare and care professionals, placing significant additional pressure on the NHS and social care providers.
The Royal College of Psychiatrists, the Royal College of Nursing and the British Medical Association are among the health and social care organisations that have warned against such an extension, saying that it is
“a radical proposal with a number of serious and potentially dangerous consequences”.
Those organisations also point out that the proposed extension has not been properly tested with relevant health and social care professionals and has been given minimal serious consideration during the eight years in which reform of the Mental Health Act has been under discussion.
The majority of assessment under the Mental Health Act already happens without police involvement. However, where the police may be required to make a detention, I know from my experience working in mental health that the presence of officers can often ensure that an otherwise risky situation remains contained and everyone remains safe.
Entering someone’s home without permission is fraught with huge risk and currently is done only with the assistance of police intelligence. Under section 135, health professionals ask the court for an order to remove somebody forcefully from their residence and the police use that order to do so; sometimes, they have to break in. That is the power that the hon. Member for Hinckley and Bosworth spoke to earlier. Without it, health and social care professionals would be expected to enter homes without police help, and without crucial intelligence that could ensure their safety. As Dr Lade Smith, the president of the Royal College of Psychiatrists, said:
“It is well known that at times, people experiencing a mental health crisis cannot be safely reached and cared for without the assistance of the police. Delegating police powers without proper consultation or planning is likely to disproportionately affect those from minoritised backgrounds and would increase risk to patients and compromise the safety of others. It sets a dangerous precedent.”
I am also concerned that the amendments passed in the other place granting police powers to authorised persons risk damaging their therapeutic relationships with patients. They would have the effect of lessening clinicians’ ability to treat patients, and I fear that patients would be less likely to attend an appointment if they thought they might be forcibly detained by the clinician.
Aphra Brandreth (Chester South and Eddisbury) (Con)
It is a pleasure to serve under your chairship, Ms Furniss.
Government amendments 26 to 29 risk undoing some of the good work done in the other place, where careful improvements were made to strengthen the Bill and ensure a more compassionate and effective response to mental health crises. I am concerned that by removing the words
“by a constable or other authorised person”
and deleting clause 5(7), which provides a clear definition of who the authorised persons are, we will open up ambiguity about who is permitted to detain someone under the Mental Health Act. This is not just a technical or drafting issue; it has very real consequences for the people involved.
I understand and support the principle of enabling more flexible and clinically led responses to mental health incidents. We all recognise that the police should not be the default option in every case. The amendments made in the Lords acknowledged that and broadened the group of people who could respond to mental health crises beyond police officers to trained and equipped professionals: mental health nurses, approved mental health professionals, paramedics and, crucially, someone trained and equipped to carry out detentions under the Act and who would not be put at unnecessary risk by doing so. “Trained and equipped”—that is the key point.
The definition of “authorised person” in the Bill as it stands makes it clear that those given such a serious responsibility must have the appropriate training and experience and must not be “put at unnecessary risk” when carrying out that role. That wording is important. As the shadow Minister, my hon. Friend the Member for Hinckley and Bosworth, said, it provides a framework of accountability, not a free-for-all. By removing that structure, the Government’s amendments will leave a legal vacuum. The law will say that someone must be detained, but not by whom. That uncertainty will create a risk that services will simply revert to defaulting to the police.
I stress again that that is not fair on the police, who are already under immense pressure. Yes, they are used to seeing people at their most vulnerable, but dealing with someone in a mental health crisis is a very particular challenge, and one that they might not be fully trained to manage. The College of Policing’s 2019 mental health snapshot found that almost 95% of police call-outs flagged as involving mental health did not actually require a police response, yet police officers continue to be sent out because the system lacks clarity and capacity elsewhere.
Baroness May, speaking from real experience as a former Home Secretary, made that very point in the other place. She said that police officers were being sent to mental health incidents for which they had no training or clinical expertise, and were being asked to make judgments that they simply were not equipped to make. She went on to say that
“the very essence of a police presence—somebody in the uniform coming to deal with them—could actually exacerbate their mental health situation”.—[Official Report, House of Lords, 20 January 2025; Vol. 842, c. 1525.]
I would add that, for the individual experiencing a mental health crisis, being approached by the police may feel criminalising rather than supportive. It reinforces a justice-led response rather than a health-led one. That is not the direction in which we should be going.
Although I welcome the Government’s intention to offer more flexibility in emergency and clinical settings, we have to be careful about how we achieve that. Removing the wording inserted into the Bill will not create clarity; it will create confusion. In a system already under pressure, confusion tends to mean delay, risk aversion and inappropriate responses. Removing the specification will not free professionals; it will expose them, and it will expose patients to the possibility of being handled by someone without the right qualifications, which may worsen their condition or create a longer-term distrust of mental health services.
I hope that the Minister can offer some reassurances, both about who will be expected to carry out these detentions and about how we can ensure that they have the proper training, resourcing and protection. Without a clear definition of “authorised person”, we cannot be confident that those involved will have the right expertise to support extremely vulnerable individuals at times of acute need.
I want to touch briefly on the importance of early intervention and de-escalation. Situations involving mental health crises can often be tense, and support in the early moments can be critical. De-escalation is a vital skill; the presence of a calm, trained mental health nurse, for example, in those early moments can change the outcome of a person’s crisis. Having the right professional present—someone who can act without waiting for the police to attend—can be the difference between escalation and calm. The identity of the responder matters.
This is not just about outcomes, but about the experience of the individual. Removing the criminal justice framing from the outset is essential to delivering dignity and the right kind of care.
Jen Craft (Thurrock) (Lab)
There seems to be some circular talk about the level of risk that clinicians and medical professionals can be expected to shoulder. I notice that clause 5(7), inserted in the other place, specifies that they would
“not be put at unnecessary risk”.
Is there not an inherent risk involved in detaining people who need to be detained under the Mental Health Act? Those people are not in a position to give consent and quite often do not wish to be detained. By stipulating that the police will not be involved in situations or by making medical professionals the first responders, is there not a risk of putting them in harm’s way?
Aphra Brandreth
It is extremely important that people are not put at risk, and that is exactly the point I have been making. People need to be properly trained, and we need to set out who those individuals can be, rather than leaving ambiguity in the wording. The Government amendment will undo exactly the protection that the hon. Lady rightly points out.
Gregory Stafford
My hon. Friend is making a clear point, but I want to add that there are clearly places and situations in which non-police professionals, such as mental health professionals, deal with extremely dangerous and violent patients. They are appropriately trained to do so. It is not in isolation that non-police public professionals are dealing with dangerous people. It is about the right situation, the right place and the right training.
Aphra Brandreth
My hon. Friend helpfully expands on the points that I and other Opposition Members have been making. If we are not careful, the Government amendments will move us further away from the aim of a person-centred approach.
I urge the Minister to reconsider the amendments. The wording inserted in the other place struck a thoughtful balance. The wording inserted in the other place struck a thoughtful balance. It allowed flexibility, but grounded it in clear criteria of training, safety and competence. Removing that definition will weaken the Bill. It will make it harder, not easier, to ensure that the right person is supporting someone at their moment of greatest need. We owe it to patients, professionals and the police themselves to get this right.
Gregory Stafford
The clause is a necessary reset—[Interruption.] Goodness, what a background noise! If only I had such a response to everything I said.
The clause is rooted in the central recommendation of the 2018 independent review of the Mental Health Act, that the criteria for detention are too broad and being applied too inconsistently. Too often we hear stories of people being detained not because they pose a real and present danger, but because services are stretched, community alternatives are not available, or there is simply a lack of clarity on when detention is justified.
This clause is necessarily corrective. It raises the bar by introducing a clear and structured risk threshold that requires the possibility of serious harm to health or safety, rather than vague concerns or subjective impressions. The inclusion of terms such as “likelihood” and the focus on actual risk mark a clear move towards the evidence-based practice that we want to see and away from overreach.
For me, the key strengths of the clause include, first, a higher threshold for detention. Under section 2 of the Mental Health Act, detention for assessment is permitted only if serious harm may occur. That means that professionals must assess the nature and the degree of harm, as well as the likelihood, injecting rigour and proportionality into decision making.
The clause also clarifies the treatment criteria. Under section 3 of the Act, detention for treatment is allowed only if serious harm may occur without it and if treatment is necessary, and, crucially, it must be available. That prevents people from being detained without any therapeutic benefit, a concern that has long plagued the system. The clause also aligns measures across the Mental Health Act: the new threshold applies not only to the initial decision to detain, but to emergency detentions and renewals. That brings consistency and coherence across the different parts of the legislation.
The final key point among the strengths of the clause is the definition of the authorised person, which is vital. It ensures that those tasked with detention powers are properly trained and equipped to deal with the complex and often volatile realities of mental health crises. Whether a doctor, an approved mental health professional or a specially trained nurse, the provision ensures that detention is exercised by someone with relevant expertise, not by default by the police. Taken together, the changes significantly strengthen the legal framework around detention, reduce the risk of misuse and reaffirm the principle of least restriction, the idea that coercive care should be used only when no other alternative exists.
The problems I have with Government amendments 26 to 29 are as follows. The Minister proposes to delete references to
“a constable or other authorised person”
from the clause. On the surface, that may appear to be technical, but in fact I think it is a profound and problematic shift. The amendments would weaken the very safeguards that the clause is trying to strengthen. We must be careful about how we frame this.
The amendments risk undoing the clarity and purpose of the clause by making it ambiguous who can lawfully detain someone under the Mental Health Act. Instead of defining the responsibility clearly and ensuring that it is held by trained professionals, the amendments will strip the clause back to vague flexibility, with no guarantee that the right expertise is present in real-time decisions.
The power to detain and to move individuals to a place of safety, in particular under sections 135 and 136 of the Act, is largely restricted and falls under the responsibility of police officers. These provisions, while designed to protect the public, can often result in the criminalisation of people in acute mental health crises, even when there is no threat of violence or risk to others.
Furthermore, the clause as passed by the House of Lords would relieve police officers of responsibilities that fall outside their core expertise, while also reducing the stigma and trauma associated with police-led interventions. It would streamline the process, ensure that individuals are supported by professionals trained specifically in mental health care, and maintain police involvement only where there is a clear and present risk to safety. In doing so, it would significantly strengthen the system and place mental health crises more firmly within the domain of health rather than law enforcement.
Let me set out the key problems with Government amendments 26 to 29. First, I think that they will blur the lines of responsibility. The clause rightly states that detention must be carried out by a constable or other authorised person, namely someone who has been designated and trained to carry out this high-stakes task. The Government amendments will remove that requirement. In doing so, they risk creating confusion on the ground about who is permitted to act. In a moment of crisis, ambiguity costs time, and time costs lives.
Jen Craft
On clause 5(4), the amendment in the other place inserted the phrase
“by a constable or other authorised person”
which relates specifically to the phrase
“unless the patient is immediately restrained from leaving the hospital”.
What the hon. Gentleman describes as a level of ambiguity in the subsection allows that to be done by people who are not necessarily listed as an authorised person, such as a medical practitioner. I think we would all agree that we would not expect to see a nurse, doctor or other clinician immediately and physically restraining a patient, and that when a police constable is not available, other people, such as hospital security staff, can carry out the task. The clause says, “immediately restrained”. The specification in the list of words proposed in the other place can leave people at risk of harm, particularly clinicians.
Gregory Stafford
I confess that I do not entirely follow the hon. Lady’s argument. My understanding is that the people she has listed—for example, hospital security staff—are not covered at the moment, so I do not think that that is the case. As I said in response to my hon. Friend the Member for Hinckley and Bosworth, there are situations, in a number of settings, in which mental health professionals act in the capacity of restraining. With the correct and appropriate training, which is what I think all Opposition Members want, I do not think that the issue that the hon. Member for Thurrock is raising would necessarily arise. Having said that, if she really feels that the wording needs to be tweaked, I look forward to seeing and potentially supporting her amendment to the subsection, and I hope she tables it.
The second key problem is the risk of returning the burden to police officers. We have heard from Members on both sides of the House in the debate, and from police forces up and down the country for years, that the police do not have the expertise, training or capacity to be the first responders to mental health emergencies. Clause 5 finally reflects that reality, helping to move the response from law enforcement to healthcare. The Government amendments would muddy that distinction. They would result in the police once again becoming the default responders—not because it is right but because it is unclear who else is meant to act.
Thirdly, the amendments introduce legal and safe-guarding risks. Without a clear definition of who can detain, one risks inconsistency, poor practice and potentially unlawful deprivation of liberty. The amendments offer no alternative safeguards—just the deletion of the existing ones. That is not reform; it is abdication of responsibility. Finally, they undermine the spirit of the Bill. The Bill aims to modernise mental health legislation by making it more humane and effective, and more rooted in health than enforcement. The amendments point in the opposite direction. They strip away clarity, increase reliance on the police and risk compounding trauma for those already in crisis.
It is not just about legislative precision; it is about protecting people. When someone is in acute mental health crisis, they are at their most vulnerable. Turning up with police officers, sirens and handcuffs does not calm the situation; it escalates it. It creates trauma, damages trust and can lead to long-term disengagement from mental health services. Clause 5 offers us a path out of that pattern. It allows approved professionals—such as paramedics, mental health nurses and crisis practitioners —to intervene early, with care and dignity. It does not exclude the police, where there is a genuine risk to safety, but it rightly repositions them as the last resort, not the first response. The Government amendments may be well intentioned, but they threaten to unravel that balance. We cannot allow vague flexibility to become a smokescreen for inadequate planning or under-resourced services.
If the Minister pushes his amendments to a vote, and, as the parliamentary maths suggests they will, those amendments pass, what will he do to sort out the problem that we, on both sides of the House, have talked about today? He is currently planning to keep the status quo, which we all seem to agree is not appropriate. At least we and our noble Friends in the other place have attempted to improve the situation. What will he and his Department do?
The clause is part of a broader rethinking of how we response to mental health need. It supports community-based care. It pushes for better training. It honours patient autonomy and it places the right people—clinicians, not constables—at the centre of care delivery. We all want a system where people in distress are met with compassion, not criminalisation. Clause 5 helps us to get there. The Government’s amendments drag us backwards. Clause 5 is one of the most thoughtful and necessary parts of the Bill. It raises standards, reduces harm and finally begins to close the gap between what the Mental Health Act allows and what good mental health care demands.
Stephen Kinnock
I will touch on the questions that have been asked on cumulative and escalating behaviour, on having a review of public safety and on the training plan. The details will be provided for in a mixture of the code of practice and the annual written ministerial statement.
The code of practice will be based on consulting both those who use the new criteria, such as clinicians, approved mental health professionals and members of the tribunal and, then, of course, on the other side, those with lived experience, service users, families and carers. It will be shaped and drafted on that basis. It will then go out to public consultation and will be laid before Parliament so that Parliament will have an opportunity to debate it. It will be a comprehensive and detailed development of the code of practice, and will address the issues around cumulative and escalating behaviour, the public safety issues and training.
On cumulative and escalating, it is worth noting that under the reforms in both the Bill and the current Act, clinicians have the power to detain on the basis of a risk of harm that may occur, not that already has or is happening at the time. That power already exists.
Dr Evans
Maybe it is my clunky naivety as someone stepping into the legal statutory framework, but I was hoping the Minister would guarantee he could take that away to look at with the team. I know from my clinical experience and from speaking to colleagues that it is one of the hardest things to measure and look for. Later, we will discuss areas where there are good case examples of people who have shown the problem of escalating behaviour that is missed by the authorities. This might be a clumsy and clunky way of trying to highlight that point, which is why we have not yet come up with amendments, but I would appreciate the commitment to look further at that when the Government takes the point away. It is really important to make sure we can give clinicians more certainty around what this looks like.
Stephen Kinnock
I thank the hon. Member for the intervention, but I simply repeat that under both the Act and this Bill, which will reform that Act, clinicians have the power to detain on the basis of a risk of harm that may occur, not one that has already or is happening at the same time, so, in my opinion, this power already exists. What is the point of over-embroidering and adding more questions and considerations when those questions and considerations are already answered? Let us just try and streamline things, please, and make things simple rather than complicated.
We had a lengthy debate on the amendment. Let us just boil this point down to its essence: the majority of mental health incidents are managed without police involvement. Approved mental health professionals have powers under section 115, section 6 and section 137 to enter a person’s home and to assess and convey said person to a hospital. That is the first point: all the concerns that have been raised by the Opposition are very clearly addressed by the powers that already exist for AMHPs.
We support “right care, right person”. Policing is of course operationally independent, and those “right care, right person” arrangements are planned and developed through detailed multi-agency partnerships on the ground. We need to be pragmatic and recognise that “right care, right person” is the right way forward. The Government are committed to it, so let us let the practitioners, the experts and the police on the ground work in a practical and pragmatic way to address these incidents as they occur. In many cases, it is simply impossible to legislate for these incidents. By definition, every person experiencing trauma experiences it for different reasons, and it manifests itself in different ways, so top-down micromanagement of that would be deeply counterproductive and unhelpful.
Officials in the Department of Health and Social Care and in the Home Office have engaged with senior representatives of the police on these amendments in great detail. I can give the Committee an 100% assurance that the police do not support an extension of their powers to sections 2, 3 and 5. I am therefore baffled by the fact that Opposition Members appear to be claiming that they know better than the police whether their powers should be extended.
Let us stop trying to pretend that we have the police’s expertise. Let us please take a pragmatic approach to this. The police do not want an extension of these powers, and the Home Office is clear that that is the case. There seems to be a fundamental misunderstanding at the heart of the lengthy debate that we have just had. On that basis, I thank hon. Members for their interventions and I commend the amendments to the Committee.
Question put, That the amendment be made.
Zöe Franklin (Guildford) (LD)
I beg to move amendment 11, in clause 6, page 13, line 6, at end insert—
“(c) after subsection (6) insert—
‘(6A) Any person subject to a community treatment order must be informed orally and in writing at the time of the making of the order of their right to an independent mental health advocate under section 130A of this Act.’”
The amendment would ensure that people who are to be subject to a community treatment order would receive information about their right to advocacy.
The Chair
With this it will be convenient to discuss the following:
Government amendment 30.
Clause stand part.
Zöe Franklin
It is a pleasure to serve under your chairmanship, Ms Furniss. Our amendment would ensure that people who are subject to community treatment orders receive information about their right to advocacy. People under CTOs should not miss out on advocacy because they were not aware. CTOs can have a significant impact on how people are able to live their lives, and ensuring that those who are subject to them are effectively represented is crucial. I am delighted that advocacy is a crucial part of the Bill, but this seems something of an oversight.
Not being aware of mental health advocacy could lead to a damaging lack of autonomy and voice for an individual. This simple change would ensure that people receive the support to which they are entitled. People in this situation are in acute mental distress, so the idea that they must actively seek out information on advocacy seems an unfair burden that will make the welcome provisions around mental health advocates far less effective.
We also need to be aware that CTOs have consistently been shown to be a point of disparity in care for black and minority ethnic groups. Clearly pointing towards an advocate may help to alleviate that and ensure that the patient is adequately supported on leaving the hospital.
Is the Minister satisfied that people subject to CTOs will have adequate access to advocacy under the Bill? Is he satisfied that information on rights to mental health advocates will be clear enough? My Liberal Democrat colleagues and I are concerned that the answer to those questions is no, which is why we tabled the amendment.
Dr Evans
I rise to speak to clause 6 and Government amendment 30. Clause 6 will make important amendments to conditions for community treatment orders under the Mental Health Act. CTOs are a tool that allows certain detained patients to receive ongoing treatment in the community rather than in hospital, providing continuity of care and supporting recovery outside institutional settings. Since their introduction in 2007, they have offered a mechanism to maintain contact with mental health services and prevent relapse while balancing the patient’s right to live more freely.
However, CTOs have not been without controversy. There is concern about their overuse and their disproportionate effect on black and ethnic minority patients. There are also a number of questions about the evidence for their effectiveness in reducing relapse or readmission. Moreover, concerns about coercion and the infringement of patient autonomy have been raised repeatedly. The 2018 independent review recommended tightening their use. Some also argue for going further by abolishing them completely.
Clause 6 seeks to address many of those concerns. It will introduce stronger safeguards, clear risk-based criteria and a maximum 12-month duration to prevent indefinite or inappropriate use. It will mandate patient involvement through consultation and regular review, promoting shared decision making. Accountability is enhanced by aligning CTOs with a code of practice and introducing external oversight. Crucially, CTOs will now be used only when there is a clear and necessary risk, focusing on clinical need and safety.
Challenges remain. The new requirements bring complex administration and an increasing workload for clinicians. Despite reforms, CTOs remain a form of compulsory treatment, raising concerns about ongoing coercion. Their success depends heavily on the availability of community services, which are not always adequately resourced. Finally, terms such as “serious harm” may be open to interpretation, risking inconsistency. To unpack all that, we must take a closer look.
Clause 6 rightly seeks to update and clarify the legal framework governing CTOs to ensure that their use is proportionate, justified and consistent with evolving standards of care and risk management. It does so primarily by aligning the grounds for making and renewing a CTO with the new, more precise risk criteria for detention. It specifies that a CTO should be made only if there is real risk that
“serious harm may be caused to the health or safety”
of a patient or others without treatment, and if that treatment is necessary given
“the nature, degree and likelihood of the harm”.
Again, there is an argument about the definition of “serious harm”, and the same discussion as the one we had under clause 5 about escalation of behaviour or cumulative concerns applies here.
In the light of that discussion, it might be helpful if the Minister clarified the interface between CTOs and grounds for detention. Is there scope for the code of conduct to cover the management of risk, both to the public and to patients themselves, across both? Given the emphasis placed on real risk of serious harm, clause 6 aligns CTOs more clearly with the threshold for detention, with the aim of reducing the inappropriate use or overuse of CTOs, which is much more welcome. It will help to safeguard and protect patients from unnecessary restrictions on their liberty, while maintaining the ability of a responsible clinician to act decisively when there is genuine risk.
Sojan Joseph
Does the hon. Gentleman agree that CTOs help to keep people out of hospital so that rather than having long-term admissions, they can live in the community and in their own house, and that clinicians can recall patients to hospital if they are not complying with the agreed treatment?
Dr Evans
Spot on. The hon. Gentleman will have used them far more than I ever have, and that was exactly the point of them when they were brought in in 2008. The reason they have been so contentious is their misuse, misapplication and ongoing use. That is what we are trying to highlight. With clause 6 the Government are trying to streamline their use.
That leads me neatly on to why the Lords introduced clause 6(3), which Government amendment 30 would remove. It is about how to ensure that there is adequate oversight so that people do not remain on CTOs in perpetuity or, more likely, have them applied inappropriately. Concerns have been raised about racial disparities in the use of CTOs—particularly for black men, but there is also work to be done on those from other communities who find themselves on CTOs. The hon. Gentleman is right: that is the ethos behind ensuring that we push people to community care. The problem is how to set that against the legislation on CTOs and how to provide the resources to enable an appropriate setting for that care.
Sojan Joseph
Does the hon. Gentleman agree that this is more an issue of practice than of the law itself?
Dr Evans
Yes. As the Minister pointed out on the Committee’s first day, legislation sets the culture. One the main reasons for the Wessely report was the racial disparities that had been found. We still have to look into the cause and effect of that, but one of the big markers was that CTOs were increasing indefinitely and seemed to hit certain communities disproportionately, without there being a full understanding of why. That was why in the House of Lords some argued that we should get rid of CTOs completely. The Opposition do not agree with that; we agree that clause 6 is important and that CTOs serve a purpose, for the reason that the hon. Gentleman explains so eloquently. The emphasis is on getting people into community treatment where we think it will be better for them, but ensuring that CTOs are not an undue burden on clinicians or patients and are not used inappropriately.
Clause 6(3), introduced in the Lords, sets out a maximum duration of 12 months for CTOs, after which an extension would require thorough review. That process would demand consultation with the patient, their nominated persons and relevant mental health professionals, and the written agreement of a qualified psychiatrist. That multi-layered review process is vital to ensure that any extension is based on clear therapeutic benefit and necessity rather than routine or bureaucratic inertia. Moreover, the requirement of regular reviews every six months to extend CTOs would further strengthen oversight and accountability. The involvement of tribunals, which may recommend variations or terminations, would add yet another layer of protection for patients’ rights, as the Government and Opposition both acknowledge.
While the reforms are, on the whole, positive, we must remain vigilant. The consideration of risks must be applied carefully and consistently to avoid unintended consequences such as deterring clinicians from using CTOs when they are genuinely needed.
Ordered, That the debate be now adjourned.—(Taiwo Owatemi.)
Mental Health Bill [ Lords ] (Fifth sitting)
Tuesday 17th June 2025
(3 weeks, 6 days ago)
Public Bill CommitteesMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2025 - (17 Jun 2025)
The Chair
Please ensure that mobile phones are turned to silent mode. If hon. Members and officials wish to remove their jackets, they have leave to do so.
Clause 22
Consultation of the community clinician
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 23 stand part.
New clause 4—General duty to secure sufficient resources for services in the community—
“(1) It is the general duty of integrated care boards to ensure, insofar as is reasonably practical, that services in the community responsible for delivering care, treatment, or detention provisions under the Mental Health Act 1983 and this Act have the necessary resources, including financial support, to meet service demands.
(2) Additional forms of resource may be determined by integrated care boards in consultation with relevant local authorities or health care service providers and may include—
(a) sufficient numbers of trained medical professionals;
(b) purpose-built facilities for patient care;
(c) community services responsible for out-patient care.
(3) Each Integrated Care Board must conduct an assessment of its resources every two years to evaluate its ability to deliver services in the community effectively.
(4) Each Integrated Care Board must publish a report outlining its findings upon completing the assessment in subsection (3). The first reports must be published within one year of the passage of this Act.”
This new clause places a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand on services to ensure that the provisions of the Bill function as intended and to assess and report on this every 2 years.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairmanship, Sir Desmond. I will discuss a number of issues concerning community treatment orders and ensuring sufficient resources for community-based care.
Clause 22 will add the community clinician as a third key decision maker for community treatment orders, alongside the responsible clinician and approved mental health professional, ensuring additional professional oversight. Involving the community clinician in the initial request for a community treatment order will improve the planning and implementation of community treatment orders by ensuring good communication between ward and community doctors, aiding continuity of care. It should also help to prevent the inappropriate use of community treatment orders, for instance to free up beds where there are pressures on acute wards.
Making sure that only those who need to be on a community treatment order will be put on one supports the principles behind the reform of the Mental Health Act 1983, including the principles of least restriction, of therapeutic benefit and of treating the person as an individual. It should also positively impact the racial disparities that have been seen in the use of community treatment orders. The community clinician’s opinion is important when a patient is under a CTO, because the clinician may have a better understanding of the patient’s progress, including how well the patient is engaging with their treatment while in the community. Their insights are valuable in deciding whether the patient should be discharged to a community treatment order or recalled to the hospital if their symptoms worsen. Those who are supporting the patient in the community should be a part of the decision of whether the restrictions of the CTO are still required.
I turn to clause 23. In addition to reducing the number of people placed on CTOs, as has been referred to in relation to clauses 6 and 22, we aim to provide greater protection to those subject to them. CTOs extend the coercive powers of the Mental Health Act into people’s lives beyond hospital. CTOs should be used only when necessary, with conditions tailored to the individual rather than applying blanket restrictions. Currently, some CTO conditions display an overreach of power, such as requiring abstinence from alcohol even if this is unrelated to the person’s mental health condition. The clause will remove the ability of the responsible clinician to apply conditions to a person’s community treatment order which are appropriate but not necessary, giving a higher threshold for conditions to be set.
The clause will allow the mental health tribunal to recommend that the responsible clinician reconsider the necessity of conditions specified in a CTO if the tribunal determines that the patient is not yet suitable for discharge. For example, while not set out in the Bill, the tribunal may use this power if it finds the conditions imposed in a CTO to be possibly disproportionate, overly restrictive, lacking clinical benefit or not treating the person as an individual.
New clause 4 would place a general duty on integrated care boards in England to ensure that community services have the necessary resources to meet demand, and to report on this every two years. This duty to commission local services based on local need is already placed upon integrated care boards by the National Health Service Act 2006, as amended by the Health and Care Act 2022. An integrated care board must arrange for the provision of services as it considers necessary to meet the reasonable requirements of the people for whom it is responsible. Integrated care boards and their mental health trusts are required to prepare a joint forward plan that describes how the ICB will arrange for NHS services to meet their population’s physical and mental health needs. For that reason, we do not think the new clause is necessary, and it could place a disproportionate burden on ICBs and mental health providers. I therefore hope that the hon. Member for Winchester will be satisfied not to press it. I commend clauses 22 and 23 to the Committee.
Dr Luke Evans (Hinckley and Bosworth) (Con)
It is a pleasure to serve under your leadership, Sir Desmond, especially on such a warm day. I hope that there is not too much hot air in the Committee to keep us even warmer.
Clause 22 will introduce a series of important amendments to the operation of community treatment orders under the Mental Health Act 1983. The clause has the stated aim of strengthening clinical safeguards and ensuring continuity of care between hospital and community settings. The Opposition support these goals in principle.
Let me set out the current legal position. At present, decisions to place a person on a CTO require two professional inputs: the patient’s responsible clinician and an approved mental health professional. The responsible clinician can vary, suspend, recall or revoke the order, often with no statutory obligation to consult the clinician who will be managing the patient’s care in the community.
Clause 22 will change that. It introduces the new role of the community clinician—defined as the approved clinician who will oversee the patient’s care in the community—and requires their involvement at key decision points in the life of a CTO. Specifically, it requires a written statement from the community clinician that the CTO criteria are met, where they are not the responsible clinician. It obliges the responsible clinician to consult the community clinician before varying conditions, recalling or revoking a CTO, unless such consultation would cause unreasonable delay. It also includes the community clinician in the process of renewing a CTO, again via a written statement.
These are not insignificant changes. They mark a shift towards multidisciplinary accountability and a greater emphasis on the continuity of care between in-patient and community settings. The Opposition strongly support both principles. However, there are several points that I would like to probe constructively, and I hope the Minister will respond in the spirit of improving what is clearly a well-intentioned clause.
First, the term “unreasonable delay” appears multiple times in the clause as an exception to the duty to consult the community clinician, but I cannot see it defined in the Bill or in the explanatory notes. Could the Minister clarify what constitutes “unreasonable delay” in practice? Will guidance be issued to ensure consistency across trusts and clinicians? We must ensure that this exception does not swallow the rule or become a loophole in time-sensitive situations.
Secondly, what happens when clinicians disagree? The clause requires the agreement of the community clinician in writing before a CTO can be made, but it is silent on what happens when there is disagreement between the responsible clinician and the community clinician. This is not a hypothetical concern; differing clinical views are common and can be a healthy part of multidisciplinary practice. Could the Minister confirm whether there is a proposed resolution mechanism where clinicians differ? Would the decision default to a tribunal or a second opinion, or is the CTO simply not made?
Thirdly, as the Minister has mentioned, on the operational readiness to implement this clause, the new duties on community clinicians are not trivial. They are being asked to produce written statements, engage in formal consultations and be available to advise on time-sensitive decisions such as recalls and condition changes. Can the Minister reassure the Committee that a workforce impact assessment has been or will be conducted? Will there be investment in community mental health staffing and digital infrastructure to ensure that this duty is workable?
Fourthly, I want to raise the issue of handover and role clarity. The clause will introduce a new statutory role—the community clinician—but patients often transition rapidly between settings. There may be uncertainty about who holds that responsibility at a given time. Will guidance ensure that community clinicians are formally designated and that responsibilities are clearly recorded at the point of discharge?
I want to end on a constructive note. Clause 22 is a step in the right direction. It reflects many of the recommendations of the independent review of the Mental Health Act, including the emphasis on least restriction and on therapeutic benefit. I encourage the Government to consider defining or clarifying unreasonable delay in regulations or guidance, introducing a clear process for resolving professional disagreement, and committing to publish a plan detailing workforce support, guidance and digital infrastructure to ensure that this takes place.
Clause 23, which is linked to clause 22, will introduce two important amendments to the operation of community treatment orders under the Mental Health Act 1983. As things stand, section 17B(2) allows a responsible clinician to attach conditions to a CTO if they are necessary or appropriate, to ensure the patient receives treatment, to prevent risk to health or safety or to ensure engagement with services. Such conditions can include where the person lives, their attendance at appointments and even lifestyle restrictions such as abstaining from alcohol or drugs. However, we know that these conditions can be seen as coercive. Patients often feel that breaching them means automatic recall to hospital. In practice, some CTO conditions may drift toward overreach rather than clinical necessity.
The clause responds to these concerns in two ways. Subsection (1) will remove the words “or appropriate” from section 17B(2), meaning that CTO conditions must now be strictly necessary, not just advisable or convenient. The Opposition support this narrowing of the threshold. It sends a clear message that CTO conditions must be clinically justified, proportionate and tailored to the individual’s needs. However, I ask the Minister how clinicians will be guided in applying the new “necessary” test. Will the code of practice be updated with examples and scenarios? Crucially, what measures will be taken to ensure that patients are clearly informed that a breach of a CTO condition, in itself, is not automatic grounds for recall?
Gregory Stafford (Farnham and Bordon) (Con)
It is a pleasure to serve under your chairmanship, Sir Desmond. Taking a step back to my hon. Friend’s point about “necessary”, is he concerned, as I am, that it is not clear to those responsible what “necessary” means? We could open ourselves up to potential legal challenges and disputes, which would give lawyers lots of money but would have no benefit for the patients.
Dr Evans
My hon. Friend makes an incredibly important point. Some later clauses try to address a problem where a patient was consenting to a community order, but the restrictions were so tight that it worked out as deprivation of liberty. My hon. Friend is absolutely right that knowing what is necessary is important to provide a clearly defined structure for the patient. Patients worry that if they breach that protocol, they will be automatically recalled. That might prevent them from breaching the conditions in the first place, but on the other hand it is a sword of Damocles above them. In no way does that create a beneficial therapeutic environment for them.
The Chair
Order. I am afraid we have to suspend the sitting, as the sound is unworkable. I am assured that a sound engineer is on the way.
9.37 am
Sitting suspended.
Dr Evans
Brevity is an important skill that you have exemplified in this House for many years, Sir Desmond, so I will not subject the Committee again to matters that I have already covered.
I ask again the question that I posed just before the suspension: how will clinicians be guided in applying the new “necessary” test? Will the code of practice be updated with examples and scenarios? Crucially, what measures will be taken to ensure that patients are clearly informed that a breach of CTO conditions is not, in itself, an automatic ground for recall? That concern has come across in evidence and is a long-standing source of misunderstanding and mistrust, as has been highlighted in cases and in the Wessely report.
Clause 23(2) will insert new subsection (3B) into section 72 of the Mental Health Act, giving mental health tribunals the power to recommend that the responsible clinician reconsider whether a CTO condition is necessary, even when they do not discharge the patient. That is a welcome enhancement of patient rights. Currently, if a tribunal decides not to discharge a patient, it has no power to challenge potentially excessive conditions. The clause strikes a useful middle ground, offering oversight without overturning clinical decisions. Having said that, will there be any requirement for the responsible clinician to formally respond to the tribunal’s recommendations? Without such a duty, there is a risk that recommendations may be quietly disregarded and the benefit of the provision may be undermined.
Clause 23 is a positive and proportionate reform, but to strengthen its practical impact I suggest that the Government consider updating the code of practice to clarify what constitutes a “necessary” condition under section 17B of the Mental Health Act; introducing a duty to respond to tribunal recommendations under proposed new section 72(3B), with a short time limit and a written explanation if the recommendation is rejected; and providing clear information to patients.
New clause 4, tabled by the Liberal Democrats, seeks to place a general duty on ICBs to ensure that sufficient resources are available for community-based mental health services, particularly in the context of implementing provisions under the Mental Health Act. It speaks to a concern that many Committee members will have heard time and again from patients, practitioners and families alike: that the success of any reform to the Mental Health Act will ultimately rest on the capacity of community services to deliver. We know the reality: patients can be discharged to under-resourced settings or subject to CTOs that depend on clinicians who may be overstretched or unavailable. Clause 22 will rightly expand the role of community clinicians in CTO decisions, but that works only if they exist, are available and have the time and tools to engage meaningfully.
I acknowledge that new clause 4 identifies a genuine structural risk in the way in which we approach reform, and I commend colleagues for raising it, but should it sit in primary legislation? I am not so sure. I have some questions for the hon. Member for Winchester not about the intention of the new clause, but about the appropriateness and practicality of placing such a duty in primary legislation. Primary legislation is best used where duties are clear, enforceable and universal. The duty proposed in the new clause, although admirable, is qualified by the words
“insofar as is reasonably practical”,
which reflects the reality that integrated care boards do not control all the levers of workforce, capital investment or even, in many cases, service design.
With that in mind, I ask the hon. Member the following questions. What mechanism would be used to enforce the duty? If an ICB fails to meet the duty, what would the consequences be? Would the duty not create legal ambiguity or even the potential for judicial review where service users feel that resources are inadequate, or even where the ICB has acted reasonably in difficult circumstances? Furthermore, how would the duty interact with the existing statutory duties on ICBs under the Health and Care Act 2022, including the duties around health inequalities and integration?
A stronger element of the new clause, which merits closer consideration, is the assessment and publication of findings on local community mental health capacity. This kind of transparent, data-led accountability could be an effective tool not only for Parliament and regulators, but for local patients and advocacy groups. Perhaps that element could be taken forward in secondary legislation as part of the updated NHS England commissioning guidance. The Minister will forgive me, but I am not sure whether such a tool already exists, so perhaps he will address that point.
Does the Department plan to require ICBs to assess and report on community mental health capacity in the light of the new duties being created by the Bill? Could there be scope for a reporting duty to be included in regulations or guidance, even if a general resourcing duty is not placed in primary legislation? The Bill refers to commissioning, and under earlier clauses we have talked about dynamic registers. Will the Minister set out whether the issue is covered here or in another way?
We cannot ignore the resource dimension, so I am grateful to colleagues for pressing the Committee to address it. However, we must be careful about the tools we use, what we write into law, and what we deliver through planning, commissioning and political will. I look forward to hearing from the hon. Member for Winchester and the Minister in response to my questions.
Sojan Joseph (Ashford) (Lab)
It is a pleasure to serve under your chairmanship, Sir Desmond. I welcome the changes proposed in clauses 22 and 23. Clause 22 seeks to amend the Mental Health Act to require the community clinician responsible for overseeing the patient’s care as a community patient to be involved in decisions regarding the use and operation of community treatment orders.
While I was practising as a mental health professional, I was personally involved in many community treatment orders and in recalling patients to hospital. Although I acknowledge the concerns raised by various charities and members of the Committee about the overuse of community treatment orders and restrictions on patients, such orders have many benefits. As the Minister has highlighted, they help to release the pressure on in-patient settings. They also help patients to live in a home environment: without such provision, some patients would have to stay in hospitals for longer, which can be more restrictive than being in the community.
The Committee needs to understand the kinds of patient who are often considered for community treatment orders. These patients are already well known to mental health services. They may have a long-term serious mental illness and may have to take medication continuously. More often, they are on regular injections of what is called depot medication; mental health professionals administer such medication either once a month or once every three months. Community treatment orders enable clinicians to make sure that patients receive the medication they need, so that they do not relapse and so they can have a good quality of life.
By introducing an additional professional check on whether the patient really needs the support of a community treatment order, and by requiring more evidence that the patient needs the support of the community treatment order to get better, clause 22 will adopt two of the four principles of treatment proposed in Sir Simon Wessely’s independent review, namely the principle of least restriction and the principle of therapeutic benefit.
Dr Evans
The Committee is very lucky to have the experience and expertise of someone who has used community treatment orders in the field. Will the hon. Member address my point about clinical conflict? We are introducing two new people: a community clinician and a responsible clinician. Has he seen any difficulties in practice with a difference of opinion between clinicians? How were they resolved? Does he see any way in which the clause could create or resolve a problem? My worry is that there is no clear resolution that would deal with discrepancies. I would love to know what is happening at the moment, as the law stands, in the hon. Member’s clinical experience.
Sojan Joseph
I thank the hon. Member for that important intervention. Healthy conflicts between professionals can be useful and can be used as a reassurance to people who are concerned about the overuse of CTOs. However, capacity can sometimes be an issue, especially in community settings, an issue that new clause 4 addresses.
It is also important to understand that mental health services have changed over the years. The consultant who treats the patient in hospital may not know much about them or how they are in the community. In the past, all those patients were followed by a care co-ordinator—not necessarily a mental health psychiatrist, but a mental health nurse or social worker who followed the patient throughout their journey and kept an eye on them. We do not have enough capacity these days, so nobody is following the patient. A community treatment order helps them to have at least minimum contact when they have to go and see a patient to administer medication. I support that conflict—sometimes it can be very healthy—but I also acknowledge that we need more capacity in the community.
Clause 22 makes a new distinction between a patient’s responsible clinician with overall responsibility for them, including in hospital, and a community clinician with the responsibility for the patient in the community. It will impose specific duties on the community clinician where they are not the responsible clinician. For example, subsection (2) will amend section 17A(4) of the Mental Health Act to require that where the responsible clinician is not the clinician who will have care for the patient in the community after their discharge, that community clinician must also agree in writing that the community treatment order criteria are met. That will ensure continuity of care of the patient from the hospital into the community, and it will have the added benefit of additional professional oversight in respect of the need for a community treatment order. That is to be warmly welcomed.
I also highlight subsection (4), on the power to recall a community patient to hospital. That will mean that if the community clinician is not the responsible clinician, the community clinician will still need to be consulted before a patient can be recalled under the community treatment order, unless such a consultation would lead to an unreasonable delay. That seems an entirely welcome and sensible reform. In some cases, an unreasonable delay may not be helpful, because some patients need to have their medication at regular intervals. For example, a patient on clozapine who misses their medication for three or four days in a row may have to restart their whole treatment regime, which will mean an even longer in-patient admission process.
Subsection (6) will require a community clinician to make a statement in writing, if they are not the responsible clinician, in support of the renewal of a patient’s community treatment order, if that is the conclusion of the responsible clinician. Getting written confirmation from the community clinician who is intimately involved in the patient’s care that a renewal of the community treatment order is both necessary and appropriate and is the correct thing to do. Once again, it is about ensuring that a further professional opinion is considered; it is also about checking whether the patient still needs the support of a community treatment order.
Clause 23 will make changes in relation to the conditions that a person subject to a community treatment order may be required to follow. It will amend section 17B of the Mental Health Act so that conditions can be imposed only if they are “necessary”. This is a simple and welcome update from the current wording, “necessary or appropriate”.
Clause 23’s second modernisation is to give the tribunal a new power to
“recommend that the responsible clinician reconsider whether a condition…in the community treatment order is necessary”.
This would apply when the tribunal has decided not to discharge a patient completely from a community treatment order, but has come to the conclusion that not all its conditions are required. Once again, this is a welcome reform and is in line with the principle of therapeutic benefit. Some conditions put on patients can be seen as restrictive: for example, if a condition states that patient cannot use alcohol or illicit drugs, the clinicians will be looking at whether the patient’s use of alcohol or illicit drugs has an impact on their mental state or on their non-compliance with treatment. That is very important. I welcome the changes in clause 23.
Dr Danny Chambers (Winchester) (LD)
It is an honour to serve under your chairship, Sir Desmond. I thank the Minister and the hon. Member for Hinckley and Bosworth for their comments on Liberal Democrat new clause 4.
This is another good example of how, although we are aware that it has laudable aims, the Bill will fail without the supporting infrastructure. As everyone will be aware, community mental health services are among the issues that generate the most emails and correspondence—certainly in Winchester, where young people especially are struggling to access mental health care. In that context, we are alarmed that mental health spending has fallen as a share of overall health spending in the last financial year. That has been coupled with the decision to drop a number of mental health targets, including targets for the number of people receiving mental health interventions such as talking therapy, and the target to ensure that 75% of people with a severe mental health illness receive an annual physical check. Priority has not been given to the services necessary to deliver better mental health care.
For the Bill to make a meaningful difference, the Government must ensure that community mental health care services receive the investment that they need to fulfil their obligations under the Bill—I know that that is a bit of a circular argument—and reduce the overwhelming pressure on in-patient services.
There is also the impact on schools, police services and families. When I went out with the police in Winchester not long ago, they told me that between 40% and 50% of their time is spent dealing with people who have a mental health issue in some capacity. The lack of community mental health care is not just a resource burden on the health service; a lot of our other services are also affected.
Dr Evans
The hon. Member rightly talks about resources and about the cuts as a proportion—although small, it is a cut in NHS spending. The last Conservative Government brought in the mental health investment standard to try to ensure parity between physical health and mental health in investment so that, regardless of how big the pot was, mental health was prioritised. Does the hon. Member agree that there is a concern that that could be slipping under this Government? Does he agree that that needs to be addressed in the context of the community provision that we are discussing?
Dr Chambers
I broadly agree. We were really heartened that in the King’s Speech, the Government said that mental health needs to be treated as seriously as physical health. There are many reasons to join a political party but, given my long history of working in mental health charities, one major reason for joining the Lib Dems was that they had been saying that for years. I was pleased to hear that in the King’s Speech too, but we have to ensure that the percentage of spend on mental health does not slip in proportion to other very important resources.
Anna Dixon (Shipley) (Lab)
I think we are all agreed that, in order to implement the changes to the Bill, we need investment in mental health services, particularly community mental health services, but does the hon. Gentleman recognise that the Labour Government have kept the mental health investment standard, ensuring that there is sufficient and increasing investment in mental health in this country?
Dr Chambers
I hope that that is the case. I know that is the aim, but I suppose we will see in four, five or six years’ time what the mental health resources are. No one aims to underfund these services, but the demand on them changes and they need to be resilient. Darzi said that in April 2024 there were 1 million people on mental health waiting lists, and we know that some children wait 15 months, so we must not just maintain the current investment standard, but try to catch up on the huge backlog, which will not change unless we reform the system or invest in more staff and resources.
David Burton-Sampson (Southend West and Leigh) (Lab)
The hon. Gentleman makes a good point—mental health services are in a very bad place—but does he agree that the Government have already announced investment in mental health specialists in all schools, and in mental health crisis centres? I have no doubt that once the 10-year plan for the NHS comes out, there will be an even clearer path for how we tackle mental health issues.
Dr Chambers
I am really looking forward to the 10-year plan and reading about how it will improve mental health. We shared Labour’s manifesto commitments to mental health practitioners in each school and mental health hubs, so we certainly support that.
The hon. Member for Hinckley and Bosworth made some very good points and said that this proposal should possibly not be in primary legislation. I accept that integrated care boards do not have control over how every part of the service is delivered, so I am happy not to press the new clause to a vote, but I think the second part, which says that integrated care boards should have a duty to assess and report on the resource needed to meet the demands on services every two years, is important.
Gregory Stafford
I rise to speak to clauses 22 and 23 and to Liberal Democrat new clause 4.
As my hon. Friend the Member for Hinckley and Bosworth said, the Opposition support clauses 22 and 23 generally. Clause 22 addresses the concern that community clinicians—essentially, those responsible for overseeing a patient’s care outside hospital—have historically had limited formal input into decisions about community treatment orders, even though they are central to the patient’s ongoing care. It ensures that community clinicians not only are consulted but, in some cases, must provide written agreement before key decisions are made. It aims to improve continuity of care, ensure decisions reflect the realities of community-based treatment, and reduce inappropriate and poorly co-ordinated use of CTOs.
The benefits of the clause are obvious, but they are worth restating. Clearly, it improves the continuity of care and ensures that clinicians with direct knowledge of the patient’s community care are involved in those key decisions. It enhances safeguards, adding an additional layer of professional oversight before coercive measures are imposed or suggested. It promotes collaboration by encouraging joint decision making between the hospital-based and community-based clinicians, and it reduces the risk of inappropriate CTOs by ensuring they are used only when genuinely appropriate and supported by those delivering care.
However, I ask the Minister to touch on three points. First, requiring a written agreement or consultation could delay urgent decisions if not managed efficiently, so will he explain how, under the clause, any potential delay—a disagreement or just administrative inertia—can be removed to ensure treatment is not delayed?
That moves me on to the administrative burden. Clearly, the clause adds a level of complexity and requires more documentation and co-ordination. Although I understand that that is a necessary outcome, I would again be grateful for the Minister’s thoughts on how to ensure effective and speedy implementation.
As my hon. Friend the Member for Hinckley and Bosworth said, the ambiguity in the roles of the two clinicians may create confusion or disputes over responsibilities if they are not clearly defined or agreed. My reading of the clause is that there is no such clear definition; will the Minister look to provide one through other agencies, or will he put something into the clause in Committee or later in the Bill’s proceedings?
Clause 23, on the conditions of community treatment orders, addresses the concerns that the threshold for imposing conditions on community treatment orders has been too low, allowing conditions that may be clinically unnecessary or overly restrictive. By removing the “appropriate” test, the clause will tighten the legal standard to ensure that only necessary conditions are imposed.
Additionally, the clause will empower tribunals to play a more active role in scrutinising CTO conditions by allowing them to recommend that clinicians review specific conditions, even if the patient is not discharged. This reflects the Bill’s broader aim of enhancing patient rights and removing unnecessary restrictions.
The clause is a welcome addition. It will ensure that CTO conditions are imposed only when strictly necessary, meaning that there are stronger safeguards, and it will enhance the role of tribunals in protecting patient rights without requiring full discharge. It will reduce clinical overreach by preventing the use of overly broad or vague conditions that may not be clinically justified.
However, as with the previous clause, I have some questions. First, the tribunal power is limited in that it can only recommend, not require, the reconsideration of conditions. Is that the intention, or will the Minister strengthen the clause at some point to ensure that the tribunal can require a reconsideration of conditions? If he will not, what issues does he see arising from there not being a reconsideration?
Secondly, as I mentioned in my intervention on my hon. Friend the Member for Hinckley and Bosworth, I have a concern about the potential ambiguity in the shift from “appropriate” to “necessary” leading to uncertainty or dispute over interpretation. As we touched on in relation to other clauses, clinicians will need additional guidance or training to apply the revised standard consistently. Where will that revised training and guidance be located, and what is the timeframe for its implementation? We need to ensure that all clinicians are fully trained and ready to use this new power.
I will briefly touch on new clause 4, tabled by the Liberal Democrats, because although I understand that the hon. Member for Winchester may not press it, somebody else might. It would place a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand such that the provisions of the Bill function as intended, and to assess and report on this every two years. As my hon. Friend the Member for Hinckley and Bosworth mentioned, the Opposition generally support the overall aims of the new clause, but as ever, there are some issues with the detail, so I have five questions for the hon. Member for Winchester if he responds, or for the Minister to answer in his summing up.
First, if we imposed a statutory duty on ICBs to ensure sufficient resources for the CTOs, what mechanisms would there be to monitor and enforce compliance? Secondly, what would be the consequences if an ICB failed to meet this duty? Would there be formal accountability or a sanction process? Thirdly, how would the duty interact with existing NHS budgetary constraints and competing priorities? Would it become a statutory obligation with no clear means of redress if unmet? Fourthly, could the duty set a precedent whereby Parliament mandates resource guarantees without providing additional central funding? Finally, what constitutes “sufficient” resources in the context of the CTOs? Who defines that standard, and it is defined locally or nationally?
Stephen Kinnock
The term “unreasonable delay” is subject to review by the courts, and further guidance will be given in the code of practice. On what happens if the responsible clinician and the community clinician disagree, the addition of a third decision maker is not about overruling the responsible clinician, who continues to have overall responsibility for the patient on the community treatment order. Including the community clinician at the point of putting someone on a community treatment order helps to ensure continuity of care for the patient. Involving the community clinician in other decisions around the community treatment order, particularly recall, revocation, renewal and discharge, means they can provide an additional insight into the patient’s status while in the community.
Dr Evans
I am grateful for the clarification. Does it mean that, in essence, there will be a hierarchy, so the responsible clinician is above the community clinician and trumps them? If a community treatment order cannot be signed off, it does not exist. I want to explore that angle; is that what the Minister is suggesting?
Stephen Kinnock
Yes, the responsible clinician has primacy.
On the workforce impact, our impact assessment, which was published alongside the Bill, sets out the additional hours of required clinician activity. We will invest in implementing these reforms.
On the meaning of the word “necessary”, we will provide further guidance in the code of practice to provide for a range of scenarios to help to clarify necessary conditions, as well as to clarify that failure to meet those conditions should not always result in recall to hospital.
On the requirement for a responsible clinician to respond to recommendations, we considered giving the tribunal the power to change or remove conditions on a person’s community treatment order. However, the outcome of our stakeholder engagement was that tribunal colleagues did not consider that it was appropriate for them to make clinical judgments, for example whether a condition is of clinical benefit. Providing the power to recommend that the responsible clinician reconsiders the conditions allows the tribunal to provide additional scrutiny but also allows for clinical discretion in decision making.
The hon. Member for Farnham and Bordon asked about training. The training plan will be in the first written ministerial statement.
On where the terms are defined, clause 10 defines responsible clinician and clause 22 defines community clinician. We will define the distinction between the roles in the code of practice.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23 ordered to stand part of the Bill.
Clause 24
Nominated person
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 54 to schedule 2, page 77, line 21, at end insert—
“(3) Where the patient has not attained the age of 16 years, a nominated person must have parental responsibility for the patient.”
This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.
Amendment 55 to schedule 2, page 80, line 13, after “2(2))” insert
“, has parental responsibility for the patient (see paragraph 2(3))”.
This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.
Government amendments 40 and 41.
Schedule 2.
Clauses 25 to 28 stand part.
Stephen Kinnock
I will discuss a number of issues concerning the topic of the nominated person, one of the Bill’s key reforms. I will first address clause 24 and schedule 2, which seek to replace the current nearest relative provisions with the nominated person, chosen by the patient, who can protect their rights when they are detained. The independent review found the nearest relative provision to be outdated and inappropriate. It allocates someone based on a hierarchical list, which does not reflect modern families and could result in someone unfamiliar or potentially risky to the patient being given the role.
We have ensured that appropriate safeguards are in place to protect patients as well as to enable choice. A health or social care professional or an advocate must witness the nomination and confirm in writing that the nominee meets the criteria and that no undue pressure has been put on the patient. Children and young people with the relevant capacity or competence can choose their own nominated person. We expect this will be their parent or guardian, but sometimes a step-parent or other relative over 18, without parental responsibility, may be more suitable to protect a patient’s rights. Safeguards will be put in place to support children in making this choice.
If a patient of any age lacks capacity or competence to make a nomination, an approved mental health professional will appoint a nominated person on their behalf. For children under 16, this will be someone with parental responsibility, including the local authority if the child is subject to a care order. This appointment is temporary until the patient has capacity or competence to make their own appointment.
For all patients, the responsible clinician or approved mental health professional can temporarily overrule the use of a particular nominated person’s power, for example to discharge the patient, if the patient is likely to act in a manner that is dangerous to themselves or others. A nominated person can be removed by the county court if deemed unsuitable—for example, if they misuse their powers or neglect the patient’s welfare or the public interest. Anyone with an interest in the patient’s welfare, such as their parents, can apply to the court. The Bill extends the nominated person safeguard to some restricted part III patients, but their nominated person’s powers will be limited, as appropriate, in the interests of public safety and criminal justice.
Amendments 54 and 55 would require nominated persons for patients under 16 to have parental responsibility for the child, whether chosen by the child or appointed for them. The Bill currently requires this if the child lacks competence to appoint their own nominated person. However, where a child has competence to decide, we think it is right that they can choose the person to represent their interests. That view was supported by the majority of respondents to the White Paper consultation on reform of the Mental Health Act, and it is in keeping with the principles of choice, autonomy and treating the person as an individual.
Like the current “nearest relative” provision, which the nominated person will replace, the amendments do not take into account the greater diversity of modern family structures—for example, where a step-parent may play a vital role in a young person’s life but does not have formal parental responsibility. Our engagement with children and young people during the development of the Bill suggests that the vast majority will appoint a parent as their nominated person. However, we think having choice is important to prevent children from having to have a nominated person who may not engage with the role or act in accordance with their best interests, just because they have formal parental responsibility.
Where children have competence to choose their own nominated person, a health or social care professional, or advocate, will be required to witness the nomination and confirm in writing that the nominated person is over 18 and suitable to take up the position. Regardless of nominated person status, parents should be involved in a child’s care and treatment, and they will retain their legal rights under parental responsibility. Safeguards are in place to allow for the overruling and displacement of the nominated person if they are behaving in a way that is not in the child or young person’s best interests.
Government amendments 40 and 41 will remove paragraph 11(3) to 11(5) of schedule 2 from the Bill, as it is unnecessary to specify in legislation which person with parental responsibility the approved mental health professional must appoint as nominated person for an under 16-year-old. A prescriptive list of who an approved mental health professional must appoint for a child under 16 may prevent a more suitable adult from being chosen as the nominated person. The Bill states that for under-16-year-olds lacking competence, an approved mental health professional must appoint a parent, or whoever has parental responsibility, to be the child’s nominated person. This would include consideration of special guardians and child arrangement orders.
The Government do not agree that a person with residual parental responsibility should always be blocked from being a nominated person, as the child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child. For example, the parent might struggle with their own health issues, but that does not necessarily mean that they would not be an effective nominated person. The situation is different in the case of a care order because the local authority is being given lead parental responsibility. We have engaged with the Children’s Commissioner on that point.
If there is no suitable person with parental responsibility willing to act, the approved mental health professional must take into account the patient’s past and present wishes and feelings, so far as reasonably ascertainable, when deciding who to appoint. We will establish an expert taskforce to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process for children and young people.
Clause 25 will require the approved mental health professional to consult the nominated person before they make an application for admission for treatment or guardianship. This is an existing right for the nearest relative. However, currently if the nearest relative exercises one of their powers, such as the ability to block admission, but the professional believes their objection is unreasonable, the only means of overruling them is to remove or displace them as the nearest relative. This can leave patients without someone to represent their interests during detention.
Clause 25 will allow the approved mental health professional to make use of the existing barring order to temporarily overrule the nominated person, if the patient would be likely to act in a manner dangerous to other persons or themselves if their admission was blocked. This is a well-established process. Although the nominated person can continue to represent the patient in other ways, they can still be displaced by the court from the role entirely if their actions indicate they are unsuitable for the role—for example, if they are repeatedly objecting to admission without considering the welfare of the patient or the interests of the public. Approved mental health professionals can continue to use that process.
Clause 26 will transfer the nearest relative provisions relating to the power to order discharge of a patient to the new nominated person role. The power can be temporarily overruled by a responsible clinician if they think that the patient’s discharge would result in danger to themselves or others. It is a well-established process that allows for clinical discretion, but means that the nominated person can continue to represent the patient’s rights in other ways. Clause 26 also reduces from six months to three months the time period during which the nominated person cannot make another order for discharge. That reflects the changes in detention periods under clause 29.
Clause 27 will give the nominated person a new power to object to the use of a community treatment order. We also recognise, however, the importance of protecting patients and the public, so if the responsible clinician is concerned that without a community treatment order, there would be a risk of danger to the patient or others, they can overrule the nominated person’s objection. Those changes will help both to reduce the number of inappropriate community treatment orders and to ensure that safeguards are in place for patient safety and public protection.
Finally, clause 28 provides that before deciding to transfer a patient, the person responsible for taking that decision must consult the patient’s nominated person, unless consultation is not reasonably practicable or would involve unreasonable delay. The nominated person will not be able to object to a transfer, because there may be good reasons for transferring a patient—for example, if a different trust can provide better care, such as a specialist eating disorder unit. Consulting the nominated person, however, means that they are aware of the reasons for transfer and how it will benefit the patient. That will help the nominated person to remain actively involved in protecting patients’ rights and kept informed about a patient’s care and treatment.
Dr Evans
I welcome the chance to contribute to the debate on clauses 24 to 28. I will then turn to Government amendments 40 and 41 and to amendments 54 and 55, tabled by my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer).
Clauses 24 to 28 represent a significant reform to the Mental Health Act 1983. They seek a shift from the traditional concept of a nearest relative to giving patients more control by allowing them to nominate a person to act on their behalf. Clause 24 is the cornerstone of the reform, establishing the role of a nominated person as the patient’s chosen individual to take over certain rights and responsibilities previously held by the nearest relative. It represents a fundamental change from a fixed family-based system to one centred on patient choice and autonomy.
Currently, the nearest relative, often by blood relation, holds a range of statutory powers under the Mental Health Act, regardless of the quality of their relationship with the patient. The clause will enable patients, especially adults, to nominate a trusted person—a family member, friend or advocate—who can act in their best interests. That is a progressive and patient-focused change relating to modern social realities, where family ties are complex and a biological relative is not always the best supporter.
Empowering patients to select their nominated person can enhance trust, improve communication and ultimately lead to better care outcomes. It does, however, raise pressing questions. For children and young people, particularly those aged 16 and 17, who gain legal capacity to nominate, what safeguards ensure that parental concerns and children’s welfare remain adequately considered? How will disputes between nominated persons and relatives, or between the nominated person and clinicians, be resolved? Part of that might be addressed in Government amendments 40 and 41, but I am keen to understand a little more. What training and oversight will ensure that nominated persons understand their duties and, importantly, their boundaries? Finally, for a patient who does not or cannot nominate someone, will the nearest relative still have a role, and how will that be managed?
Clause 25, on applications for admission or guardianship, builds on clause 24. It will require the approved mental health professional to consult the nominated person before making applications for admission or guardianship, except where consultation is not reasonably practicable or would cause unreasonable delay. It will also allow the nominated person to object to such applications, requiring a barring report from the approved mental health professional if an objection is made.
The clause will formalise the nominated person’s involvement at a critically early stage of the intervention, ensuring that their voice can influence decisions that deeply affect the patient. The power to object introduces an important check, though it is balanced by the professional’s ability to override objections on the grounds of safety. The Opposition agree with that, but there are still some questions. How will professionals navigate conflicts between their clinical judgment and objections by the nominated person? Will there be clear guidance to avoid delays that could jeopardise patients or public safety?
Gregory Stafford
I thank my hon. Friend for his comprehensive analysis of the provisions under discussion. Does he understand amendments 54 and 55 to mean that, although there would be a narrowing of who can be chosen as the nominated person, there would still be some flexibility for the child to choose? Does he have any concerns about a situation in which a minor—someone under the age of 16—may, for whatever reason, choose somebody who the health professionals believe is not the most appropriate person, and does he have any sympathy with the idea that, given a parent has responsibility for the child in every other aspect of their life, the parent should have that same responsibility in this context?
Dr Evans
My hon. Friend has identified the nub of the issue, and his intervention leads me on to an example that demonstrates the problems that we are talking about. I have chosen to debate these provisions in the order shown on the selection list because I wish to understand whether the Minister believes that Government amendments 40 and 41 will deal some of the issues that I am about to raise. There clearly has to be flexibility in dealing with these situations, but it is worth exploring what could go wrong. The nub of the issue is that they may well go wrong. Let us take an example.
Say that A is 16, and she is struggling with anxiety and behavioural issues. She has had serious suicidal episodes and previous drug use. She lives at home with her loving, supportive parents, who have always acted in her best interests and want to engage constructively with her care, but A is under pressure from a 19-year-old boyfriend. He is controlling, and discourages her from speaking to her parents or professionals. When asked to nominate a trusted adult, A names him. Under the Bill as drafted, the nominated person could be accepted, provided A is deemed to be competent. That would give her boyfriend access to her care decisions and significant legal standing. Under amendments 54 and 55, that would not be possible because he does not have parental responsibility, and therefore could not be appointed.
That example illustrates why the amendments matter. Children, especially those in crisis, may be vulnerable to coercion, grooming, or misplaced trust. Loving parents, who have legal obligations to protect and care for their children in every other walk of life—as my hon. Friend the Member for Farnham and Bordon pointed out—could find themselves legally sidelined.
Are there risks in amendments 54 and 55? We must consider the edge cases. Not all children under 16 live with those who are trusted and have parental responsibility. There are estranged families, kinship carers, informal fostering arrangements and situations of abuse. A strict parental responsibility requirement could exclude the very people relied on by a child. I ask the Minister whether there is flexibility in the amendments for exceptional cases in which someone without PR may be appropriate, with oversight. Do Government amendments 40 and 41 already address that point? Forgive me if I have misinterpreted, but they seem to be bridging amendments. Would guidance or a statutory code of practice provide a better mechanism to balance protection and flexibility? What assessment has been made of children in care or informal arrangements, where parental responsibility might technically lie with a local authority or estranged parent, especially under the changes proposed by Government amendments 40 and 41?
There are potential routes forward. One option might be to require PR by default but allow exceptions if the child expresses a clear competence preference, the AMHP agrees that a person is suitable and poses no safeguard risks, and a senior commissioner or legal oversight has sign-off. That is a possible way of keeping amendments 54 and 55 alive, and it would keep within the spirit of the amendments by protecting children from harmful influence without removing their voice in complex or marginal cases. We could also explore adding an explicit safeguard power to override a child’s nomination where there is concern of coercion or abuse, regardless of parental responsibility status. Again, I think that may be what Government amendments 40 and 41 are trying to do, but I would be grateful to see whether that is the case.
David Burton-Sampson
It is a pleasure to serve under your chairship, Sir Desmond. I rise to speak to clauses 24 to 28, and I will start by sharing the story of two of my constituents: Carol and her husband John.
John had been an active member of the local community before he was sadly diagnosed with dementia. As his dementia progressed, John was settled into a good care home and Carol was happy with the care that he was receiving. Due to a change in his medication, Carol was told that John had become more agitated and aggressive than usual. She was asked whether she would agree to John being assessed. Although she did not really understand what that meant, she did not see any reason to refuse.
From that point on, Carol says that she felt like she had lost control over her husband’s care. John was assessed by four strangers, and Carol was told that she could not be present. Following the assessment, Carol was told that John would need to be detained under the Mental Health Act within the next two weeks. Carol was very concerned to hear that John would be detained, but despite having power of attorney, she was not able to overrule that decision. She hoped that he would be able to get help with his medication and that he would be discharged.
In the end, Carol had only half an hour’s notice that John was going to be detained. She rushed to the care home to see her husband, who had been sat in the garden having a cup of tea with some friends, being abruptly put into a van by two men and taken away. She was not allowed to come with him, and for the first time in her life, Carol had a panic attack. She could not imagine how traumatic it was for John, who was disorientated and confused because of his dementia, to be taken by people he did not know to a strange place.
John was taken to a secure mental health ward that was very different from the familiar environment of his care home. Carol was told that she could not visit him, but she was insistent and turned up anyway. She was then allowed to meet his doctors on his first day and was reassured to hear that he would be detained for only two weeks while his medication was reviewed.
In the end, John was detained for eight months. Carol continued to visit every day, spending as much time as possible with him. She had specially adapted her home to accommodate John’s needs, but she was not able to have him discharged to either his home or a care home. Precious time was taken up with the endless fight to get John into a more appropriate environment. Sadly, John’s health significantly declined while he was detained. He lost the ability to walk and speak, and Carol felt that, in his declining state, he could not pose any danger to himself or anyone else. However, it was only after he was admitted to hospital for a catheter fitting that Carol was able to get him discharged, thanks to a doctor telling her that she could use her power of attorney to take him home—something she was told she was unable to do in the mental health facility.
She took him to a care home, where, sadly, he died two weeks later. John’s cause of death was listed as Parkinson’s, but Carol feels strongly that the anxiety and fear of his final months contributed to his death. Carol understood that her husband was dying; all she wanted was to be included in making decisions about his care. She knew very clearly what she wanted for him. She told me:
“I wanted him to die in a bed with clean sheets, with a window open and with me by his side.”
Those wishes were not taken into account.
As John’s wife and carer, Carol spent every day with him, yet she felt excluded from the decision-making process for his care. She should have been able to focus on what was important: spending time with him. The changes in clauses 24 to 28 would have helped Carol to feel more involved in representing John during his time in care. Clearly, there were failures to allow Carol, as John’s nearest relative, the rights that she was entitled to in order to support him.
With the move from “nearest relative” to “nominated person”, the new rights afforded by the Bill would have given Carol even greater engagement. Given that she had power of attorney, it is likely that she would have been appointed the nominated person by the AMHP. However, moving forward, it is important that those rights are properly afforded to the nominated person, so that we do not have another situation like John and Carol’s.
Although I welcome and fully support the changes in clauses 24 to 28, I seek an assurance from the Minister that all efforts will be made to ensure that the rights of nominated persons are fully recognised and assigned, and that nominated persons will be made fully aware of their responsibilities and powers, allowing advocacy for the patient under care.
I turn briefly to amendments 54 and 55 and Government amendments 40 and 41. I agree with the Government’s view that if a child has capacity, they should be able to have the choice to appoint their own nominated person. I appreciate the intent of the amendments from the hon. Member for Runnymede and Weybridge, but I think that the Government’s approach is more appropriate.
Gregory Stafford
I appreciate that the hon. Gentleman sees the potential benefit in the amendments standing in the name of my hon. Friend the Member for Runnymede and Weybridge. However, my hon. Friend the Member for Hinckley and Bosworth gave an example, which I do not think is entirely distanced from reality or possibility, in which a person could well choose someone who is deeply inappropriate. In that situation, the person or people—that is, the parents—who had in every other part of life had responsibility for that child would now potentially not have responsibility for the child, in what is probably the most important part of that responsibility.
Does the hon. Member for Southend West and Leigh really not have any concerns about that? If he does, does he not support at least the intentions behind those two amendments, if not the exact wording or drafting? If he does accept those intentions, would he like to see the Government table similar amendments, drafted in a way that he would find more appropriate?
David Burton-Sampson
I appreciate the hon. Member’s intervention. He makes the point that there may be situations in which the young person’s request might be inappropriate. However, on the flip side, there may be a situation in which it might be inappropriate for the person with parental responsibility to be the nominated person. They could have been involved in the situation that has led to that young person entering a mental health spiral—an abuse situation, for example, which has not been discovered by the authorities. That person would still have parental responsibility at that time. I think it is important that the young person can choose the person to support them in their ongoing care. I will be supporting clauses 24 to 28 and Government amendments 40 and 41.
Dr Chambers
Amendment 49 extends the support offered by mental health advocates to cover social and financial stresses and to family carers and other members of the household when the patient is discharged.
Other hon. Members have today discussed how social and financial struggles can play a major role in someone’s mental ill health and in blocking their recovery, and how those are often the areas where someone can most benefit from advocacy and advice. As we are all aware, patients should not be viewed as a collection of symptoms, but within their whole context, including the situation they are living in. Addressing someone’s housing insecurity, debt or family breakdown should not be viewed as a separate consideration, but as a core part of supporting them to live happily, healthily and independently. Furthermore, family carers and the wider household are absolutely critical for people’s wellbeing and recovery, and should be properly equipped to prepare for their loved one returning from hospital. They, too, may need advocacy and may be missing out on support that they can and should receive.
A good example comes from Winchester, where Winchester Citizens Advice has a member of staff—a former mental health nurse—based at Melbury Lodge in-patient mental health unit. Often, someone may be admitted for two, three or four months, and when they are discharged, they go home to all their life admin—there will be final demands for credit cards or requirements to repay personal independence payments and that type of thing. It is very overwhelming, particularly for those who already have fragile mental health, to have to sort out a whole backload of administration—especially financial and complicated administration. For two days a week, that staff member supports in-patients in sorting out all their administration from anything that needs to be done.
What is interesting is that when these patients are discharged from Melbury Lodge in Winchester, if they have had that help, they end up being hospitalised and on medication for a shorter time. They are also more likely to engage with various support and community services once they have been discharged and are much less likely to be readmitted to hospital. For every £1 spent on that initiative, £14.08 is saved in cost avoidance. That initiative run by Melbury Lodge and Winchester Citizens Advice was up for an NHS award last year. It is a proven concept and something that should be done across the entire country. It has been running for two years and has proved how much money can be saved. Unfortunately, it was a pilot project and is struggling to secure money to continue indefinitely. I urge the Government to look at how that type of initiative could be rolled out around the whole country.
Sojan Joseph
The hon. Member is making a very valid point that all patients need help with their finance and accommodation to keep them in the community and make discharge more appropriate. However, those provisions are already in place as part of the patient’s care plan. Different hospitals have different settings, such as a discharge or enablement team, or even the nurses on the ward itself can help and look into those provisions. Does the hon. Member think that that is the role for independent mental health advocates, who prioritise detention and the Mental Health Act, rather than the finance and accommodation issues, which need to be resolved by a different team?
Dr Chambers
I accept that point. It is a very sensible point. There has been a huge amount of discussion about what is in scope. Given that this is focused primarily on both current in-patients and preventing readmittance to an in-patient unit, I think it is within scope. I am aware that a lot of staff support patients, but it is not a core part of their role. It is something they squeeze in among all their other duties. When we have the expertise of someone at citizens advice, who knows how to navigate the huge complexity of various organisations and businesses that have to be dealt with, it is a lot more efficient. The figures speak for themselves.
The Chair
Order. We have strayed on to amendment 49, which is a separate debate. Can we come back to the amendments before us?
Dr Chambers
My apologies, Sir Desmond. I thought amendment 49 was included in the debate on clause 24.
Rosie Wrighting (Kettering) (Lab)
I rise to speak to clauses 24 to 28 and the Government amendments to them. They cover an important and long overdue reform, which introduces a new statutory role: the nominated person, replacing the outdated concept of the nearest relative. I think, cross party, we all agree that this is about protecting some of the most vulnerable people in society and children.
The clauses and amendments make important changes to the current Act, which too often forces an individual to rely on someone they may not trust or even have contact with, just because of their family relationship. As the Minister said, the White Paper found that the vast majority would choose their parents, but we must have legislation that reflects the diversity of society and families. Growing up in a single parent family, it would have been inappropriate for my other parent—who is one of my nearest relatives, but who I did not live with, know or particularly trust—to be my representative or make decisions on my treatment and care. In my upbringing, the people who knew me best were not always my closest blood relatives.
The nominated person model gives individuals the right to decide who should speak for them when they are at their most vulnerable. That might seem like a small change, but it is a powerful one and aligns with the Bill’s overall goal of placing patient voices at the heart of mental healthcare. Having someone a person trusts—someone who knows them and can advocate for them—is vital. I was contacted by a constituent whose brother was sectioned and assessed at hospital as needing ongoing support in sheltered accommodation. His social worker challenged the decision and recommended private accommodation. That confusion, despite his sister continually challenging the recommendation, meant he was discharged, with nowhere to go, in the middle of the night.
It is crucial that safeguards will remain. Where an individual cannot nominate someone themselves, a person can still be appointed on their behalf, but with far clearer guidelines and recourse if concerns arise. It is not about removing protection; it is about modernising it to reflect the society we represent. Mental health legislation must reflect the value and diversity of the society it serves, and the clauses and amendments before us bring us a step closer to that.
Aphra Brandreth (Chester South and Eddisbury) (Con)
It is a pleasure to serve under your chairmanship, Sir Desmond. I rise to support amendments 54 and 55, tabled by my hon. Friend the Member for Runnymede and Weybridge, but I will first briefly speak to clause 24, which is an important and long-overdue step towards modernising the Mental Health Act 1983, crucially strengthening the rights, dignity and autonomy of individuals subject to it.
The reform of the existing nearest relative provisions, replacing them with a new system that allows for the appointment of a nominated person, is an important part of ensuring that individuals get the right support, and modernises an outdated system. The current model is based on a rigid and outdated hierarchy in which the role of the “nearest relative” is determined by law, not by the wishes of the patient. This one-size-fits-all approach fails to account for the complexities and nuances of individual relationships. It can result in someone unsuitable, or even actively harmful, being placed in a central role in a person’s care and treatment journey. Indeed, the limitations of the system have been acknowledged by practitioners, patients and policymakers alike. It is too often disempowering, and the patient can lose agency at a time when they need to be empowered to feel in control of the situation as much as possible.
As the shadow Minister says, clause 24 is the cornerstone of the reforms. It is an important change to the current legislation to reaffirm the commitment to patient-centred care, to dignity and to the principle that those receiving treatment under the Mental Health Act should have a voice in decisions about their support network. The aim of the clause—to put the patient first—is important. It acknowledges that the person best placed to advocate for the patient may not be their closest relative. In some cases, family dynamics are fraught. In others, the designated relative may hold views about treatment that conflict with the patient’s wishes or medical advice. We have seen real-world examples in which the imposition of the “nearest relative” role has led to tension, distress and, ultimately, a breakdown in trust. That is not the kind of environment in which recovery is fostered.
Amendments 54 and 55 would address the specific issue of nominated persons and those with parental responsibility for children under the age of 16. It is important that we consider situations in which a young person may be in a vulnerable position and their decision on who their nominated person should be may not be in their best interests. We have a particular duty to ensure that children are safeguarded. Clause 24 as it stands will allow under-16s to choose someone who is not the parent to have significant power, including the ability to discharge the child from hospital.
We must listen to and actively try to support any young person who needs that kind of intervention—it is not that their views should not be considered. However, there is a very real risk that a vulnerable child or teenager might be coerced by or under the control of an older partner, for example, as my hon. Friend the Member for Hinckley and Bosworth pointed out. Perhaps they might choose an older friend. We need to consider that a decision made by the nominated person, such as an older friend, may have implications for those with parental responsibility. For example, that older friend may decide to discharge a child from hospital and into the care of the parents, who would not provide advocacy or be part of that decision making.
The Minister said that safeguards will be put in place, but can he expand on that? There are some real concerns here. Let us consider a situation in which there has been a decision by a court to determine which parent has responsibility for the child. If complex family issues have already been considered by the family court, it is right that the decision be followed. I respectfully ask the Minister to reconsider this point. We must respect the fact that parents of those under 16 are best placed to advocate for, support and act for their children. This is about capacity, consent and, ultimately, safeguarding.
Gregory Stafford
My hon. Friend makes a powerful point. I remember the comments made by the hon. Member for Southend West and Leigh, who is chuntering from a sedentary position—I think he disagrees with my hon. Friend’s point. In his reply to my intervention, he made the point that there are situations in which things are the other way round, where those who have parental responsibility are not necessarily the appropriate persons.
Does my hon. Friend agree that, on first principles, the parent should have parental responsibility in all areas of life, including the ones that she is talking about, unless there are specific reasons, such as the court decision to which she referred, that suggest that the parent is not the correct person to have responsibility? Surely, in the balance of danger or risk, there is a far greater risk if the nominated person is not a parent than if the nominated person is a parent.
Aphra Brandreth
My hon. Friend makes an important point. If parents are not acting in the best interests of their children, there is a wider safeguarding issue that needs to be considered. One would question why such parents had been left in a situation in which they have responsibility for their children and are potentially harming them.
That leads me nicely to another point, which is that introducing the additional wording would bring mental health in line with physical health. For someone under the age of 16, it is their parents who have the responsibility to act in the best interests of their physical health; it seems to me that one would expect the same for mental health. I therefore urge the Committee to support amendments 54 and 55.
Let me return briefly to the overarching aims of clause 24. I underscore the point that the wider principle at stake—patient autonomy—is one that I support. The ability to make informed choices about one’s care should be a central component of our care system. In mental health, where individuals can feel particularly vulnerable, that becomes even more essential. Granting patients the power to nominate someone who will advocate for them, advise them and represent their wishes is a powerful act of empowerment. Moreover, this change enhances safeguards for patients. It ensures that the person acting on their behalf is someone they have chosen and trust. It reduces the potential for conflict and opens the door to a more collaborative and compassionate model of care.
If the Committee agrees to the amendments, which would provide the necessary safeguards for children, who I believe should be considered separately to adults, my overall view is that clause 24 represents a pragmatic, compassionate and patient-focused update to the Mental Health Act. It aligns with our modern understanding of mental healthcare and puts trust, respect and dignity at the heart of our legislative framework.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a pleasure to serve under your chairmanship, Sir Desmond. I am grateful for the opportunity to speak to amendments 54 and 55, which propose that where a nominated person is appointed to represent the interests of a patient under the age of 16, that individual must hold parental responsibility. At face value, that is a concise and apparently straightforward proposal. However, as with much in the Bill and in our mental health legislation more broadly, what appears simple can raise intricate legal and ethical questions. I therefore wish to probe both the merits and the challenges of these amendments. I do so not to come down firmly on one side of the argument or the other, but in the hope of assisting the Committee to think through the implications of the amendments. I hope to prompt the Minister to provide further clarification as our consideration of the Bill proceeds.
I will start by setting out the case in favour of the amendments. There is an intuitive and, I would argue, legally grounded rationale behind amendment 54. It rests on the principle that serious decisions concerning a child’s mental health—decisions that might involve treatment without consent, or even deprivation of liberty—ought to be taken, or at least overseen, by somebody who already holds recognised legal responsibility for that child.
Parental responsibility is not merely administrative. It carries statutory and common-law duties to protect, support and advocate for a child’s welfare. By requiring the nominated person to have such responsibilities, the amendment seeks to ensure a level of legal legitimacy and continuity. It would strengthen the position of those with a formal bond to the child and might help to guard against the risk of unsuitable or ill-informed individuals stepping in to play such a critical role.
In that sense, amendment 54 reflects what many would see as good legal hygiene. It would bring new legislation into closer alignment with the Children Act 1989 and with broader child welfare practice. It would create a baseline expectation that only those with legal authority over a child should make, or help to make, decisions of such magnitude. It would also offer reassurances to families. For parents and guardians already concerned about the complex and sometimes opaque processes of mental health detention, the amendment offers a clear signal that their role cannot be set aside lightly. That reassurance may be particularly important when children are subject to long-term care or involuntary treatment. However, questions begin to surface at precisely that point, because although the principle appears sound, the practice is far from straightforward. It is therefore important that we probe both the advantages and disadvantages of the amendment.
Mental Health Bill [ Lords ] (Sixth sitting)
Tuesday 17th June 2025
(3 weeks, 6 days ago)
Public Bill CommitteesMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2025 - (17 Jun 2025)
The Committee divided: - Ayes: 4 / Noes: 11 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 11 - Question accordingly negatived.
The Chair
As it is quite warm, any hon. Member who wishes to remove their jacket may do so.
Clause 24
Nominated person
Question (this day) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 54, in schedule 2, page 77, line 21, at end insert—
“(3) Where the patient has not attained the age of 16 years, a nominated person must have parental responsibility for the patient.”
This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.
Amendment 55, in schedule 2, page 80, line 13, after “2(2))” insert
“, has parental responsibility for the patient (see paragraph 2(3))”.
This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.
Government amendments 40 and 41.
Schedule 2 stand part.
Clauses 25 to 28 stand part.
Gregory Stafford (Farnham and Bordon) (Con)
It is a pleasure to serve under your chairmanship, Mrs Harris. I rise to speak in support of clauses 24 to 28, schedule 2, and the vital amendments 54 and 55 in the name of my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer). Together, those provisions form a crucial pillar of the Bill, which must modernise our framework for the 21st century while not forgetting one of the oldest truths in our social contract: that parents, not the state, bear the first and deepest duty to protect their children.
The Bill will reform an Act that has stood in various forms since 1983, and which was itself built on a much older legacy of how this country balances individual liberty with the need, in rare cases, to deprive someone of that liberty for the sake of that person’s safety, or the safety of others. For decades, that balancing act has been shaped by the so-called “nearest relative” rule. However well intentioned that rule was, it has often failed to serve the people it is meant to protect. Patients have found themselves legally represented by estranged parents, distant cousins or an ex-spouse with whom they have had no contact for years. In the worst cases, that has compounded trauma and undermined recovery. Clause 24 will address that problem by giving patients the power to appoint a “nominated person” of their choosing: someone whom they trust, who understands their needs, and who can speak up when they themselves cannot. That is, quite simply, the right approach for modern mental health care. It is grounded in autonomy, and respect for the individual’s right to shape their own care and safeguard their own dignity.
Good principles must be matched by good machinery. That is why schedule 2 is not a mere administrative detail, but the backbone of this reform. It sets out, step by step, how a nomination is made, who may be nominated, how conflicts are avoided, and how mistakes are corrected. Under part 1 of schedule 2, a patient must make the appointment in writing. It must be signed and witnessed by
“a health or care professional or independent mental health advocate”.
That is a safeguard against casual or coerced choices. The nominated person must themselves consent: they are not a passive bystander but an active participant. If the relationship breaks down, the patient may revoke the nomination, or the nominated person may resign. Crucially, the county court may step in to remove or bar a nominated person if that person acts unreasonably, abuses their power, or is clearly unsuitable.
Part 2 of proposed new schedule A1 to the Mental Health Act 1983, inserted by schedule 2 to the Bill, addresses an issue that we must take seriously: capacity. Not every patient will have the capacity to make the appointment at the moment it matters most. The proposed new schedule therefore provides a fall-back system. A court may appoint a nominated person on the patient’s behalf, or a default can be determined under criteria set by regulation. The court again retains ultimate oversight to resolve disputes or replace a default, if the circumstances require it. It is thoughtful, practical and rights-based lawmaking, and I commend the drafters for getting the balance broadly right.
Clauses 25 to 28 will give the nominated person real power. They are not a figurehead. Clause 25 demands that professionals consult the nominated person before applying for detention or guardianship. If the nominated person objects, the professional must provide a report showing why detention is none the less necessary, with a clear risk-based justification. The nominated person can then challenge that decision. Clause 26 shortens the duration of the bar on discharge requests from six months to three. If a nominated person believes that the person no longer needs to be detained, they can press for release sooner and more effectively than before.
Jen Craft (Thurrock) (Lab)
Without wanting to sound abrupt, we all have the explanatory notes and are reading them, so in the interests of brevity might the hon. Member consider getting to the point about what he would add to or take away from the Bill? We all know what the clauses aim to do; the Minister has already set that out.
Gregory Stafford
I thank the hon. Lady for her point, but I shall continue in the same vein unless I am told to do otherwise.
Clause 27 will ensure that when community treatment orders are considered, with all the restrictions they bring, the nominated person’s voice must be heard and an objection must be properly countered with evidence. Clause 28 addresses hospital transfers, recognising that being moved to another hospital can uproot fragile support networks and compound distress. By embedding a consultation duty here, too, the Bill will make it harder for patients to be moved arbitrarily or without explanation.
In summary, the clauses and the schedule empower patients, embed transparency and build trust, but they do so through a lens rightly focused on adults—capable, consenting adults who make choices freely. That brings me to my fundamental point: we must be absolutely certain that this approach will not inadvertently erode a bedrock of child protection: that a parent is the default legal protector for their child. For an adult, autonomy means freedom of choice, but for a child, especially one under 16, autonomy must never mean being left alone to navigate a labyrinth of legal forms and healthcare powers without the protection of a parent. That is why I strongly support amendments 54 and 55, which would ensure that for under-16s, parents remain the lawful decision makers and the first safeguard for their child’s welfare.
Let us imagine for a moment a vulnerable 14-year-old who, in the confusion and fear of a psychiatric admission, is persuaded by a well-meaning adult—or, worse, someone with a hidden agenda—to appoint them as the nominated person. That child may be separated from their parents—the very people who know the child best and have a legal duty to care for them—while an outsider gains rights to object to treatment or discharge decisions. Once that nomination is made and witnessed, it carries weight in law and could marginalise the very people who brought that child into the world and have a moral and legal duty to protect them.
This is not just theoretical. We know from real cases in family courts that unscrupulous individuals can exploit vulnerable young people. The risk that the new system could unintentionally open the door to manipulation must be taken seriously. Let us not be naive about how exploitation works: groomers, traffickers and abusers thrive in grey areas of the law; they will find loopholes and drive a coach and horses through them. If we do not make it crystal clear that no child under 16 can override parental responsibility without a court’s explicit order, we risk creating an invitation for abuse.
Can the Minister assure the Committee that no child under 16 will be permitted to override parental responsibility simply by nominating someone else without a full and proper process? Schedule 2 does include fall-back arrangements and eligibility checks, and those are welcome, but unless the law is explicit that only a court can displace a parent’s right to act for their child, those safeguards are not watertight.
Amendment 54 addresses a related area, the notification of incidents. It would require the Secretary of State to review whether the law should be strengthened so that all admissions of children and young people for mental health treatment trigger mandatory incident reporting, and whether the timeframes for that reporting are still appropriate. It would require the Secretary of State to review whether incident reporting requirements are robust enough for all under-18s in mental health settings. Are all incidents of restraint, seclusion, injury or absconding being reported promptly and comprehensively? If not, what must change?
We have seen far too many tragic cases in which harm or abuse in children’s mental health units came to light only after a scandal broke, because the system did not catch it in time. Proper oversight is not an optional extra; it is essential for the trust of families. In my view, a review alone is not enough, so I urge to the Minister to confirm that, if the review finds gaps, the Government will legislate swiftly to close them. In the meantime, what interim steps will be taken to ensure that no child is left unprotected?
Amendment 55 is the final safeguard in this suite of amendments. It would allow the Secretary of State to make consequential amendments to other laws to implement the Bill cleanly. That is good housekeeping, but it must not become a blank cheque. When it comes to parental rights or child safeguarding, no technical tweak should be done behind closed doors by negative procedure; Parliament must approve it in full daylight, on the record. Will the Minister confirm without ambiguity that any consequential amendment that touches on parental powers or child protections will come before both Houses under the affirmative procedure?
To illustrate things in the starkest terms, let me paint one more scenario for this Committee. A 15-year-old girl, already vulnerable, is detained following a self-harm incident. Her parents, distressed but committed, wish to be involved in her care plan and discharge, but in her fragile mental state the child is persuaded by an older friend—perhaps well-meaning, perhaps not—to nominate them instead. That friend, now a legally recognised nominated person, blocks discharge, disagrees with treatment and excludes the parents from updates. The clinicians are caught in a legal tangle. The child is caught in the middle, and the parents must fight in court to reclaim their rightful role. As I said before, that is not a theory; it is the sort of real-life pitfall that sloppy drafting can enable. If we see it coming and fail to stop it, we will have failed as legislators.
I wish to be clear that I support clauses 24 to 28 and schedule 2 because they modernise mental health law for adults in a way that is respectful and empowering. I support amendment 54, because it would strengthen transparency and accountability where children’s lives and safety are at stake. I support amendment 55, because it would keep our statute book coherent, but it must never be misused to erode rights by stealth. Above all, I support the amendments because they ensure that the new nominated person system does not inadvertently weaken the oldest and strongest protection we have, which is the legal responsibility of parents to care for their own child.
I urge this Committee to adopt the clauses, the schedule and amendments 54 and 55 as essential guardrails to ensure that what we pass here is not just legally sound, but morally right. Let us modernise this law and strengthen patient voice, but let us never allow a child to lose their parents’ protection by accident or bureaucratic slip. Let us be in no doubt: when the state removes or limits parental rights, it must do so under the strictest scrutiny of a court of law, with evidence tested and the child’s welfare paramount. A signed piece of paper at a bedside should never be enough. That is the dividing line between a humane, modern health system and one that risks creating new injustices in the name of progress.
I ask the Minister again: will the Government enshrine in this Bill or elsewhere that parents are the legal representatives for under-16s unless a court directs otherwise? Will he guarantee rigorous checks to prevent the manipulation of young minds at their most vulnerable? Will he commit that any necessary changes found by the incident review under amendment 54 would be acted on without delay? I commend this package of reforms to the Committee, and I trust that the Government will listen carefully to these warnings and act to make the legislation watertight.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mrs Harris, not least because I understand you have just returned from New Zealand, where you had duties as the Government’s trade envoy. I thought perhaps we should do a haka in your honour to mark it, but you might rule against that.
Stephen Kinnock
I have no comment on that, and we are not going to divide on it either.
Let me address the questions raised in this morning’s debate. First, I was asked how disputes will be resolved when the nominated person and clinicians disagree. Where a specific nominated person, power or right is being used, the nominated person’s decision applies, because these are statutory powers and rights under the Mental Health Act. However, clinicians will have discretion and can overrule a nominated person’s decision, if there is a danger to the patient or others. That will be clarified in the code.
Secondly, I was asked how we will ensure that nominated persons are aware of their powers. In addition to the broader training and familiarisation required alongside the reforms for clinicians, the statutory forms used to appoint a nominated person will set out that the witness should explain the role of the nominated person and make sure that the nominated person and patient understand the powers and requirements of the role. I think my hon. Friend the Member for Southend West and Leigh raised that point, too.
Thirdly, I was asked whether there is a mechanism to appoint an interim nominated person, and yes, there is. The interim nominated person is the nominated person appointed by an approved mental health professional when a person lacks the competence or capacity to appoint their own nominated person. While the legislation does not refer to the term “interim nominated person”, that in practice is what they are.
A lot of the discussion today has focused on how the provision will apply to children and young people. I understand the concerns raised and the importance of getting this right. In summary, we object to amendments 54 and 55, which would require nominated persons for patients under 16 to have parental responsibility for the child, whether chosen by the child or appointed for them, on the basis that children with the relevant competence should have the ability to choose their own nominated person. That is in line with the recommendations of the independent review, and in keeping with the principles of choice and autonomy and treating the person as an individual. We have put safeguards in place to ensure that their selection is appropriate and to remove anyone who does not exercise those powers in the best interests of the child.
Anna Dixon (Shipley) (Lab)
Can the Minister assure us that there are powers in schedule 2 for the removal of a nominated person? One of the grounds is that any person engaged in caring for the patient or interested in the patient’s welfare may raise concerns—for example, a parent or other unpaid carer who has information that the nominated person is not acting in the best interests of the patient.
Stephen Kinnock
I can assure my hon. Friend on that. We have safeguards in place both to ensure that the selection is appropriate in the first place and that, if there are behaviours that indicate that the person is not right for the task, they will be removed and their powers taken away.
Dr Luke Evans (Hinckley and Bosworth) (Con)
Can the Minister clarify where these powers are and what they look like? For example, if a 15-year-old decides to appoint someone who is 23—maybe a boyfriend, maybe not—the problem is that once they make that nomination, we are waiting for something to happen. The idea behind the clauses we have been debating, and the use of exceptional circumstances to try to solve this problem, is to ensure that we prevent any problem from happening in the first place. That is the bit I am not clear on. I thought that Government amendments 40 and 41 were possibly intended to address that point, but my worry is that once the person is chosen, we do not know how they will behave. The whole idea is to give parental responsibility first. Could the Minister address where this is in the Bill, or what it looks like in the code? This is the critical bit to get right for children.
Stephen Kinnock
With all due respect to the hon. Gentleman, I am not going to spend time shuffling my papers around. If he cares to look at schedule 2, I think he will find it there.
Government amendments 40 and 41 have been tabled because we believe that it is not necessary to specify in legislation which person the parental responsibility the approved mental health professional must appoint as nominated person for an under-16-year-old. We have committed to clarify this in the code of practice. We have committed to establishing an expert taskforce to support the development of a statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process.
The fourth question was whether we need parental responsibility by default. The current nearest relative provision assigns an automatic relative according to a hierarchical list, which does not reflect modern family structures. For instance, step-parents and parents who live abroad are not included. That can mean that children and young people may have a nearest relative who can make decisions about their care but who may not know the child well or engage with the role, or who could even be a risk to them. Without formal care proceedings, the child would be left to be represented by a relative who will not act in their best interests.
Fifthly, questions were raised about how to ensure that young patients are not isolated from family support if needed. Engagement with children and young people suggests that they are most likely to appoint their parent as a nominated person. If they appoint someone who is not their parent, then parents could still be involved in their care and treatment where appropriate. Safeguards are in place to allow for the overruling and displacement of the nominated person if they are behaving in a way that is not in the child or young person’s best interests.
Similarly, where a child is under a care order and parental responsibility sits primarily with the local authority, the local authority will retain its parental responsibility for the child even if the child chooses a nominated person who is not the local authority. The code of practice will provide guidance on how practitioners should include those with parental responsibility and care in key processes and decisions.
Sixthly, in cases where there are safeguarding concerns, what safeguards exist to ensure that the nominated person acts in the best interests of the child? The witness will determine whether the child’s nomination is suitable. Clinicians will also have the power to overrule decisions made by a nominated person if they think there is a danger to the patient or to others. The patient, an approved mental health professional, parents and anyone with an interest in the child’s welfare can apply to the court to displace the nominated person if they think they are behaving in a way that is not in the child’s best interests.
Finally, there was a question about how we will ensure that there is no coercion, including in the example involving an older partner. We will provide guidance to the witness on how to check that no coercion has taken place, as well as wider suitability criteria. A nominated person cannot be appointed if coercion or undue pressure has taken place. We intend to state in the code, subject to consultation, that an advocate should be involved early on to provide support to the child or young person throughout the nomination process. Advocates could work with witnesses to ensure that they have the relevant information about the child to make an informed appointment.
I hope that hon. Members are satisfied with those answers and will not press their amendments. I commend Government amendments 40 and 41, clauses 24 to 28 and schedule 2 to the Committee.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Schedule 2
Nominated persons
Amendment proposed: 54, in schedule 2, page 77, line 21, at end insert—
“(3) Where the patient has not attained the age of 16 years, a nominated person must have parental responsibility for the patient.”—(Dr Evans.)
This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.
Dr Danny Chambers (Winchester) (LD)
I beg to move amendment 49, in schedule 2, page 87, line 13, at end insert—
“(18A) In section 130B (arrangements in relation to independent mental advocates: England), after subsection (3)(d), insert—
‘(e) support the patient’s carer and family members to prepare for the patient’s discharge from hospital treatment, and
(f) support the patient to access help with social and financial stressors that might otherwise increase their likelihood of future detention.’”
This amendment extends the support offered by Mental Health advocates to cover social and financial stressors and support for family carers and other members of the household when the patient is discharged.
It is an honour to serve under your chairmanship, Mrs Harris. I jumped the gun this morning, so I have already spoken in detail about the amazing initiative at Melbury Lodge with Winchester Citizens Advice. I will not bore the Committee with the details again, except to say that it is a brilliant example not only of delivering really good care for patients, but of a really good cost-effective intervention for the taxpayer. If it is not appropriate for it to be set out in secondary or primary legislation, will the Minister consider a meeting with me, Melbury Lodge and Winchester Citizens Advice to discuss how this type of initiative could be rolled out across the country?
Aphra Brandreth (Chester South and Eddisbury) (Con)
It is a pleasure to serve under your chairmanship, Mrs Harris. I rise to make some brief comments on amendment 49.
I am sympathetic to aims of the hon. Member for Winchester in tabling the amendment. A patient who is being discharged from hospital may indeed require specific, targeted support. The overall success of their treatment and continued recovery can be greatly enhanced where the right structures are in place to support them in the community. The amendment rightly draws attention to social and financial stressors that may affect an individual at the point of discharge and in the weeks and months that follow. We all recognise that there is a pressing need for a more joined-up approach between in-patient services and community provision. Without that, we risk patients falling through the cracks and suffering unnecessary and distressing re-admissions. Better discharge planning must be at the heart of our efforts.
I have some concerns, however. Although I acknowledge the good intentions behind the amendment, it risks expanding the remit of independent mental health advocates beyond what might be appropriate. There is a delicate balance, but an important distinction, between advocacy and care co-ordination. Independent mental health advocates play a vital role, and it is essential that their independence and clarity of purpose be preserved. If we are not careful, we risk blurring that boundary. In doing so, we may undermine the very effectiveness of the independent mental health advocate in fulfilling their primary function.
The role of an IMHA is to support patients in understanding and exercising their rights under the Mental Health Act. They may already be involved in supporting an individual to prepare for discharge, including by contributing to plans for ongoing care and support. The amendment would significantly increase the breadth of that role and might shift the focus away from the core purpose of advocacy.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
My hon. Friend makes a pressing point. Does she agree that if the amendment is accepted, there will be a requirement for additional training to deal with financial and social support, which goes outside the current scope of these important advocates?
Aphra Brandreth
My hon. Friend makes an important point. This is not a simple or straightforward addition; it would require potentially substantial training. We would not want somebody in a role that they were not adequately prepared for. With any amendment, we would need to ensure that training, and the time and expense of it, had been factored in.
Even with the best intentions, the success of any extended support role, such as that envisaged in the amendment, will ultimately rely on the availability and integration of local services. Where appropriate services are in place and are working well together, advocates can play a valuable role in signposting and supporting access. Rather than placing additional responsibilities on the IMHA, our focus should be on working with community providers to ensure that the necessary support, particularly for social and financial needs, is consistently available and is effectively joined up across the system.
Having said that, I recognise and welcome the emphasis placed by the hon. Member for Winchester on the role of carers and family members. Too often, they are overlooked in discharge planning, yet their involvement can make a critical difference to a patient’s successful transition from hospital to home. When carers feel informed, supported and prepared, it gives patients the reassurance and stability that they need to continue their recovery with confidence. The primary responsibility of the independent mental health advocate, however, must remain their responsibility to the patient. I am concerned that the drafting of the amendment could create ambiguity about who the IMHA is principally there to support.
Financial stress is undoubtedly a real and urgent concern. Mental ill health can severely affect an individual’s capacity to work, to manage their finances or even to engage with systems of support. Equally, financial instability can exacerbate mental health difficulties. Those are serious challenges that must be addressed, but I would question whether the IMHA is the right professional to take on that role directly. Instead, we should ensure that they are well placed to refer individuals to appropriate services without assuming responsibility for co-ordinating that support themselves.
Gregory Stafford
I do not know whether the hon. Member for Winchester will press his amendment to a vote, but if he does, would my hon. Friend support the idea of having a pilot roll-out of the system before we go the whole hog, because of all the potential problems that she has highlighted?
Aphra Brandreth
That is an important point. These are quite substantial changes, and we do not know the full impact that they would have on the system. We have talked about issues such as whether there is sufficient training for advocates and a joined-up approach with what is happening in the community. A pilot would provide the opportunity to see where it is working and where there might be things that need to be changed or considered. It would certainly be a sensible approach. We all want to ensure that we are supporting individuals to be discharged in a safe way that minimises the likelihood of their being readmitted, but we need to do so without overcomplicating the roles and the system that are currently in place.
I commend the hon. Member for Winchester for bringing these important issues to the attention of the Committee. His amendment raises legitimate and timely concerns around the support offered to individuals leaving hospital, as well as the wider context in which recovery takes place. I hope that I have been able to offer some reflections that will assist hon. Members in considering the matter further.
Dr Evans
This morning, we touched on amendment 49, so I will not repeat my remarks. I will simply ask a pithy question of the hon. Member for Winchester. He rightly talked about the incredible work that his local citizens advice bureau carries out. How will the amendment blur the lines between social workers, caseworkers and the independent advocates who are already doing this work? How does he perceive that working? I worry about the complexity that it would create. I would be grateful if the hon. Member addressed that point.
Stephen Kinnock
I am grateful to the hon. Member for Winchester for bringing this issue before the Committee. The intention of his amendment is to extend the support offered by independent mental health advocates
“to cover social and financial stressors and support for family carers and other members of the household when the patient is discharged.”
It would amend paragraph 18 of schedule 2, which deals with amendments relating to nominated persons. It should more properly be inserted into schedule 3, which deals with independent mental health advocates.
The Bill will already extend the support that advocates can provide to help patients to be involved in decisions about their care and treatment, to be able to make a complaint and to be provided with information about other available services. Those other services could include support following discharge from statutory or voluntary organisations, which may cover social and financial issues, and help to support carers. Those organisations would be better placed to support patients with these specific needs, rather than independent mental health advocates, whose skillset is specific to supporting patients to understand their rights under the Mental Health Act and participate in decisions about their care and treatment. We will consult on guidance in the code of practice to help independent mental health advocates to understand their extended role.
In addition to policy regarding independent mental health advocacy, advance choice documents give individuals the chance to give instructions about practical aspects of their life. Examples of such aspects include domestic, financial or caring responsibilities, such as children or pets. This provision allows the individual to be looked after when unwell and aims to ease additional anxieties. For those reasons, I ask the hon. Member for Winchester to withdraw his amendment.
Dr Chambers
I appreciate the valid points that hon. Members have made. The point about running a pilot was a sensible suggestion. We have had something that could be viewed as a pilot in Winchester for two years. We know that it works well, and every £1 spent on it saves £14.08. If I have suggested this amendment in the wrong part of the Bill through my naivety and inexperience, or if mental health advocates are not the right people to deliver a solution that we know works, may I ask the Minister whether there is a more appropriate part of the Bill in which to include it or another way to implement this proven system, such as by amending a different Bill, before I decide whether to press the amendment to a vote?
Stephen Kinnock
I thank the hon. Gentleman for that question. Fundamentally, our view is that the role that he is proposing is not the right one for an independent mental health advocate. The role of an independent mental health advocate is to work with the patient around their legal rights, rather than to deal with some of the more practical issues that he is talking about here. Our sense is that there are both statutory and voluntary organisations who are better placed to carry out that work. I do not think that a pilot would work with IMHAs, because by definition that is not the right role for IMHAs.
Dr Chambers
In that case, can we have a discussion outside the Committee about how to do this?
Dr Chambers
indicated assent.
Amendment 49 negatived.
Schedule 2, as amended, agreed to.
Clauses 25 to 28 ordered to stand part of the Bill.
Clause 29
Detention periods
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
Currently, under the Mental Health Act, a person detained for treatment can be kept in hospital initially for six months before the responsible clinician must make an assessment to decide whether to continue their detention or to discharge them. The independent review raised concerns that six months is too long. It heard evidence that patients were sometimes detained longer than necessary and were only considered for discharge when a tribunal hearing was due. It found that in up to 17% of cases referred to the mental health tribunal, discharge happened in the 48 hours before the hearing. That suggests that some patients are being detained longer than is necessary.
The review recommended reducing from six months to three months the initial detention period for people admitted for treatment, so that a patient’s detention is reviewed sooner to ensure that patients are not detained when they are no longer benefiting from treatment and can be safely discharged.
Clause 29 will mean that patients detained for treatment have their detention reviewed three times—up from twice—in the first year: at three, six and twelve months from the date of detention. The new renewal periods will not apply to part III patients, except in very specific circumstances when an unrestricted patient changes status. I commend the clause to the Committee.
Gregory Stafford
I have some brief questions for the Minister about this important clause, which has serious implications for patient liberty and for public protection. We must ensure that decisions are clinically and legally sound. First, how will the proposed changes to initial and renewal detention periods help conditions and services and manage public risk more effectively, particularly in forensic or high-risk cases? Secondly, do longer detention periods after revocation of a community treatment order reflect a higher perceived risk, and if so, is there clear clinical evidence supporting that extension to six months? Thirdly, are we confident that the new timelines strike the right balance between protecting the public and ensuring patients are not detained longer than necessary? Finally, and as an adjunct to that, what other considerations are there in the clause or the Bill to keep the public safe and to make sure that decisions are correct in the context of clause 29?
Dr Evans
Clause 29 addresses the length and renewal of detention periods under the Mental Health Act. I begin by acknowledging the important step that this clause represents in shifting towards a more rights-based, patient-centred model, as enshrined in the Bill.
Clause 29 would shorten the initial period of detention for treatment under section 3 of the Mental Health Act from six months to three months. Subsequent renewal periods are, likewise, reduced from six months to three months and then from one year to six months. This is clearly informed by the principle of least restriction, as is rightly highlighted in the explanatory notes in paragraph 212.
On that basis, we welcome the direction of travel, but, while we agree with the principle of moving towards shorter, more proportionate detention periods, we have questions and concerns about implementation, consistency and safeguards, which I hope the Minister will address.
First, will shorter periods lead to better outcomes, or just more paperwork? The goal here is to ensure that detention is not allowed to drift and that patients are not held in hospital for longer than is necessary without rigorous justification. However, the clause still allows for indefinite renewal in increments, once those shorter initial periods expire. Can the Minister assure us that these changes will result in more meaningful reviews and not just more frequent rubber-stamping of detention? It would be helpful to understand whether the Government have assessed the clinical capacity, particularly among responsible clinicians and approved mental health professionals, to conduct these reviews with real rigour. If not resourced properly, we risk replacing one form of inertia with another.
Secondly, what safeguards exist against the resetting of detention periods on transfer? I am by no means a legal expert, so forgive me if I have completely misinterpreted this, and I bow to the legal expertise of the Minister, the Government and, most importantly, to able staff in the Box. However, clause 29(2) introduces into section 19 of the Mental Health Act new subsection (2A), which provides that if a guardianship patient is transferred to hospital, they will be treated as if they had been admitted on the day of transfer. In practical terms, does that not reset the detention clock?
To my eyes, this concept of resetting the detention clock appears most clearly in subsections (2) and 29(5)(d) of clause 29, where a patient who is transferred from guardianship to hospital, or who has their community treatment order revoked, is treated as if they had been newly admitted to hospital on that day. This effectively resets the start date of the detention period. Clause 29(2), which will insert proposed new section 19(2A) into the Mental Health Act, states:
“But, in the case of a patient falling within subsection (2)(d), section 20 has effect as if the patient has been admitted to hospital in pursuance of an application for admission for treatment on the day on which the patient is transferred.”
New paragraph 5B of schedule 1 to the Mental Health Act states that the modifications
“apply in relation to a patient transferred from guardianship to a hospital in pursuance of regulations made under section 19…In section 20(1)(a)…for “admitted”…there is to be substituted “transferred”.
In new paragraphs 5C and 5D of that schedule, the same resetting principle applies to patients whose CTOs are revoked, with renewal detention starting from the date of revocation, not from their original hospital admission or order.
In practice, this could mean that if a patient is placed under guardianship on 1 January and transferred to hospital on 1 April under section 19(2)(d) of the Mental Health Act, then under proposed new section 19(2A), they would be treated as if they had been newly admitted on 1 April. Therefore, even though they have been under compulsion since 1 January, the new three-month detention clock begins on 1 April. Likewise, a patient under a community treatment order that was issued on 1 February and revoked on 1 August will, under paragraph 5D, start a new in-patient detention period on 1 August, not 1 February.
On one hand, that makes sense. We do not want people whose state is fluctuating to be released, or simply to time out. On the other hand, if we are looking purely from the patient’s perspective, as the legislation asks us to do, with regard to the principles in clause 1, that could be a problem. Will the Minister clarify how many times such a reset could occur for a single individual? Is there any form of oversight, review or reporting requirement where this happens? That mechanism might be necessary in some clinical contexts, but without safeguards it could become a back door to prolonging detention, which is something that the clause seeks to reduce. Is there some kind of register or mandatory recording of these incidents to spot repeat patterns?
Thirdly, another issue that needs addressing is the creation of possible complexity. Paragraphs 218 and 219 of the explanatory notes set out a separate but equally important issue. Clause 29’s welcome shortening of detention periods—from three months to start with, then three months, then six months, then annual reviews—is not applied evenly to patient groups. Who gets the shorter periods? Most civil patients detained under part II and some patients on revoked community treatment orders. Who does not get them? Patients detained by a hospital order from a court, if their CTO is revoked within six months of the order, as in paragraph 218. And, of course, restricted patients—typically those involved in more serious offences.
Stephen Kinnock
The aim of the clause is to ensure that a patient’s detention is reviewed sooner. The planned reforms will not change the fundamental power and purpose of the Act, which is to detain and treat people when they are so unwell that they become a risk to themselves or others. Where a patient continues to meet the criteria, their detention will be renewed.
Opposition Members have asked about extra paperwork and workload in general for both clinicians and tribunals. In the impact assessment that we published alongside the Bill, we set out the estimated costs and benefits of the reforms and the expected workforce requirements that are critical to our implementation planning. That includes consideration of the impact on clinicians of additional detention reviews, which we have calculated is estimated to be around four hours of additional workload by the clinician for each patient who is detained beyond three months.
On the clinical evidence for shortening the detention period, in the independent review we found that in 17% of cases referred to the mental health tribunal, discharge happened in the 48 hours before the hearing, which strongly suggests that some patients are being detained for longer than is necessary.
Stephen Kinnock
I did not catch the question to which the hon. Gentleman is referring. Could he repeat it, please?
Dr Evans
The issue is about resetting. As the legislation is written, it would suggest that because people are moving from one place to another, the clock resets. Clinically, that could make sense, but part of the problem is that every time the clock resets, so does the person’s detention. That is a key part. Fundamentally, in this clause we are trying to stop people being detained when they do not need to be. In fact, the Minister has just said that 17% of people were discharged before the tribunal could happen. The question is around specifying, when it comes to admission and transfer, that the clock resets. What safeguards do we have to make sure that we are counting the number of times it is reset, that it is clinically appropriate and, most importantly, that we are not substituting one way of dealing with this with a back-door way of creating a reset motion?
Stephen Kinnock
I am struggling a little to understand what the hon. Gentleman is driving at. I pointed out in my opening remarks that the review clearly recommended reducing the initial detention period for people admitted for treatment from six months to three months, so that a patient’s detention is reviewed sooner to ensure patients are not detained when they are no longer benefiting from treatment and can be safely discharged. The clause means that patients detained for treatment will have their detention reviewed three times in the first year: at three, six and 12 months from the date of detention—up from two, as it was previously. I do not think that there is any implication that it is resetting the detention; it is just a rolling set of reviews.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
The Chair
I will not tolerate any further speaking outside the structure. It is the second time that it has happened this afternoon, and I will not tolerate it any further.
Clause 30
Periods for tribunal applications
Stephen Kinnock
Clause 30 will introduce important reforms to the tribunal process by adjusting the timeframes for when patients can apply to the tribunal regarding their detention. Section 2 patients will now have 21 days rather than the current 14 to apply. This reform addresses concerns that patients in crisis often need more time to fully understand their rights, access legal advice and make an application.
For section 3 patients and transferred guardianship patients, clause 30 will reduce the initial application period from six months to three months. This aligns the application period with the new, shorter initial detention period of three months, reduced from six months, for these patients. This change maintains the current rights for these patients to make an application once during each successive period of detention.
For conditionally discharged restricted patients, clause 30 provides different application periods. These vary depending on whether the patient has been conditionally discharged with or without conditions that amount to a deprivation of liberty. Conditionally discharged restricted patients who are subject to deprivation of liberty conditions—also known as patients on a supervised discharge—can make an application to the tribunal sooner, between six months and 12 months from the date that they become subject to said conditions, and thereafter every two years. In contrast, conditionally discharged restricted patients who are not subject to deprivation of liberty conditions will have application periods between 12 months and two years, and thereafter every two years.
The different application periods reflect the need to consider a patient’s detention more frequently and earlier where more restrictive deprivation of liberty conditions are present. These changes improve access to the tribunal, ensuring greater protection for some of society’s most vulnerable individuals.
Clause 31 will strengthen the system of automatic referrals to the tribunal for patients detained under the Mental Health Act. It ensures that patients who may not be able to make an application to the tribunal themselves are still afforded regular judicial oversight. For patients detained under section 2, this clause reduces the automatic referral period from six months to three months. This improves the current safeguard by bringing the trigger for the automatic referral sooner. This will apply when a section 2 patient’s detention has been extended beyond 28 days and no application or referral has been made to the tribunal for review of the patient’s detention.
The clause will also improve the automatic referrals for patients detained under section 3. It does this by triggering referrals on the expiry of three months and 12 months and annually thereafter, where the tribunal has not considered the patient’s case. Additionally, this clause removes the automatic referral trigger on revocation of a community treatment order. It was found in practice that the automatic referral was an ineffective safeguard, as often the patient either was back in the community and subject to a new CTO or had reverted to being a section 3 patient before the tribunal reviewed their case. Now, where a patient’s CTO is revoked, they will be automatically referred at three months and 12 months after revocation, and then every subsequent 12 months. This allows the automatic referral periods to apply afresh from the date on which the CTO is revoked.
The clause will ensure that patients detained under the Mental Health Act are subject to regular and timely tribunal reviews, particularly when they are unable to advocate for themselves.
Clause 32 will deliver important tribunal oversight for the small cohort of restricted patients discharged into the community under conditions that amount to a deprivation of liberty, who are also known as supervised discharge patients. The clause will require patients subject to supervised discharge to be referred initially at 12 months after deprivation of liberty conditions are imposed, followed by a further referral every two years, where the patient’s case has not been heard by the tribunal in this period. The clause will also provide a safeguard for patients who may fluctuate between conditional and supervised discharge, to ensure that no supervised discharge patient will go more than four years without their case being considered by the tribunal. Automatic referrals to the tribunal ensure that patients under some of the most restrictive conditions have routine oversight of their detention where independent review would otherwise be absent.
The clause will also clarify the powers of the tribunal when considering the application or reference of a conditionally discharged patient, which include the power for the tribunal to impose conditions amounting to a deprivation of liberty. Deprivation of liberty conditions may be imposed or retained only where the tribunal is satisfied that they are necessary to protect another person from serious harm and are no less beneficial to the patient than a recall to hospital. This test preserves public protection, while enhancing the safeguards in place for conditionally discharged patients, ensuring that their care and liberty are subject to regular independent scrutiny.
Together, these changes will promote a more robust system of oversight for patients subject to long-term detention and restrictive conditions, ensuring that their rights are respected and their detention is regularly reviewed.
Clause 33 will extend the same principles of regular, proportionate scrutiny to restricted patients who are not conditionally discharged subject to deprivation of liberty conditions. For restricted patients detained in hospital, section 71 will be amended to reduce the automatic referral period from three years to one year. That amendment aligns with the amendments to increase the frequency of automatic referrals introduced in the Bill for part II patients. Through annual tribunal reviews, it is intended that those individuals are safeguarded against inappropriate detention. That aligns with the broader principles of fairness and accountability, ensuring that individuals in long-term detention are subject to appropriate judicial oversight.
Dr Shastri-Hurst
It is a pleasure to serve under your chairmanship this afternoon, Mrs Harris. I rise to speak on clauses 30 to 33, which go to the core of the rights architecture that surrounds mental health law in this country—namely, the oversight and challenge mechanisms available to individuals subject to detention, supervision or conditional discharge. I think we are all aware that the 1983 Act, although fit for its time, has failed to keep pace with the evolving understanding of mental health illness and modern expectations of legal accountability or procedural fairness. The clauses, although technical in nature, seek to rectify a number of the long-standing shortcomings in the operation of the mental health tribunal system.
Clause 30 will extend and clarify the time period within which patients may apply to tribunals. Essentially, it will do two things. First, it will extend the application window for section 2 patients—those detained for assessment—from 14 to 21 days. Secondly, it will reduce the initial waiting period for section 3 patients and those under guardianship from six months to three months. Those are sensible and overdue changes, because 14 days is a narrow window for any legal action, let alone one initiated by an individual who may be experiencing acute psychological distress.
Extending the application window to 21 days provides a fairer opportunity to seek representation and prepare a meaningful application. Equally, the reduction of the initial period for section 3 and guardianship patients to three months offers an important safeguard against prolonged detention without scrutiny. It restores a measure of clarity between the gravity of the detention order and the speed with which it may be challenged.
The clause will also clarify the rights of conditionally discharged restricted patients who are subject to deprivation of liberty conditions—that is, those who are discharged from hospital but required to comply with supervisional residence requirements that are so restrictive that they cross the legal threshold for a deprivation of liberty. At present, those individuals occupy a legal grey zone: they are not formally detained, yet the liberty they enjoy is so curtailed that it raises significant questions as to their article 5 rights. Clause 30 will properly address that anomaly by creating a defined, regular route of appeal, initially between six and 12 months from the imposition of the deprivation of liberty conditions, and biannually thereafter. Those are measured and proportionate changes that enhance access to justice, improve compliance with human rights obligations and restore clarity to a field that has suffered, at times, from legal opacity.
The reforms are not without consequences. A wider cohort of eligible applicants and more frequent review periods will inevitably increase the burden on the tribunal service, on legal aid provision and on clinical teams who must prepare documents and attend hearings. That challenge is not to be dismissed lightly.
Gregory Stafford
Does my gallant and learned hon. Friend have any information on the current waiting times for tribunals? What does he expect the effect of the changes proposed in these clauses to be on waiting times?
Dr Shastri-Hurst
My hon. Friend makes a pertinent point. We all know, from our casework or personal experiences outside of this place, about the pressures on the Courts and Tribunals Service. Mental health tribunals are not exempt from that pressure. Changing the timeframe on which tribunals operate, and the frequency with which reviews take place, will inevitably increase the burden on the service. Therefore, although these changes are broadly welcome, it is important that we are cognisant of their impact on the resources that will be required, the number of judges and wing members that will be needed, and of course the hard standing of the court and tribunal infrastructure that will need to be made available. Other issues, such as those around the digitalisation of the service, will also need to be addressed.
Clause 31 will recast the regime for automatic tribunal referrals, replacing the prior six-month structure with the concept of “a relevant period”. For detained patients, referrals will now occur at three months, then 12 months, and annually thereafter. For community patients, they will occur at six months, then 12 months, then annually. Most significantly, hospital managers will be under a new duty to refer a case when no review has occurred in 12 months, regardless of whether an application has been made. That is a sound reform.
The clause will introduce coherence to a previously fragmented system, and establishes a minimum standard of legal oversight. The inclusion of a backstop provision—that no individual should go more than 12 months without review—is essential. In a system in which patients may not always have the means or capacity to apply for a review themselves, it offers a critical safety net. Clause 31 will also repeal section 68A of the 1983 Act, which has become unwieldy and duplicative. By streamlining the referral process, the Bill enhances legal clarity and administrative efficiency, but I would caution that the increased complexity of the new timeframes may require significant training of those responsible for their implementation.
Clause 32 will provide for restricted patients who are subject to deprivation of liberty conditions. It goes further than clause 30 by imposing mandatory referral duties on the Secretary of State. Under the clause, a tribunal must be convened after 12 months, every two years thereafter, and at four years if no review has occurred. Crucially, the clause also codifies the tribunal’s powers. It may now vary or impose conditions, including those that constitute a deprivation of liberty, provided that they are necessary to protect the public from serious harm and are no more restrictive than hospital detention. That clause introduces a principled, proportionate framework for balancing public protection with patient liberty, and avoids vague or discretionary use of such powers.
Finally, clause 33 will apply the same principles to restricted patients not subject to deprivation of liberty orders. Such individuals, although under fewer constraints, are none the less subject to significant legal orders. The new requirement for a tribunal review at two years, and every four years thereafter, ensures that oversight is regular and non-discriminatory.
All four clauses are united by a clear objective to rationalise tribunal access, enhance procedural safeguards and bring the Mental Health Act into alignment with modern standards of fairness and proportionality. However, I will close with a caveat: rights without resourcing are hollow. If we are to place greater demand on the tribunals service, and to rely on it as the guardian of liberty for thousands of individuals, it must be adequately funded, staffed and supported. Legal representation must be accessible. Tribunal members must be properly trained. Hospital managers must be equipped to meet their new responsibilities.
With those reservations, I broadly welcome clauses 30 to 33 as a necessary recalibration of our mental health law. They reflect the dignity of the individual, the demands of public safety, and the enduring principle that no one should be deprived of liberty without fair or timely review.
Natasha Irons (Croydon East) (Lab)
It is a pleasure to serve under your chairmanship, Mrs Harris. I rise to speak in support of clauses 30 to 33. I echo many of the remarks of the gallant and learned hon. Member for Solihull West and Shirley, but I will try not to go over too much of the same ground.
These clauses seek to provide clarity and improvement in access to the tribunal process, both for patients detained under the Mental Health Act and for those on conditional discharge, and seek to implement key recommendations from the independent review. Section 66 of the Act is amended to extend the period in which a patient detained under section 2 can apply to the tribunal from 14 days to 21 days. Clause 30 also allows for auto-enrolment in a hearing, reducing that time from six months to three months. It clarifies that conditional discharge patients are included in this package, so they also have the right to have their treatment reviewed at a tribunal. Providing for auto-enrolment simplifies the system for people who, as the hon. Member mentioned, are perhaps not in the best position to make administrative decisions and fill in the paperwork to apply to a tribunal.
Although this framework and these changes are necessary to bring clarity and autonomy back into people’s healthcare, it would be good to hear from the Minister about how we will support patients throughout these processes as we learn about the different timelines. How will we ensure people can access this change in the system and understand what they are entitled to under this new provision?
Dr Evans
Clauses 30 to 33 deal with the tribunal access and automatic referrals of patients detained or conditionally discharged under the Mental Health Act. Let me begin, again, by welcoming these provisions, which seek to improve safeguards, ensure timely oversight, and extend the rights of individuals, particularly those under deprivation of liberty conditions in the community. These are serious matters of liberty and I acknowledge the Government’s intention to modernise and strengthen protection. Nevertheless, it is important that we look carefully at how the clauses operate in practice. I will take each in turn.
Clause 30, on tribunal application periods, will make important changes to when patients can apply for the tribunal. First, it will extend the time that patients detained under section 2 of the Act have to apply from 14 to 21 days. This is a welcome change. We know that the first few days in hospital are incredibly disorientating, so allowing patients a bit more time to seek legal advice is entirely sensible.
Secondly, the clause will reduce the period for patients detained under section 3 to apply from six months to three. I can understand the logic of that, given that clause 29 also shortens the initial detention period, but is there any reason for choosing that mark? Is there any evidence that the three-month window will still allow patients to have sufficient time and support to exercise their rights?
Thirdly, the clause will introduce new provisions for conditionally discharged restricted patients, setting out different application timeframes depending on whether the patient is subject to conditions amounting to deprivation of liberty. Those under the deprivation of liberty safeguards will be able to apply between six and 12 months after discharge and then every two years. For those not under such conditions, the window begins at 12 months. That reflects the impact of conditions on a person’s liberty, and I recognise that distinction, but can the Minister clarify how patients will be informed about which track they are on? That will be fundamental to exerting their rights. Will any guidance be issued to ensure consistency? Will patients have access to advocacy or legal advice at this point?
On clause 31, automatic tribunal referrals are a crucial safety net for those who for whatever reason do not exercise their right to apply. The clause introduces a new framework of relevant periods after which the hospital managers must refer, as we have heard. For section 2 patients, it will be three months. For section 3 and CTO patients it will be three months, then 12 months and every year thereafter. Significantly, the current three-year review period for many detained patients is reduced to one year.
The clause marks a substantial increase in oversight, which I support, but it also raises practical questions. Given that we have put these backstops in place, have the Government made any estimate of how many extra tribunals will be needed and how much extra work they will generate? The Minister was kind enough to say that there were four hours of clinical work involved in doing the plans, but I do not think we have yet heard how much work the Government estimate that the tribunals will take.
More importantly, what support is being provided to ensure that the tribunal system can meet that increased demand? I am particularly concerned that the benefits of these reforms may not be felt if backlogs or delays undermine the safeguards they are intended to deliver.
Gregory Stafford
Does my hon. Friend think that if there is a backlog, that could undermine patient rights or clinical progress in some way? How will the tribunal system be able to cope with that increased workload and meet its legal obligations to provide timely tribunals so that patients get the best care?
Dr Evans
That is a difficult balance to get right. I appreciate that the Government have said that the Bill will take 10 years to implement, but if these measures come into force from day one, we will start to see automatic referrals come through. There will be a lag as the transition happens, but my hon. Friend is absolutely right: we can foresee scenarios where patients who want to be referred into the tribunal are waiting in inappropriate care places, which may be to the detriment of their personal care and may actually make their recovery worse. He is right to highlight that question, which is why having a broad understanding of how many extra referrals are coming would be useful.
Clause 32 focuses on conditionally discharged restricted patients who are subject to deprivation of liberty conditions. It rightly ensures that those patients are brought within scope of automatic referral, first after 12 months and then every two years. Again, that is a positive step, ensuring that even those not detained in hospital will still have access to a review of their conditions. Crucially, the clause also gives the tribunals the power to vary or remove those DoL conditions.
Can the Minister say more about how that important power will be used? What criteria will the tribunals apply to assess whether a condition is genuinely necessary and proportionate? Will patients be legally represented in those hearings by default? Will another advocate be there, or will it be someone else in their place? Here, too, I would welcome some clarification from the Minister. I hope he will forgive my legal naivety, but my mother always said, “It’s better to ask a dumb question than stay dumb forever.”
The explanatory notes talk about DoL conditions. The current legal framework for authorising the deprivation of liberty for individuals who lack capacity is complex and in transition. Under the Mental Capacity Act 2005, deprivation of liberty safeguards have been the established mechanism since 2009 to ensure lawful deprivation of liberty in care settings. However, the Mental Capacity (Amendment) Act 2019 introduced liberty protection safeguards as modernising replacements, designed to simplify and broaden protections.
LPS are widely seen as an improvement to DoLS, because they extend safeguards to a wider range of settings, including hospitals and people’s own homes where deprivation of liberty might occur. They also streamline the assessment process, reducing bureaucratic delays and better reflecting person-centred decision making. The Law Commission and various stakeholder groups have supported LPS as a way to address the significant practical and legal challenges posed by DoLS, including the so-called DoLS backlog, where assessments have been delayed for many vulnerable individuals.
Despite that, I do not believe that LPS have yet been implemented, leaving DoLS still in force. I wonder if we are therefore creating ambiguity as we update the Mental Health Act through the Bill’s clauses, such as those addressing conditional discharge and deprivation of liberty, without clarity on how those will intersect with the forthcoming LPS framework that will be introduced under separate legislation. That raises important questions about the sequencing and co-ordination of legislation reform. How will the Government ensure coherence and avoid conflicting provisions when different statutes address overlapping issues at different times?
Given that context, have the Government abandoned the planned implementation of LPS, or do they remain committed to bringing them into force? If the implementation is still planned, will the Government provide a clear timeline for when LPS will replace DoLS? How do the Government intend to ensure that the provisions we are debating will align with or adapt to the introduction of LPS? What steps are being taken to ensure that vulnerable individuals and professionals who navigate this complex legal landscape will have clear, consistent safeguards and guidance through the transition? Clarification on those points is essential to avoid legal uncertainty and to ensure that the reforms provide coherent protection for those deprived of their liberties.
Clause 33 deals with patients who are not under DoLS conditions. It will ensure that even those who are under DoLS conditions, such as detained restricted patients or conditionally discharged patients with lesser restrictions, receive automatic tribunals. It will reduce the current three-year referral intervention for detained restricted patients to 12 months and introduce automatic referrals for non-DoL conditionality discharge patients after two years and then every four years. Again, that is a step forward, but four years feels like a long gap between reviews for those discharged with conditions that still significantly affect their daily lives. Will the Minister explain the thought behind the chosen timeframe? If a person’s condition changes, is there a mechanism to trigger an early referral outside the normal cycle?
The clauses show progress. They reflect a clear intention to strengthen patients’ rights, increase oversight and address historical injustices, particularly for those living under deprivation of liberty conditions in the community. But with complexity comes risk, and we need to ensure that patients understand their rights and the legal support available. The tribunal system must be properly resourced to uphold the safeguards that we place in the legislation.
Stephen Kinnock
I will try to answer some of the questions. On tribunal capacity, people who are conditionally discharged and those with restrictions that amount to a deprivation of liberty represent only a small fraction of tribunal business—well under 1% of all mental health tribunal cases. The modest increase in hearings is therefore expected to be absorbed within existing capacity, while delivering significant rights benefits to the individuals concerned. It is worth noting, too, that the mental health tribunal continues to perform strongly. Amazingly, it is one of the very few areas of our public services not to be left with a massive backlog by the previous Government. The open caseload has remained stable at approximately 3,700 cases for a decade, despite 31,226 appeals in 2024-25.
I was asked about LPS and replacing DoLS. The previous Government paused the implementation of the liberty protection safeguards; they decided to focus on other priorities. In the absence of LPS, the deprivation of liberty safeguards system will continue to apply. The Department has made it clear that all bodies with legal duties under the DoLS must continue to operate these important safeguards to ensure that the rights of people without the relevant mental capacity are protected.
Stephen Kinnock
We have made it clear that we are going to continue with DoLS. Basically, we have to look at whether replacing them with LPS will achieve the stated objectives of the exercise, and I am not entirely convinced about that. It is under review.
On supporting patients, the independent mental health advocate will ensure that patients are aware of their rights. Throughout the Bill we are ensuring that patients have support by moving to an opt-out model. Additionally, if a patient does not bring a case, they will be referred automatically to the tribunal if a specified period has passed. Patients will be supported in getting tribunal oversight, as the referrals are made by a hospital manager.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clauses 31 to 33 ordered to stand part of the Bill.
Clause 34
Discharge: process
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
The clause seeks to strengthen the protocol on discharging individuals under the Act by introducing a statutory requirement on the person who makes the discharge decision to consult with another. Currently, a patient’s responsible clinician can, in law, unilaterally decide to discharge a hospital in-patient from certain powers of the Act. Under our amendments, they will be required to consult someone else who is professionally concerned with the patient’s treatment, whether that be in the hospital or in the community. Where the responsible clinician is a consultant psychiatrist, the consultee may be a nurse, psychologist or occupational therapist. That is to ensure a more rounded perspective on the patient’s readiness for discharge from the Act.
The clause will introduce a similar protocol for the discharge of people under guardianship, guardianship orders and community treatment orders. For guardianship and guardianship orders, the person who makes the decision to discharge from the powers under the Act may need to consult either the responsible local social services authority or a person’s designated social worker. For patients under a community treatment order, the responsible clinician is required to consult the community clinician, in recognition of the fact that they will likely have a much clearer understanding of the patient’s progress in the community and whether they are ready for discharge under the Act.
Although multidisciplinary-based decisions represent best practice, we know that they are not always taken. The clause seeks to change that by helping to make sure that the decision to discharge is carefully considered and receives greater professional oversight.
Aphra Brandreth
I rise to speak to the implications of clause 34 for clinical decision making, patient safety and the operation of the Mental Health Act more broadly. The clause introduces a new requirement for the responsible clinician to consult another professional, from a different professional discipline, who is involved in the patient’s care before they make a decision to discharge a patient from detention or from a community treatment order under section 23 of the Mental Health Act 1983. If the patient is on a community treatment order, the clinician must consult the relevant community clinician.
At its heart, the clause seeks to ensure that decisions about discharge are not taken in isolation. It reflects a wider shift in mental health care towards collaborative, multidisciplinary approaches. We should welcome that in principle. These are often complex decisions that involve vulnerable individuals, and a single viewpoint may not always capture the full clinical picture. By requiring consultation with someone from another discipline, be that a nurse, an occupational therapist or a psychologist, we can help to ensure that decisions are more thoroughly considered and less likely to overlook risks.
The clause provides an important safeguard against premature or inappropriate discharge, particularly in cases where a patient may continue to pose a risk to themselves or others. It builds in a degree of professional scrutiny that supports safer and more consistent practice and, in doing so, should improve confidence among patients, families and practitioners.
I would be grateful if the Minister provided further clarity on a few practical points about how the clause will operate. First, it requires consultation but does not appear to specify whether the consulted clinician must agree with the responsible clinician’s decision in order for discharge to proceed. In cases where there is disagreement between clinicians of different professional backgrounds, what is the expected course of action? Is the responsible clinician ultimately free to proceed, or will there be an escalation mechanism? It would be helpful to understand how differing professional opinions are to be balanced and how potential deadlock is to be managed.
Secondly, although I welcome the intention to improve the rigour of decision making, will the Minister reassure the Committee that the additional consultation requirement will not introduce unnecessary delays into the discharge process? It is, of course, essential to get these decisions right, but it is also important that we do not create new barriers to discharge when a patient is clinically ready to move on. Delays in discharge can have a negative impact on patient outcomes, as well as increasing pressure on services. Although the consultation must be meaningful, it should also be proportionate, timely and clearly understood by all involved.
Will the Minister comment on how the requirement will be implemented in practice? For example, will guidance be issued to support clinicians in understanding their duties under the clause and to ensure consistency across services?
Overall, the clause represents a thoughtful and measured reform. It strengthens patient safety, promotes professional collaboration and introduces a safeguard that is both reasonable and necessary. Notwithstanding the clarifications I have raised, I hope that it will help to ensure that discharge decisions are made with greater confidence and care without becoming unduly bureaucratic.
Dr Evans
I rise to speak to clause 34, which inserts new consultation requirements into section 23 of the Mental Health Act 1983. The requirements relate to the discharge of individuals detained under parts II and III of the Act, as well as those subject to community treatment orders or guardianship.
Currently, under the Act, the responsible clinician has the power to discharge patients detained under sections 2 and 3, as well as unrestricted patients subject to a hospital order under part III, without any formal requirement to consult other professionals. This is already considered outdated practice in most clinical settings, where decisions are typically made within the multi-disciplinary team. However, that is not required by law. By contrast, discharge decisions for restricted patients remain with the Secretary of State for Justice or the mental health tribunal and are not affected by the clause.
Clause 34 seeks to change the current situation. It will insert proposed new subsections (2A) to (2C) into section 23 of the 1983 Act, placing a statutory consultation duty on responsible clinicians, local authorities and, in some cases, the patient’s nominated person. The aim, as outlined in the Government’s explanatory notes and by the Minister, is to formalise best practice and ensure that no discharge decision is made unilaterally without appropriate professional oversight. The Opposition welcome the intention behind the clause—strengthening safeguards, encouraging multidisciplinary collaboration and protecting patients from unsafe or premature discharges are all necessary and overdue steps—but we have a few questions about it that I hope the Minister will address.
First, proposed new subsection (2A) requires the responsible clinician to
“consult a person—
(i) who has been professionally concerned with the patient’s care or treatment, and
(ii) who belongs to a profession other than that to which the responsible clinician belongs”.
That is a sound principle, but there is an ambiguity in the phrase “has been professionally concerned”. Who do the Government have in mind? The Minister set out that it could be a nurse or a counsellor, but would it stretch as far as a GP or a practice nurse? Will there be a codifying list, either in statute or in the code of practice, so that we know who is expected to speak to that person? Does it require current involvement in the patient’s care? For example, could a professional who saw the patient only briefly many months ago qualify? If so, is that adequate to meet the clause’s intention? We would welcome clarification from the Minister on whether a definition of who and what an appropriate consultee looks like will be covered in guidance or regulations.
Secondly, I fully understand the good intent behind proposed new subsection (2B)(c), but as a good Opposition we should point out a possible unforeseen problem. It states that when the nominated person—that is, the person chosen by the patient to act in their interests—is making a discharge decision under guardianship, they
“must consult the responsible local social services authority.”
That raises both legal and practical questions. Is it appropriate to place a statutory duty on a layperson, who may be a relative, a friend or a carer with no formal training or professional support? What is the consequence if they fail to consult? Would their decision be invalid, or could it be legally challenged?
I know that the Government are trying to ensure that relatives and advocates are consulted, which is commendable. I am sure there will be no issue in the vast majority of cases, but there is a risk that the duty may unintentionally create legal uncertainty and administrative burdens for families. Has the Minister thought about whether it might be better framed as a duty on the local authority to advise or support the nominated person, rather than vice versa? I am sure we both agree on the motive and principle of shared decision making; it is simply a question of where to place the burden.
Thirdly, under proposed new subsection (2C), if someone is on a community treatment order, the responsible clinician and hospital managers must consult the community clinician before they discharge the person from that order. Again, that seems sensible, but what happens if there is no identified or available community clinician? As we have discussed, they are legally named, so could that requirement create a bottleneck to discharge? Will there be provision for proceeding with discharge if consultation is not practicable within a reasonable time? Without such a safeguard, there is a risk that patients remain subject to detention, such as conditions under a CTO, even when all parties agree that discharge is clinically appropriate.
Furthermore, the clause does not appear to require the consultation outcome to be documented, nor any disagreement to be recorded. If the responsible clinician consults someone and then disregards their view—as we heard earlier, according to the Minister they have precedence—that may be entirely justified, but surely transparency demands the recording of the reasons. Will the Government consider adding a requirement to document consultation, perhaps in the code of practice, to ensure that reasons are given when discharge proceedings are taken against clinical advice?
The clause represents an important step towards improving safety, accountability and multidisciplinary care in discharge planning, but the Opposition believe that to realise its full potential and avoid creating uncertainty or delay, the Government should look again at the clarity of key terms, such as “professionally concerned”; the appropriateness of placing duties on laypeople, such as the nominated person; the practical challenges around consultations when key professionals are not available; and the need for clear documentation requirements to uphold transparency and safeguarding in decision making. I look forward to hearing the Minister address those points.
Stephen Kinnock
The hon. Member for Chester South and Eddisbury asked about differences of opinion. The second professional does not have to agree. The ultimate decision in such cases sits with the responsible clinician, to ensure the clear accountability of decision making.
The hon. Lady also asked about delays. We see consultation with another professional as important to making a more informed decision on whether the patient is ready for discharge under the Act. It is especially important that the second professional involved in discharge decisions is from a discipline different from that of the responsible clinician. That will ensure a broader perspective, particularly when the second professional, such as a nurse, may have had more frequent contact with the patient.
Aphra Brandreth
On the discipline of the second clinician consulted, is there any guidance as to who might be appropriate? I mean not just the list of potential professions but whether there is guidance on who would be appropriate in different situations. We welcome the multidisciplinary approach, but I would like some clarification. Given your earlier response, saying that they need to agree, it is not really clear how this would add to the process. It would help if there were clarity on the professions.
Stephen Kinnock
We will absolutely provide guidance on that in the code, but the consultee in the case of a detained person is someone who is professionally concerned with the patient’s treatment, whether that be in the hospital or in the community, and who is from a discipline different from that of the responsible clinician. Those criteria will be applied throughout the process.
Finally, on the question from the Opposition spokesman, the hon. Member for Hinckley and Bosworth, yes, reasons will have to be given whenever there is a difference of opinion. All the relevant documentation and how that should work will be set out in the code of practice.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35
Ascertaining and learning from patients’ experiences of hospital treatment
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
This amendment seeks to overturn the previous amendment tabled—sorry, I should have said “the clause”. The clause seeks to overturn the previous amendment, tabled by Earl Howe and Lord Kamall. Although we support the intention of the amendment, our view continues to be that it would be duplicative.
There are already many ways in which service user feedback is used to inform policy and practice. For instance, every year the Care Quality Commission conducts thousands of interviews and visits with people detained under the Mental Health Act 1983. That may result in the CQC investigating a complaint or requiring an action statement from providers about service improvements. Although there may be room to enhance existing feedback mechanisms, we would prefer to improve what we have rather than create something new that would risk confusion.
If the objective is to provide time and space for the person to reflect on their past experiences post-discharge, I reassure the Committee that that should already form a part of co-producing a person’s care in the community plan. We also intend to create space for individuals to reflect on past experiences when making their advance choice document, with facilitation from a suitably qualified person.
Josh Dean (Hertford and Stortford) (Lab)
Young people who have been through detention often report challenging circumstances following that detention. Rather than supporting them, that sometimes increases their trauma. Can the Minister assure me that, as part of the changes he just set out, we will still ensure that young people have the opportunity to feed their experiences back? What specific work will the Government undertake to gather those views from young people?
Stephen Kinnock
My hon. Friend makes an important point. We are absolutely committed to ensuring that we create a space for young people to provide feedback. Some of that will be around past experiences when making their advance choice documents, but much broader opportunities for feedback will absolutely be built into the system. We want this to be a learning process. It is important that the code of practice is not just a document that sits on the shelf gathering dust; it should be a live document. That is why the feedback is so important.
It should be noted that although reflecting on past experiences may be therapeutic for some individuals, for others it can be traumatic, so the measure should be entirely service-user led. We also continue to be concerned about the burden that the amendment would place on independent mental health advocacy services, which are already under strain.
Gregory Stafford
I apologise—this may be due to the terminology of “amendment” versus “clause”—but is the Minister saying that the Government are likely to vote against clause 35 as it currently stands? He is talking about amendments and clauses, and that is slightly confusing me. [Interruption.] His officials are nodding.
Stephen Kinnock
Yes, but the issue may have a bearing on a potential Division. The challenge that I am facing is that my notes said,
“This amendment seeks to overturn”,
but we are talking about a clause that is seeking to overturn a previous amendment. Are we speaking in favour of a clause that will overturn an amendment? [Interruption.] Confusion reigns.
The Chair
Clause 35 was added by a Lords amendment; maybe that is where the confusion has come from. The Government tabled an amendment to leave out clause 35.
Stephen Kinnock
We will figure it out as we go along. I have now lost my place. [Interruption.] My answer to the hon. Member for Farnham and Bordon is that the Government are voting against clause 35 stand part.
Stephen Kinnock
Right. Advocates have told us that implementing what is set out in the clause would raise logistical and resourcing problems, as it would require a significant shift from their current role. They have also raised concerns that if they acted in effect on behalf of the hospital to collect feedback, their independence and impartiality in the eyes of the patient might be undermined. We would prefer to direct resources to increasing access to advocacy services among in-patients, as proposed by the Bill. Advocates play a crucial role in promoting and protecting the rights of patients. We do not wish to detract from that or to dilute their role. I do not commend the clause to the Committee.
Jen Craft
Like many Committee members, I was deeply confused about how we were proceeding.
On the face of it, the clause broadly seems as if it should be part of any Act about mental health care, including post discharge. I have spoken about my own experience of interacting with the Mental Health Act as it stands. I might have found the clause fairly helpful post discharge and others might have found it useful as well. However, I have just heard the Minister’s description of the limitations of the clause, and the speech that I was about to make has been thrown into complete disarray by the confusion just now. But I implore the Minister to consider the fact that, when it comes to encouraging participation, understanding, and co-designing and co-producing services, capturing the experience of those recently detained under the Mental Health Act can be extraordinarily useful. Clause 35, which was added by an amendment from the Lords, seems a fairly useful way to do that.
Gregory Stafford
Like the hon. Lady, I see many benefits from the clause. Like many Committee members, I am surprised that the Government intend to vote against it.
As has been mentioned, the clause was inserted in the House of Lords by my noble Friends Earl Howe and Lord Kamall. I think it introduces a very valuable and forward-looking provision—namely, a mandatory debrief session within 30 days of discharge. It introduces a formal mechanism for learning from patient experiences following detention under the Mental Health Act. Although patient feedback mechanisms exist in some services, they are not consistently applied or mandated. The clause ensures that every detained patient has the opportunity to reflect on their care with an independent advocate, and that their feedback contributes to service improvement. It reflects a broader shift in mental health law towards transparency, accountability and the patient voice, and aligns with the recommendations from the 2018 independent review of the Mental Health Act, which the Government have used as an argument in favour of many of the other clauses.
Clause 35 is more than just a procedural addition. It represents a shift in culture towards embedding the patient voice and accountability in the mental health care system. It recognises the importance of empowering individuals after detention, supporting their recovery, and learning from their lived experience to improve future services. Mental health charities and third sector organisations have strongly endorsed the clause, seeing it as a meaningful step towards a more rights-based, transparent approach to care.
Clearly, the clause empowers patients, because it gives them a structured opportunity to share their experiences and influence service provision. It promotes transparency by requiring hospitals to report publicly on what they have learned and how they have responded. It supports quality improvement by encouraging services to reflect on and address systemic issues in the delivery of care. Furthermore, it has independent oversight through the involvement of IMHAs, which helps to ensure that feedback is gathered impartially and respectfully.
The reforms prioritise professional clinical opinion, safeguard children from inappropriate influence during periods of acute vulnerability, and elevate the patient voice in the post-care process. In doing so, they align the Mental Health Act much more closely to modern standards of care, international best practice and evolving public expectations. I believe that the clause is essential to strengthening the Bill and ensuring that our mental health system becomes not only more effective but more compassionate, responsive and just.
Dr Evans
I rise to speak to clause 35, which would insert new section 23A into the Mental Health Act 1983. It was introduced and passed in the Lords, and rightly so. As the hon. Member for Thurrock said, it seems surprising that anyone might want to take it out.
The clause was introduced as a new duty to offer all patients detained under the Act a consultation with an IMHA within 30 days of discharge. The purpose is to review their experience of hospital and learn from that experience through a report shared with hospital managers. Currently, the Mental Health Act makes provisions for access to IMHAs primarily during detention, particularly around decisions concerning treatment and care planning. However, once a patient is discharged, formal advocacy tends to fall away, unless pursued through broader NHS complaints mechanisms. There is no statutory duty to engage with patients post discharge, to understand how they have experienced their care or to systematically learn from those experiences.
In that context, the clause represents a welcome and important step forward. We know from successive reviews from the Care Quality Commission, NHS England and, of course, the independent review of the Mental Health Act, led by Sir Simon Wessely, that patients often feel disempowered during their detention. Many describe experiences of coercion, poor communication or even trauma. Yet those experiences frequently go unheard: lost in the silence that can follow discharge. Clause 35 seeks to change that, creating a pathway for those voices to be heard, and, more importantly, for services to learn from them. I strongly support that principle.
We need to clarify one thing first: the clause says a patient must “be offered” a consultation within 30 days —it is no more formalised than that. It is not a statutory requirement to take part, but purely to offer. That is important when it comes to making sure that reports are made in partnership with the patient. That is positive language, which would help to support the decision making and feedback loop.
In their rebuttals, I appreciate that the Government may ask whether the clause would mean hospital managers marking their own feedback. They might also ask how we would deal with CQC capacity. Those are reasonable questions, but at the heart of the clause, as agreed by the Lords, is the fact that all too often patients’ thoughts after discharge are not fully taken into account.
Gregory Stafford
Surely the fundamental part of the Bill is self-assessment and self-reflection. That does happen in some cases, and certainly in other parts of the healthcare system, but in this area generally does not; when it does happen, it is done in an inconsistent manner. The clause seeks to formalise things and to ensure that there is a benchmark by which service users and patients can feed back to the service they have just come from, to improve services. Does my hon. Friend share my confusion about why the Government would want to take that out?
Dr Evans
My hon. Friend makes a strong point. In clinical practice, we know that reflective learning is important, but that is not mandated. As we have seen from the reports, part of the reason why we do not see improvements is that we do not know about them. The clause gives patients the chance to empower themselves in a statutory, regulated way, which then allows us further transparency on how those issues arise.
Let us not forget that patients with good experiences would also have the chance to feed those back, further helping to support the services and hopefully leading to beacons of best practice up and down the nation so that we could then learn from those. That is the idea behind the clause: making sure that the likes of the regulator would be able to share lessons about not only those who have struggled but those who have done well. Clause 35 really offers a rare opportunity to hardwire the patient voice into the feedback loop of mental health services. That is a principle that I and my Opposition colleagues strongly support.
Stephen Kinnock
Fundamentally, we do not support the clause because it is overkill. It simply puts too much burden on to a system that is already carrying out the tasks that the clause seeks to impose on the system, particularly through the CQC. Given that advocates currently have no role in relation to discharged patients, it is clear that the clause would present a new burden; that has been confirmed through my officials’ engagement with advocates and other stakeholders. One hospital manager said that within their small trust alone, the clause would result in contacting and interviewing more than 1,000 individuals discharged from the Act each year.
Dr Evans
The Minister says that advocates had no role in discharge, but they do when advising patients about their rights—that is fundamentally what they do. At the point of discharge, they enable patients to know what their rights are. I take his point about capacity issues. If the Government want to take the clause away, how will they hardwire patients’ feedback into the heart of the Bill?
Stephen Kinnock
The CQC visits and interviews thousands of detained patients each year under its statutory duty to monitor the use of the Mental Health Act. Those visits can lead to the CQC requesting improvements from service providers. The CQC publishes annual reports highlighting key findings and themes from those visits.
Trust boards are responsible for collecting and acting on service user feedback to improve services. Under the NHS contract, the patient and carer race equality framework requires trusts to have clear and visible systems in place for gathering and responding to feedback from patients and carers. What is more, Healthwatch England and its local branches also play a key role in representing the views of health and social care users. I do not really know what more the system could do. The clause simply over-embroiders and over-complicates; when that happens, we usually end up with vast numbers of unintended consequences.
We appreciate that concerns have been raised around the CQC’s role in collecting in-patients’ views. As I said, we would prefer to work with stakeholders to understand those concerns and improve the feedback mechanisms that we have, rather than reinvent the wheel and create something new. We recognise that, although there are multiple aims to the clause, the primary one is to provide a space for people to heal from their experiences of being detained. We are strongly of the view that inviting the individual to share their experiences as part of their advance choice document or care plan—
Jen Craft
I am glad that the Minister is explaining how capturing feedback and experience is being allowed for in other parts of the Bill. To clarify, in my own head I feel that the clause aims to capture the experience immediately after it has happened, just as hospitals offer women who have just given birth the opportunity to talk through their experience. It is healing for the patient to understand what happened to them, and it provides immediate feedback to the hospital. Is that kind of level captured in other parts of the Bill?
Stephen Kinnock
I understand and recognise my hon. Friend’s concerns, but we can rattle through all the different forums where feedback can be captured: the CQC, the trust boards, the patient and carer race equality framework, Healthwatch England and all the other informal channels in the mental health ecosystem. Our view is that adding another layer into all that would in the end be counterproductive. That is the Government’s position.
Natasha Irons
The Minister mentioned the complex network of ways in which patients can give their feedback; perhaps the aim of the clause is to try to simplify that and, as my hon. Friend the Member for Thurrock mentioned, make it a bit more direct and immediate after treatment. Are there any plans to simplify the process in another way? The complex cobweb that the Minister described is perhaps the reason why the patient voice is not always captured and utilised in a way that we would want if the services that people rely on are to be improved.
Stephen Kinnock
My hon. Friend raises an important point. I do worry about the list of different organisations and agencies throughout the system, and not just in mental health—so many parts of the system have had layer upon layer of bureaucracy added in. That is one of the reasons why we are abolishing NHS England: we want to try to find greater simplicity and clearer channels of communication.
Through the development of the code of practice and the consultation process, simplifying and clarifying the system will be a key objective. Adding another layer would have the opposite effect. But my hon. Friend makes an important point, which will definitely be a part of the process of consultation and development of the guidelines and code of practice. On the basis of those answers, I recommend that we do not adopt the clause.
The Chair
Order. I am expecting four Divisions imminently, so I will suspend the Committee.
Stephen Kinnock
Clause 36 will introduce a subset of the current conditional discharge power where deprivation of liberty conditions are expressly allowed, otherwise known as supervised discharge. The aim of the clause is to prevent a small group of criminal justice patients with specialised support needs from remaining in hospital unnecessarily, while ensuring the risk they pose in the community is robustly managed. The reform responds to a Supreme Court decision, which found that there was no power under the current Act to impose discharge conditions that amount to a deprivation of liberty. Prior to the judgment, such conditions were used in a small number of cases in which patients with specialist needs required stringent arrangements to protect themselves and the public from harm.
Careful consideration has been given to the ethical and legal balance of the arrangements. We are clear that the threshold for use of the power is very high, and it will be accompanied by appropriate safeguards. A stringent test will be applied. The conditions will only be applied if the tribunal or Justice Secretary views the conditions as necessary to protect others from serious harm and, for the tribunal, if it considers the conditions would be no less beneficial than if the patient remained in hospital. We are also introducing additional safeguards, which ensure that supervised discharge patients are automatically referred to the tribunal after 12 months and every two years thereafter. That is more frequent than patients subject to conditional discharge, given the restrictive nature of the conditions being placed upon them.
I turn to clause 37. Prisoners and other detainees who become acutely mentally unwell in prison or another place of detention, such as an immigration removal centre or youth detention accommodation, can be transferred to hospital for treatment under sections 47 and 48 of the Act. Clause 37 will make two minor changes to those provisions.
Currently, the criteria for detention under the Act provides that appropriate treatment must be “available” for the patient or other detainee. The Court of Appeal, however, ruled that due to the specialised provision and security requirements relating to this cohort of patients, treatment must be available in practice for the detention criteria to be met, meaning that a hospital place must be identified. That diverges from how “available” treatment is interpreted across the rest of the Act, and it risks creating an additional barrier for this cohort of patients in accessing the care they need.
We are therefore clarifying the detention criteria to ensure that they can still be met, based on the patient’s clinical need, even when no hospital place has yet been identified. The change is also necessary for the effective implementation of the statutory time limit in clause 38, so that the Secretary of State is not delayed in issuing a transfer warrant when a specific bed space has not yet been identified. Clause 37 will also update the list of immigration legislation provided in section 48 to expand the scope of immigration detainees who can be transferred under that section.
The Chair
I remind Members that if they want to take their jackets off, they may. It is very warm.
Gregory Stafford
I rise to support clauses 36 to 40. Clause 36 addresses a legal gap identified in case law, which held that the Mental Health Act 1983 did not permit the imposition of conditions amounting to a deprivation of liberty for conditionally discharged patients. The clause provides a clear statutory basis for such conditions, but only under strict safeguards. It aims to balance public protection with patient rights, ensuring that DoL conditions are used only when absolutely necessary and proportionate. This is a positive step, because it clarifies the legal authority, resolving any uncertainty, following court rulings, about the legality of DoL conditions in conditional discharges. It protects public safety by ensuring that high-risk patients can be managed safely in the community, under appropriate restrictions. It includes safeguards that require DoL conditions to be justified and proportionate, with a focus on patient welfare, and it aligns with notable human rights law, especially the definitions and principles from the Mental Capacity Act and the relevant case law.
However, I have a couple of questions for the Minister. My view is that there is potential for overuse. Without robust oversight, there is a risk that DoL conditions could be used too readily. What safeguards is the Minister putting in place to ensure that that does not happen? There is clearly an impact on patient liberty, and we need to get the balance right. Even with the safeguards, these conditions significantly restrict individual freedom and therefore must be carefully monitored. How is the Minister ensuring that that will happen? In relation to the legal thresholds, determining whether conditions meet the legal test may require detailed clinical and legal assessment. We have talked about the practical implications of this Act on numerous occasions. I again ask the Minister whether he is certain that we have the relevant clinical and legal assessors out there to ensure that we can push that forward.
Clause 37, entitled “Transfers of prisoners and others to hospital: conditions”, will update the legal framework for transferring individuals from prison or immigration detention to hospital under the Mental Health Act. The previous wording of the Act required that treatment be “available”, but did not specify that it must be appropriate for the individual’s condition. This clause will align the criteria with more modern clinical standards and broader reforms in the Bill, which emphasise person-centred care and treatment suitability. It will also ensure that immigration detainees are clearly included in the scope of these provisions. Again, it is positive, because it updates and consolidates the list of immigration-related detention powers covered by the Act. It supports human rights compliance, because it aligns with principles of lawful and proportionate deprivation of liberty under article 5 of the European convention on human rights; it brings the Act in line with the current clinical and legal terminology; and, most importantly, it ensures that transfers are made only when appropriate treatment—not just any treatment—is available.
I have just a couple of questions for the Minister on this clause. I see potential for disputes. Determining what constitutes appropriate treatment may lead to disagreements between clinicians and authorities. What are the Minister’s thoughts on those potential disagreements? There are also some resource implications. It may increase demand for secure hospital beds if more transfers are approved under the revised criteria. I would welcome any thoughts from the Minister on how to ensure that we have the right number of secure hospital beds, not just as a totality, but in the specific regions and areas where people may be being detained.
Clause 38 is also about the transfer of prisoners and others to hospital, but specifically about time limits. It responds to a long-standing concern about delays in transferring prisoners and immigration detainees to hospital for mental health treatment. Under the current system, there is no statutory time limit, and individuals can wait weeks or months in prison, despite being assessed as needing urgent psychiatric care. That has been criticised by mental health professionals, legal advocates and human rights bodies. The clause will introduce a legal framework for setting and enforcing time limits, aligning with the Bill’s broader goals, which I think we all agree with, of improving patient rights and dignity and timely access to care. Again, I support the clause, because it will reduce delays. It will help to ensure that mentally unwell detainees are transferred to appropriate care settings without unnecessary delay, and will introduce clear expectations and accountability for decision making. It enables some flexibility, I think, because it allows for tailored regulations, to accommodate different case types and operational realities.
Again, however, I have some questions. I think there will be some implementation challenges. Services may struggle to meet the deadlines without sufficient resources —an issue that I mentioned in relation to the previous clause. Also, time limits may be difficult to apply in complex or borderline cases without clear guidance. Does the Minister see a need for explicit guidance in the code of conduct, or in some other form, to ensure that the risk of a rigid application does not make things more complicated or, more especially, mean that a potential patient is sent to the wrong care simply because we are focusing on the time rather than the appropriateness of the care? Of course, I would welcome his thoughts on how any new tracking systems and co-ordination between prisons, hospitals and the Ministry of Justice might work in this case.
Finally, I will briefly touch on clause 39. This is a technical update regarding the term “remand centre”, because that is no longer used in law or in practice; instead, young people are remanded to youth detention accommodation. Given that the clause is purely technical, I support it.
Anna Dixon
It is a pleasure to serve under your chairship, Mrs Harris. I will briefly speak in support of clauses 36 to 40. These clauses reflect the principle of least restriction, albeit for people who are subject to part III, and who are therefore subject to the deprivation of liberty conditions. It is really important that there are frameworks around conditional discharge, and these clauses will do a lot to bring it in line with best practice, and to put the limit set out in the best practice guidelines on a statutory footing to ensure that there is a 28-day transfer. To be successful, that will require multidisciplinary working between the health and justice systems. With that in mind, will the Minister give an assurance that he is confident that the 28-day limit can be met? If there is already data on how many transfers are made within that time limit, in line with best practice guidelines, that would give some assurance that the new statutory time limit is likely to be met.
I am pleased to see that the time limit should be breached only in exceptional circumstances, and that the Bill specifies that a shortage of hospital beds or staff does not constitute exceptional circumstances. It is really important that that is not used as a reason not to transfer or discharge people later than the 28-day limit. Some of the discharge test rests not only on whether there is a risk of harm to another person, but on a public test. Can the Minister clarify how those two tests will work in tandem? Is that already being done in practice?
Finally, I note that the evidence that we have received from the Care Quality Commission says that it welcomes closing the legal gap following the High Court ruling, as set out in the explanatory notes. However, the CQC believes that supervised discharge should be used only “when strictly necessary”, and I know that there are ongoing discussions between the Department’s officials and the Care Quality Commission. Can the Minister give an update on those discussions and clarify what role, if any, the CQC will play in the oversight of these measures?
As the hon. Member for Farnham and Bordon said, clauses 67 to 70 bring the Bill in line with youth justice practices and terminology, and with immigration policy. It is important that we take the opportunity to make sure that the Bill is fully up to date and in line with other pieces of legislation, so I support the clauses.
Dr Shastri-Hurst
I rise to speak in support of clauses 36 to 40, which provide critical legal clarification and technical refinements to the 1993 Act. While differing in scope and impact, each of these provisions is underpinned by a clear shared commitment to enhance public protection, uphold patient rights, and ensure that the legal framework reflects both current clinical practice and developments in case law.
Let me begin with clause 36, which addresses a long-standing lacuna in the legislative architecture governing conditionally discharged restricted patients. It follows the 2018 Supreme Court ruling in the case of Secretary of State of Justice v. MM, where it became clear that the existing Mental Health Act did not permit the imposition of conditions amounting to a deprivation of liberty as part of conditional discharge. The decision created uncertainty for clinicians, tribunals and, most crucially, risk-managed patients living in the community. It is therefore pleasing to see that clause 36 seeks to address that gap. The clause introduces new statutory powers for both the Secretary of State and the first-tier tribunal, in respect of imposing deprivation of liberty conditions in the community. It does so with some stringent safeguards.
Dr Evans
I rise to address clauses 36 to 40, which focus on patients involved in criminal proceedings or serving custodial sentences, and how we better align their care and liberty and the protection of the public. These clauses engage serious and sensitive issues—individual liberty, the management of risk and the functioning of the justice and health systems in tandem.
I turn first to clause 36. Under the current Mental Health Act, a restricted patient—typically someone who has been detained under a hospital order with restrictions due to the risk they pose—can conditionally be discharged under section 42 by the Secretary of State for Justice or under section 73 by the tribunal. Conditions can be placed on their discharge, but they cannot amount to deprivation of liberty. This is key. If conditions require constant supervision or control, such as being escorted at all times, then the patient cannot be discharged at all, even if they no longer need in-patient treatment. This was confirmed in the Supreme Court case, MM v. Secretary of State for Justice, in 2018.
Essentially, at the heart of the clause is a group of individuals who have been detained in a hospital under a restricted hospital order. In other words, they are people who have committed serious offences but were found to be suffering from mental disorders at the time. These individuals are not sent to prison; instead, they are detained in secure hospitals under the Mental Health Act. In some cases, clinicians and tribunals decide that someone can be discharged from hospital, but only if they comply with very strict conditions. These can include requirements such as living in a particular place with 24-hour supervision, not leaving without permission, being monitored at all times and other limits that can seriously restrict their liberty.
The issue arose in the case MM v. WL, in which a patient with capacity had consented to highly restrictive discharge conditions involving 24-hour supervision. The court found that the discharge under such conditions could not lawfully take place under the Mental Health Act, even with the patient’s consent, because it amounted to deprivation of liberty, and it was not lawful to call it a “conditional discharge”.
The law as it stands does not provide for that, which is where this clause comes in. Clause 36 seeks to address the impasse by amending sections 42 and 73 of the Act. It allows both the Secretary of State and the tribunal to impose deprivation of liberty conditions upon discharge only where they are necessary to protect others from serious harm, and where conditional discharge is no less beneficial to the patient than continued hospital detention.
I also welcome the intent of the clause: to introduce the principle of least restriction, ensuring that patients are not kept in hospital simply because the law offers no safe option. Paragraph 281 of the explanatory notes states:
“This power supports the principle of least restriction by allowing patients to be discharged from hospital and treated in the community, where otherwise this might have been prevented.”
However, I would like to raise several probing questions for the Minister. Do we know how many patients are currently affected by the MM judgment and held in hospital longer than clinically necessary? How will patients be supported to challenge these conditions, particularly if they have capacity and disagree with the restrictions? Equally, if we flip it and argue for more restrictions, what if there are concerns or disagreements from the services, clinicians or families? How will they be able to challenge the decision in reverse?
I am pleased that my hon. Friend the Member for Solihull West and Shirley is here, as I am not legal expert, but when I was prepping for this, I also noted the retrospective effect of clause 36(5), which allows certain conditions to be applied to those already detained or conditionally discharged when the clause comes into force. The retrospective effect of clause 36 is noted specifically in subsection (5) and reinforced in the explanatory notes. Subsection (5) states:
“The amendments made by this section apply in relation to any person who is a restricted patient within the meaning given by subsection (1) of section 79 of the Mental Health Act 1983, or is treated as a restricted patient as a result of that subsection, whether the person became such a patient (or treated as such a patient) before or after the coming into force of this section.”
This is a clear signal of retrospective application. I believe, in legal terms, this has the effect of changing legislation to make a provision apply as if it has always been in law in the past, not just from the date of commencement. What does this mean? This clause effectively retroactively legalises conditional discharges that include deprivation of liberty before the Bill becomes law, even though under current law, following the MM judgment, that was not permissible.
The explanatory notes to the Bill make this point more directly. For example, paragraph 284 on page 53 states:
“Clause 36 subsection (5) allows the new measures to operate retrospectively by providing that deprivation of liberty conditions can be imposed on restricted patients who are already detained, or who are conditionally discharged, at the time the provisions come into force.”
Again, I am no lawyer, but this makes it clear that the Government are intent on validating past decisions, particularly those made before that are contrary to the MM judgment, which held that the Mental Health Act did not permit deprivation of liberty as part of the conditional discharge. Can the Minister confirm that article 5 of the ECHR safeguards has been fully considered in that respect? On page 72 of the explanatory notes, paragraph 394 says that the right hon. Member for Ilford North (Wes Streeting) believes that the Bill is compatible with the ECHR. To my surprise, when I was working on this at the weekend, I noticed that it says, “in her view”—a small drafting error that highlights my hours and hours of prep for this.
On a serious note, the real-world effect of clause 36(5) is to retroactively legalise the use of conditional discharges that involve deprivation of liberty even though, under current law as interpreted by the courts, such decisions were unlawful at the time that they were made. Why does that matter? The retrospective provision protects public authorities, particularly the Secretary of State for Justice, and mental health professionals from legal liability for decisions made before, or in disregard of, the MM judgment. It shields decisions that may have breached a patient’s rights, particularly their right to liberty under article 5 of the ECHR, by making those actions lawful after the fact.
Anna Dixon
Does the hon. Gentleman agree that one of the challenges of that court ruling, which will stand unless the Bill amends the law, is that there will be people detained for longer than is appropriate because a conditional discharge is not possible under the law as it is currently interpreted? The whole Bill is about the principle of least restriction. Does he not agree that we need to make this change to fit with that principle?
Dr Evans
I agree on that, and we will support the clause. But, as the hon. Member rightly pointed out earlier, we need interoperability between the moving parts to make sure that they all align with the provision in the clause. She is absolutely right: this measure is in the Bill because the patient in the MM case had capacity and had agreed to being discharged with deprivation of liberty impositions, and that was found to be unlawful because of a parallel Act. What I am worried about, and the point that I am trying to make, is that there are so many moving parts in these Acts that we could be in danger of complicating the situation further.
Clause 36 seeks to address the uncertainty by legislating for a new power to impose deprivation conditions as part of a conditional discharge, as the hon. Member rightly pointed out. However, in doing so, the clause effectively runs parallel to, and perhaps even conflicts with, the as yet un-implemented LPS framework. The Government introduced the LPS framework through the Mental Capacity (Amendment) Act 2019. It was intended to be more flexible and responsive than DoLS. But given that the LPS framework has not been commenced, and that there is no clear timetable for implementation—the Minister seemed to suggest that he was unsure whether he will implement them, even though the 2019 Act was passed by Parliament—are we legislating for an entirely separate deprivation of liberty route under the Mental Health Act, and potentially bypassing or duplicating existing safeguards under the Mental Capacity Act?
It all comes back to the point made by my hon. Friend the Member for Solihull West and Shirley about good record keeping and legislative housekeeping. I ask the Minister how the new conditional discharge power will interact with either the DoLS or the liberty protection safeguards—if they are eventually implemented. Are they simply a subsection of the deprivation of liberty conditions, and therefore would not matter? Can the Minister foresee a time where a patient could be subject to both the new powers and the LPS, and if so, who is the decision maker and where do the appeals rightly lie? Should we not wait for the full implementation of the LPS before layering further deprivations in place? That is an open and rhetorical question, but one that vexes me when we are discussing this Bill in detail. There is a real risk here of fragmenting the legal landscape, leading to confusion for clinicians, patients and carers.
Clause 37, which is about conditions relating to the transfers of prisoners and others to hospital, addresses a barrier to timely transfers from prison to hospital. At present, under the case R (ASK) v. Secretary of State for the Home Department of 2019, a transfer from prison under section 47 or 48 of the Mental Health Act cannot be authorised unless a specific hospital bed has already been identified. While well intentioned, that threshold has arguably had a negative effect in deterring referrals and delaying access to treatment.
Clause 37 rightly lowers that threshold. It amends section 47 and 48 of the Act so that a hospital place need not be available at the point of referral. Instead, the clinical decision about suitability for hospital can proceed earlier, allowing for better planning and quicker transfers. That seems a pragmatic response to a bureaucratic bottleneck, but how will this amendment be implemented in practice to ensure that it does not create the false expectation of imminent transfer? Will there be national guidance issued for uniform application of that new test across the entire prison estate?
Clause 38 deals with transfers from prisons to hospitals, and their timeline. It introduces a new statutory duty for transfers from prison or detention to hospital to be completed within 28 days of initial review for assessment via proposed new sections 47A and 48A. As we have heard, that reflects good existing practice. The NHS England guidance already recommends that transfers should be completed within 28 days. However, clause 38 now gives that statutory force subject to exceptional circumstances, which the Bill carefully defines. For instance, as we have heard, shortages of staff and hospital beds do not qualify unless they are caused by exceptional events such as fires or flooding.
This clause is welcomed as an important safeguard for therapeutic benefit, because delays in transfer can cause serious deterioration. It must, however, be supported by sufficient resources and capacity, on which I have a few questions. What assessment has been made of compliance with the 28 day target, and what proportion of cases currently fall outside of it? Will investment be made to ensure bed availability and staffing so that those statutory duties may be fulfilled? When this was debated in the other place, the Justice Minister said:
“I am pleased to share that this Government have recently established a health and justice strategic advisory group, which will bring together key partners with responsibility for the various parts of the transfer process. This group will be chaired by a national clinical director, who will report regularly to Ministers and be responsible for agreeing a joint work plan to support implementation of the statutory time limit, identifying solutions to common barriers to timely transfers and holding partners to account.”—[Official Report, House of Lords, 31 March 2025; Vol. 845, c. 102.]
That is laudable, so I tabled a written question to find out about the group that Lord Timpson talked about. Fortunately, the answer to my written question came back today. The group have not met and are not meeting until 1 July, so I ask for some clarification around that committee. It seems welcome, and this is a complex area. Given that the Justice Minister raised that issue, who will the group report to—the Ministry of Justice or the Department of Health?
Later in his remarks, Lord Timpson talks about the written ministerial statement coming to Parliament. We have heard the Government say that a couple of times about reporting timescales, but in his speech Lord Timpson talked about reporting to Ministers. What kind of time- scales and frequency can we expect if the group has not even met yet? What reporting will there be to Ministers, either in the Ministry of Justice or the Department of Health, to address some of the issues that we are debating today?
Clause 39 deals with transfer directions for persons detained in youth detention accommodation. It is rightly pointed out that this is a gap in the law. There is no power under section 48 to transfer to hospital a child who has been remanded to a youth detention accommodation by the Crown court, even if they urgently need in-patient care for mental disorders. That really does seem to be an anomaly. Such power exists for magistrates court remands, so clause 39 rightly corrects this, and I support it. Do we know how many children have been affected by that gap since 2012? I ask because if this is to come into law with immediate effect, it will have an immediate resource effect. We of course want to make sure that everyone—particularly young people—is in the right place. The fact that some of them legally are not may well cause another problem for us all.
Finally, I turn to clause 40, which appears to be a technical clarification of schedule 1 of the 1983 Act, confirming that the whole of section 66(2)(d) is disapplied for unrestricted part III patients. It clarifies the right of application to the tribunal, and to me it seems uncontroversial and helpful.
I acknowledge the thoughtful work being proposed in these clauses, and I understand what they are trying to do. They represent a clear attempt to modernise and humanise the way the Mental Health Act applies to some of the most vulnerable and high risk patients in our system, but we must ensure that any new powers, particularly those involving deprivation of liberty and retrospective legislation, are subject to clear safeguards, scrutiny and proper resourcing. I look forward to hearing the Minister’s response to my questions.
Stephen Kinnock
On safeguards, supervised discharge will only be used when necessary, given its restrictive nature and significant resource demands. A stringent test will apply. It must be deemed necessary by the tribunal or Justice Secretary to protect others from serious harm, and the tribunal must deem it to be no less beneficial than hospital care. Additional safeguards include automatic tribunal referrals after 12 months and every two years thereafter, if not previously reviewed.
On capacity, our expectation is that this will not have a significant impact on other restricted patients. The small cohort who are likely to be subject to supervised discharge will free beds, and that could positively impact any patient who needs a bed, but the numbers remain small and are unlikely to lead to widespread bed availability.
On demand for secure beds, clause 37 will correct a discrepancy in detention criteria caused by a Court of Appeal decision. Rather than creating further disparity, it aligns the criteria for sections 47 and 48 of the Mental Health Act with the consistent interpretation of available treatment used throughout the rest of the Act. Clause 37 does not alter the approach to clinical prioritisation of in-patient care, or the fact that a person will only be transferred once an appropriate bed has been found, in terms of both therapeutic care and level of security. That also addresses the question on implementation from the hon. Member for Farnham and Bordon.
I turn to the questions asked by my hon. Friend the Member for Shipley. She asked about the 28-day limit. Any change to the time limit would require an enhanced level of parliamentary scrutiny. Therefore, the power shall be subject to the draft affirmative procedure to ensure that both Houses are given the opportunity to debate any decision.
On dual tests, the Secretary of State for Justice applies a slightly different test from that of the tribunal in order to preserve their discretion in the interests of public protection, but conditions for patients must still be appropriate and proportionate. We will publish operational guidance to make it clear that the Secretary of State for Justice should have regard to the principle of therapeutic benefit and only use this type of discharge when the evidence indicates that it is in the best interests of the patient.
Under section 120 of the Mental Health Act, the Care Quality Commission and Health Inspectorate Wales have a duty to monitor the use of the Act. Patients subject to supervised discharge will be captured by section 120 for the purpose of regulatory oversight as a subset of conditionally discharged patients who are liable to be detained under the Mental Health Act.
I turn to the questions asked by the shadow Minister, the hon. Member for Hinckley and Bosworth. The Ministry of Justice considers that these measures are compatible with article 5 of the European convention on human rights. In 2018, the Supreme Court case of Secretary of State for Justice v. MM established that there was no lawful basis under the Act to impose conditions that amounted to a deprivation of liberty. The new provisions will provide a statutory basis for the Justice Secretary and the tribunal to impose such conditions.
The Chair
With this it will be convenient to discuss the following:
Amendment 19, in schedule 3, page 91, line 13, after “patient” insert
“or English qualifying informal patient under 18”.
This amendment extends the provision of opt-out advocacy services in England to informal inpatients under 18.
Government amendments 42 and 43.
Schedule 3.
Stephen Kinnock
I will first discuss clause 41 and schedule 3. Independent mental health advocates are specially trained advocates who can support patients detained under the Mental Health Act to understand their rights and participate in decisions about their care and treatment, but not everyone who would benefit from an independent mental health advocate currently has access to one. In view of the benefits that advocacy can bring, we are expanding the right to an independent mental health advocate to all mental health patients, including informal or voluntary patients who are not detained under the Act.
We know that some informal patients are not told about their rights and legal status. Informal patients in Wales already have the protection, and we want to extend it to patients in England. It will help ensure that the voices of individuals are heard and their rights respected, and that potentially vulnerable groups, including children and young people, do not go without important advocacy protections.
Moreover, the Bill provides an additional enhanced mechanism for ensuring that the most vulnerable mental health patients, those compulsorily detained under the Mental Health Act, are able to benefit from advocacy. We are introducing an opt-out system for that particular cohort, to put the onus on hospital managers rather than patients themselves to request independent mental health advocacy services. Hospital managers must notify providers of advocacy services about the patients who are eligible for IMH advocacy. Advocacy providers must then arrange for independent mental health advocates to interview those patients to find out whether they want to use their services.
The right to an independent mental health advocate will also be expanded to include part III patients who are subject to the new supervised discharge, which allows for part III patients to be conditionally discharged into the community and still deprived of their liberty. The Bill also enables independent mental health advocates to provide extra help to patients to have a greater say in their treatment or to make a complaint. Together, these changes increase the access that patients have to advocacy, which contributes to improved patient rights.
I will next address amendment 19. We appreciate that people under 18 are a vulnerable group who would benefit from advocacy representation. For this reason, the Bill extends the right to an independent mental health advocate to informal patients, including under-18s, who are often admitted on a voluntary basis. We are introducing a duty on hospital managers to inform them of this right. That means that hospital managers will be expected to proactively approach all children and young people, and others, such as their parents or carers, to make sure they know that they are entitled to an advocate and help them to appoint one.
We will make it clear in the code of practice how independent mental health advocates should support children and young people with their particular needs. However, we think it is right that detained patients, including under-18s—rather than informal patients—receive advocacy on an opt-out basis. This is because they are subject to greater restrictions, meaning that it is even more important that they are supported to exercise their rights.
Finally, I will address Government amendments 42 and 43. Schedule 3 introduces the concept of “English qualifying informal patients”, who, for the first time in England, will be eligible for independent mental health advocacy services. We are amending this measure to change the definition of both English and Welsh qualifying informal patients. Amendments 42 and 43 are minor amendments to address a technical issue with the legislation. There is case law saying that the term “informal patient” would cover anyone there on a voluntary basis and not subject to any compulsory legislative framework. However, as currently drafted, the Bill’s definition is wider, defining an informal patient in England or Wales as an in-patient in hospital who is receiving assessment or treatment for a mental disorder at the hospital but not subject to the Mental Health Act. A person deprived of their liberty under any other legislation such as the Mental Capacity Act 2005 or under a court order would therefore be classed as an “informal patient”, which would be incorrect, as people who are detained cannot, under case law, be informal patients.
That would lead to complications in practice. A patient subject to the deprivation of liberty safeguards would be eligible for independent mental health advocacy as well as independent mental capacity advocacy. However, an independent mental health advocate cannot provide any help or support in relation to the Mental Capacity Act. The amendments address that issue by changing the definitions of “English qualifying informal patient” and “Welsh qualifying informal patient”, to be an in-patient receiving assessment or treatment for a mental disorder who is not detained under any other legislation or court order.
For those reasons, I hope that the hon. Member for Winchester is satisfied not to press his amendment, and I commend Government amendments 42 and 43, clause 41 and schedule 3 to the Committee.
Aphra Brandreth
I rise to speak to clause 41, which brings into sharper focus two pillars of a fair and rights-based mental health system: the provision of clear information to patients and the strengthening of independent mental health advocacy. It rightly recognises that, when a person is detained under the Mental Health Act 1983, often during a period of acute crisis and difficulty in their life, they need to feel that their clinical needs are being met, but in a way that respects them as individuals, with the same entitlements to dignity and agency as any other member of our society.
The clause provides for informal patients to be eligible for an independent mental health advocate. I welcome the extension to enable more individuals to access this vital advocacy. It empowers patients to know that independent advocacy is available, but we must ensure that there are sufficient resources so that those who choose this help are given sufficient support when they are in a potentially vulnerable position. As someone representing a constituency that is in England but borders Wales, I also welcome that these changes bring care into line so that advocacy help is offered to informal patients, regardless of which side of the border they are accessing treatment.
The clause places a renewed duty on services to ensure that information is given to patients clearly, promptly and in a form that they can understand. It introduces an obligation for advocacy providers to determine, through an interview, whether a qualifying patient wishes to use the service. This support is important; no person should be expected to navigate the complexities of mental health legislation, or their rights under it, without proper guidance. However, where there is a duty
“on hospital managers and others to notify providers of advocacy services about qualifying patients”,
can the Minister clarify who is meant by “others”? Will there be a list of people and roles who are given this responsibility?
The role of an independent mental health advocate is vital. These individuals can be a lifeline. They can help people to understand their rights and any medical treatment, and crucially, can support an individual to have their say about any treatment. Clause 41 rightly reinforces the importance of independent mental health advocates, and it is important that we match that ambition with the legal and practical steps to support them.
It is entirely right that we welcome the recognition of the role of independent mental health advocates, who serve a vital function in ensuring that patients’ voices are heard and their views represented, especially when navigating what can be an incredibly complex legal and clinical environment. Their independence is fundamental to not only their effectiveness but the confidence that patients and families can place in the system, which brings me back to my point. It is therefore important that we support independent mental health advocates with the resources that they need to do their job effectively.
If we are to rely further on advocates, we need to ensure that they are in a position to deal with that, so that we do not create statutory entitlements that are difficult to act upon. Actions, as well as words, are needed. At present, many areas already struggle with advocacy coverage. If we now place additional expectations on the service, and I believe that we will through this provision, we must ensure that there are sufficient numbers of trained, experienced independent mental health advocates across the country to meet rising demand. Can the Minister reassure the Committee that the necessary people with the skills and training are available to fulfil this expanded role?
We must also consider the patients’ experience, as has been the focus of so many of the remarks made in the Committee today. Again, I emphasise the vulnerability of patients at times of crisis. If we are to tell patients that support in the form of an advocate is there for them, we need to ensure that it is accessible and easy to reach and understand. Clause 41 moves us in the right direction, but implementation is everything. It must be backed by local accountability, adequate funding and clear operational guidance. This includes ensuring that all patients, regardless of background, language or capacity, are given support that is appropriate and effective.
It is vital to consider the wider implications of this clause. The reinforcement of the independent mental health advocate’s involvement should be mirrored by greater investment in advocacy services, stronger integration with care planning and more regular engagement with patients themselves on how these services work in practice. In our earlier discussions, my hon. Friend the Member for Farnham and Bordon suggested that we use trials, which could also be considered here to ensure that, as changes are brought in, they are matched by appropriate service levels.
I am largely supportive of clause 41, which I think moves us in the right direction towards a transparent mental health system that is there for patients, ensuring that they have a voice and are not an afterthought. As long as it is deliverable in practice, and does not give false hope to patients, the clause strengthens the Bill.
Josh Dean
It is a pleasure to see you in the Chair, Mrs Harris—when I wrote my speech, it said “this afternoon”, but it now says “this evening”. I rise to speak to clause 41 and schedule 3. I welcome the role that they will play in extending the right to access the services of an independent mental health advocate to voluntary patients in England not detained under the Mental Health Act, and ensuring that all detained patients are offered these services through an automatic referral, creating an opt-out system.
Independent mental health advocates play an important role in supporting patients detained under the Act to understand their rights and participate in decisions around their care and treatment. Clause 41 and schedule 3 seek to ensure that the individual needs of each patient are taken into account, even where they may not be able to engage in decision making about themselves. In doing so, they recognise the patient as an individual. This provides for important safeguards for patients and reinforces the Bill’s principles of autonomy and least restriction, which is a crucial part of bringing mental health legislation into the 21st century. I similarly welcome Government amendments 42 and 43, which seek to further strengthen the important safeguards in the Bill.
I hear the points that the Minister has made on children and young people admitted informally, but I would be grateful if he could address the matter further. As we know, informal patients are those who consent to an admission to a mental health hospital or whose parents consent to an admission on their behalf. Often, they are treated under the same or similar conditions as those detained under the Act. While detained patients will receive an automatic referral to advocacy services under the new opt-out scheme, my understanding is that that will not be the case for those admitted informally, meaning that informal patients would still be required to ask for the support of an independent mental health advocate.
Children admitted informally are likely to experience the same conditions as another child detained under the Act, but without the parity of access to advocacy services through the opt-out system. Because a parent is able to consent to informal treatment on their child’s behalf, they are one of few groups, if not the only one, able to be admitted informally without their own consent. Therefore, there is a concern that children and young people admitted informally may continue to experience problems accessing the support of an advocate. I seek the Minister’s assurance that the Government have considered fully the provision of advocacy services for informally admitted children and young people, and how this gap might be addressed.
I welcome how these parts of the Bill will embed those important principles of individuality, autonomy and least restriction, expanding the important safeguards offered by independent mental health advocates. I would be grateful if the Minister could touch on those points about children and young people in his response.
Dr Shastri-Hurst
I will speak briefly on schedule 3, which makes a number of important amendments to the 1983 Act concerning the role of independent mental health advocates. The schedule implements several practical reforms to provide consistent and accessible advocacy and support for individuals receiving mental health care. It builds upon existing statutory provisions by extending the right to advocacy beyond detained patients and setting out clearer expectations of how and when advocacy services should be made available.
One of the most notable changes is the extension of IMHA eligibility to include informal patients—individuals receiving voluntary treatment rather than under compulsion. This responds directly to the recommendations made in both the independent review and the 2021 White Paper, which identified disparities in support available to different patient groups. Under these reforms, access to advocacy is no longer limited to those detained under the Act. Instead, all qualifying patients, including informal ones, will be eligible for IMHA support where appropriate. This change reflects the recognition that voluntary status does not necessarily equate to full understanding or confidence in navigating care decisions.
To ensure that eligible individuals are aware of and able to use this support, hospital managers will now be required to notify advocacy services when a patient becomes eligible. This automatic referral mechanism removes the onus from patients themselves to initiate contact, many of whom may not be aware of their rights or may face barriers to asserting them. In turn, advocacy providers will have a duty to arrange an interview with each referred patient to establish whether they wish to use the service. This helps to close the loop between eligibility and engagement, and ensures that advocacy is offered in a timely and structured manner.
Schedule 3 also sets out clearer responsibilities on both hospital managers and advocacy providers. Clearly, that will improve co-ordination and ensure the consistent application of the policy across different care settings and regions. In practice, it should help to reduce gaps where eligible patients might otherwise miss out on support due to ambiguity around who holds the responsibility for initiating contact. It is worth noting that these reforms complement the broader set of changes proposed in clauses 41 to 44, which collectively aim to strengthen patient rights, increase transparency in decision making and improve the overall quality of patient experience in mental health services.
This approach has a number of potential benefits. First, it is likely to improve access to advocacy for groups who have historically been underserved. These include informal patients, individuals with communication difficulties and those less familiar with the mental health system. Secondly, it enhances procedural fairness by ensuring that patients are supported in understanding their options, raising their concerns, or appealing decisions where necessary. Thirdly, it brings the statutory framework into closer alignment with human rights principles and best practice standards, particularly in terms of informed participation and supported decision making.
There are, however, three specific practical challenges that I wish the Minister to acknowledge. First, these reforms will require sufficient resources for advocacy services, particularly as demand is likely to increase once eligibility is broadened. Secondly, effective implementation will depend upon robust co-ordination between hospital managers and external advocacy providers, which may vary in capacity and capability across regions. I would be interested to hear the Minister’s approach to ameliorating that. Thirdly, there is a risk of inconsistency in delivery without clear national guidance and adequate oversight mechanisms, so I would be grateful if the Minister could address the mechanisms that are intended to be put in place.
These are not insurmountable issues, but they highlight the importance of a carefully planned implementation strategy, supported by training, monitoring and adequate funding. Schedule 3 represents a targeted and proportionate set of amendments that support the underlying aims of the Bill to ensure that all individuals receiving mental health care, whether formally detained or not, are able to access independent support, understand their rights and participate more fully in decisions about their treatment. [Interruption.]
The Chair
My apologies for the noise in the corridor; there was meant to be a yoga event in here at 6 o’clock. I thank the Doorkeeper for trying very hard to keep everything under control.
Dr Chambers
I do not know whether we could combine yoga with our proceedings, Mrs Harris.
The hon. Member for Hertford and Stortford spoke really well in a similar vein to what I am about to say. Our amendment 19 to clause 41 would extend the provision of opt-out advocacy services in England to informal patients under 18 years old. Young people and their families and carers often face a nightmare navigating the mental health system. We find this on every level. A psychiatrist who came into my office in Winchester said that he and his wife, who is also a medical professional, were struggling to navigate the system to get care for their own child. His words were quite profound: “If we can’t navigate the system, what hope has anyone else got?”
Even when young people have secured desperately needed in-patient care, often after many months of delay, they can face real challenges in understanding the care being implemented and its impact. Often, such young people are cared for far from home. Enabling them to benefit from mental health advocacy that ensures the pressures on the system do not lead to unfair or damaging decisions for mentally ill young people is crucial. It can help to ensure that the patient’s whole situation and entire history is always taken into account, and that treatment is always appropriate, rather than symptoms just being addressed in isolation. We should be looking to empower patients and their families and carers across the whole system, not just in relation to those who are sectioned.
Gregory Stafford
You will be delighted to know that there will be no yoga from me, Mrs Harris.
I rise to support clause 41 and schedule 3, which will expand access to independent mental health advocates to not only those detained under the Mental Health Act but informal voluntary patients. Like many Committee members, I am sure, a number of IMHAs in my constituency have approached me about this, and they welcome the expansion. I pay tribute to the amazing work that they do across Farnham, Bordon, Haslemere, Liphook and the surrounding villages. Previously, only patients detained under specific sections of the Mental Health Act or subject to certain treatments were entitled to IMHA support.
The clause reflects the recommendations of the 2018 independent review of the Mental Health Act and the 2021 White Paper, and aims to enhance patient rights and reduce disparities in access to advocacy. That clearly empowers more patients by giving informal patients access to advocacy support. It improves transparency and accountability in mental health care settings. It ensures proactive outreach so that patients are not left unaware of their rights or support options, and supports informed decision making and potentially reduces coercive practices.
Clearly, there may be some resource implications for advocacy services, which the Minister may wish to touch on. Likewise, there may be some implementation challenges, which other hon. Members have raised, especially around ensuring timely and consistent notification and engagement. There could be potential delays in care co-ordination if advocacy processes are not well integrated. I would welcome the Minister’s thoughts on that.
This shift is long overdue. Too many vulnerable people, admitted voluntarily but feeling powerless, have lacked a clear, independent voice. The clause corrects that injustice by embedding advocacy deeper into the system, moving from passive availability to proactive engagement.
Schedule 3 underpins clause 41 by putting clear duties on hospital managers and advocacy providers alike to ensure that patients are automatically offered support. It is opt out, not opt in. That clarity of responsibility will reduce coercion, increase transparency and ultimately lead to fairer treatment decisions.
Schedule 3 operationalises the principles set out in clause 41 by embedding them in the structure of the Mental Health Act 1983. Like clause 41, it reflects recommendations from the 2018 independent review and the 2021 White Paper, aiming to reduce disparities in access to advocacy and ensure that all patients, regardless of detention status, are supported in understanding and exercising their rights. Like clause 41, it strengthens patient voice, reduces inequalities, improves compliance and encourages the early intervention and resolution of concerns.
Let me turn to Liberal Democrat amendment 19, which was tabled in the name of the hon. Member for Winchester. Clearly, its purpose is to extend the opt-out advocacy services in England to include informal patients under the age of 18. This ensures that children and young people who are not formally detained under the Mental Health Act, but who are receiving in-patient care, still have automatic access to an IMHA.
Currently, opt-out advocacy provisions primarily apply to patients who are formally detained. However, informal patients aged under 18, who may be in hospital with parental consent, can still experience significant restrictions and may not fully understand or exercise their rights. This amendment seeks to close the gap by ensuring that young informal patients are automatically offered advocacy support, recognising their vulnerability and limited legal autonomy.
My view is that this does strengthen patient rights. It safeguards vulnerable patients and promotes equality by aligning the rights of informal patients aged under 18 with those of detained patients. It supports informed decision making and helps young people to understand their rights and treatment options. If the hon. Member is minded to press the amendment, I hope that the Government will at least give it tacit support, even if they do not vote for it. That being said, I would welcome the Minister’s comments on why he does not feel that the amendment, or an alternative draft of the wording, if he does not like the specifics of it, should be included in the Bill. I do believe that this is important.
Government amendments 42 and 43 to schedule 3 are relatively technical but important elements of the Bill that align provision in England and Wales. I have just a few questions for the Minister. Robust rights must come with realistic resources. How will the Government ensure that advocacy services are funded and resourced properly to meet the new wider demand? Although they are technical, the Government amendments will still have an impact. What steps will be taken to monitor consistency so that a patient in Farnham, Bordon, Haslemere, Liphook or one of the villages surrounding my constituency has the same access to an advocate as a patient in Coventry, Aberafan or Swansea. We want to make sure that there is consistency.
Finally, will there be clear standards for timely engagement, especially given the risk of treatment delays if advocacy is not well integrated? If the Minister can answer those questions, I think that this will be a good step forward for patient voice and fairness in mental health, and I would support the clause and schedule 3.
Dr Evans
I rise to speak to clause 41 and schedule 3, which introduce the independent mental health advocate system under the Mental Health Act 1983. I recognise the positive intentions behind the reforms. The proposals respond to long-standing concerns about access to advocacy for people receiving mental health treatment, especially for those who are not detained, but are nevertheless vulnerable, and may struggle to understand the challenges within their care.
Currently, IMHA services are guaranteed only to a relatively narrow group—namely, patients detained under the Act, those under community treatment orders or guardianship, and certain patients undergoing serious medical treatments under sections 57 or 58A. As the explanatory notes make clear in paragraph 313, that excludes a substantial number of informal or voluntary patients, many of whom may be experiencing significant distress or coercion, even if they are technically not detained.
The clause expands eligibility to a new category of English qualifying informal patients, bringing England more in line with a system already used in places such as Wales. This welcome and overdue development reflects the principle that the right to advocacy should be grounded not in a legal status alone, but in need and vulnerability. The introduction of the opt-out referral system for detained patients is also a step forward. Concerns have been raised that eligible patients never access IMHA, often because they are unaware, overwhelmed or too unwell for self-referral. Making the referral automatic is likely to increase the uptake and strengthen patient voices in critical decisions about care, treatment and discharge.
Although the direction of travel is right, I want to raise several probing questions in areas of concern, particularly relating to implementation, scope and safe- guarding. On resource and workforce readiness, the Government are significantly expanding both the pool of eligible patients and the responsibility of advocacy providers. That is welcome, but it inevitably raises the question of capacity. Can the Minister confirm whether additional funding will be made available to local authorities, or is it up to the NHS and IMHA providers to ensure the expansion is deliverable? Are the new roles of the IMHAs explicitly addressed in the new workforce plan that he is introducing? What assessment has been done of the number of new IMHAs that will be required to meet the duties, particularly now we are using an opt-out model? Without the workforce and training in place, there is a risk that the rights introduced in the legislation will not be fully realised in practice.
My second point is about capacity, consent and best-interest decisions. I would like to clarify a couple of points on schedule 3. It would appear, as drafted, that IMHA providers will be required to assess whether a patient has the capacity to decide whether to receive advocacy, and if not, whether it is in their best interests to do so. That gives providers a significant and quasi-clinical responsibility.
Proposed new section 130B(2C) states:
“Arrangements under section 130A must require a provider of advocacy services, on becoming aware of an English qualifying compulsory patient for whom they are responsible, to arrange for an independent mental health advocate to visit and interview the patient (if possible) with a view to determining”,
first,
“whether the patient has the capacity or is competent to take a decision about whether to receive help from an independent mental health advocate”;
secondly,
“if the patient does have that capacity or competence, whether the patient wishes to receive such help”;
and thirdly,
“if the patient does not have that capacity or competence, whether it is nonetheless in the patient’s best interests to receive such help (which, if so, is to be provided under the arrangements).”
On the first point about whether the patient has the capacity or is competent to take a decision about receiving help from an IMHA, my understanding is as follows. The role of independent mental health advocates is to support people detained under the Mental Health Act, to understand their rights and to be involved in decisions about their care and treatment. IMHAs do not, I believe, have the legal authority to assess mental capacity. The assessment of mental capacity is typically carried out by a qualified healthcare professional such as a doctor, psychiatrist or specially trained nurse, following guidance under the Mental Capacity Act 2005. IMHAs are there to help patients understand the information about their treatment and their rights, and can support them in expressing their views, but they do not perform capacity assessments. So is this a change in professional scope? Is it an oversight? Is it an update? Or is it simply what is happening in practice, which now has legal backing?
Chris Bloore (Redditch) (Lab)
The hon. Gentleman makes an interesting point, but is not the point of an IMHA to ensure that the patient understands their rights under the previous Act and the Bill? That is how they participate in taking decisions about what is available to the patient. Although they might not be clinically trained, they know the legislation inside out, and that gives power and advocacy to the patient.
Dr Evans
The hon. Gentleman identifies exactly what the point of an IMHA is. The way the Bill is written, the IMHA determines whether a patient has capacity or competence to make a decision. That determining means that they are making the choice, which is quasi-clinical. According to the definition that the hon. Gentleman has just given, that would fall out of the IMHA’s scope, because that would involve the ability to make decisions about capacity.
My concern is whether we have scope creep here. If so, we should be explicit about it—perhaps it is something we want to consider—but the way it is written, IMHAs will make capacity-based decisions about whether a person has the capacity to decide whether they need help. I would argue that that should be done by someone who is qualified as a doctor, a psychiatrist or community psychiatric nurse, as currently happens. That is the clarification that I am looking for from the Government. If I have the wrong end of the stick, I will happily back down, but this area of the Bill needs clarifying.
To that end, and if the Bill is written as I fear, I would welcome it if the Minister can tell us how IMHA providers will be supported to make best interest decisions appropriately, especially in cases involving fluctuating capacity or complex presentations. Will there be clinical oversight or statutory guidance to avoid inconsistency or overreach in these assessments? Although I support the principle of proactively offering advocacy, we must ensure that the decisions made on a person’s behalf are done with the appropriate checks and accountability, and by the right people.
My third point is about the exclusion of emergency section patients. The welcome change in the clause and the schedule expands the pool of support, but we should also pay attention to those who are, by definition, excluded. Paragraph 317 of the explanatory notes make it clear that individuals detained under sections 4, 5, 135 and 136 will not benefit from IMHA support. Those are often people detained in crisis situations, sometimes in police custody, or brought in under emergency powers.
For completeness, will the Minister clarify why that group is being left out, given their heightened vulnerability and the likelihood of distress or disorientation? Are the Government satisfied that patients under these emergency powers are receiving adequate information and support at the most critical moments of intervention? Is there a mechanism to support the nominated person if the patient does not have capacity, so that the nominated person receives the information they need to make a fully informed decision? If the answer is that the duration of detention is too short to justify IMHA involvement, I ask the Minister: how short is too short when a person’s liberty and medical autonomy are in question?
It may be that Government amendments 42 and 43 address some of those points, so I will return to this in a second before moving on to my fourth point. In terms of information sharing and patient autonomy, I welcome the retention of the duty to inform patients, especially informal patients, of their right to advocacy, and for that provision to be given both orally and in writing. However, I note that the responsible person must also—except where the patient requests otherwise—be provided with written information to the nominated person. What safeguards are in place to ensure that that does not inadvertently breach the patient’s privacy, such as in situations involving estranged family members, controlling relationships or very personal health issues, which could be disclosed but are not relevant to mental health? It is essential that the nominated person framework enhances advocacy and support and does not undermine the person’s right to control who knows about their care.
Finally, I would welcome clarity from the Minister about how the uptake and impact of expanding the IMHA system will be monitored. Will there be reporting requirements on providers? If so, will that be through the integrated care boards, or is that part of the CQC? Will patients have the opportunity to feed back on the effectiveness of the support they receive?
Before I turn to the amendments, I reiterate that the Opposition support the principle of strengthening advocacy in mental health services. Clause 41 is an important step towards a more rights-based and person-centred system, but the detail of the implementation is key.
I note that proposed Government amendments 42 and 43 to schedule 3 specifically change the definition of “English qualifying informal patient” and “Welsh qualifying informal patient” to exclude patients detained under any
“legislation or by virtue of a court order”,
rather than limiting exclusion to those detained solely under the Mental Health Act. That important clarification partly improves on one of the problems I mentioned when discussing clause 41.
In simple terms, those amendments try to address the issue of clarity and coverage for patients detained under other laws, and I believe that this is how they do that. Originally, the Bill excluded only patients detained under the Mental Health Act from being classified as informal patients eligible for IMHA services, but some patients might be detained under other laws or court orders, such as criminal justice laws, which the original wording did not cover. The amendments change the definition to exclude anyone detained under any legislation or by a court, not just the Mental Health Act. In practice, this means that patients detained under other laws will not mistakenly be considered informal patients eligible for IMHA services under this part of the Bill.
The proposals close a gap so that the right groups get advocacy services, and there is less confusion for hospitals and advocates about who qualifies. In essence, by broadening and bettering the definition and defining the exclusion, this will ensure that patients detained under other legislation, such as the Criminal Justice Act, or other court-mandated detention powers, are not mistakenly classified as informal patients eligible for IMHA services under those provisions. That reflects a more comprehensive and legally coherent approach to defining eligibility.
This clarity is welcome, as it reduces potential ambiguity in respect of providers. That said, will the Minister comment further on how these changes will interact with existing IMHA provisions or advocacy entitlements for those detained under other legislation? Are there parallel safeguards or advocacy rights for those groups? What guidance will be provided to practitioners and IMHA providers to navigate the complexities of overlapping detention regimes, especially when a patient’s status might shift rapidly between voluntary Mental Health Act detention and court orders? Will this amendment necessitate any further changes in regulations or operational policies to ensure smooth implementation and clarity for patients, families and service providers? Ensuring that no patient falls through the cracks due to definitional nuances is crucial for integrity in our mental health advocacy services.
Finally, Lib Dem amendment 19 would insert after “patient”, in schedule 3, page 91, line 13,
“or English qualifying informal patient under 18”.
As the hon. Member for Hertford and Stortford and Opposition Members rightly pointed out, it is quite hard to see why the Government would not want to put that in place. The explanatory statement says that it aims to extend
“the provision of opt-out advocacy services in England to informal inpatients under 18.”
It seems clear in what it does and is a well-defined amendment to that end. I am keen to understand why the Government do not want to support it. Do they believe that this is currently balanced elsewhere in the system? Are there already provisions elsewhere? If not, why—if it is good for adults and we are strengthening their opportunities—should it not be the same for our children?
I will finish on that point. I would be grateful for answers on the clause, the schedule, the Government amendments and the Lib Dem amendment.
Stephen Kinnock
The hon. Member for Chester South and Eddisbury asked who can make referrals in addition to hospital managers. The list of responsible persons is in proposed new section 130CC, in paragraph 6 of schedule 3. In addition to hospital managers, the responsible local social services authority is also required to notify providers of advocacy services about qualifying patients; whether it is a matter for the hospital or the local authority depends on the patient.
I was asked whether there are enough people to fulfil the tasks of the IMHA. The impact assessment gives our current best estimate of likely workforce and funding requirements and sets out the expected expansion required for each workforce group. We will recruit approximately 330 additional IMHAs.
Aphra Brandreth
Does the Minister have any more detail on that? Is there a timeframe for recruiting these advocates and putting the training in place? That would help reassure the Committee that there is provision to ensure that the timing will fit with the introduction of the changes in the Bill.
Stephen Kinnock
As has been discussed, as soon as the Bill gets Royal Assent we will launch an extensive consultation around the code of practice. The code of practice will cover everything from training to recruitment to capacity building, and the plan will be set out in the first annual written ministerial statement, which will take place one year after the Bill receives Royal Assent.
My hon. Friend the Member for Hertford and Stortford asked about children admitted informally. We are introducing a duty on hospital managers to inform informal patients of their right to a mental health advocate. We will set out the importance of independent mental health advocate representation for children and young people in the code of practice. That could include the importance of a proactive approach for hospital managers.
We will also describe in the code the new role for independent mental health advocates in relation to informal patients, including vulnerable in-patient groups, such as children and young people, people from ethnic minority backgrounds and people with a learning disability or autism.
The hon. Member for Farnham and Bordon asked whether we have the money for it. The funding requirements will, I think, be related to our best estimate of likely workforce and funding requirements. If we are going for 330 additional IMHAs, the funding requirements will be defined by that number.
The shadow Minister, the hon. Member for Hinckley and Bosworth, asked whether it will be local authority funding. We are obliged to fund new burdens on local authorities to resource this expansion of the independent mental health advocates. He then asked a blizzard of additional questions; I got lost in the thread of them all. We will go through Hansard and write to him.
Stephen Kinnock
No, I have finished.
Question put and agreed to.
Clause 41 accordingly ordered to stand part of the Bill.
Schedule 3
Independent mental health advocates
Dr Chambers
I think the hon. Member for Farnham and Bordon has spent more time discussing our amendments than I have, so I would like to give him the opportunity to vote in favour of one of them.
Amendment proposed: 19, in schedule 3, page 91, line 13, after “patient” insert—
“or English qualifying informal patient under 18”— (Dr Chambers.)
This amendment extends the provision of opt-out advocacy services in England to informal inpatients under 18.
Question put, That the amendment be made.
Stephen Kinnock
The clauses will amend section 132 of the Mental Health Act in relation to detained patients, and section 132A in relation to community patients, and insert a new provision in relation to conditionally discharged patients. They place a statutory duty on hospital managers to supply complaints information to detained patients, community patients and conditionally discharged respectively, as well as to their nominated person.
Patients, their family and carers have a right to complain about the treatment they receive, including care and treatment under the Mental Health Act. The patient’s rights to complain are enshrined in the NHS constitution. Although the code of practice currently sets out that information about complaints should be provided to patients when they are detained, there is no statutory duty to do so. Under the clauses, hospital managers will be required to provide information on how to make a complaint about: first, functions under the Bill; secondly, any medical treatment for mental disorder received during their detention; and thirdly, the outcome of any complaint about medical treatment. That includes providing information about how to make a complaint to the Parliamentary and Health Service Ombudsman about the mismanagement of complaints about medical treatment, where the person believes their complaint to another body—for instance the hospital or CQC—was not appropriately investigated.
Hospital managers must take practicable steps to ensure that patients have understood complaints procedures, and information about complaints must be provided both verbally and in writing. The duty requires that information must be provided as soon as practicable after the patient is first detained, when the section that they are detained under changes, when the detention is renewed, or every 12 months for restricted patients under part III of the 1983 Act. For community patients, a duty is triggered as soon as it is practical after being placed on a community treatment order and as soon as practical each time the community treatment order is renewed. For conditionally discharged patients, it is triggered as soon as practicable after being conditionally discharged. I commend clauses 42 to 44 to the Committee.
Gregory Stafford
I rise to speak in favour of clauses 42, 43 and 44, which together strengthen the duty to inform patients—whether detained in the community or conditionally discharged—about how to make a complaint about their treatment and the outcome of that complaint. The Mental Health Act has long included duties to tell patients their rights, but too often that information has been patchy, hard to understand or buried in paperwork. The clauses tackle that by requiring clear, repeated information about not just detention, but treatment and the complaints process.
Clause 42 relates to information about complaints for detained patients. Section 132 of the Mental Health Act 1983 originally required hospitals to inform detained patients of their rights, but that was often inconsistently applied. This clause responds to long-standing concerns about transparency and patient empowerment, aligning with the broader goals of the Bill to enhance autonomy and dignity in mental health care. Specifically, there is an expanded duty of information. Hospital managers must now ensure that detained patients understand how to make complaints, not only about their detention, but about their treatment, along with the outcomes of any complaints.
There are some timing requirements, i.e. that the information must be provided as soon as practicable after detention begins and be repeated annually for restricted patients, or after each section 20 report for others. That will improve patient’s awareness of their rights and how to seek redress. It will promote accountability and mental health services by encouraging feedback and complaints, and support better outcomes by addressing grievances early and constructively.
Sojan Joseph (Ashford) (Lab)
I welcome the strengthening of section 132 of the Mental Health Act in respect of information about complaints, as proposed in clauses 42 to 44.
Clause 42 deals with information about complaints for detained patients. Currently, through the code of practice, there is a requirement that hospital managers will pass on that information. They should do so both orally and in writing, ensuring that the information is accessible, including in easy-read format for people with learning disabilities. Hospital managers should also ensure that the information has been understood. The clause would amend section 132 of the Act by placing that statutory duty on hospital managers, supplying detained patients and the nominated person with the necessary information about complaints, and taking practicable steps to ensure that the information has been understood.
Proposed new subsection (2A) deals with the types of complaints covered by that duty. They include complaints about carrying out of functions under the Act and about medical treatment. Proposed new subsection (2A)(c) ensures that the statutory duty covers information about the patient’s right to complain to the Parliamentary and Health Service Ombudsman about the maladministration of such complaints. Proposed new subsection (2B) sets out that the duty is triggered
“as soon as practicable after the commencement of the patient’s detention”.
That means that the duty will be triggered each time the section under which the patient is detained changes, and when the authority to detain under that section is renewed.
In respect of part III of the 1983 Act, which concerns restricted patients to whom automatic renewals do not apply, the duty will be triggered every 12 months from the start date of detention. As I mentioned earlier, much of that process is already expected to take place, but ensuring it takes place in future by making it a statutory duty is a sensible and welcome strengthening of that safeguard.
That is also the case for clause 43, which relates to information about complaints for community patients and seeks to amend section 132A of the 1983 Act. As a result of the clause’s changes, there will be a statutory duty on hospital managers to supply information about the complaints procedure, as set out in clause 42, to community patients and the nominated person. That will mean that the patient must be provided with complaints information as soon as practicable after they are placed under a community treatment order, and each time that community treatment order is renewed.
Clause 44 deals with information about complaints for conditionally discharged patients and inserts proposed new section 132B, which requires hospital managers to give complaints information to conditionally discharged restricted patients. The proposed new section states that such information must be provided before the patient leaves hospital, or as soon as possible when the patient is conditionally discharged. Patients must receive the information when they are first detained in the hospital, and again whenever they are conditionally discharged. As with clause 42, the hospital manager must ensure that the patient has received such information both orally and in writing, and that practical steps have been taken to ensure that the patient understands the information. A copy of the information must also be given to the nominated person within a reasonable timeframe, unless the patient has requested otherwise. I support the clauses, as the changes made by it will strengthen the Act.
Aphra Brandreth
I rise to make a few brief remarks about clauses 42 to 44, which would amend the 1983 Act to place statutory duties on hospital managers to supply complaints information to both the patient and the nominated person in respect of detailed patients, patients subject to a CTO and conditionally discharged patients.
These are important clauses. The people concerned are potentially vulnerable individuals. They need to know that they have a voice in this process and feel empowered to speak out and complain, should they wish. There is a duty on hospital managers to ensure that detained patients understand how to make complaints. However, I ask the Minister how that duty will be checked and evaluated. We all agree that the ability to speak out to make a complaint is important, but we need to ensure that proper safeguards and parameters are in place on how that will happen.
I also welcome the provision requiring that the information must be provided as soon as is practicable. That is important to give patients confidence. The timing requirements will potentially make a huge difference. The journey of a patient may change rapidly over the course of their treatment, so not leaving it too long will potentially make a substantial difference to their ability to recover swiftly, and ensure that they have been able to speak out if they are concerned not just about their detainment but about the way that their treatment is being carried out, and the potential implications of that.
Like many of the measures that we have discussed, these clauses might have administrative implications. We need to ensure that we have fully considered and are able to put in place the necessary support for hospital managers to deal with complaints appropriately. It is important that if someone comes forward with a complaint, it can be dealt with swiftly.
As mentioned on some other matters, we need to ensure consistency for patients, so that they understand the information that they are being provided and that, whatever region they might live in or hospital they might be at, consistent information is provided. I would like the Minister’s reassurance on that point.
Overall, however, the clause improves patients’ awareness of their rights and how they can seek redress. I think we all agree that that is extremely important. It will promote accountability in mental health services by encouraging feedback and complaints. I would like reassurance of some oversight to ensure feedback on any complaints that come forward so that we identify where consistent issues come up, to provide better services not just to the individual but to future individuals. Overall, the clauses support better outcomes by addressing potential grievances and ensuring that they are addressed early and constructively, so I am supportive of them.
Dr Shastri-Hurst
You will be delighted to know that I will be mercifully brief, Mrs Harris, because I am broadly supportive of all three clauses. Having worked as a doctor in clinical practice, and as a barrister, I am cognisant of the importance of transparency, patient autonomy and procedural fairness, in particular with vulnerable patients who are often seen in a mental health care setting.
I welcome this trio of clauses, but I have some gentle challenges to put to the Minister for when he gets to his feet. First, how will data be captured on the information that is to be provided to patients and their families? What feedback mechanisms will be in place, not just for patients but for those who support them—their carers and families—and for clinicians, on the practicalities of how the system is working?
Sojan Joseph
I was a clinician and I practised on wards; patient records are electronic for staff. When staff complete the explanation of section 132 rights, they record that on the electronic patient records. Does the hon. Member agree that that would be a good place to get the data?
Dr Shastri-Hurst
The hon. Member makes a very valid point. There is that mechanism, but this is also about ensuring that the quality of the information that has been imparted—not just the process of it being done—is recorded. An audit process must ensure that the important conversations and information are imparted in a way that the patient and their family understand, in sufficient detail and as part of a process whereby, if there are concerns or doubts, they can be addressed in a ready manner. I take his point that there are metrics by which to measure things, but it is not just about capturing data; it is about capturing quality data in order to ensure that that is being fulfilled.
To pick up on the point made by my hon. Friend the Member for Chester South and Eddisbury about regional variability, consistency across the board is important not only in the regions, but in the delivery methods and capacity that underpin this crucial service.
Finally, on potential confusion and legal information being communicated in inaccessible ways, it is important that legalese does not get in the way of clarity for individuals who will have to navigate the information. I am interested to hear the Minister’s views on how we can ensure that the information is imparted in an accessible way for all those concerned—importantly, not just for patients and their families, but for clinicians who have to impart the information. They need to feel comfortable navigating their way around what can often be a complex set of regulations and legislation.
Ordered, That the debate be now adjourned.—(Taiwo Owatemi.)
Mental Health Bill [ Lords ] (Seventh sitting)
Thursday 19th June 2025
(3 weeks, 4 days ago)
Public Bill CommitteesMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 June 2025 - (19 Jun 2025)
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
Hon. Members may wish to remove their jackets. Please make sure that electronic devices are switched to silent mode. Hansard will be grateful if you email speaking notes. I remind Members to rise in their place if they wish to speak.
Clause 42
Information about complaints for detained patients
Question (17 June) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are considering clauses 43 and 44 stand part.
Dr Luke Evans (Hinckley and Bosworth) (Con)
I know that the Committee has been waiting in earnest for me to deliver this speech on clauses 42 to 44. As the temperature gets to almost 30° today, I will try to maintain the same gumption that President Trump had when introducing his flagpoles, because this is an exciting topic and I am keen to treat it with verve.
Clauses 42 to 44 will introduce new duties on hospital managers to provide information about complaints procedures to patients under different legal regimes within the Mental Health Act 1983. The clauses move important safeguards from the code of practice into primary legislation, thereby giving them statutory force, which is a welcome step. I acknowledge the Government’s intentions to strengthen patients’ rights and accountabilities within the mental health system.
Clause 42 concerns information for detained patients. Under the current law, section 132 of the Mental Health Act 1983 requires hospital managers to give patients information about their rights under the Act, including their rights to apply to the mental health tribunal and to access independent mental health advocates. Although complaint procedures are mentioned in the code of practice, however, they are not explicitly covered in statute. Clause 42 will amend section 132 to impose a new statutory duty to provide information on how to make complaints about: the carrying out of functions under the Act, any medical treatment received while detained, and the outcome of any such complaint, including routes for escalation such as through the Parliamentary and Health Service Ombudsman.
Importantly, the information must be provided both orally and in writing, and steps must be taken to ensure that the patient actually understands it. Those duties must be carried out on initial detention and then repeated either annually for restricted patients or on the submission of renewed report under section 20 of the Act. The Opposition welcome that positive and necessary step. We know from independent reviews, including the Wessely review, that many patients do not know how to complain or fear that doing so will affect their care. By placing these requirements in primary legislation, we provide more robust legal protection.
I would be grateful if the Minister clarified some points. How will “understanding” be assessed or evidenced in practice? For example, what guidance will be issued to ensure that the needs of patients with a learning disability, cognitive impairment or limited English are met? Will independent mental health advocate services play a formal role in supporting patients to understand the Act with regard to this information about complaints? Is that part of their expanded role? Will complaints about poor complaint handling, not just about the original matter, be clearly included in the framework, as implied in the explanatory notes? To whom would such complaints be reported: NHS England, the Department, the integrated care board or a regulator such as the Care Quality Commission?
As we are talking about complaints, I notice that paragraph 327 of the explanatory notes states:
“New subsection (2A)(c) ensures the duty covers information about the patient’s right to complain to the Parliamentary and Health Services Ombudsman about the maladministration of complaints about medical treatment.”
That is very welcome, but it brings up an entirely new set of questions about the role of the Parliamentary and Health Service Ombudsman in this guise—an institution that embodies the public’s right to accountability, redress and justice when our health and public services fall short. In essence, it is the final arbiter; at best, it is the final safety net for those who feel they have nowhere else to turn. In particular, I want to focus on its critical yet often underappreciated work in relation to mental health complaints and how it intersects with the new Bill.
The ombudsman investigates unresolved complaints about NHS services in England, including those related to mental health care, alongside complaints against Government Departments and other bodies. For many families affected by failings in mental health provision, be that in crisis care, discharge planning or secure settings, the ombudsman provides a route to independent evidence-based resolution. We must therefore ask whether it is functioning with the efficiency, compassion and authority that patients deserve.
To pick just some of the data, in 2022-23 the PHSO received more than 35,000 complaints, which was an increase of 20% on pre-pandemic levels. If we look at timelines, performance remains under pressure: only 32% of investigations were completed within 13 weeks, 50% within 26 weeks and 81% within 52 weeks—that comes from the annual report. In the mental health sphere, such delays can exacerbate trauma and deepen distrust in public systems, in particular if the complainant is already experiencing severe distress.
The PHSO has reported a rise in callers exhibiting suicidal ideation, a tragic indicator of the depth of need and the urgency of timely reform. Over the past few years, to its credit, the ombudsman has introduced reforms for a new case severity assessment framework to triage cases more effectively; investment in digital case management; training for frontline staff to deal more sensitively with mental health complaints; and a proactive push for transparency, including publishing more case outcomes and data.
That is important work, but there is still some way to go. What assurances can the Government provide that PHSO’s funding is sufficient to cope with increased volumes of complex mental health cases, especially as it has a somewhat unique structure? The PHSO reports to the Public Accounts Committee. It does not have a departmental home. It is appointed by the King on the advice of the Prime Minister, after scrutiny by the PAC, but it is funded through the House of Commons Commission. That makes the PHSO rightly independent, but we need to ensure that it has the ability to deal with the top level of complaints about severe cases of mental health issues.
Under this legislation, we will be creating more automatic referrals to tribunals; we are rightly empowering more patients to complain; and we are putting more reports in for accountability. We need to ensure that when there are complaints—as there could well be—they will still be dealt with. Therefore, has an impact assessment been carried out, or will one be carried out, about PHSO funding, capacity and ability to deal with more mental health complaints?
As we debate a new Bill, we must ensure that accountability mechanisms fully integrate with any legislative reform. The Bill will, rightly, enhance patient rights and restrict inappropriate detention, but the ombudsman must be equipped to robustly investigate breaches of those rights. We should also ensure a clear reporting pathway for detained individuals when their families go to the ombudsman. My overarching question for the Minister, which I hope he will address is: how will the Bill, empowered in this way, interface with the PHSO? Will it strengthen the ombudsman’s ability to investigate complaints relating to involuntary treatment or detention?
Clause 43, on information about complaints for community patients, will make an equivalent amendment to section 132A of the Mental Health Act, which governs patients subject to a community treatment order. Again, patients are currently told about their rights to tribunal and IMHA support, but not necessarily about how to raise concerns or complaints about their care in the community. The clause will therefore require hospital managers to provide information about how to make complaints about functions carried out under the Act, about medical treatments for mental disorder while on a CTO, and about the outcome of any such complaint.
Clause 43 will also add a new requirement to repeat the information as soon as practicably possible after the CTO renewal. Again, that seems sensible and overdue, because clear repeat information can help to balance the power dynamics and support the patient voice. However, what steps will be taken to ensure that community patients who do not have regular contact with hospital staff are still given the information promptly and meaningfully? Will that be the duty of the new community clinician, for example? What is the role of community mental health teams or primary care staff, such as GPs or community psychiatric nurses, in delivering or enforcing the duties? Will the Minister confirm whether patient carers or families beyond the nominated person will be supported in understanding how someone can make a complaint?
Finally, clause 44, on information for conditionally discharged patients, will introduce proposed new section 132B of the Mental Health Act, extending the same principles to patients who are conditionally discharged, including restricted patients under section 42, 73 or 74. Such individuals often remain subject to significant restrictions in the community, such as curfews, reporting conditions or residence in supervised accommodation, and they can be recalled to hospital at any time, yet under the current law they have no statutory right to be informed of how to complain about or challenge decisions that affect them.
Clause 44 will require hospital managers to inform those patients about which section they are discharged under, how the Mental Health Act continues to apply, their rights to apply to a tribunal, and—crucially—how to make complaints about the carrying out of MHA functions, medical treatments and complaints outcomes. That requirement must be met as soon as practicable, in both oral and written form. A copy must also be given to the nominated person.
The explanatory notes state that the duty applies to
“patients subject to transfer directions”
from prison, and that the information should be given before discharge if possible. That is welcome, but it raises a question why, unlike clause 42, clause 44 does not impose a duty to repeat that information periodically. Given that conditionally discharged patients may remain under conditions for many years, have the Government considered adding a requirement to re-provide the information, say, annually? What support or advocacy will be available to conditionally discharged patients, particularly those in forensic or community forensic services, to help them to make complaints or understand their rights? Finally, will the Minister clarify how the provisions will work for patients who lack capacity, or who have no nominated person? Will there be a fall-back or safeguard in those cases?
In clauses 42 to 44, the Government are rightly seeking to embed the right to complain, and to understand that right, into the framework of the Mental Health Act. These are technical but powerful reforms. As ever, however, the challenge lies in not what is required but how it is delivered, especially for the patients who are most marginalised, restricted or isolated. I hope that the Minister can provide some reassurances about monitoring for compliance, clear statutory guidance, and the support of the advocacy structure, particularly at the very top, for dealing with complaints.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairmanship, Sir Desmond. I will respond to the questions that have been asked.
The hon. Member for Farnham and Bordon asked what training would be provided to staff on communicating the information clearly and compassionately. We will seek to clarify the complaints process and, when we come to revise the code of practice, we will consult on the guidance for how information on complaints should be provided. The Department will work with the NHS, Social Work England and other partners to develop appropriate training for staff on the reforms. Once the code of practice has been updated, professionals working under the Act will be required to undergo training to maintain their competence and awareness of the Act.
The hon. Member also asked how to ensure that information is genuinely accessible. It is important that the complaints process is accessible to all patients. Hospital managers must take practicable steps to ensure that patients have understood complaints procedures, and information about complaints must be provided both verbally and in writing. We expect all healthcare organisations to meet people’s communication needs to support equitable access, experience and outcomes, including when someone is in hospital for their mental health.
NHS England sets out guidance for providers on how to support individuals with their communication needs. That support may involve providing access to interpreters, providing information in a range of formats—such as in translation, large print, braille and easy read format—or the use of augmentative and alternative communication, video clips and visual diagrams to aid understanding. The accessible information standard requires all applicable organisations to identify, record, flag, share and meet the information and communication support needs of patients, service users, carers and parents with a disability, impairment or sensory loss.
On the question of whether there will be an audit of whether patients feel genuinely informed and empowered to complain, we know that some service users are not aware of the avenues by which they can make a complaint. The changes in clauses 42 to 44 seek to address that problem, and to increase awareness of the complaints system. To ensure that patients are supported and empowered to exercise their rights, we are expanding the right to an independent mental health advocate to all mental health in-patients. Complaints information must be provided to both the patient and the nominated person. Family and carers also have a right to complain about care and treatment given under the Mental Health Act.
The hon. Member for Solihull West and Shirley asked for reassurance on oversight, and that feedback from complaints will identify issues. I think that the hon. Member for Chester South and Eddisbury also asked about that, as well as asking what mechanisms will be in place to give feedback on how the system is working. Complaints data enables CQC Mental Health Act reviewers and mental health inspectors to understand trends and focus on areas of concern in their respective monitoring and inspection activities. Focused activity— for example, a focused Mental Health Act visit or inspection activity—can also be scheduled in response to concerns raised in MHA complaints. When looking at trust and provider-level MHA inspection activity, complaints information informs the CQC’s questioning of trusts or independent providers about their complaints processes.
Dr Evans
I beg to move amendment 46, in clause 45, page 57, leave out lines 5 to 11 and insert—
“(1) All eligible patients shall have a right to create an advance choice document.
(1A) For the purposes of this section, an ‘eligible patient’ is a patient who—
(a) has previously been detained under Part 2 or Part 3 of this Act,
(b) has been diagnosed with a mental disorder which may lead to the possibility they will be detained under this Act in the future, or
(c) is an English qualifying informal patient (see section 130CA).
(1B) NHS England and each integrated care board must make such arrangements as it considers appropriate for—
(a) ensuring that all eligible patients for whom it is responsible for the purposes of this section are informed of their right to create an advance choice document, and
(b) helping an eligible patient to create an advance choice document.”
This amendment gives all eligible patients the statutory right to create an advance choice document if they so wish.
The Chair
With this it will be convenient to discuss the following:
Government amendments 32 and 33.
Amendment 18, in clause 45, page 57, line 33, at end insert—
“(3A) An ‘advance choice document’ under subsection (3) should include consideration of the person’s financial circumstances.”
This amendment ensures that the advance choice document includes matters relating to the patient’s financial circumstances.
Government amendments 34 and 35.
Clause stand part.
Dr Evans
I am grateful for the opportunity to speak to clause 45 and amendment 46. I will also speak to the amendments from the Government and the Liberal Democrats.
The Bill introduces advance choice documents as a new tool to empower people with lived experience of mental health conditions. This is a significant development in mental health law and policy. Currently, people who are detained or treated under the 1983 Act often have limited ability to influence decisions about their care at times when they lack capacity. Although the Act includes some mechanisms such as advance statements, they have been criticised for their limited legal weight and inconsistent application.
Clause 45 will insert proposed new sections 130M and 130N into the Act, and place duties on NHS England, integrated care boards in England and local health boards in Wales to facilitate access to information about ACDs and to provide support to individuals who want to create such documents. As the Government’s explanatory notes state, ACDs are written statements
“made by an individual while they have capacity or competence …setting out their decisions, wishes and/or feelings about matters that may be relevant to their assessment for admission…and treatment”
should they lack capacity. That extends the scope of patients’ involvement in care planning and respects autonomy in a way that the current law does not fully achieve.
I commend the Government for recognising the importance of enabling people to set out their wishes in advance, especially when they have previously been detained or treated informally. That can help to reduce stress, improve trust between patients and professionals, and potentially prevent crisis escalation to detention. Nevertheless, I have some constructive questions that I hope the Committee will consider.
On the strength of duty on the NHS bodies, proposed new section 130M(1) will require NHS England and each ICB to
“make such arrangements as it considers appropriate”
to provide information about and support with ACDs, which leaves considerable discretion. Will that discretion lead to inconsistencies across regions and vulnerable populations? Should the Bill include clear minimum standards or benchmarks for what constitutes “appropriate” arrangements, for example by mandating proactive outreach to high-risk groups, such as those in secure children’s homes or immigration centres, where awareness of rights or access to support is often poor?
There is then the legal status and practical use of ACDs. The clause defines ACDs but does not specifically set out their legal weight in decisions about treatment or detention. How will clinicians balance these documents with their clinical judgment or clinical care needs? The explanatory notes mention that ACDs may include
“advance decisions under the Mental Capacity Act 2005.”
The Bill could clarify how conflicts will be resolved; this is a recurring theme in our discussions. It would be helpful to have explicit guidance on safeguards to ensure that ACDs are given full weight and respect while maintaining clinical safety.
I turn to the issues of training, resourcing and monitoring. This is a big change, and supporting people to make meaningful ACDs requires skilled staff and resources. Who is expected to provide that support? Is it the CPN, the community clinician, the IMHA or even the GP? Will there be training programmes for clinicians and care staff on how to discuss, record and use ACDs effectively? Furthermore, will there be monitoring and reporting requirements so that Parliament and public can hold the services to account? Who will those requirements sit with if NHS England is abolished? Will it be the CQC, the ICBs or even the Department of Health and Social Care?
We then have the issues of access and equity. We have already identified that people with learning difficulties and certain racial groups find themselves in contact with mental health services more than other groups. These groups can be less keen then to interact with services, either by choice or due to ability, so how do the Government intend to ensure that ACDs are accessible to people from diverse backgrounds, including those with communication difficulties, learning disabilities or limited English? What consultation will there be with charity and representative groups to ensure that documentation is accessible enough for all, yet thorough and robust enough to properly reflect wishes correctly?
Clause 45 is a welcome step towards enhancing patient autonomy and improving mental health care, but to ensure that the new powers deliver real benefits, the Government should consider how to strengthen the duties placed on various bodies. That leads me to amendment 46, tabled in my name. Embedding ACDs into mental health is long overdue, but the clause places duties on NHS England and integrated care boards only to “make such arrangements” as they consider “appropriate” for providing information and support for ACDs. The intention is good, and a marked step from where we were, but the language risks creating a postcode lottery in which patients’ access to this important right depends on where they live or how proactive their local systems happen to be.
That is why my amendment seeks to move from discretion to entitlement. It would replace the current discretionary wording of the clause with a clear legal right for eligible patients to create an advance choice document. The amendment defines “eligible patient” as a patient who has previously been detained under parts II or III of the Act, who has a diagnosis that may lead to future detention, or who qualifies as an informal patient under proposed new section 130CA. It would also require NHS England and ICBs to proactively inform eligible patients of their rights and offer them support in exercising them. This is a targeted and proportionate amendment. It would not mandate ACDs for all, nor would it impose burdensome new duties; it would simply create a right to be offered and supported to make an ACD.
The letter of 3 June from Baroness Merron to my colleague in the Lords appears, in part, to address the issue, so I will talk a little about what she wrote. I thank Baroness Merron for the letter and the tone of the letter, which reflects genuine engagement on the issue and acknowledges the importance of reflective care after detention. She notes:
“The impact assessment for the Bill accounts for multiple hours being spent with the individual by health and care professionals to inform and support them to make choice in advance of a potential future mental health crisis.”
That is welcome. She also stated that the Government had tabled an amendment that day that
“requires commissioners to make arrangements for bringing information and help available regarding ACDs, to the attention of people…especially those in the 12 months following their discharge from hospital.”
I believe that that is a reference to one of the Government amendments to this clause. I hope I am right; if so, I will return to that amendment once I have set out the position on ours. As set out in the letter, the Government amendment is another step forward, and I acknowledge that the Government have appeared to move in response to concerns raised by my colleagues in the Lords and by many stakeholders, but I gently suggest that it falls short. It retains the same permissive language—duties to do what is a “appropriate”, decided locally by commissioners. That may allow for good practice in some areas, but it does not create enforceable rights for individuals. Without a clear entitlement, patients who need this the most may never even be told that it was an option.
Let me give a practical example to illustrate why statutory rights matter. A person with bipolar disorder may be detained under the 1983 Act during an acute episode, but once well, they may want to specify in writing that in future they do not want a particular medication or that they want to be admitted to a specific hospital near family. Those are reasonable, clinically relevant requests, but unless the person is informed of the right to make an ACD and offered support to do so, that opportunity could be lost, especially for those facing health inequalities or language barriers, or those who have a history of mistrust with services.
The Government have said that those conversations will happen anyway within the care planning or under the community mental health framework, but the reality is that the systems are patchy. People discharged from hospital often face month-long waits to be re-engaged by community teams. They may not have a named worker. They may receive support only from overstretched primary care. ACDs must not rely on assumptions about care pathways, which too often do not work as intended.
On trauma and mandating reflection, I want to take seriously a point that Baroness Merron raises in her letter: for some individuals, reflecting on past detention may be traumatic, and that support should be user-led. Absolutely—that is why my amendment would create a right, not an obligation. No one should be forced to make an ACD, but people should be informed that they can, and they should receive its support if they so choose. Choice is not trauma; it is autonomy.
Let us remember that, for many, reflecting on what went wrong in past care is not re-traumatising but restorative. It is how people regain control and how the services learn. I believe this is a thoughtful and sensible amendment. It would strengthen clause 45 by creating clear, predictable entitlements for those most at risk of future detention. It would respect clinical discretion while affirming patients’ rights. It would not undermine the Government’s intent but fulfil it. We all agree that ACDs could be transformative. Let us give them the best chance to succeed by ensuring those who need them the most are offered them, not just as a maybe.
I will touch quickly on amendment 18, tabled by the Liberal Democrats, and spend the rest of my speech addressing the Government amendments. I am grateful to the hon. Member for Winchester for highlighting an important part of dealing with mental health, but I simply wonder whether primary legislation is the correct place to do what he suggests. Could it be done in codes of practice? What if people are admitted, but when they produce plans do not want to disclose their financial arrangements? Might compulsions have to be created for them to do so? I wonder about the unintended consequences of amendment 18, and I look forward to the hon. Gentleman’s addressing them.
I think the Minister in the other place was referring to Government amendments 32 and 33, so I am grateful to be able to address what has come forward. Government amendment 32 appears to be a step in the right direction. It seeks to insert new paragraph (c) into proposed new section 130M(1), with the following wording:
“bringing the availability of that information and help to the attention of such people as it considers appropriate.”
That is welcome, as it moves beyond simply making information available, which could mean leaving a leaflet in a waiting room or uploading something to a website, and instead encourages proactive communication. However, the language still leaves a significant loophole: it is limited to
“such people as it considers appropriate”.
That allows NHS England or integrated care boards to withhold communication for individuals who may be eligible, based on subjective judgment or resource constraints. Although it improves the duty, it still falls short of a universal and consistent approach to ensure people with serious mental health needs know their rights.
Government amendment 33 will insert two further subsections, (1A) and (1B). Proposed new subsection (1A) states:
“The arrangements that must be made…include such arrangements…for people to be given information or help by having a conversation with someone who is suitably qualified”.
Proposed new subsection (1B) states:
“NHS England or an integrated care board must have regard to the particular benefits to a person of making an advance choice document within 12 months of their discharge”.
The amendment rightly recognises that a conversation, not just a form, is often essential for meaningful care. It also acknowledges that the post-discharge period is a crucial window in which individuals are stabilising and may be open to shaping a future care plan in a thoughtful way, but again the language is discretionary. There is no guarantee that the conversation will happen, even where a person is recently discharged from hospital and known to be at high risk of readmission. Who is “suitably qualified”? Is it the clinician, an independent advocate or a voluntary sector worker with lived experience? If the amendment is to be meaningful, the Government must provide clarity in the codes of practice or in regulations.
Anna Dixon (Shipley) (Lab)
The hon. Gentleman makes some very good points about the importance of patients being offered advance choice documents and being supported to make them, as the Bill describes. The evidence submitted from the General Medical Council makes it clear that it supports the duties as set out in the Bill, and it says that they are in line with the current good medical practice guidelines for professionals. Does the hon. Gentleman agree that the Bill, as it stands, fits very well with current medical practice?
Dr Evans
I am grateful for the hon. Lady’s point. It would be interesting to know if that advice came when the Bill was debated in the Lords, because these clauses were not in place, but were introduced through the Government’s amendments. This is an extension to that. Our amendment to give a right to a patient would be a further strengthening. I entirely agree that the Bill is a good step forward, but if we are not going to address this again in the next 40 years, the Opposition would like that right to be enshrined. To be offered the opportunity is the key bit here—no mandation. It is good practice to let people know their rights, and we are affirming that. The worry is that while there is good intention to allow it based on the system, what happens if times are stretched? The amendment would give someone a statutory chance to say they have that right, and that it is upheld in law. That is what the Opposition are pushing for.
In essence, we are both trying to solve the same problem, but taking different approaches. The key distinction between the approach of the Government and that of the Opposition is that the Government’s creates a duty on the system, but no individual entitlement, while the Opposition’s proposes a patient right matched by a clear responsibility to inform and support the individual. The Government’s clause says that NHS England and ICBs must make arrangements as they consider “appropriate”. We say all eligible patients should have an informed right to create one. I anticipate that the Government might turn around and say, “Well, this is too rigid,” or that it imposes unfunded burdens on the ICB. I argue that it is targeted; we are not extending the right to everyone with a mental health condition but only to those at the most risk of future detention.
Sojan Joseph (Ashford) (Lab)
As a clinician, I hope that the hon. Gentleman will understand what I am trying to say. There are many mental health patients who do not have any insight into their illness and often refuse to take medications. It is important that, as the clause says,
“‘qualifying person’ means a person who has capacity or competence to make the statement,”
so that people do not make inappropriate decisions in their advance choice documents. It is important to keep the clause as it is, whereby a qualifying person is someone who can make a competence decision.
Dr Evans
The hon. Gentleman is spot on. We do not want people making decisions about their care when they do not have capacity. The whole point of what we are trying to do—as is the Government’s intent—is to allow people to make advance care decisions when they have capacity, so that when they are not lucid in the future and come back into contact, their preferred decisions are already set out. The clause does allow for a handbrake mechanism for clinical safety, to overstep them. However, what I am worried about is finding ourselves in a situation where patients never even find out that they have the right to create one of these ACDs.
The hon. Gentleman will know, as I do from my time, that good clinical practice is to ensure that patients have a plan. We do that for asthma: we expect patients to have an emergency plan for what happens, who they contact, where they go, what they take and what it looks like, personalised to them. Why should mental health be any different? My amendment actually gives ACDs legal footing, rather than simply saying that the system should offer it to them.
The amendment is cost-effective. Evidence suggests that ACDs can reduce the use of coercive powers, prevent relapse and improve continuity of care. That reduces costs, not adds to them. It is already good clinical practice; many mental health trusts already encourage care planning conversations. Our amendment would simply raise the standard across the country.
The Opposition understand that the Government have the numbers on this Committee. Will the Government clarify the role of the code of conduct? Do the Government intend to issue national guidance or benchmarks to ensure that ICBs do not apply widely different criteria for who is appropriate to be informed or held? Could the Government explain further, in response to the letter and in this Committee, why they do not accept ACDs as a basic right, narrowly defined, for only the most vulnerable individuals to be offered this opportunity? What mechanism will be used to monitor compliance with these new duties? How will patients know whether they are being fulfilled?
To my eyes, Government amendments 34 and 35 will do the same as amendments 32 and 33, but covering the Welsh system and local health boards, so I will not rehearse the arguments that we have just had. However, I would be interested to know whether this creates an issue for data collection on compliance across the two countries. We touched on this in relation to clause 2, but if different health authorities take different approaches to monitoring data, does that not risk making it even more opaque when we try to see both good and bad performance? Could the Minister address that point?
Jen Craft (Thurrock) (Lab)
I rise to speak briefly to clause 45, Government amendments 32 and 33, Lib Dem amendment 18 and Opposition amendment 46. I am very supportive of clause 45. The ability to make an advance choice document is incredibly important to people who may come under the scope of the 1983 Act and be subject to detention under mental health legislation.
We have spoken at length about the importance of patients’ input into their care and the improvements in outcomes when they feel that they have been involved and their wishes and feelings are taken into account. An advance choice document allows someone at risk of being detained under the Act to set out their choices, thoughts and opinions before becoming so unwell that they may need to be admitted to hospital. Other hon. Members have spoken about how an advance choice document can help prevent detention in a mental health unit, as it can stop issues escalating to the point where there is no option but detention, to ensure patient safety or the safety of others. I am broadly supportive of clause 45, and I urge the Committee to be.
I turn briefly to Opposition amendment 46. I have heard the thoughts of the hon. Member for Hinckley and Bosworth. My understanding is that clause 45, along with Government amendments 32 and 33, will effectively create the rights for those who should have an advance choice document to be able to take advantage of them. Government amendments 32 and 33 will go further in ensuring that people who may benefit most from an advance choice document are informed of their ability to do so.
I note that Government amendment 32 will put a duty on an integrated care board to bring information to such people as it deems appropriate. I welcome the duty being on an integrated care board or commissioner locally, particularly because there are such nuances in localised care and localised populations. There are areas of the country in which the prevalence of things like learning disability and autism is higher than in others. The amendment will allow an ICB or local commissioner to consider what may be appropriate for the population in their area.
Dr Evans
I appreciate what the hon. Lady is saying. There are differences—rightly so—and regional variation. By definition, different regions will take different approaches to dealing with this issue. My argument is simply that someone with a learning disability should have the right to decide to make an ACD, as should someone with bipolar disorder or anorexia. There should be no regional variance in that; it should be a right given to the individual there and then. Regional discrepancy should not come into the system to deal with this. I appreciate that there will be regional discrepancy, but, fundamentally, we want to engage the right, not just the responsibility for the ICB to decide who it thinks is appropriate. I am interested in the hon. Lady’s take—I think this goes to the heart of what we are trying to do.
Jen Craft
I agree on the notion of a right; where we vary is that I think that the Bill as written, and Government amendments 32 and 33, enshrine the notion of a right without it having to be spelled out as such. Local variation includes localised populations, such as those from marginalised communities. We might consider different translations of support that is available. That will not be the case across the board—it will vary from area to area. This does not remove people’s ability to make an advance choice document; it simply gives local commissioners the ability to determine what is most appropriate for their area, how that support should look and how it will be targeted.
Without getting ahead of the Minister, I hope that he will say what guidance on best practice for local commissioners and ICBs will be set out, particularly in relation to those with learning disabilities and autism. We have spoken about easy-read documents, for example, which should probably be made available, as should advice on how commissioners can best make sure that all those who might benefit from an advance choice document are meaningfully engaged and informed of their right and ability to do so.
The Minister has agreed previously to make sure that he works with disabled people’s organisations, including those run by and for people with learning disabilities and autism, on bringing forward a code of practice on the Mental Health Bill. Input on patient experience into how best to contact and meaningfully engage people who would benefit from an advance choice document would be particularly beneficial.
Very briefly, the aim of Liberal Democrat amendment 18 is to include consideration of financial circumstances in an advance choice document. I have looked into this—in my opinion, it is outside the scope of what an advance choice document does. An advance choice document sets out how an individual would wish to be treated if they became so unwell that they were unable to make those decisions for themselves. I am not fully sure how one’s financial circumstances fit into how one would be treated relative to detention or, potentially, in a community-based setting. I understand that financial circumstances have an impact on people’s mental health—we have talked about that in debates on other clauses—but they do not necessarily have a place in this specific part of the Bill.
I encourage the Committee to support clause 45 and to adopt Government amendments 32 and 33. This is, once again, a big step forward in ensuring that those with serious mental illnesses are able to input into their care and treatment in a real and meaningful way.
Dr Danny Chambers (Winchester) (LD)
It is a pleasure to serve under your chairship, Sir Desmond. In the previous sitting of the Committee, I spoke extensively about the close link between money worries and poor mental health. That link is why I have sought, through amendment 18, to ensure that advance choice documents include a specific section on money. This would give people greater choice and control over their finances when they are in crisis. Without that provision, financial worries could be an even greater hurdle to recovery.
We have talked a lot about financial problems being a major contributor to mental health crises, and they can make it much more difficult to recover from one. I will not go through all the details again, but the numbers show how significant the problem is. Last year, nearly 21,000 people in England alone were struggling with problem debt while in hospital for their mental health, so it is not a small cohort of patients for whom this is a specific issue. Ensuring that people’s finances are taken into consideration when they are in a mental health crisis will prevent future illness, reduce waiting lists and help people to return to daily life more smoothly, including to work. If we ignore it, that will end up costing the NHS more in time and resources.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a pleasure to serve under your chairmanship, Sir Desmond. I want to speak in support of amendment 46. It is eminently sensible and would give all eligible patients the statutory right to create an advance choice document to record their treatment preferences in a formal legal document. Those preferences would be enjoyed only in the event of a future mental health crisis or detention under the Mental Health Act.
The amendment would give important control to patients and to those around them to know that their future care decisions would be applicable at the point at which they become incapacious. It would quite rightly place a requirement on NHS England—for as long as it continues to exist—and ICBs to ensure that those individuals are aware of their rights and, more importantly, that they are not just aware of them but are supported in creating an advance choice document if they so wish.
The amendment is all about empowering patients. The more we can empower patients who face these challenges, the better. It would increase their autonomy and help with the planning of their future care. It would help both in the understanding and the honouring of patients’ wishes. Critically, it would reduce conflict. In these circumstances, tensions are high and pressures are acute, so conflict can arise in the most unintended of ways. Having an advance choice document minimises that risk.
If the Government will not support amendment 46, what reassurances can the Minister give in relation to the code of practice? How will this be accounted for in the code of practice to ensure consistency in the information imparted to patients across the country by NHS England and the ICBs? We must ensure that there is not a postcode lottery and that everybody, regardless of where they live in the country, gets the consistency of care that they are entitled to.
Aphra Brandreth (Chester South and Eddisbury) (Con)
It is a pleasure to serve under your chairmanship, Sir Desmond. I rise to speak in support of amendment 46, tabled by the shadow Minister, my hon. Friend the Member for Hinckley and Bosworth, which seeks to strengthen clause 45, an already welcome and progressive clause, by creating a statutory right for all eligible patients to create advance choice documents if they so wish.
Let me begin by saying that I think everyone on the Committee recognises the importance of advance choice documents. They are an excellent initiative, and I am glad that the Bill introduces a framework to support their use. I hope we can all agree that they represent a constructive and compassionate shift in how we think about mental health care—one that puts the patient’s voice at the centre. ACDs are fundamentally about empowerment. They allow individuals, while they are well and have full capacity, to record their wishes, preferences and concerns regarding their treatment, so that during future periods of unwellness, when they may lack capacity, their past self can still be heard and respected. As Bipolar UK has rightly put it:
“The idea behind an ACD is that you use your past to plan your future.”
That simple principle holds immense power. Individuals with lived experience of severe mental illness like bipolar disorder are often experts in their own care. They know what works, what does not and what signs to look out for. An ACD allows that hard-earned knowledge to be recorded, shared and used to guide clinical decisions. By identifying early warning signs and outlining preferred treatments, ACDs can enable families, friends and professionals to intervene earlier, potentially avoiding a crisis or reducing the severity of an episode. This is not just about better care; it is about safer care and, crucially, more timely care.
The research is persuasive. Studies suggest that ACDs can reduce rates of compulsory detention under the Mental Health Act by up to 25%. That is not a small statistic; it is a significant reduction in trauma for patients, in the use of force and in resource pressures on services. It is hard to think of a better example of a policy that both improves outcomes and reduces system strain. ACDs can also play a vital role in reducing inequalities, especially among racial minority groups, who, as we have all said, are statistically more likely to be detained under the Act. Ensuring that those patients can express their wishes in advance gives them greater agency and helps to address long-standing disparities in the system.
ACDs are not just a useful administrative tool; they are, as Earl Howe put it in the House of Lords,
“are a major component part of one of the Bill’s key strands, which is to give mental health patients better control over their own care—which, of itself, carries a therapeutic value.”—[Official Report, House of Lords, 27 January 2025; Vol. 843, c. 79.]
I absolutely agree, which brings me to amendment 46. The clause as drafted places duties on NHS England and integrated care boards to consider making information about ACDs available, and to help those people whom they consider “appropriate” to create one. That is a start, but it falls short of what is needed. The shadow Minister’s amendment would take us further and create a statutory right for eligible patients to create an advance choice document. It would define clearly who is eligible—for example, those previously detained under the Act, those diagnosed with a condition that may require future detention and qualifying informal patients—and would put a clear duty on NHS bodies to inform these patients of their right and to help them to exercise it. This is not about placing a burden on services; it is about ensuring that everyone who stands to benefit from an ACD knows that they can make one and is supported to do so if they wish.
I appreciate that the Government have tabled amendments 32 and 33 to clause 45, and I welcome the intention behind them. Amendment 32 requires that NHS England and integrated care boards must bring the availability of this information and help to the attention of such people “as it considers appropriate.” Amendment 33 expands on how that might be delivered, including through conversations with qualified individuals and by having specific regard to the benefits of ACDs in the 12 months following discharge from hospital.
Although these are improvements, I must respectfully say that they stop short of what is needed. They continue to frame the duty in terms of who the board considers appropriate, yet the very point of ACDs is that we should not be gatekeeping access. We should not be making assumptions about who would or would not benefit from having one. Every eligible patient should be offered the choice, not just those whom the system deems suitable. We are dealing here with people’s autonomy and right to shape their future care, and if we start from a place of selective provision, we immediately disempower many of the very individuals we claim to support.
Jen Craft
I would welcome the hon. Lady’s thoughts on where clause 45 or the Government’s amendments allow for selective provision. My understanding is that they place an onus on mental health commissioners to make sure that all those who are deemed appropriate to be in receipt of an ACD should be given the ability to make one. I do not think that is selective; it is very much related to the purposes of the Bill, and it spells out who may come under the provision.
Aphra Brandreth
The hon. Lady has just made my exact point: that it is who they deem appropriate. That is the point I am trying to make. It is for the individual—of course, with support of people looking after them—to decide whether it is appropriate for them and to be offered it.
Aphra Brandreth
I will make progress, as I know that a few Members wish to speak on this point, and we have a long day ahead.
I will touch briefly on amendment 18, tabled by the hon. Member for Winchester, which suggests that ACDs should include a person’s financial circumstances. I recognise the sentiment behind the amendment. As both I and the hon. Member for Winchester have said in Committee, financial stress can be a major factor in mental health, but I gently suggest that prescribing the content of an ACD in this way is unhelpful. The point of the document is choice. The individual decides what they want to include, not us. That is the strength of the approach. It is personal and voluntary; it is theirs.
Amendment 46 respects that principle. It does not tell patients what to include in their ACD; it simply gives them the right to make one, and ensures they are informed of that right and supported to act on it. ACDs can be lifesaving, and they help people to stay well, safe and in control. They are especially valuable for those who have been detained before or who are at risk of detention in the future. We know that they are already supported by a wide range of stakeholders and experts by experience.
The question for us is not whether to support ACDs—I think we all do. The question is: do we want to make access to ACDs a universal right for those eligible, or do we want to continue to leave it to the discretion of the system? I believe the answer is clear: we must empower people, honour their voice and do so not only when they are well and able to speak, but when they are unwell and most vulnerable. That is what the amendment seeks to do. I urge all colleagues on the Committee to support amendment 46 and strengthen clause 45. Let us make the right to create an advance choice document a reality for everyone who needs one.
Gregory Stafford (Farnham and Bordon) (Con)
It is a pleasure to serve under your chairmanship, Sir Desmond. You and the Committee will be pleased to know that my hon. Friends have made most of the points I wanted to flag.
In poll after poll and survey after survey, patients feel they do not get information in a timely and constructive way. Our amendment 46 would give patients a stronger say in their future care if they lose capacity. It clarifies that patients must be given clear, proactive support to understand, prepare and use the documents. It is about ensuring that advance choice documents are not just theoretical paperwork, but living, respected statements of a patient’s wishes.
I therefore support the clause and the amendment, and I ask the Minister three questions. How will NHS England and local integrated care boards ensure that commissioners are trained to respect and use ACDs in practice, especially in emergencies? Secondly, what oversight will ensure that ACDs are not simply ignored at the bedside, when a patient is most vulnerable? Will the Government consider a review mechanism so that we can assess how well ACDs are working in a few years’ time, after the Bill is passed?
I turn briefly to Liberal Democrat amendment 18. Like other hon. Members, I feel that the inclusion of financial information in an ACD is not appropriate, both from a practical and a personal security, safety and information point of view. I do, however, completely support the hon. Member for Winchester’s overall view that there is a significant problem with how financial stress can affect a person’s mental health. Like him, I call on the Minister to think about how we as a country, whether in this Bill or somewhere else, can address the impact of financial stress on mental health.
Stephen Kinnock
I will speak first to amendment 46. We agree with the principle of the amendment, but do not think it necessary. Under the Bill, if an individual who is likely to benefit from making an advance choice document approaches services to create one, they should be offered information and appropriate support to do so. The approach that we have taken in the Bill is therefore functionally equivalent to a right to request an advance choice document.
Dr Evans
If I am correct, the Minister said “if” a patient “approaches”. That is the fundamental point: that the onus is on the patient to know what their right is to approach the authorities. We are trying to do it the other way, by saying that their right is to be told about what is going on. Will the Minister clarify what he meant, because this is essentially what we are concerned about?
Stephen Kinnock
What I meant is what I said. I will read it again: if an individual who is likely to benefit from making an ACD approaches services to create one, they should be offered information and appropriate support to do so. The approach that we have taken in the Bill is therefore functionally equivalent to a right to request an advance choice document.
We are also concerned about prescribing that commissioners inform and support some of the groups of individuals identified by the amendment. For example, it may be practically challenging and not always appropriate to contact people who were detained or admitted informally many years ago about making an ACD. We agree, however, that that there is a good rationale for encouraging past voluntary and involuntary patients, especially those discharged in the past 12 months, to create an ACD. That is reflected in the Government amendments to strengthen the duties on health commissioners, which I will come to shortly.
The approach is based on research findings that suggest that the optimal time to write an advance choice document is shortly after discharge from hospital. That also recognises that many of the individuals are likely still to be under the care of mental health services and therefore well positioned to receive support and advice from services to make their ACD. Ultimately, the amendment was debated in the other place and not considered workable. In recognition of concerns expressed by Earl Howe and Lord Kamall, however, my noble Friend Baroness Merron made a commitment to strengthen duties on health commissioners in relation to the advance choice documents.
Government amendments 32 to 35, which we tabled in response to the amendment, will strengthen the duties in three ways. First, they will require that health commissioners proactively make arrangements to bring information on and help with making an advance choice document to the attention of the appropriate people. That is to prevent the risk of commissioners taking a minimal approach to discharging the duties.
Secondly, the Government amendments will require that information and help is provided through discussion with a suitably qualified person, such as a health or care professional, advocate, support worker or peer support worker. That is to ensure that people can rely on the guidance and support of a professional, where they wish to receive it.
Lastly, the Government amendments will encourage commissioners to have regard to the benefits of a person making an advance choice document within 12 months of discharge from a mental health hospital. That builds on research findings that suggest the optimal time to write an advance choice document is shortly after detention.
Government amendments 32 to 35 will help to further secure the success of advance choice documents by ensuring that people who are at risk of contact with the Act are given the opportunity to make an ACD, as well as being offered the dedicated support that they may need to do so.
On amendment 18, we agree that there is value in encouraging people to include details of any relevant financial matters within their ACD. Financial matters, such as problem debt, can worsen or even trigger a person’s mental illness. We expect that doing so will help to ensure that people receive the care and support that they need if they later experience a mental health crisis. We feel that it is important for individuals to have autonomy over what they include in their ACD, however, rather than prescribing the contents in legislation. We therefore think that the intention behind the amendment is better achieved by other means.
We plan to develop guidance and a template ACD to support service users in making their document. Those will include prompts to consider any relevant financial matters. Furthermore, the guidance that we plan to include in the code of practice for mental health professionals will cover the need to support the person to consider any relevant financial matters that may be important to their mental health recovery.
Finally, I turn to the clause in its entirety. Advance choice documents provide a place for people to set out their wishes, feelings, decisions, values and beliefs, while they are well, regarding their care and treatment. That is in preparation for the scenario in which they are too unwell and lack capacity to express such things at the time. At that point, the contents of their ACD should be considered by mental health professionals to inform their decision making regarding the person’s admission to hospital, detention under the Act, and care and treatment.
Research shows that ACDs can have a range of benefits, including reducing the risk of hospital admissions. To help to unlock those benefits and ensure the uptake of ACDs among service users, the clause will place duties on health commissioners to make appropriate arrangements so that relevant individuals are informed and supported to make an ACD. The duty aims to ensure that individuals who are likely to benefit most from making an ACD are proactively given the opportunity to make one while they are well.
Other clauses create the framework to ensure that the contents of a person’s ACD have a real impact on care and treatment decisions, for example the clinical checklist, the compelling reason test and the new framework for creating a nominated person. I therefore ask the hon. Member for Hinckley and Bosworth to withdraw amendment 46, and I ask Liberal Democrat Members not to press amendment 18. I commend Government amendments 32 to 35 and clause 45 to the Committee.
The Chair
With this it will be convenient to discuss the following:
Clause 47 stand part.
New clause 21—Duty to provide advice and support to families and carers—
“(1) The Mental Health Act 1983 is amended as follows.
(2) After section 117B, insert—
‘117C After-care: provision of support and advice to families and carers
(1) The responsible integrated care board must ensure that, as part of the provision of after-care services under section 117 of this Act, advice and support is offered to the family or carers of the person discharged.
(2) This support must include—
(a) information about the person’s condition and recovery;
(b) guidance on how to support their recovery at home and avoid relapse;
(c) access to financial, housing, and social care advice services relevant to the situation of the person’s family; and
(d) procedures for family members or nominated persons to notify the integrated care board of concerns that the person is at future risk of detention under Part 2 of this Act.
(3) Where a concern is raised under subsection (2)(d), the integrated care board must—
(a) consider whether the individual meets criteria to be included on the register of persons at risk under section 125D of this Act; and
(b) take reasonable steps to involve the family or nominated person in planning of subsequent support, subject to—
(i) the person’s consent; or
(ii) if they lack capacity, the person’s best interests.
(4) The Secretary of State must publish guidance under section 125B of this Act on the format and provision of support under subsection (3)(b).’”
This new clause would require the integrated care board, as part of the aftercare services offered under the Mental Health Act 1982, to offer support and advice to the family or carers of the person being discharged from treatment.
Stephen Kinnock
I will set out the details of two important clauses relating to aftercare. Clause 46 will provide the tribunal with an important new power to recommend that plans for aftercare arrangements are undertaken for patients who are not yet ready to be discharged from hospital. Under the Mental Health Act, the tribunal can make decisions about discharge, but it does not have a role in recommending aftercare while a patient remains detained. Giving the tribunal the power to make recommendations that aftercare planning should take place will encourage earlier planning for a patient’s eventual discharge from hospital.
Those recommendations are particularly important for complex cases in which patients may require intensive support following their discharge. Early aftercare planning ensures that the necessary health and social care services are co-ordinated and in place when the patient is ready to leave the hospital. This will help to reduce the likelihood of delayed discharges or failed transitions back into the community.
Although the tribunal’s recommendations are not legally binding, they are intended to carry significant weight with aftercare providers. If recommendations are not taken forward, the tribunal retains the power to review the patient’s case. That will ensure that there is both encouragement and accountability in the aftercare planning process, enhancing patient outcomes by making sure that care is appropriately planned and delivered.
The clause will strengthen the role of tribunals in overseeing the care and treatment of patients under the Mental Health Act, ensuring that a patient’s needs are addressed holistically and in a timely manner. By encouraging earlier and more co-ordinated aftercare planning, we will reduce the risk of patients being discharged without the necessary support in place, leading to better overall patient outcomes and smoother transitions from hospital to community care.
David Burton-Sampson (Southend West and Leigh) (Lab)
It is a pleasure to serve under your chairship, Sir Desmond. Again, I reflect on stories that I have heard from local constituents on the issues that are being addressed in the Lampard inquiry. Does the Minister agree that these provisions will help to avoid the too early discharges that have led people either to go back into care or to get into even more difficult situations? One of my constituents ended up taking his own life because he was discharged too early from care.
Stephen Kinnock
My hon. Friend is absolutely right. In many ways, the best way to look at the issue of discharge is to start thinking about it almost as soon as the patient is admitted. We need to be thinking holistically about what place they are in, what the aftercare plan might look like and how it might relate to the discharge plan. The earlier we do so, the better. In so many cases, upstream intervention is important to avoid having to scramble to deal with a crisis further down the line. My hon. Friend is absolutely right to raise that point.
I turn to clause 47. Section 117 of the Mental Health Act places a duty on the NHS and local social services authorities to provide aftercare to certain patients who have been detained under the Act once they leave hospital. Aftercare services seek to reduce the risk of readmission, and they must be provided until the NHS and local social services authorities are satisfied that the person is no longer in need of such services. However, there is currently no requirement to notify the person when that ends. Clause 47 requires that the provision of aftercare lasts until the NHS and local social services authorities jointly give notice to the person in writing that they are satisfied that the person is no longer in need of such services. This will clarify when aftercare services have ended.
Decisions on entitlement to and responsibility for aftercare services are heavily contested. Deeming rules are used to deem a person to be ordinarily resident in one area, even though they are living in a different area. They ensure continuity of financial responsibility when a person is placed in a local authority area and prevent the local authority from placing someone out of area to ease its financial burdens. Currently, section 117 does not contain any deeming rules.
Clause 47 will apply existing deeming rules under social care legislation to identify which local authority is responsible for arranging aftercare for an individual patient. This change will add clarity and consistency to an often litigious system and more closely align local authority social care and NHS rules for determining ordinary residents. This aims to support organisations to work together to provide and plan for aftercare services and reduce the number of disputes that have arisen in recent years.
Finally, I thank the hon. Member for Guildford for tabling new clause 21, which seeks to place a duty on the responsible integrated care board to ensure that advice and support is offered to the family or carers of the patient being discharged. The statutory guidance on discharge from mental health in-patient settings sets out how NHS organisations should exercise duties to co-operate under sections 72 and 82 of the National Health Service Act 2006 in the discharge process. This includes providing information or support on housing, social services provision and financial support. The Mental Health Act code of practice also provides statutory guidance on the information that should be provided to patients, families and carers.
We do not believe that it is necessary to place additional duties on integrated care boards to provide information and support, as existing duties are sufficient. We will consider whether to use the revised code to bring together guidance on discharge into one place and explore how to clarify best practice on information and support to carers. I hope that what I have set out satisfies the hon. Member for Guildford and that she will not press new clause 21. I commend clauses 46 and 47 to the Committee.
Dr Evans
I will speak to clauses 46 and 47 and then to new clause 21. Clauses 46 and 47 form a significant part of the Government’s effort to strengthen discharge planning in continuity of mental health aftercare. Clause 46 extends tribunal power. Under the current Mental Health Act, when a first-tier tribunal considers a patient detained under part II of the Act and decides not to discharge them, it may still make non-binding recommendations, for example that the patient be transferred to another hospital or given leave of absence.
Rosie Wrighting (Kettering) (Lab)
It is a pleasure to serve under your chairmanship, Sir Desmond. I rise to speak in support of clauses 46 and 47, two vital reforms that place people instead of process at the heart of mental health care.
Clause 46 will empower mental health tribunals to do more than simply decide on discharge. It will give them the ability to recommend aftercare planning even when a patient is not yet ready to leave hospital. As the Minister says, this is so important for the co-ordination of local services. In a previous sitting, I spoke about my constituent who was sectioned and then discharged from hospital in the middle of the night, in winter. The clause is vitally forward-thinking and will ensure that for people like my constituent, the necessary support structures—housing, therapy and community services—are in place early, smoothing the path to recovery and reducing the risk of relapse. It is about planning with people in mind, instead of reacting when it is too late.
Clause 47 will strengthen the legal framework around aftercare itself. It will clarify when aftercare ends and, crucially, who is responsible for providing it. By aligning the rules of ordinary residence with existing social care legislation, it will remove ambiguity and ensure that patients receive care even when they have moved between areas. The impact of care continuity cannot be overstated, especially for people up and down the country who do not have stable housing or support networks, like many of my constituents in Kettering.
My local council used to be Northamptonshire county council, but it then split into North Northamptonshire council and West Northamptonshire council. Some services are separated between the two, but others still operate across Northamptonshire as a whole. Having a local authority that is clearly responsible will be really important to my constituents and will offer a clear, accountable council for their care.
Together, these clauses will reduce delays, improve accountability and, importantly, give people the best chance of rebuilding their lives, preventing them from relapsing or having to be sectioned again. They will promote a more compassionate, co-ordinated and consistent approach to mental health recovery. I am happy to support them.
Zöe Franklin (Guildford) (LD)
It is a pleasure to serve under your chairmanship, Sir Desmond. I rise to speak to new clause 21, which would place a clear statutory duty on integrated care boards to offer advice and support to families or carers of patients receiving aftercare under section 117 of the Mental Health Act.
I thank the Minister for his comments about the new clause. I acknowledge what he says about the statutory guidance and code of practice, but I hear from far too many patients and their families living in my constituency of Guildford that advice and support is often not being provided and that authorities are falling short.
This new clause is rooted in a very simple principle: good mental health care does not end at the point of discharge. Recovery is often long, fragile and dependent on support at home, yet families and carers—the people holding things together day in, day out—are often left behind with little or no guidance. This clause seeks to change that: it would ensure that carers are given clear information about the patient’s condition and recovery journey, supported in helping to prevent relapse and readmission, linked to relevant support systems, including housing and social care, and provided with a route to raise concerns if they believe that someone is at risk in future.
Jen Craft
Having looked at new clause 21, I have a rather large concern about consent. The hon. Lady is setting out what the integrated care board would have a duty to do, including giving information about a “person’s condition and recovery” to
“the family or carers of the person discharged”.
I have a significant concern that the person being discharged may not have the kind of relationship with their family or carers that would make that helpful. The clause, as drafted, does not seem to make allowance for consent, except where
“the person is at future risk of detention”
under part II of the Mental Health Act. I would welcome the hon. Lady’s thoughts on that.
Zöe Franklin
The hon. Member makes a really good point. There is definitely a place for ensuring that we work on this further to make sure that it covers that. I will come on to that later, if she will allow me.
We know that early intervention is key. We know that families, carers and those around an individual are often the first to spot the warning signs, and that they need to feel empowered, not sidelined. I hear time and again, as I am sure hon. Members across this Committee Room have heard, from people who have been left out of the discharge planning for their loved ones. They say that they have received no clear information and that they feel unsupported and unable to fully support their loved one when they return home.
Importantly, the new clause sets out a process whereby, if a family member wants to raise a concern, the team must consider whether that individual should be added to the register of persons at risk of detention under part II of the Mental Health Act. We believe that this is a sensible, joined-up approach to prevention, spotting risks early and acting before a crisis point is reached. Finally, the new clause would require the Secretary of State to publish national guidance and ensure consistency and clarity across the system.
We often speak of carers as the invisible workforce of our NHS. The new clause would make their contribution visible by recognising their role and giving them the information and support they need to fulfil it well.
Dr Evans
Forgive me if I missed it, but I did not hear any discussion of this point. I am slightly concerned about the way the new clause is written, as it could be a duplication of the support, protections and duties put in place through the Care Act 2014. Could the hon. Member set out how the new clause would run in parallel with the Care Act? Is it complementary, or does it work against it?
Zöe Franklin
In my final comments, I was going to say to the Minister that, having considered the points he set out in his opening statement in relation to this clause, I am prepared not to press the new clause. I appreciate that some of the information already exists in the Bill and in the existing documentation to which the shadow Minister referred. I also acknowledge the point made by the hon. Member for Thurrock, that some aspects around consent must be dug into.
However, I ask the Minister to work with me, my hon. Friend the Member for Winchester and other hon. Members with an interest in the issue, so that he can hear our constituents’ experiences of where the current guidance is clearly not working, and ensure that appropriate additions are made to the supporting documents for the Bill to address the concerns that we have raised in the new clause.
Ordered, That the debate be now adjourned.—(Taiwo Owatemi.)
Mental Health Bill [ Lords ] (Eighth sitting)
Thursday 19th June 2025
(3 weeks, 4 days ago)
Public Bill CommitteesMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 June 2025 - (19 Jun 2025)
The Committee divided: - Ayes: 3 / Noes: 10 - Question accordingly negatived.
The Chair
If any Member wishes to take their jacket off, I am happy for them to do so, as this is an extremely warm room. I am hoping to finish at 5 pm, so in the interests of making progress, Members should keep interventions to a minimum. If there were no repetition in speeches, that would be very welcome.
Clause 46
Tribunal power to recommend after-care
Question (this day) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are discussing the following:
Clause 47 stand part.
New clause 21—Duty to provide advice and support to families and carers—
“(1) The Mental Health Act 1983 is amended as follows.
(2) After section 117B, insert—
‘117C After-care: provision of support and advice to families and carers
(1) The responsible integrated care board must ensure that, as part of the provision of after-care services under section 117 of this Act, advice and support is offered to the family or carers of the person discharged.
(2) This support must include—
(a) information about the person’s condition and recovery;
(b) guidance on how to support their recovery at home and avoid relapse;
(c) access to financial, housing, and social care advice services relevant to the situation of the person’s family; and
(d) procedures for family members or nominated persons to notify the integrated care board of concerns that the person is at future risk of detention under Part 2 of this Act.
(3) Where a concern is raised under subsection (2)(d), the integrated care board must—
(a) consider whether the individual meets criteria to be included on the register of persons at risk under section 125D of this Act; and
(b) take reasonable steps to involve the family or nominated person in planning of subsequent support, subject to—
(i) the person’s consent; or
(ii) if they lack capacity, the person’s best interests.
(4) The Secretary of State must publish guidance under section 125B of this Act on the format and provision of support under subsection (3)(b).’”
This new clause would require the integrated care board, as part of the aftercare services offered under the Mental Health Act 1982, to offer support and advice to the family or carers of the person being discharged from treatment.
Aphra Brandreth (Chester South and Eddisbury) (Con)
I will take a few moments to reflect on clauses 46 and 47. They deal with aftercare, which is at the heart of how we help people to recover from serious mental illness and reduce the chance of their readmission. Clause 46 will give mental health tribunals the ability to make recommendations about aftercare services—a welcome shift in emphasis towards recognising that recovery is something that happens not at the point of discharge, but in the weeks, months and even years that follow.
Until now, tribunals could recommend things like hospital leave or transfer, but they had no say in the vital question of what happens after discharge. Clause 46 gives them a voice in shaping that next phase. It is a step that could help to ensure that aftercare is not an afterthought, but a core part of discharge planning. The effectiveness of this change, however, depends on whether there are services to recommend. As the independent review made clear, the challenge is not just in writing aftercare into law, but in making sure that it is there in practice.
Clause 47 takes a welcome step in providing greater clarity and accountability around which local authority is responsible for arranging section 117 aftercare. By clarifying the rules on ordinary residents, especially for people who received care as children, and by requiring that local authorities and NHS bodies jointly issue written notice when aftercare is ending, the clause helps to ensure that decisions are made in a timely and transparent way. That improved clarity should support smoother transitions from hospital to community, reduce disputes between services and, ultimately, help to prevent relapse and readmission.
Clarity in law must be met by capacity on the ground, which is why the core question is not just what the clauses enable, but whether the system is equipped to deliver on them. I therefore ask the Minister what assessment has been made of the availability of appropriate aftercare services in the community. Can we be confident that NHS and social care teams have the resources that they need to meet the duty effectively?
We know that aftercare, under section 117 of the Mental Health Act 1983, can include support with housing, employment, social engagement and culturally appropriate services, all of which can mean the difference between recovery and relapse, but they only work when they are properly joined up, tailored to the individual and delivered in a timely way. The independent review put it well:
“priority should be given to making sure that good services are available to all…But we also believe that it is right that people who have been detained should have additional support to ensure a successful transition to the community.”
I agree with that principle. If we want to see fewer people detained, we must do better at supporting people once they leave hospital.
I support clauses 46 and 47. They are sensible, necessary reforms that will give structure and clarity to a part of the system that has often been patchy or overlooked. But if we want them to work as intended, they must be backed up by investment in community services, good local commissioning and effective partnership between health and social care. In short, these are good steps but must be followed through with real delivery on the ground if we are to achieve the lasting outcomes that we all want.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a pleasure to serve under your chairmanship, Mrs Harris. Having taken your clear instructions, I will be very brief in speaking to clauses 46 and 47.
Clause 46 is a positive step in principle, but there are concerns that the recommendations remain non-binary and may therefore lack the practical effect—or the teeth —without enforcement or review mechanisms. I have three questions that I hope the Minister will address. First, will he clarify whether there are any plans to give legal weight to tribunal recommendations, perhaps by requiring a written response or justification where those recommendations are not followed? Secondly, how will the Government ensure that resource-constrained local authorities can implement recommended aftercare plans promptly and fully? Thirdly, could he please provide data on the expected impact of this provision on readmission rates?
Clause 47 clearly sets out and improves on the legal clarity, which is welcome, but I have a couple of questions. What steps will be taken to ensure that frontline practitioners understand and consistently apply the revised ordinary residence test? Has the Department conducted an assessment of the administrative burdens or delays that may result from the implementation of the clause? Apart from those questions, I welcome the provision.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship this afternoon, Mrs Harris. I will go through the questions that have been asked.
The shadow Minister, the hon. Member for Hinckley and Bosworth, asked whether there will be any duty on ICBs or local authorities to respond to recommendations. The tribunal will have the power to recommend that plans are put in place for a patient’s aftercare. To assist in ensuring that these recommendations are followed, the tribunal can reconvene if its recommendations are not acted on, ensuring accountability from aftercare bodies.
The shadow Minister asked what mechanisms are in place to resolve disputes between authorities. There is already a process in place under the Care Act 2014 for resolving disputes and an opportunity to escalate decisions to the Secretary of State and Welsh Ministers, if required. He also asked what the notice must contain. We will absolutely look at the guidance in the code on the process for ending aftercare and notifying the person.
The hon. Member for Solihull West and Shirley asked about plans for legal weight, resourcing and data. I will write to him on his questions about plans for legal weight and data. I think that resourcing will be a constant theme. Obviously, we have to assess all the resourcing implications once the Bill receives Royal Assent, and we will develop an implementation plan on that basis. The first annual written ministerial statement will be the hon. Gentleman’s opportunity to hold the Government to account on that.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Clause 47 ordered to stand part of the Bill.
Clause 48
Tribunal powers in guardianship cases: burden of proof
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
Currently, where an application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship, the patient can be discharged only if they can prove to the tribunal that they do not continue to meet the guardianship criteria. The burden of proof is on the patient. The clause will amend the Mental Health Act so that it will now be for the local authority responsible for the guardianship to prove to the tribunal that the patient continues to meet the guardianship criteria. As the independent review pointed out, the current burden of proof is “out of line” with all other applications to the tribunal. The Government consider that this should be remedied.
Dr Shastri-Hurst
I fear that I may test your patience a little further on this occasion, Mrs Harris, but I rise to address clause 48. Although much of the Bill aims to modernise and humanise our mental health framework, and in many ways it does so commendably, clause 47 presents not only an opportunity, but a challenge: to ensure that we get the balance right between liberty and protection.
The clause will make an amendment to section 72(4) of the Mental Health Act 1983. As the Minister said, it will shift the burden of proof in tribunal proceedings concerning patients who are subject to a guardianship order. Under the current legal framework, it is the patient who must demonstrate that the criteria for guardianship are no longer met, by showing either that they are no longer suffering from a mental disorder or that continued guardianship is no longer necessary for their welfare or the protection of others.
Clause 48 would reverse that burden. It would place the onus instead upon the local authority to demonstrate, in the mental health tribunal, that the individual still meets the statutory test. The tribunal would be required to direct a discharge unless the authority can prove otherwise.
Let me be clear: I am not opposed to the principle of this reform. On the contrary, I believe that there is a strong case for rebalancing the legal dynamics in favour of the individual, particularly when we reach situations in which their liberty and autonomy are at stake. The principle of least restriction is not, or should not be, merely aspirational; it should be foundational to any mental health regime in a liberal democracy.
I say with equal conviction that the practical operation of such a change requires careful thought and adequate resourcing. It must be done under clear legal parameters. Precisely on those fronts, I seek clarification from the Minister and, if I may be so bold, I seek some improvements to this aspect of the Bill.
First, we must consider the legal principle at play. A reversal of the burden of proof in this context is not technical or incidental; it marks a constitutional shift in the relationship between the citizen and the state. Traditionally, as the Minister well knows, the burden of proof lies on the party making an assertion that departs from the status quo. In this case, that would ordinarily be the patient applying for discharge from the guardianship. However, when the state exercises more coercive powers—particularly powers that have an impact on an individual’s liberty and private life—it is appropriate that the state be required to justify those powers afresh, especially when challenged. That is the logic that clause 48 seeks to embrace. In broad terms, as I say, I support it.
The approaches are reinforced by our obligations under article 5 of the European convention on human rights, which protects the right to liberty and security of the person. It is clear that any deprivation of liberty must be justified not just initially, but on an ongoing basis. Jurisprudence from Strasbourg has repeatedly emphasised that periodic review mechanisms must be substantive and not merely procedural in nature. The state must show continuing justification and must not rely on past assessments or presumptions in its favour.
Clause 48 helps us to move closer to compliance with those principles, but the legislation, as drafted, does leave some important questions unanswered. What, precisely, is the standard of proof that local authorities must meet? Is it the civil standard on the balance of probabilities, or is it something higher, given the gravity of what is at stake? If we are to take this shift seriously, we must also give tribunals clear statutory guidance on how to interpret the new burden. Otherwise, we will fall into the trap of risking inconsistency in decision making, confusion among professionals and a potential increase in appeals and legal challenges.
Secondly, and crucially, I would like to press the Minister on the question of practical implementation. Changing the legal burden is not merely a matter of legislative drafting; it requires a systematic adjustment in how evidence is gathered, how professionals prepare for tribunal hearings, and how decisions are reviewed internally within local authorities. As hon. Members will know, local authorities are already operating under intense financial and operational pressures. Mental health social workers are often working with caseloads that stretch the limits of what may be considered reasonable. Legal teams within councils are often overstretched and under-resourced; if we now place them under a legal obligation to present a comprehensive, evidentially sound case for continued guardianship—perhaps at multiple intervals across an individual’s care pathway—we must ensure that they are adequately supported to do so.
What assessment have the Government made of the financial and operational impact of clause 48? Will local authorities receive new funding to enable them to meet that duty? Will social care professionals receive specific training on the evidential requirements now expected of them? Without such support, we risk not only undermining the intent of the clause, but creating a perverse outcome in which discharges may occur not because the patient no longer meets the criteria, but because the local authority lacks the capacity to make the evidential case in time.
I also caution against the risk of overcorrection. Although I fully support the principle that individuals should not bear an unfair evidential burden, we must not move so far in the other direction that we weaken the legitimate protective mechanisms that should be in place. Guardianship is not detention; it is a community-based measure designed to provide oversight and structure for individuals who may struggle to live independently due to serious mental illness. It is used infrequently and only where strictly necessary.
Dr Luke Evans (Hinckley and Bosworth) (Con)
It is a pleasure to follow my hon. Friend the Member for Solihull West and Shirley. I would expect nothing less from him than a fantastic canter through this important clause. I will not repeat a lot of what he said, but I will try to emphasise it.
Although clause 48 is short, it speaks to the much larger principle of the balance between public protection and individual liberty. I will not go through all the details, as the Minister laid out the changes, but the burden of proof is currently on the patient to convince the tribunal that they no longer meet the criteria for guardianship. The clause will change that. Instead, the burden will fall on the local authority or relevant public body to prove that guardianship remains justified. The Government’s explanatory notes put it plainly:
“the patient should be discharged by the Tribunal unless the local authority can prove that the patient continues to meet the guardianship criteria.”
The clause is not just a technical amendment; it is a fundamental realignment of legal principle. It reinforces the presumption of liberty. It aligns guardianship cases with the principle that when the state restricts an individual freedom, it is for the state to justify that restriction, not the individual to justify their freedom. It echoes the evolution of mental health law towards a less restrictive approach, a principle we put in place on the first day of our deliberations on the Bill. Although clause 48 amends only a few words, it reflects a big change in principle: liberty is the default, and restriction must be justified and not presumed.
There are some important questions that I want to echo and emphasise, again leading on from my hon. Friend the Member for Solihull West and Shirley. Are local authorities prepared for the reversal of burden? Have they been consulted? Do they have the legal resources, documentation, standards and evidential processes to meet the burden before the tribunal? On top of that, we have already agreed that there will be automatic referrals. We would therefore expect more referrals to the tribunal as well as a change in how they operate. This is a huge undertaking. If they fail through a lack of capacity organisation, we risk a situation in which patients are discharged not because they no longer meet the criteria, but because the case was poorly presented. How will the Government ensure that that does not happen?
Secondly, will the Government issue statutory guidance or regulations to ensure that consistency in how the burden is discharged? We do not want a postcode lottery in the quality of guardianship applications or tribunal evidence. Thirdly, we must always consider public protection. The guardianship regime is not designed for high-risk individuals, but it can still apply in cases where behaviour poses a serious risk to self or others—for example, individuals with profound learning difficulties who might place themselves in danger if not properly supported.
We also talked about cumulative or escalating behaviour in one of our first debates. The reason for doing so is that we are at the fringe of significant cases. What safeguards are in place to ensure that public safety considerations are given due weight in cases where the evidence might be incomplete or borderline? Finally, do the Government intend to monitor the impact of the clause? Will data be published on whether tribunal discharge rates increase following this reform, and whether that leads to any unintended consequences?
I want to be clear that His Majesty’s Opposition support the principle behind the clause. We support a mental health system that is rights-based, person-centred and built on the presumption of liberty. But that principle must be matched by a system capable of meeting the duties it imposes. Rights on paper are meaningful only if public authorities are resourced and able to support them and uphold them in practice. I look forward to the Minister addressing those points.
Stephen Kinnock
On the assessment of impact, it might be useful for the Committee to know, for context, that the use of guardianships under the Act is small: the number of new cases has declined from 470 in 2004-05 to just 40 in 2024-25. The number of open cases has also fallen in recent years. I think pretty much all the questions from the hon. Member for Solihull West and Shirley and the shadow Minister are addressed by that point. We are talking here about small numbers, so the cost would be relatively minor.
Dr Evans
That is a staggering drop in numbers. Is there a reason behind it? Is it that the burden of proof was always put on the patient, so they did not feel that they were in a position to do something? If we are inverting that, does the Minister expect the numbers to go back up?
Stephen Kinnock
I do not have any data to suggest that the numbers will go back up. That relates to the question that the hon. Member for Solihull West and Shirley asked about having a statutory review. We will be vigilant. As with all the changes in the Bill, we will closely monitor implementation and impact. That goes right across the board and, hopefully, addresses the Member’s questions.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clause 49
Removal of police stations and prisons as places of safety
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
Police stations are not appropriate places to hold people in need of mental health treatment. The Mental Health Act 1983 (Places of Safety) Regulations 2017 amended the 1983 Act to set a high threshold for using police stations as places of safety. Uses have reduced from over 8,000 in 2012-13 to just 322 in 2023-24 across England and Wales. While that number is mercifully low, the Bill will, under the principles of therapeutic benefit, end the use of police cells as places of safety. Instead, when police exercise powers to remove a person from a public space or private premises for the purpose of a mental health assessment, they will take them to a suitable place of safety, such as a hospital.
Anna Dixon (Shipley) (Lab)
I declare an interest: my sister practises as a psychiatrist within the NHS, as the Minister knows. She has seen the important shift away from the use of police stations as places of safety and towards making sure that all patients have access to a place of safety in a healthcare setting. I know from my local police that, while they do their best to support people in distress in a police station, it is not the right place. This is the right thing to do, and I support the Government’s move.
Stephen Kinnock
I ask my hon. Friend to pass on our thanks to her sister for the vital work that she does in what I know can often be a challenging environment—we appreciate it. My hon. Friend is absolutely right that this is an important principle. There has been a remarkable drop in the use of police cells, which is to be warmly welcomed. We think that now is the time to make it clear, on the face of the Bill, that a police cell is not an appropriate place for these purposes.
The clause’s amendment to sections 135 and 136 of the Mental Health Act will not change the police’s ability to intervene when someone is in a mental health crisis, nor their ability to detain someone in a cell when exercising their powers in relation to criminal, or suspected criminal, activity. The clause will prevent courts from temporarily detaining people with severe mental illness in prison as a place of safety while they are waiting to access a bed for treatment or assessment under the Mental Health Act. Under the reforms, a defendant or convicted person who meets the criteria for detention under the Mental Health Act for treatment or assessment must be transferred directly to hospital, or, in the case of children, to a hospital, surgery, community home or other place that the court considers suitable, ensuring that they receive swifter access to the care they need. I commend the clause to the Committee.
Dr Shastri-Hurst
You will be pleased to know that I will be briefer this time, Mrs Harris; I want to leave room for my Opposition colleagues. The intent of the clause is entirely sound: to treat mental health as a health issue, not a criminal one. However, the capacity of NHS services to provide timely and suitable alternatives remains in question.
With that in mind, I have three questions that I hope the Minister will be able to address. First, will the Government commit to publishing the implementation plan for ensuring adequate numbers of health-based places of safety across regions before the clause comes into force? Secondly, what contingency measures are currently in place or foreseen if no place of safety is available and police powers have been limited? Thirdly, can the Minister commit to an annual publication of data on hospital-based places of safety, their capacity and their use?
Aphra Brandreth
As we have heard, the clause removes police stations and prisons as designated places of safety for individuals in mental health crises, ensuring that they are instead taken to appropriate healthcare settings. In my view, this is a pragmatic and practical part of the Bill that supports patients going through an extremely challenging time. Perhaps, in the past, it has been all too easy to look to police stations as, if not the default option for those suffering a mental health crisis, certainly an easy one. That is not because police stations are the right place for patients, but because alternative provisions were not readily accessible.
Clause 49 brings about several critical changes. First, it redefines “place of safety” so that for adults it now refers exclusively to hospitals that are willing and able to provide care. For children and young people, the definition aligns with the Children and Young Persons Act 1933 but crucially, it explicitly excludes police stations. Furthermore, the clause repeals section 136A of the Mental Health Act 1983, which previously allowed police stations to be used in so-called exceptional circumstances. The crux of the clause is to recognise that a mental health emergency is a medical crisis rather than a criminal one, and our system must reflect that.
Dr Evans
As we have heard, the proposals set out to remove police stations and prisons as places of safety. It does this in both relation to people detained under civil powers—sections 135 and 136—and in respect of certain part III patients involved in the criminal justice system, who may currently be held in such settings when a hospital bed is not available. The Government’s explanatory notes describe the rationale clearly:
“This is in response to evidence that suggests these settings are not suitable environments for individuals with a severe mental health, in crisis, awaiting assessment and treatment.”
As we have discussed in some of the earlier clauses, it is not just treatment, but the environment that plays a part in helping harbour a holistic care approach, so this is very much welcome. To that end, the Opposition can agree on this position in principle. A police station or prison cell is no place for someone with acute mental distress. They are not therapeutic environments; they can be frightening, disorientating and, in some cases, re-traumatising, particularly for children and young people. The clause aims to remove that contradiction in the law.
As the law stands, when police officers encounter someone in a public place who appears to be suffering from a mental disorder and is in immediate need of care or control, they can detain them under section 136 and take them to a place of safety. Under section 135, a magistrate can issue a warrant to remove a person from their home or another place to a place of safety. Currently, that place of safety includes a police station, although section 136A limits that to exceptional circumstances—for example, when the individual poses an imminent risk of serious injury to themselves. Similarly, under part III of the Act, a person appearing before a criminal court can be held in a place of safety, which can currently include a police station or prison, pending hospital admission.
Clause 49 will remove that. It amends section 55 to redefine “place of safety” and exclude police stations and prisons. It alters section 35, repeals section 136A, which has previously allowed police stations to be used in limited situations, and retains transitional protections for individuals already detained under early directions before the clause comes into place. That is a bold and principled legislative step, and I acknowledge that it builds on progress under the last Government. The 2017 Conservative Government, following public outcry and recommendations from the Care Quality Commission and the Wessely review, pledged to eliminate police cells as a place of safety for children. Since then, the numbers of such detentions have significantly decreased. Data from NHS Digital shows a downward trend in the use of police stations under section 136, which is evidence that change is possible with the right investment and inter-agency collaboration. That work deserves credit, so I thank the Minister for that.
Clause 49 must not only move the law forward, but ensure that the practice can be followed. I therefore want to raise a number of questions, which I hope the Minister will take in good faith. The classic one is “Where would people go instead?” The explanatory notes are right to say that hospitals and healthcare-based settings are more appropriate, but do those settings exist in sufficient numbers, with trained staff, beds and security protocols to receive safely all those who would otherwise have been taken to police stations? If they do not, we risk creating a gap between the law and the real world—a dangerous vacuum, whereby someone in crisis may end up in an ambulance bay, in a police car or in a general A&E without specialist support. It could have wider impact on the safety of not only the individual patient suffering, but other patients in healthcare settings such as A&E, interacting with an acutely ill mental patient. Without proper capacity, we risk many more police officers having to be at health settings to keep the mental unwell patients safe from themselves and others.
I appreciate that the Government have said that it will take 10 years to implement the Bill fully, but this clause will come into force immediately. What assurances can the Government give that there will be not only capacity, but capacity in the right places, so that, for example, people are not transferred to other areas of the country to ensure that the legal requirement is met? Although it is welcome not to be in a police station, being miles from family and support circles would be just as detrimental.
What provisions are being made for children and young people? The clause rightly states that for minors, the place of safety must now comply with the Children and Young Persons Act 1933, but excluding police stations. Are there sufficient CAMHS—child and adolescent mental health services—crisis beds and child-friendly places of safety in each region? What guarantees are there that children will not end up in adult settings, or worse, in informal or unlawful detention?
I turn to the transitional support given to the police. Officers may no longer be able to use their custody suites, but what training, resources and alternative pathways are being made? What happens in the middle of the night in a rural police force, where there is no mental health professional on call and the nearest hospital bed is 80 miles away? How would the Government monitor performance? Will the Government commit to publishing annual data on delays in finding a place of safety, the use of inappropriate settings post reform, and outcomes for those detained under sections 135 and 136? Will the CQC or another body be tasked with auditing local compliance?
Clause 49 reflects a consensus that mental healthcare belongs in health settings, not custodial ones. I urge the Minister to answer the questions in the good faith in which they were asked, because we all want to see this become a reality.
Stephen Kinnock
I think it is probably right to say that the questions asked by the hon. Members for Solihull West and Shirley and for Chester South and Eddisbury and the shadow Minister basically all relate to building capacity to ensure that we are ready to absorb this change. We have committed to lay an annual report on implementation, which will set out progress made and future plans for implementation. We are working closely with the Home Office, the police and NHS England to better understand the implementation requirement for switching on this change. There is considerable variation across the country in the way in which police stations are being used, so there is a need to target support.
I would add that the number and shape of dedicated health-based places of safety that are needed in a local authority will depend on the mental health needs of that population and the wider mental health crisis pathway provision. We are taking steps to ensure that people in crisis receive support and treatment sooner, so that fewer people need to be taken to a place of safety. It is worth noting that the Government have hit the ground running on this issue since we came into office last July. We are committing £26 million in capital investment to open new mental health crisis centres, which will aim to provide accessible and responsive care for individuals in mental health crisis.
Evidence from systems with established crisis centres indicates that they can help to streamline urgent mental health care pathways and reduce unnecessary conveyance to A&E by ambulance, health-based transport or the police. We have also selected six areas to trial a new approach to mental health support by providing 24-hour neighbourhood mental health centres, seven days a week, bringing together all aspects of community mental health services.
Dr Evans
The Minister has partially answered my question. He talked about the £26 million investment being targeted at certain areas of the country, but will that be based on the areas of highest priority? The danger is that if the highest priorities are all in the north, the south will be left out.
Stephen Kinnock
We have selected six areas, but off the cuff I cannot tell the shadow Minister exactly what they are or whether they have been announced yet. If they have not been announced, I will not be able to tell him, but if they have been, of course I can share that information. I suspect that the areas will primarily be based on assessed need, but they are trial pilots, so there is no reason to suspect that they will be limited to six. Let us see how much traction they get.
Question put and agreed to.
Clause 49 accordingly ordered to stand part of the Bill
Clause 50
Removal of patients by authorised persons
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
We have previously discussed Government amendments 26 to 29, which seek to overturn amendments tabled in the other place by Lord Kamall, Earl Howe and Baroness May, which added police and other authorised persons to sections 2, 3 and 5 of the Mental Health Act. As I said in the earlier debate, the police currently have no powers under those sections, and the decision makers on whether to use those sections are health and social care professionals. We do not support extending police powers to health and social care professionals in this way, and the police do not support such an extension either. We are therefore seeking to remove clause 50 from the Bill.
The clause extends legal powers currently held by the police under sections 135 and 136 to other professionals. That would enable other professionals to enter premises by force, if necessary, to remove a person believed to be suffering from a mental health disorder under section 135. Under section 136, other professionals would have the power to remove a person from a public space to a place of safety. Both those changes would represent a major shift in roles and responsibilities for health and care professionals.
Indeed, the co-chair of the approved mental health professional leads network has said that extending police powers in this way to health and care professionals would have
“disastrous unintended consequences for both individuals in crisis and those responding to mental health emergencies.”
Nine organisations, including the Royal College of Psychiatrists, the Royal College of Nursing, the Royal College of Emergency Medicine and the Association of Ambulance Chief Executives, have made a joint statement of concern about extending police powers to health and care professionals in this way.
Anna Dixon
It is clear from what the Minister is saying that there are widespread concerns among health professionals about the change that was proposed in the other place, which would effectively give police powers to health and care professionals. Can he reassure psychiatrists such as my sister, and others working in mental health services, that they will always be able to rely on and work closely with their police colleagues to have that back-up when they are entering somebody’s home to potentially detain them?
Stephen Kinnock
I absolutely can give my hon. Friend that assurance. There has to be a team-based approach to this work. In any successful team, it is about ensuring that everybody knows their role and that everybody’s role within that team is appropriate. There has to be good collaboration and co-ordination.
That is why I must say that I am quite taken aback by the attempts in the other place to insert these clauses; I do not think that is a safe way to make legislation. That is why it is so important that we remove the clause from the Bill.
The statement that I referred to earlier, by all those eminent organisations, called it a
“radical proposal with a number of serious and potentially dangerous consequences”.
It also says:
“Delegating police powers to professionals without consulting them, or patients would be a very damaging way to make policy.”
It is important to restate what I said in an earlier sitting, namely that the majority of assessments under the Mental Health Act happen without police involvement, and that action is already under way to further reduce the amount of police involvement. However, we of course recognise the pressures that the police are facing and that police involvement can be stigmatising for people who are detained. Almost all police forces in England and Wales are implementing the “right care, right person” approach, a police-led initiative to reduce inappropriate police involvement in cases where people have health or social care needs. There has already been a 10% decrease in section 136 detentions in the year ending March 2024.
There remain certain circumstances in which the police play a vital role in keeping particular people and the wider public safe. A blanket approach of extending powers in sections 135 and 136 to other professionals may not necessarily address the issues being faced by police officers and could create other unintended challenges. For example, while the current Act deliberately sets out who has what powers in what situations, a blanket extension of the police’s powers under sections 135 and 136 to other professionals—giving multiple agencies the same powers—risks confusion over who should respond in an emergency situation and could lead to delays in action as services try to decide who should act. That would be counter to our shared aim of ensuring that people in a mental health crisis get the right support as rapidly as possible.
We are also concerned that giving health and social care staff statutory powers that increase the number of situations in which they may have to use reasonable force could have unintended risks for the safety of staff, patients and the public.
Dr Shastri-Hurst
I rise to speak briefly to clause 50, which expands the authority to remove individuals under Mental Health Act powers by allowing trained and authorised non-police personnel to carry out removals that previously could be carried out only by police constables. A couple of key changes arise from the clause.
First, the clause provides for the inclusion of authorised persons by amending sections 135 and 136 of the 1983 Act. That will allow individuals other than police officers, if they are authorised—“authorised” is the important word—to remove and transport people under Mental Health Act powers. That provides wider operational flexibility, and includes removals under warrant, by virtue of section 135, and without a warrant in public places. It is predicated on the fact that those authorised persons are appropriately trained and designated. Prior to the clause being inserted into the Bill, only police officers could carry out removals.
Anna Dixon
I am hearing that the hon. Gentleman supports clause 50, despite the very clear joint statement from organisations such as the Association of Directors of Adult Social Services, the British Association of Social Workers, the British Medical Association, the Royal College of Nursing and the Royal College of Psychiatrists. They see huge risks, not least the risk of the measure having an impact on the therapeutic relationship between clinicians and their patients. Is he ignoring that?
Dr Shastri-Hurst
I am grateful to the hon. Lady for her intervention, but I am doing no such thing. I hope that I am doing my constitutional duty, which is to scrutinise the legislation and put some respectful challenges to the Minister about the operability of the clause were it to remain part of the Bill. Call me old fashioned, but I think that is what we are here to do.
The intent behind clause 50 is to support a more health-led response to enabling trained healthcare or crisis responders to act. That aligns with the Bill’s broader goals of reducing the perception of criminality around mental health illness and improving patient experiences.
Sojan Joseph (Ashford) (Lab)
Does the hon. Member agree that section 136 is used when the police are alerted to a disturbance in a public place? If I saw a disturbance outside the Palace of Westminster, I would call the police, not a mental health professional. If the police arrive and think that the person is suffering from a mental illness, they will use the power under section 136. How can we give powers to health professionals to attend a public disturbance?
Dr Shastri-Hurst
The hon. Gentleman speaks with a huge amount of experience and knowledge in this area. Of course, what he describes would be the default setting, but there may be scenarios in which a qualified healthcare worker is in the vicinity and can provide the support that that individual needs before the police can get there. The clause seeks to provide that flexibility. I acknowledge the split in the Committee on this, but the clause has some significant advantages: reducing police involvement in mental health crises, where that is most appropriate; improving response times, as I have just touched on; and supporting de-escalation.
I accept that there are operational and legal questions to be addressed, but we are here to look at all the potential scenarios. The Minister has clearly set out the consequences of removing the clause from the Bill, but it is perfectly possible that a Government Member on the Committee will choose to support it, and I therefore seek some clarification from the Minister on the operational and legal challenges around training, oversight and the uniformity of authorised roles were the clause to remain part of the Bill. How would training standards be mandated for authorised persons and who would accredit them? How would consistency in practice be ensured across NHS trusts and ambulance services? Will the Minister also clarify the liability position in a case in which an authorised person used force or restraint during a removal?
Dr Evans
I am pleased that the Minister has clarified that the Government intend to take out clause 50, because that allows me to take out some of my speech. It would not be appropriate for me to retread the entirety of the argument—we have been through it, and I am aware of the numbers on the Committee—but I will address a few points, because the clause is important.
The clause would keep the role of authorised persons for the purposes of sections 135 and 136. Hon. Members will know that this is not a new issue, as we debated the removal of the definition of authorised person in relation to clause 5. On that occasion, I expressed my concerns about the risk of doing so, which were shared by Baroness May, who rightly argued that we must stop treating mental health as a policing issue and start enabling care to be delivered by the right person in the right way at the right time. This clause gives us a chance to make that principle real.
Clause 50 allows certain non-police professionals, defined as authorised persons, to use existing powers under section 135 to enter premises under a warrant and remove a person in a mental health crisis to a place of safety or assessment of care. It also allows those professionals to use powers under section 136, which is even more sensitive, permitting the removal and detention of a person from a public place without a warrant if they appear to be suffering from a mental health disorder.
The clause is not about weakening safeguards. It is about strengthening the frontline and moving away from a model where the police are the default responders to every mental health crisis, which is often not because they are best placed, but because no one else has the authority. As modelling has shown, 95% of mental health-related police calls do not require a criminal justice response. Officers are spending hours, even days, sitting in A&E with patients in distress, because no one else is trained and empowered to act.
Clause 50 helps to break that cycle. It creates a legal basis for trained health professionals—mental health nurses, paramedics and approved mental health practitioners —to intervene in crisis situations, rather than relying solely on the police.
The hon. Member for Ashford asked how we decide, but we already triage people when they ring 999 or 111. How do we decide who gets an ambulance for what sounds like a heart attack or stroke? That decision is made by clinicians. We have the ability to make those triaging decisions, and I think it is completely appropriate to try to empower the health services to find a better way of dealing with these people.
Anna Dixon
Does the hon. Gentleman recognise that health professionals do not wear stab vests or cameras? They are not equipped to go into dangerous situations. It is essential to protect healthcare workers and not put them at risk. We should maintain the current situation, whereby they work in tandem with the police, but the police are present for the detention.
Dr Evans
The hon. Lady is absolutely right. A paramedic never knows what they are going to when they are called out. It could be a terrorist incident; it could just be a person in distress who is hysterical. A paramedic never knows, but that is part of the point—when they get there, they would be able to make that assessment rather than having to call the police out. At the moment, they do not have those powers, so that is a reason to give them the option. I am not saying that that is always the right option, but it gives them the option. The clause allows us to think of new, innovative ways to deal with the complex, changing world of mental health in the modern age.
The Government have argued elsewhere that the definition of who detains could be too rigid or unnecessary, but I would say the opposite. Professionals on the ground need clarity—a lawful mandate to act in the best interests of a person in crisis, with clear boundaries of competence and training. The Lords were right to include a definition of “authorised person” that sets out the conditions of suitability. Clause 50 builds on that framework.
Having these powers in the Bill gives NHS trusts the chance and confidence to design alternative crisis responses. The clause is by no means a blanket approach—it actually drives innovation. Health professionals have the clarity to act and police forces have the breathing space to return to their core purpose: preventing and investigating crime.
Of course, the power must come with safeguards; it is not a blank cheque. The use of coercive powers by the police or anyone else must always be subject to training, regulation and oversight. Entering someone’s home or detaining them in public is a profound interference with their liberty and dignity, so the power must be exercised with care and caution.
We believe that clause 50 takes us in the right direction towards a health-led approach to mental health crisis, rather than a security-led one, as my hon. Friend the Member for Solihull West and Shirley said. It supports the police by lightening a burden from which they have long asked to be freed. It supports patients by increasing the chance that they will be met by someone who understands their needs. It supports the wider public by allowing police officers to return to doing what they are trained to do and passionate about doing: keeping communities safe. We should be building on this type of reform, not rowing back from it. I urge the Government to reconsider.
The Chair
Before I call the Minister, I remind Members that interventions are meant to be short and to the point, and that responses are meant to be short and to the point.
Stephen Kinnock
Extending the police powers in section 135 and 136 to other authorised persons would represent a major shift in the roles and responsibilities of health and social care professionals. Our key health and social care stakeholders have warned us that extending the powers could have dangerous consequences, and that making changes to them without proper consultation is not the right way to go about making policy. I again extend my thanks to those stakeholders for their efforts to share their views on the role of police in mental health-related incidents.
We of course recognise the pressures that police face. However, I must emphasise that the majority of assessment under the Mental Health Act already happen without police involvement. Action under the “right care, right person” approach is already reducing that further: there was a 10% decrease in section 136 detentions in the year ending March 2024.
Simply taking the blanket approach of extending the powers may not actually address the issues the police face and could have unintended negative consequences, such as risks for staff, patients and the public, and delays in response. The Government are profoundly concerned about making such a change without proper engagement with the groups that would be impacted. I therefore do not commend clause 50 to the Committee.
Question put, That the clause stand part of the Bill.
Stephen Kinnock
Clause 51 will reform the Bail Act 1976 to prevent courts from remanding a defendant for their own protection where the only concern relates to their mental health.In response to the independent review, a commitment was made to end the use of prison as a place of safety. Those reforms were welcomed, but concerns were raised about the use of a similar power under the Bail Act 1976 to remand a defendant to prison for their “own protection”. That power can sometimes be used when the court is concerned that the defendant’s mental health presents a risk to their own safety.
Nobody should be sent to prison because they are struggling with their mental health, so the clause will amend the Bail Act to prevent the remand of a defendant for their own protection solely on mental health grounds. Instead, courts will be directed to bail the defendant and work with local health services to put in place appropriate support and care to address risks to their safety.
The clause does not amend the court’s power to refuse bail in respect of a child or young person for their own welfare, because it is already the case that youths cannot be subject to a custodial remand solely for mental health reasons. However, in exceptional circumstances it may still be necessary for a court to remand a child to local authority accommodation for their mental wellbeing, and for that reason the power is preserved.
On clause 52, patients from the Crown dependencies—the Channel Islands and the Isle of Man—currently cannot be transferred to England and Wales under sections 35, 36 and 38 of the Mental Health Act. The clause will introduce new powers to enable the Crown dependencies’ courts to send patients who are subject to their equivalent of remand under sections 35 or 36, or an interim hospital order under section 38, to suitably secure hospitals in England and Wales for treatment and assessment. The changes will ensure that that vulnerable cohort of patients can receive appropriate and secure treatment in England and Wales, while enabling the Crown dependencies’ courts to maintain control of the criminal proceedings, so that justice can be done swiftly and efficiently.
Finally, clause 53 will ensure that where provisions in the Mental Health Act provide for the processing of personal data, any such processing, including the sharing of data, is subject to data protection legislation, including the Data Protection Act 2018 and the UK general data protection regulation principles. For example, personal data—including special category data such as health data—is likely to be contained in a report produced under clause 4, which inserts clauses specific to people with a learning disability and autistic people, so that their care, treatment and differing support needs are identified, and recommendations are made to ensure that those needs can be met. That report will be shared with the bodies set out in the clause, including the patient’s responsible clinician, the relevant integrated care board and the local authority.
Clause 53 will ensure that such processing of personal data must comply with the controls and safeguards in the legal framework that governs the use of personal data. That includes compliance with key principles such as lawfulness and fairness, and adherence to high standards of information security, privacy and transparency.
In essence, the provision means that where there is a duty or power under the Mental Health Act to process personal data, the processing—including the sharing—of the information must be done in a way that will not contravene data protection legislation, including the UK GDPR and the Data Protection Act 2018. In turn, among other things, that requires personal data to be processed lawfully, fairly and transparently, and confers certain rights on data subjects to access that data and have any errors rectified. That gives vital reassurance to patients about the processing of their personal data under the Mental Health Act. For those reasons, I commend clauses 51 to 53 to the Committee.
Dr Shastri-Hurst
I ask for a series of clarifications from the Minister about all three clauses. On clause 51, how will the courts be supported in identifying community-based alternatives to remand? What training or guidance will be provided to judges in applying the provisions effectively? What assurances can the Minister give that support pathways will be available before and after the changes have taken effect?
I accept that clause 52 is a technical a change to the legislation, but it is an important clarification none the less. It will require some robust co-ordination between jurisdictions and clearer procedural safeguards. How will the Government monitor the implementation of proposed new schedule A2 to ensure that patients’ rights are preserved during transfers? Will guidance be issued to courts and practitioners in the UK and the Crown dependencies about the new procedures, particularly their cross-jurisdictional nature? What consultation has taken place, and will continue to take place, with authorities in Jersey, Guernsey and the Isle of Man before the measures are implemented in law?
Finally, I recognise that clause 53 is arguably a sensible safeguard. The challenge will be to ensure compliance on the frontline, especially where legal duties to share information and duties to protect confidentiality can butt against some degree of tension. With that in mind, what support or training will be given to health and care professionals to navigate overlapping legal duties? Will the Minister publish sector-specific guidance on data sharing as a consequence of the Bill? How will the Government assess whether the legal framework strikes the right balance between patient safety and privacy?
Dr Evans
Clause 51 amends the Bail Act 1976 to restrict the court’s ability to remand individuals in custody for their own protection or, in the case of children, for their welfare, where the sole concern is mental health. Under existing law, the court may refuse bail to a defendant if it is satisfied that the individual should be kept in custody for their own protection. For those under 18, the relevant test is whether custody is required for their own welfare. Those provisions are found in schedule 1 to the Bail Act.
There is currently nothing in statute that precludes the court from remanding someone entirely on the basis of their mental health conditions—for example, if the defendant appears to pose a danger to themselves but no suitable mental health provision is immediately available. Clause 51 aims to change that. It amends all three parts of schedule 1 to the Bail Act—those dealing with imprisonment and non-imprisonment offences—so that the adult defendant, aged 18 or over, may not be remanded in custody for their own protection if the only concern is mental health.
Paragraph 360 of the Government’s explanatory notes states:
“Evidence suggests that in some cases this power is being used by the courts to remand defendants into custody where they would otherwise have been bailed were it not for the court’s concern for their mental health.”
The intent here is good: to end the inappropriate use of custody—especially in prison, as we have been discussing—as a place of safety for people with acute mental health needs. The clause is consistent with the wider direction of the Bill, which seeks to ensure that people in crisis are met with healthcare and not handcuffs. Although I support the clause, I have a few questions and concerns about how it will operate in practice, and invite the Minister to consider further safeguards.
Where is the alternative provision? That is a question we will keep asking, not in the form of an attack, but as something helpful for our consideration. We are told that instead of custody, courts may impose bail conditions under section 3(6) of the Bail Act, such as requirements to engage with mental health services or, where the statutory criteria are met, remand the person to hospital under the Mental Health Act. That sounds reasonable, but the reality on the ground is often different. We know from NHS data, and from countless reports by inspectors and charities, that community mental health services are stretched, beds are scarce and out-of-hours support can be lacking.
What assessment has been made of local mental health capacity to absorb those individuals who, under clause 51, will no longer be eligible for a custodial remand? Do the Government know, for example, how many are currently in that position? If the law changes overnight, how much extra provision will be needed for these specific patients? How will the Government, specifically on remand patients, ensure that there are places? What are the requirements, if any, on NHS integrated care boards to ensure that a place of safety or support is available in every local area? Without that, there is a real risk that the courts will be left with no safe options, particularly when a person presents in crisis late at night, in distress and with nowhere else to go.
Are the bail and hospital powers workable substitutes? The explanatory note refers to courts using the power to remand for mental health reports or treatment, but the orders depend on medical evidence, the availability of beds and local agreement. They are not always available at the moment when bail is being considered. Meanwhile, bail conditions, however well-meaning, cannot guarantee care or prevent harm if services are not responsive. Has the Department considered issuing new statutory guidance to accompany the clause, outlining what courts should do when no hospital or community support is available, but the defendant is clearly at risk? Further to that, will there be a formal route for courts to escalate concerns to NHS bodies where no safe custodial options exist?
We also need to consider children and young people. As I read it, the clause applies only to adults. The Government are arguing that section 98 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 already prevents the remand of children solely for mental health reasons. Does that not potentially leave a loophole? I am no lawyer, but the Bail Act still allows for remand for the child’s own welfare, and the revised wording in clause 51(2) and (4) does nothing to prevent that being interpreted in practice as the mental health concern that we have been discussing. Why have the Government not taken the opportunity to clarify in statute the status of children? They must not be remanded to custody solely on the basis of mental health-related welfare concerns.
Finally, how will we track the effects of the changes? I suggest that there must be ongoing scrutiny of how the clause operates. To that end, will the Minister commit to releasing annual statistics on the number of people refused bail under the provisions, to reporting on incidences where a safe, non-custodial alternative was not available, and to monitoring outcomes for those affected by the changes? Does the data fall under NHS or Ministry of Justice datasets? It is important that we understand who is responsible.
Stephen Kinnock
The hon. Member for Solihull West and Shirley asked how the courts would be supported in training for judges and so on. To safely enact that reform, it is vital that the appropriate pathways are in place from first contact with the criminal justice system into the right care and support, whether that is community mental health services or receiving treatment in hospital under the Mental Health Act, where appropriate. We will work with courts, health service commissioners and clinicians to ensure that sentencers have the confidence to bail vulnerable defendants into the community, with the appropriate package of support and smooth pathways into treatment in a healthcare setting for those who need it. We will confirm the timelines for commencement in due course.
The shadow Minister, the hon. Member for Hinckley and Bosworth, asked about people who are under 18. Custody should be a last resort for children, and the legislative threshold for remanding a child to custody is already very high. Under-18s are not included in this provision, as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 already precludes the remand of children to custody solely for mental health reasons. When the court’s concerns relate only to the child’s welfare, the preferred option would usually be bail. In exceptional circumstances, a court might remand a child to local authority accommodation, such as a children’s home or foster care, for their own mental wellbeing. Including children in this provision would remove that important safeguard.
On the question of legal limbo, courts in England and Wales will not be able to exercise any criminal jurisdictional powers in relation to these patients. Their powers are restricted to renewal of the remand or interim order, ancillary powers and recommendations for the patient’s return, as well as obligations to inform the Secretary of State. We have included additional provisions in the Bill to allow courts in England and Wales to order a section 36 for treatment for a patient who has previously been transferred from the Crown dependencies on the equivalent of a section 35 for assessment. That is aimed at enabling access to treatment for the patient and preventing the need for the patient to be required to travel back and forth between jurisdictions.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clauses 52 and 53 ordered to stand part of the Bill.
Clause 54
Review of duty to notify incidents
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
New clause 12—Age-appropriate treatment for children—
“(1) Section 131A of the Mental Health Act 1983 is amended as follows.
(2) After subsection (1), insert—
‘(1A) A patient to whom this section applies must not be detained in, or admitted to, an adult ward unless the managers of the hospital consider that—
(a) there are exceptional circumstances which justify the patient’s detention in, or admission to, an adult ward; and
(b) the decision is in accordance with the best interests of the child.’
(3) After subsection (3) insert—
‘(3A) Where a patient has been detained in, or admitted to, an adult ward, the managers of the hospital must record in writing the reasons for the admission, including—
(a) the reason, or reasons, why other options for accommodation were not available or suitable for the patient;
(b) details of the measures to be taken by the hospital to ensure that, while the patient is detained or otherwise accommodated in the adult ward, the patient is provided with care in a safe environment; and
(c) unless it has been determined that an adult ward is the most appropriate environment for the patient in accordance with subsection (1A), the steps being taken by the hospital to transfer the patient to more appropriate accommodation.
(3B) Where a patient to whom this section applies is—
(a) detained in, or admitted to, an adult ward or placed out of area; and
(b) the detention or admission is of more than 24 consecutive hours’ duration,
the managers of the hospital must notify the regulatory authority immediately, setting out why they consider that the requirements under subsection (1A) above are met and providing the information set out in subsection (3A).
(3C) Subsection (3D) applies when—
(a) the managers of a hospital accommodate a patient to whom this section applies in an adult ward for a consecutive period of at least 28 days; or
(b) detain or admit a patient to whom this section applies who—
(i) was ordinarily resident immediately before being detained or admitted in the area of a local authority other than the local authority within whose area the hospital is situated, or
(ii) was not ordinarily resident within the area of any local authority.
(3D) Where this subsection applies, the managers of the hospital must immediately inform the appropriate officer of the responsible local authority—
(a) of the patient's detention or admission, and
(b) when the patient's detention or admission ceases.’
(4) Leave out subsection (4) and insert—
‘(4) In this section—
(a) “adult ward” means a ward in a hospital to which persons aged 18 or over are detained in or admitted to;
(b) “the appropriate officer” means—
(i) in relation to a local authority in England, their director of children's services, and
(ii) in relation to a local authority in Wales, their director of social services;
(c) “hospital” includes a registered establishment; and
(d) “the responsible authority” means—
(i) the local authority appearing to the managers of the hospital to be the authority within whose area the child was ordinarily resident immediately before being detained or admitted, or
(ii) where it appears to the managers of the hospital that the patient was not ordinarily resident within the area of any local authority, the local authority within whose area the hospital is situated.’”
This new clause seeks to ensure that children are only placed on adult wards where there are exceptional circumstances, and it is in their best interests. It includes procedural safeguards for determining the reasons behind (and suitability of) admitting a child to a hospital environment in which adults are simultaneously accommodated or in an out of area placement.
New clause 17—Children detained on adult wards—
“(1) The Mental Health Act 1983 is amended as follows.
(2) After section 131A (Accommodation, etc. for children), insert—
‘131B Children detained on adult wards
(1) The Secretary of State must reduce to zero, within five years of the passage of the Mental Health Act 2025, the number of children detained on adult wards.
(2) The Secretary of State must publish, within six months of the passage of the Mental Health Act 2025, a report to outline how the duty under this section will be met, including how provision for treatment under this Act will be increased.’”
This new clause would require the number of children detained on adult wards to be reduced to zero within 5 years, and for the Secretary of State to produce a report on how this will be achieved.
New clause 20—Report and Guidance: Transition to Adult Mental Health Treatment—
“(1) The Secretary of State must, within 18 months of passing of this Act, prepare and lay before Parliament a report on improving provision for patients transitioning from treatment in a hospital environment for children and young people to one for adults when they attain the age of 18.
(2) The report under subsection (1) must include an assessment of—
(a) the current pathways and outcomes for young people transitioning between hospital environments for children and for adults;
(b) any gaps in care or support experienced by patients during this transition;
(c) best practices for ensuring safe and effective transitions.
(3) Following the report under subsection (1), the Secretary of State must publish guidance for integrated care boards, local authorities, and providers of mental health treatment on improving outcomes and ensuring continuity of care for patients transitioning to a hospital environment for adults.
(4) The guidance under subsection (3) must include—
(a) specific steps to guarantee continuity of care for patients transitioning between treatment in a hospital environment for children and young people and one for adults;
(b) measures to identify young people requiring transition support at an appropriate stage;
(c) provisions for joint working and information sharing between providers of treatment for children and young people and for adults;
(d) requirements for the review and updating of care and treatment plans to reflect the needs of patients transitioning to a hospital environment for adults.
(5) Integrated care boards, local authorities, and providers of mental health treatment must have regard to guidance published under subsection (3).
(6) In preparing the report under subsection (1) and the guidance under subsection (3), the Secretary of State must consult—
(a) young people with experience of transitioning between children and young people’s and adult mental health services, and their carers and guardians;
(b) relevant professional bodies;
(c) integrated care boards;
(d) local authorities;
(e) providers of mental health treatment;
(f) such other persons as the Secretary of State considers appropriate.
(7) The Secretary of State must update the guidance under subsection (3) at regular intervals, and no less frequently than every three years.”
This new clause would require the Secretary of State to review and report on the transition of patients from children's to adult mental health settings for treatment at age 18 and publish guidance for relevant bodies on improving provision and ensuring continuity of care during this transition.
Stephen Kinnock
I rise to speak to clause 54 and to a number of new clauses relating to the treatment of children and young people.
I turn first to clause 54. The Care Quality Commission (Registration) Regulations 2009 require the CQC to be notified of specified events, one of which is where a child is placed in an adult psychiatric unit and the placement has lasted more than 48 hours. When the CQC is notified, the circumstances are reviewed and the risk is assessed. These notifications can trigger further assessments and inspections, and require the trust to provide regular updates and give assurance that the children concerned are being safeguarded.
Zöe Franklin (Guildford) (LD)
It is a pleasure to serve under your chairmanship, Mrs Harris. I thank the Minister for his comments on new clause 17, but I will speak to it briefly along with new clause 20, and then consider not pressing it later.
New clause 17 aims to end the harmful and inappropriate practice of detaining children on adult mental health wards. We know that children in mental health crises are among the most vulnerable in our care system. Placing them in an adult ward is not only developmentally inappropriate; it risks causing further trauma and harm. The practice continues not because it is clinically justified but because of a lack of specialist child and adolescent mental health provision.
Despite the existing statutory guidance under section 131A of the Mental Health Act, hundreds of children are still admitted to adult settings each year. That is a systematic failure. The new clause sets a clear goal: reduce the number of children detained on adult wards to zero within five years. It would also require the Secretary of State to publish within six months a concrete plan of how this will be achieved, including how children’s mental health services will be expanded. It is a question of not just capacity but political will. I urge the Committee to support the new clause if we press it to a Division. I say to the Minister that we are still looking for timelines. We need to protect young people from going into inappropriate adult mental health settings, as I have heard too often from residents in my constituency.
New clause 20 would place a statutory duty on the Secretary of State to report within 18 months how to improve transitions between in-patient settings for children and young people and those for adults. I heard a particularly distressing case in my constituency recently, where an individual turned 18 and almost the next day was placed in an adult mental health setting. It was completely inappropriate for that individual, and no real transition work had been done. I appreciate that the Minister says that there is clear guidance, but that guidance has clearly not been adhered to at all times.
The new clause would require statutory guidance for integrated care boards, local authorities and providers, covering essential components, such as clear pathways and timelines, joint working across services, early identification of those needing transition support, and updates to care plans that reflect changing needs. We believe that the new clause is clear, proportionate and achievable. It asks for a plan and for consultation and guidance that can support more stable, person-centred care at a critical point in a young person’s life.
The Minister has indicated that he will not support the new clause. If he is unwilling to do so, my request is that he sets out how the Government will ensure the issues around transitioning between child and adult mental health services are addressed—particularly a clear timeline. He has mentioned a number of documents coming forward that start to address these issues, but as I have expressed, clearly the guidance already exists but it has not been adhered to in all cases, so we would like to see the timeline.
Josh Dean (Hertford and Stortford) (Lab)
It is a pleasure to serve under your chairship once again, Mrs Harris. The Minister has set out in detail the function of clause 54, so I will not cover that in detail for reasons of time. I welcome the clause, which represents a step forward in regulating the placement of children and young people in adult treatment settings, and in ensuring their safeguarding. I welcome the fact that it recognises the need to review the existing safeguards available to young people.
The independent review of the Mental Health Act made recommendations in this area, including that when an under-18 is placed on an adult ward, the CQC should be notified within 24 hours, and that the reasons for and the proposed length of the placement should be recorded. I would be grateful if the Minister would set out what consideration the Government have given to those recommendations, and whether they will form part of the review.
I turn to the important matter of children and young people who are under 18 placed in adult treatment settings. I think we all recognise the extremely difficult context in which these detentions take place. We know that there is a serious shortage of specialist in-patient beds for children and young people, which means that places are often full or may not be available at a time of urgent crisis.
When someone under 18 is placed in an adult treatment setting, they are more likely to witness or even experience high levels of restraint, be denied support from their peers, and lack access to educational opportunities. These placements can actually cause further harm to children and young people’s mental health, and therefore be detrimental to their recovery. I will be grateful if the Minister can assure me of the actions that the Government will take to further safeguard those children and young people who hit crisis point and find themselves in adult treatment settings because of the shortage of beds. How will we ensure that they are protected from being placed in inappropriate treatment settings?
I do not wish to test your patience, Mrs Harris, but before I conclude I want to examine the point about children and young people a little further, given the interaction of clause 54 and associated new clauses with their treatment. I welcome the Government’s consistent restatement of the importance of getting the Bill right for children and young people. I know that the Minister takes such matters incredibly seriously, and I have listened carefully to what he has said this afternoon and throughout the Committee.
The Minister has stated that a number of the reforms relating to children and young people will be addressed in the code of practice, but that contrasts with the approach of many of the welcome safeguards set out for over-18s in the Bill. Will the Minister clarify why these issues are being addressed differently when it comes to children and young people, compared to adults? Children and young people are a uniquely vulnerable group.
On the point about the code of practice, I note that any deviation from that would need to be justified, but my understanding is that the code cannot impose duties on practitioners or require them to exercise their functions under the Act. I am concerned that putting safeguards for under-18s on a different footing from those for adults could make it harder for young people to access those safeguards. I welcome much of the work being done by the Bill, and I want to make sure that children and young people can also access its safeguards. I will be grateful if the Minister can address those points in his response.
In conclusion, I welcome the step forward that clause 54 represents, because it addresses an important issue that we need to get to grips with. I look forward to the Minister’s response.
Gregory Stafford (Farnham and Bordon) (Con)
It is a pleasure to serve under your chairmanship, Mrs Harris. I rise to speak in support of clause 54, but with the caveat that it would be much more effective if new clause 12, in the name of my hon. Friend the Member for Hinckley and Bosworth, were added to the Bill.
Regulation 18 of the Care Quality Commission (Registration) Regulations 2009 requires healthcare providers to notify the Care Quality Commission of certain serious incidents. However, it may not comprehensively cover all mental health-related admissions of minors. Clause 54 responds to concerns about transparency and safeguarding in child and adolescent mental health services, and aims to ensure that all relevant incidents are properly monitored and reported.
Like other hon. Members who have spoken, we welcome the Government’s shift to improve these standards; there is support for that across the Committee. The clauses about children and young people are some of the most vital parts of the Bill. They are vital not only to get the Bill right but, more importantly, to ensure that children are protected. That is why new clause 12, in the name of my hon. Friend the Member for Hinckley and Bosworth, is so essential to strengthen the Bill.
The new clause would amend section 131A of the Mental Health Act 1983, which governs the accommodation of children in mental health settings. It responds to ongoing concerns about the inappropriate placement of children on adult wards, which can be distressing and unsafe, and which is clearly contrary to best clinical practice. The new clause would introduce a requirement that hospital managers must justify such placements in writing, including an explanation of why no alternative was available, and the steps being taken to ensure the child’s safety and transfer to more suitable accommodation. The new clause would also introduce mandatory reporting to regulatory authorities when a child was placed on an adult ward for more than 24 hours, and to local authorities when the placement exceeds 28 days, or involves an out-of-area admission.
The new clause would ensure that children are placed on adult wards only when absolutely necessary. It requires the written justification and formal notification of placements. It involves local authorities and regulators in monitoring prolonged or out-of-area placements, and strengthens and clarifies existing provisions of the Mental Health Act. Most importantly, it aligns with clinical guidance on age-appropriate mental health care.
I turn to new clauses 17 and 20, tabled by the Liberal Democrats. I think that their purpose is in some ways similar to that of our new clause 12. However, they put the cart before the horse, or the horse before the cart —it depends on which way round we are. We are trying to fix the system by ensuring that nobody enters an inappropriate place unless there are exceptional circumstances; new clauses 17 and 20 try to exclude those circumstances, but without necessarily fixing the problem in the first place. Although I understand, as ever, the motivations and sentiments of the new clauses tabled by the Liberal Democrats, I do not think they will have the intended consequences; at least, I do not think they will be effective.
I have two questions for the Minister about clause 54. First, will the Department publish regular summaries of the notifications mentioned in the clause showing trends and disparities across the services or regions? Secondly, will the Care Quality Commission be resourced and empowered to act swiftly where patterns of overuse or misuse emerge?
Aphra Brandreth
It is a pleasure to continue to serve under your chairship, Mrs Harris. I rise to speak in support of new clause 12, which has been tabled by the shadow Minister, my hon. Friend the Member for Hinckley and Bosworth, and to comment on clause 54, which has been grouped for this debate alongside it. Those two provisions both deal with the care and treatment of children and young people admitted to hospital for mental health reasons. In doing so, they touch on one of the most sensitive and critical responsibilities we have as legislators: safeguarding vulnerable children at a moment of profound crisis in their lives.
Clause 54, as introduced in the Lords, will place a duty on the Secretary of State to review whether the current requirement to notify the Care Quality Commission should be extended. Currently, notifications are required only when a child or young person is placed in an adult ward for more than 48 hours. The clause asks whether that threshold remains appropriate, and whether other scenarios—for example, where a child is admitted for assessment or placed in an adult setting even for less than 48 hours—should also trigger notification. That is a welcome first step, and I support the clause.
However, I also recognise the limitations of a clause that asks the Secretary of State only to review existing safeguards, rather than requiring that those safeguards be strengthened. That is why I also support the aims of new clause 12, which sets out a more detailed and practical framework to ensure that children are admitted to adult wards only when there are truly exceptional circumstances, and always with appropriate scrutiny and documentation.
The issue has been a consistent concern across multiple reviews, including the independent review of the Mental Health Act, the Joint Committee on the Draft Mental Health Bill, and the Joint Committee on Human Rights. Each has made clear that existing protections are insufficient and that too often, vulnerable children are still being placed in inappropriate settings. That concern was echoed in evidence submitted to this Bill Committee by the Children and Young People’s Mental Health Coalition. Their written submission sets out the risks in stark terms.
In 2023-24, the CQC was notified of 120 instances in which a child or young person was placed on an adult ward. We also know that between December 2023 and November 2024, 319 children were sent out of area to receive treatment, often far from their families, schools and local support networks—that is nearly one child every single day. Those are not just numbers; they are children and teenagers, many already facing significant trauma, mental health challenges or adverse life experiences. They are often the most vulnerable young people in our society. How they are treated in the days and weeks following a mental health crisis may have lifelong consequences for their wellbeing, development and future.
The Mental Health Act and the code of practice are already clear: children should not be admitted to adult wards except in emergency situations, and even then, only if it is in their best interests. But as the Committee heard in written evidence, that standard is not always met in practice. Young people have reported feeling terrified on adult wards, with an expectation that they behave like adults in environments that were never designed for their needs. That is why new clause 12 is so important: it would give legal weight to existing guidance by requiring that any such admission was explicitly justified in writing, with clear reasons why no other options were available or suitable.
The new clause would also ensure that steps were taken to protect the young person during their time on the ward and, crucially, to transfer them to a more appropriate setting as soon as possible. It would also require immediate notification to the regulator when a child was placed on an adult ward or was out of area for more than 24 hours. Those are simple procedural safeguards, but they really matter. Requiring decisions to be explained and recorded helps ensure they are properly thought through, and provides transparency, oversight and a route to accountability.
I appreciate that the Government are seeking to address the issue through updates to the Mental Health Act code of practice. I welcome that intention and I recognise the role that the code can play in setting out professional guidance, but, with respect, I do not believe that is sufficient on its own. When children are being placed in adult psychiatric wards, potentially for weeks at a time, or being sent far from home in moments of crisis, we must do more than issue guidance—we must provide clear legal safeguards. This is not about placing unrealistic constraints on the NHS or criticising frontline professionals, who we know are working under significant pressure with limited resources. It is about ensuring that when difficult decisions are made, they are made transparently, in the best interests of the child and only when absolutely necessary.
We have a rare opportunity in the Bill to put those protections in place. I hope the Minister will consider the evidence submitted to the Committee, the recommendations of previous reviews and the cross-party consensus on the importance of getting this right. Let us not miss this opportunity to ensure that our mental health system treats every child with the care, dignity and protection they deserve, and to set out clearly and transparently the standards we expect when they are at their most vulnerable.
Dr Shastri-Hurst
You will be disappointed to know, Mrs Harris, that the notable contributions from my hon. Friends the Members for Chester South and Eddisbury and for Farnham and Bordon mean that my contribution will be even briefer than usual. [Interruption.] Rapturous support across the Committee—exactly the consensus-building that we are seeking to achieve.
I rise to speak in support of new clause 12. It necessarily addresses the inappropriate placement of children on adult wards, which is not just distressing but deeply damaging to those involved. The issue is about having child-centred safeguards. It is essential that we ensure that children under 18 are placed on adult wards only when it is absolutely necessary and there is no alternative. The new clause would not only support best practice—it aligns with clinical guidelines on age-appropriate care—but provide welcome legal clarity. It would strengthen and clarify the existing provisions within the Mental Health Act. For those reasons, I encourage all hon. Members to support it.
On clause 54, the Minister would be disappointed if I did not put a couple of questions to him.
Dr Shastri-Hurst
That is an invitation that I will remember as we go on in this Committee. On this occasion, I have just two questions. First, will any interim guidance be issued while the review is ongoing? Secondly, can the Minister commit that the consultation will be undertaken on a wide basis, and include patient advocates, child psychologists and safeguarding boards?
Because I cannot count, I will add a third question: did the Government consider an alternative to a two-year review period, either through an immediate extension of regulation 18 or perhaps a shorter period, so that these important changes can be put in place without delay?
Dr Evans
I will first speak to clause 54, to give context to my comments about new clause 12, which is in my name, and new clauses 17 and 20, tabled by the Liberal Democrats.
Currently, under regulation 18 of the Care Quality Commission (Registration) Regulations 2009, registered providers must notify the CQC if a child under 18 is placed in an adult psychiatric unit for longer than 48 continuous hours. The notification duty enables the CQC to monitor such placements and take appropriate action to protect young people.
The clause places a statutory duty on the Secretary of State to review whether the duty to notify should be extended to other cases when a child is admitted to a hospital or registered establishment for treatment or assessment of a mental disorder—that bit is really important. It also requires a review of whether the current 48-hour notification timeframe remains appropriate. As the explanatory notes make clear, the purpose of the review is
“to ensure that where a child is admitted...notifications are made to the CQC in appropriate circumstances”,
so that the regulator can respond effectively. That is a welcome and sensible provision. It recognises that safe-guarding in mental health settings must be comprehensive and responsive in changing circumstances. For example, children placed in settings other than adult psychiatric units, such as specialist units or community hospitals, may also face risks that warrant timely CQC oversight.
However, I have a few questions for the Minister. Given the potential risks to children placed even briefly in adult psychiatric units or other settings, is the 48-hour threshold for notification too long? Would early notification—perhaps on admission—provide better protection for young people? Are there known gaps in the current notification system? For instance, how often do incidents involving children in mental health treatment go unreported under the existing framework?
The review is to be completed within two years of Royal Assent. Given the urgency of safeguarding children’s mental health and wellbeing, would it be possible to provide interim updates to Parliament to maintain transparency? Will that be part of the written statement, or stand alone? Will the review consider notifications from private and third sector providers, as well as NHS trusts, to ensure that no setting is overlooked?
We must look at the role of the CQC. In another letter from Baroness Merron, the Minister in the House of Lords, she addressed some of the issues raised and laid out the rationale for her confidence in the CQC as it stands. The letter emphasises the CQC’s “multiple roles” under the Mental Health Act as an independent regulator of services, an investigator of complaints and part of the national preventive mechanism to safeguard human rights. It points out that in 2022-23, the CQC carried out 860 monitoring visits and spoke to over 4,500 patients and 1,200 carers. Those impressive figures speak to a considerable degree of activity and reach.
However, as we have debated, the Bill puts significantly more requirements on the CQC, and clause 54 is a further one. The letter also stresses the CQC’s evolving role and notes that the creation of a new chief inspector of mental health is under way—a recommendation from Professor Sir Mike Richards. The aim, we are told, is to
“put mental health on an equal footing with physical health in CQC”
and to ensure “better information sharing” and
“stronger focus on Mental Health Act compliance.”
All that is welcome, but we also need to scrutinise what is not said. While the letter asserts that
“we will have a regulator that all of us can trust”,
it concedes that that
“will take time to achieve.”
That is a fair admission, but it weakens the case for relying on the status quo while reforms are still being bedded in. If the CQC’s systems are currently being rebuilt or recalibrated, can we be confident that they are robust enough right now to identify and respond to safeguarding concerns, especially when they are about children?
Then, there is the 48-hour threshold for notification when children are placed in adult units, which clause 54 seeks to address. Do we really believe that a child being in an inappropriate or unsafe environment for 47 hours is acceptable? Should the default not be real-time notification on admission, with durations used only to prioritise the level of scrutiny? We should aim for real-time notification in the 21st century—after all, we can track a bus on our phones anywhere in the world. Should we not aim for real-time data to spring services into action? Forty-eight hours is a long time in a young person’s life.
The clause rightly instructs the Secretary of State to review those questions, but I urge the Government to approach the review with openness—not just to minor procedural tweaks, but to the possibility that more fundamental changes might be necessary. On that point, does the Minister envisage the review as a desktop-type data review, or will it engage with children and families who have experienced these placements? Will it examine how well the notifications currently translate into timely action by the CQC? Seeing the data is important, but acting on it is more so. How will Parliament be kept informed before the two-year deadline for reporting? Will that be part of the written statement?
All that leads me to our new clause 12, which aims to address a lot of the background I have set out. At present, the Mental Health Act provides for the detention of patients who require treatment for mental health disorders, including children. Section 131A of that Act governs the accommodation of patients in hospital wards, but lacks explicit safeguards preventing children from being placed in adult wards, except in limited circumstances. That has led to troubling examples across the country, where children have been admitted to adult wards because of a lack of appropriate CAMHS beds.
Stephen Kinnock
The hon. Member for Guildford asked about timelines. There is the timeline for the review on the face of the Bill, and then there is the broader question about implementation and how all the moving parts fit together. We have now had the spending review, which will provide a financial envelope for mental health more broadly, and for implementation of the Bill. We will be ready to move forward with implementation on that basis, which will include the code of practice.
My hon. Friend the Member for Hertford and Stortford asked about a time limit for notification. It is already a legislative requirement for the CQC to be notified when a child or young person is placed on an adult ward for a continuous period of longer than 48 hours. In addition, the previous Government assessed that the current requirement of 48 hours was sufficient. As part of the review that is mentioned on the face of the Bill, we will consider whether that remains the case for receiving notifications, and whether it remains appropriate.
My hon. Friend also asked about further safeguards for children and young people, including those in inappropriate settings. Obviously, the placement of a child or young person on an adult mental health ward only happens following a thorough clinical assessment. Trusts are required to have robust local safeguarding protocols in place, including mandatory staff training on safeguarding and incident-reporting mechanisms, to ensure accountability and oversight. Staff are appropriately trained in child and adolescent mental health care, and they must meet level 3 competency in safeguarding children.
The hon. Member for Farnham and Bordon asked about data. The CQC already publishes “Monitoring the Mental Health Act”, a statutory annual report that must be laid before Parliament, in which it reports on the number of people under 18 who are admitted to adult wards. Additionally, it reports qualitative information on placements for children and young people, such as placements on children’s general wards. I hope that I have addressed that point.
Stephen Kinnock
The new clause takes forward a commitment made in the Lords by Baroness Merron to address issues relating to the unequal application of the Human Rights Act 1998 for some mental health patients. Sadly, this issue was highlighted following the death of Paul Sammut. I extend my deepest condolences to his family.
We now wish to take action to ensure a more equal application of the Human Rights Act, with the aim of extending its protection to certain mental health patients. Under this amendment, private providers will be taken to be exercising a function of a public nature for the purposes of section 6(3)(b) of the Human Rights Act when they are carrying out certain services and when those services are arranged and/or paid for by either local authorities or the NHS. Those functions are section 117 aftercare; services provided in pursuance of arrangements made by a local authority in Scotland, discharging its duty under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003; and in-patient treatment and assessment for mental disorder, whether or not a patient is detained under the Mental Health Act.
When carrying out those services, private providers will be required to act compatibly with the convention rights set out in the Human Rights Act. Many patients in private facilities already have those protections. Private providers are already taken to be exercising a function of a public nature for the purposes of section 6(3)(b) of the Human Rights Act when caring for patients detained under the Mental Health Act or providing care for patients due to the effect of section 73 of the Care Act 2014. The new clause seeks to extend those protections to other mental health patients in private provision, where care is arranged and/or paid for by the NHS or a local authority. As the new clause is a modification of the Human Rights Act, this is a reserved matter and the amendment will therefore apply in all four nations.
Government amendments 37 and 38 are minor technical amendments to the Bill’s extent provision in clause 57 to ensure that our amendment—new clause 10—relating to the Human Rights Act extends UK-wide. The Human Rights Act, which the new clause 10 seeks to modify, extends UK-wide. The amendments are therefore necessary to ensure that the same Human Rights Act protections extend to all four nations. I hope that hon. Members feel able to support the amendments.
Dr Evans
I welcome the opportunity to speak on these important provisions, which apply the Human Rights Act 1998 to certain private care providers delivering mental health services. At present, the Human Rights Act applies directly to public authorities and to those exercising functions of a public nature. However, an increasing proportion of mental health care and aftercare services are delivered by private providers, under arrangement with NHS bodies and local authorities. The current legislation leaves some ambiguity about whether private providers are legally bound to comply with the Human Rights Act when delivering such services. That creates a potential accountability gap that risks undermining the protections that we want to guarantee to vulnerable patients.
The Government’s proposal to explicitly extend the application of the Human Rights Act to registered private care providers when they deliver specific services commissioned or paid for by public authorities is a welcome step towards closing the gap. By doing so, it will ensure that these providers are treated as performing public functions under section 6 of the Act. That means that they will be directly accountable for upholding the rights enshrined in the Human Rights Act, including the rights to liberty, dignity, privacy and freedom from inhuman or degrading treatment.
This approach is not without precedent. For example, in the case of prison outsourcing, courts have established that private companies running prisons are subject to the Human Rights Act because they perform public functions. Similarly, private care providers delivering publicly funded mental health services should be held to the same standard as NHS bodies or local authorities.
It is worth noting that although this explicit statutory extension of the Human Rights Act to private providers is a new provision in the Mental Health Act 1983 for England and Wales, similar principles already apply in Scotland through case law and existing legislation. Under the Mental Health (Care and Treatment) (Scotland) Act 2003, local authorities have a statutory duty to provide aftercare services, which may be delivered by private providers. Scottish courts recognise that when private providers perform public functions, such as delivering those statutory services, they are subject to the Human Rights Act, following key judgments such as YL v. Birmingham City Council.
This Government proposal provides much-needed clarity and an explicit statutory footing across all four nations of the UK. It also ensures consistency across the four nations, referencing equivalent legislation in Scotland, Wales and Northern Ireland. This helps to remove ambiguity and ensure consistency. However, we must also consider the practical impact. Although these changes strengthen rights and protections, they also increase the regulatory burden on private providers. Providers may face new compliance costs, legal challenges and the need for enhanced training and oversight. That could have a knock-on effect on service availability, particularly in a market already facing staffing pressures and financial constraints.
The Government should therefore consider how to support providers to meet the new obligations without destabilising service provision. There is also a need to ensure that commissioners and regulators have the necessary resources and powers to monitor and enforce compliance effectively. In that spirit, I will pose some questions to the Minister for clarification and look for reassurance.
How will the Government monitor compliance with the Human Rights Act among private providers, and what enforcement mechanisms will be used? Has there been any consultation with private care providers about the potential operational and financial impacts of this extension, and will the extension apply only to services arranged or paid for by NHS bodies? What protections exist for patients receiving private mental health care outside these arrangements? How do the Government plan to ensure consistency in application across all four nations? Do the Government foresee private provision of mental health-related services expanding? If so, by how much?
I agree that the final two amendments look like two small consequential amendments that clarify and ensure that the human rights extension applies equally across England and Wales, Scotland and Northern Ireland. The insertion of “subject to subsection (2)” appears to be technical. I would just welcome confirmation from the Minister that it will not inadvertently limit the scope of the new protections. Otherwise, Opposition Members will support them.
Stephen Kinnock
I thank the shadow Minister for those questions. I will have to get back to him in writing, because the questions that he asks obviously have an important legal dimension, and it was physically impossible to get the information in the time between his sitting down and my standing up to speak. I am not a human rights lawyer either, so it is best if I write to him on those points.
Question put and agreed to.
New clause 10 accordingly read a Second time, and added to the Bill.
Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)
Mental Health Bill [ Lords ] (Ninth sitting)
Tuesday 24th June 2025
(2 weeks, 6 days ago)
Public Bill CommitteesMental Health Bill [HL] 2024-26 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 24 June 2025 - (24 Jun 2025)
The Committee divided: - Ayes: 2 / Noes: 11 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 11 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 11 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 11 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 11 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 11 - Question accordingly negatived.
The Chair
I have a few preliminary reminders. Please switch electronic devices to silent. No food or drink, except the water provided, is permitted during the sittings of this Committee. Hansard would be grateful if Members could email their speaking notes or pass them on to the Hansard colleague in the room. Members are reminded to bob and catch my eye if they wish to speak in any debate.
New Clause 1
Reporting: racial disparities relating to community treatment orders
“(1) Within a period of 12 months following the day on which this Act is passed, the Secretary of State must undertake a review of racial disparities which relate to the use and administering of community treatment orders.
(2) The review under subsection (1) must include, but is not limited to—
(a) an assessment of whether certain racial or ethnic groups are disproportionately represented among individuals subject to community treatment orders compared to their representation in the general population;
(b) a review of the outcomes and effectiveness of community treatment orders across different racial groups, including health outcomes, and patient experiences.
(3) The Secretary of State must lay a report of the findings of the review before Parliament within 18 months of the day on which this Act is passed.”—(Zöe Franklin.)
This new clause seeks to gauge the Government’s view on prevalent racial disparities as they relate to the use of community treatment orders under the Act.
Brought up, and read the First time.
Zöe Franklin (Guildford) (LD)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 3—Addressing and reporting on racial disparities and other inequalities in the use of the Mental Health Act 1983—
“After section 120D of the Mental Health Act 1983, insert—
‘120E Mental health units and services to have a responsible person
(1) A relevant health organisation that operates a mental health unit or community mental health service for qualifying patients must appoint a responsible person for that unit or service for the purposes of addressing racial disparities and other disparities based on protected characteristics related to functions discharged under the Mental Health Act 1983.
(2) The responsible person must—
(a) be employed by the relevant health organisation, and
(b) be of an appropriate level of seniority.
(3) Where a relevant health organisation operates more than one mental health unit or service, that organisation must appoint a single responsible person in relation to all of the mental health units or services operated by that organisation.
(4) A patient is a qualifying patient if they are—
(a) liable to be detained under this Act, otherwise than by virtue of section 4 or 5(2) or (4) or section 135 or 136;
(b) subject to guardianship under this Act;
(c) a community patient.
120F Policy on racial disparities and other disparities based on protected characteristics
(1) The responsible person must publish a policy on how the unit plans to reduce racial disparities and other disparities based on protected characteristics in that unit or service.
(2) The policy published under subsection (1) must cover the following topics—
(a) the application of the guiding principles to all aspects of operation of this Act;
(b) staff knowledge and competence in connection with promoting equality and anti-discriminatory practice in relation to this Act;
(c) workforce demographics, recruitment, retention and progression;
(d) implementation of the patient and carer race equality framework (England only) and any other requirements of relevant national policies;
(e) care planning and decision-making in the use of this Act including section 56A (making treatment decisions);
(f) the availability of alternatives to detention and involuntary treatment;
(g) take-up of independent mental health advocacy;
(h) the cultural appropriateness of independent mental health advocacy;
(i) access to and use of advance choice documents;
(j) what steps will be taken to reduce racial disparities and other disparities based on protected characteristics in that unit or service.
(3) 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 or services.
(4) Before publishing a policy under subsection (1), the responsible person must—
(a) consult any persons that the responsible person considers appropriate;
(b) have regard to the following matters—
(i) the views, wishes and feelings of people from ethnic minority communities who have been detained;
(ii) the views, wishes and feelings of people with other protected characteristics who have been detained.
(5) The responsible person must keep under review any policy published under this section.
(6) 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.
(7) 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.
120G Training in racial disparities and other disparities based on protected characteristics
(1) The responsible person for each mental health unit or service must provide training for staff that relates to addressing racial disparities and other disparities based on protected characteristics in that unit or service.
(2) The training provided under subsection (1) must include training on the topics covered in section 120F(2).
(3) Subject to subsection (4), training must be provided—
(a) in the case of a person who is a member of staff when this section comes into force, as soon as reasonably practicable after this section comes into force, or
(b) in the case of a person who becomes a member of staff after this section comes into force, as soon as reasonably practicable after they become a member of staff.
(4) Subsection (3) does not apply if the responsible person considers that any training provided to the person before this section came into force or before the person became a member of staff—
(a) was given sufficiently recently, and
(b) is of an equivalent standard to the training provided under this section.
(5) Refresher training must be provided at regular intervals whilst a person is a member of staff.
(6) In subsection (5) “refresher training” means training that updates or supplements the training provided under subsection (1).
120H Annual report by the Secretary of State
(1) As soon as reasonably practicable after the end of each calendar year, the Secretary of State must conduct a review in consultation with relevant bodies with commissioning functions on the use of treatment and detention measures contained in the Mental Health Act 1983 broken down by race and other demographic information.
(2) Having conducted a review under subsection (1), the Secretary of State must publish a report on the progress made in reducing inequalities in treatment outcomes and the use of detention measures in the use of this Act on people who have protected characteristics under the Equality Act 2010.’”
This new clause requires mental health units and services to appoint a responsible person tasked with addressing racial disparities related to functions discharged under the Mental Health Act 1983.
Zöe Franklin
It is a pleasure to serve under your chairmanship, Mr Vickers. New clause 1 seeks to ensure that racial disparities in the use of community treatment orders are properly understood, monitored and addressed. We have known for many years that black individuals are disproportionately subjected to coercive powers under the Mental Health Act 1983, including detention, restraint and community treatment orders, yet progress has been painfully slow.
The new clause would require the Secretary of State to undertake a review within 12 months of the Bill passing and to publish the findings within 18 months. It would look specifically at whether certain racial or ethnic groups are over-represented among those who are subject to community treatment orders, and whether there are disparities in outcomes—including treatment effectiveness and patient experience—across racial groups. The aim is not just to collect data, but for meaningful scrutiny of how coercive community powers are applied and whether they are serving all groups equally.
The 2018 independent review of the Mental Health Act found that black individuals were more than eight times more likely to be placed under a CTO than white individuals. That is not a minor discrepancy, but a structural injustice. The review also raised concerns that CTOs were not necessarily used because they are clinically effective, but because they are seen as a way to manage risk, particularly where racialised assumptions come into play. We must ask, are CTOs truly supporting recovery, or are they disproportionately used to control and surveil? Are they fostering trust or fear in mental health services?
The new clause would give Parliament the information we need to answer those questions. It would set a timeline for transparency and create a foundation for future policy reform that is rooted in fairness and equality. In the absence of this new clause, we risk continuing a system where racial injustice is baked into mental health practice, without sufficient oversight or accountability. If this Government are serious about tackling racial inequality in mental health, they will have no objection to this basic measure of review and reporting.
We have discussed specific disparities in previous clauses, but new clause 3 aims to ensure that systematic and sustained action is embedded in the way that mental health services are run. The disproportionate detention and coercive treatment of black and minority ethnic people under the Mental Health Act has been evidenced for decades, yet progress on addressing these inequalities has been too slow and too inconsistent across the country.
New clause 3 takes a structural approach. It would require each mental health provider to appoint a dedicated senior lead to take responsibility for reducing inequalities within their services—not in name only, but through published plans covering staff diversity, culturally appropriate advocacy care planning and the use of advance choice documents. It would also ensure that frontline staff receive ongoing training that equips them to recognise and respond to disparities and uphold anti-discriminatory practice, with regular refreshes to ensure that this learning stays live. Importantly, it would place a duty on the Secretary of State to publish an annual report breaking down how the Bill is used across racial and other demographic groups, and what progress is being made to close those gaps.
This is not about creating more paperwork; it is about requiring leadership, transparency and accountability at every level, from clinical teams through to Government. If this Bill is to earn the title of a reform, it must act decisively on the most pertinent inequalities in the system. I urge the Committee to support the new clauses.
David Burton-Sampson (Southend West and Leigh) (Lab)
It is a pleasure to serve under your chairship, Mr Vickers. Sadly, there are clear racial inequalities within the mental health system, as in other areas of health, and this must change. People from ethnic minority communities are more likely to experience a mental health problem, are less likely to receive support, and have poorer outcomes from services. It is very concerning that black and ethnic minority people are over-represented in detentions in our mental health system, and there are well-documented worries over disparities in the quality of care that they receive.
Decades of evidence and lived experience testimony point to systemic injustice. Black British people suffer a 6% higher rate of common mental health problems than white British people, and black adults are twice as likely to show symptoms of post-traumatic stress disorder—at 8%, compared with 4% of the white British population. Black men are over 10 times more likely to be placed under community treatment orders, and black women are more likely than any other group of women to experience common mental health problems. Studies have shown that experiences of racism link to depression, psychosis and post-traumatic stress. When people are assaulted—not just physically, but emotionally and psychologically—by the structures around them, it leaves a lasting impact.
I have witnessed at first hand the racial disparities at a visit to my local in-patient mental health care at Rochford community hospital, where I could see a visibly disproportionate number of black men on the ward, compared with the percentage of black men I know live in my community. People from ethnic minority communities are more likely to come into contact with mental health services through crisis pathways, the police, accident and emergency, and detention. They are more likely to be restrained, isolated and subjected to coercive treatment. We must listen to what these communities are telling us.
Research by Mind identified nine key barriers to accessing care, from stigma and discrimination to Eurocentric models of treatment, language and cultural barriers. People feel othered by a system that was not built with them in mind. We need to rebuild trust and recognise that mental health cannot be separated from the broader social and political context. Austerity, Brexit, the Windrush scandal and covid-19 have all disproportionately affected the black, Asian and minority ethnic community. That has led to a decrease in trust towards the establishment, and that bleeds into general distrust of organisations and officials working in healthcare settings and mental health.
People from BAME communities have shared many examples of direct and indirect discrimination they have experienced within mental health services. Those negative lived experiences further erode trust in the system and often deter people from seeking help. Racial disparities in mental health are a pressing issue that requires immediate and sustained action.
New clauses 1 and 3, tabled by the hon. Member for Winchester and outlined by the hon. Member for Guildford, have good intentions, but we need to reflect on whether they fit in the Bill. I would suggest not. The drivers of disparity here are much deeper than the scope of the Bill, and it would be wrong to attempt to wrap up the solution to this issue within it. That does not mean that action should not be taken.
I am hopeful that this Government are doing wider work to drive down racial inequalities, including with the challenge we can see here with mental health. Perhaps the Minister will outline more about the Government’s work, and therefore why the new clauses are not needed. I support the intent of the hon. Member for Winchester, but I cannot support the new clauses as an addition to the Bill. I would be happy to meet the Minister and others to discuss further ongoing overall inequalities for the BAME community.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship this morning, Mr Vickers.
New clause 1, tabled by the hon. Member for Winchester, would require the Secretary of State to undertake a review of racial disparities in the use of community treatment orders. It is our view that the evidence base is already strong, and further reviews are not necessary. There are significant racial disparities in the use of community treatment orders. In 2023-24, black or black British people were issued with CTOs at seven times the rate of white or white British people. The use of community treatment orders as a proportion of overall detention numbers is higher for all minority ethnic groups compared with the white British population.
We are committed to reducing these disparities through our reforms and through the patient and carer race equality framework, which was a recommendation of the independent review. This includes a greater focus on prevention and early intervention, in part by promoting the use of advance choice documents, rather than an approach that simply makes it harder to impose CTOs. We are developing and monitoring an evaluation strategy, and we will continue to monitor and report on ethnic disparities via the published Mental Health Act statistics and our annual implementation report to Parliament.
New clause 3 would create the new “responsible person” role. They would have a duty to report on racial disparities and other inequalities in the use of the Mental Health Act. However, as drafted, the remit is significantly broader than that, to the extent that it would not be practical to combine all the stated functions into one role. We agree that there is a need to strengthen organisational leadership, improve data collection and change cultures across the mental health system. We also agree that it is important to have more targeted responsibilities to monitor and address racial disparities at board level in trusts, and that is already an explicit requirement of the PCREF.
The PCREF is a contractual requirement of mental health providers under the NHS standard contract. It builds on the statutory duties that apply already under the Equality Act 2010. These existing requirements cover the key responsibilities needed to monitor and address racial disparities. The PCREF can be updated more regularly than primary legislation, allowing us to take an iterative approach throughout implementation to ensure that we are capturing reporting and acting on the right data from frontline services. Ultimately, we feel that the PCREF will be more effective at reducing racial inequalities than the very broad remit outlined in this new clause, and that the addition of a responsible person in legislation is duplicative and unnecessary.
My hon. Friend the Member for Southend West and Leigh asked about implementation. The PCREF is the key instrument that we will use, but we are seeking to improve and strengthen decision making in three important ways: first, by requiring that an individual must be at risk of serious harm to be made subject to a CTO; secondly, by requiring the community clinician to be involved in all community treatment order decisions; and thirdly, by increasing the frequency of automatic reviews of patient cases by the tribunal, so that CTOs can be removed as soon as it is safe and appropriate to do so. I hope that that gives my hon. Friend some reassurance around the work that we are doing, but of course I would be happy to discuss these matters with him.
For those reasons, I ask the hon. Member for Guildford to withdraw new clause 1, on behalf of the hon. Member for Winchester.
Zöe Franklin
I thank the Minister for outlining the PCREF and the focus that it will have in addressing these issues. I was particularly interested in the explanation of the iterative approach that it will allow. I also thank the hon. Member for Southend West and Leigh for his insights into the issue. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 2
Mental Health Crisis Breathing Space
“(1) Any person detained under sections 3, 37, 41 or 47 of the Mental Health Act 1983 must be offered support from the mental health crisis breathing space debt respite scheme.”—(Dr Chambers.)
This new clause ensures that MHCBS, a debt respite scheme, is offered and available to patients detained under sections 3, 37, 41 and 47 of the Mental Health Act 1983.
Brought up, and read the First time.
Dr Danny Chambers (Winchester) (LD)
I beg to move, That the clause be read a Second time.
The new clause relates to the mental health crisis breathing space debt respite scheme, and would allow it to be
“offered and available to patients detained under sections 3, 37, 41 and 47 of the Mental Health Act 1983.”
The mental health crisis breathing space mechanism is another vital tool that can protect people in a mental health crisis from the impacts of problem debt, by pausing enforcement action, contacting creditors and freezing interest and charges on any debts.
However, the number of people benefitting from an MHCBS are significantly below its potential, largely because both patients and healthcare professionals do not know about it. Ensuring that everyone detained under the longer provisions of the Act would automatically be offered access to the scheme would ensure that many more people could benefit from it. We have discussed in previous sittings the impact of debt on mental health, and the work of Winchester Citizens Advice. I am really pleased to say that this week, I presented them with a huge award for best social enterprise at the Hampshire business awards, so my congratulations go to them.
Stephen Kinnock
I am grateful to the hon. Member for Winchester for bringing this issue before the Committee. The Government’s breathing space programme plays an important role in protecting people experiencing problem debt. We recognise that that can be particularly critical for people whose mental illness is worsened or even triggered by financial problems.
Let me reassure the hon. Gentleman that people under the sections identified by his new clause are already eligible for breathing space. In fact, eligibility covers all individuals detained in hospital for assessment or treatment under the Mental Health Act, as well as those receiving crisis treatment in a community setting from a specialist mental health service. Furthermore, NHS England guidance already sets out that financial support, including referral to breathing space, should be offered to patients receiving acute in-patient mental health care, whether detained or voluntary patients. We will make explicit the need for staff to offer proactively that support in the Mental Health Act code of practice. For those reasons, I ask the hon. Member for Winchester to withdraw his new clause.
Dr Chambers
I thank the Minister for his comments. I am concerned about the lack of knowledge among patients and healthcare professionals. We cannot see any downside to making this an automatic right, so we will press new clause 2 to a vote.
Question put, That the clause be read a Second time.
Zöe Franklin
I beg to move, That the clause be read a Second time.
The new clause would require local authorities and commissioning bodies to promote and report annually on mental health wellbeing in regard to any guidance published by the Secretary of State.
Dr Luke Evans (Hinckley and Bosworth) (Con)
I thank the hon. Lady for giving way so early in her speech. I mentioned my concern about this provision on Second Reading: a rough road is not the same as a broken bridge. We are dealing here with the most severe mental health issues. The new clause talks about wellbeing, which affects everyone. Trying to report that and fit it into this criteria risks diluting the very aim of the Bill in trying to deal with the most severe mental health issues. I would be grateful for clarification on the difference between mental wellbeing, which affects everyone, and mental health issues, which not everyone has.
Zöe Franklin
When it comes to enabling the Mental Health Act to function, having an understanding on the ground of the picture across our communities regarding mental health wellbeing is very important. That is why we tabled the new clause, which would allow us to get community care right. That would then feed into the crisis care that we are discussing in this Committee.
Stephen Kinnock
I am grateful to the hon. Member for Winchester for tabling the new clause. Like him, we are committed to preventing mental ill health and promoting good mental health. Achieving our vision for mental health requires a spectrum of interventions across the whole of society and across the life course, from prevention and early intervention through to treatment and specialised care for those with a severe mental illness in community and in-patient settings. We are committed to the shifts from treatment to prevention, hospital to community and analogue to digital, and our forthcoming NHS 10-year health plan will affirm those commitments.
With our commitment to neighbourhood health, we are encouraging stronger partnership working between local government, mental health services and the voluntary and community sector. As part of our shift to community, we have already launched six pilot neighbourhood mental health centres to deliver a 24/7 service, with open access to anyone who requires mental health support. Through the shift to prevention, we are putting more emphasis on early intervention and recovery to support people to live well and thrive, ensuring that we improve the conditions for creating good mental health.
Alongside that, I remind the Committee of the existing prevention concordat for better mental health: a voluntary agreement signed by local authorities and integrated care boards. Signing the concordat involves a commitment to take evidence-based, preventive and promotional action to support the mental health and wellbeing of their populations. The new clause would be duplicative of that existing programme, and could introduce an unnecessary resource burden on local authorities and commissioning bodies.
We are committed to moving to a meaningful partnership between central and local government, and to letting local leaders lead within their communities. For those reasons, I hope that the hon. Member for Guildford feels able to withdraw the motion.
Zöe Franklin
I thank the Minister for his comments. In particular, I was interested to hear about the mental health centre pilot schemes. I look forward to their further roll-out. They will be crucial in addressing the issues that we sought to address in the new clause. I was also very pleased to hear about the focus on a meaningful partnership between local government, national Government and mental health providers. On that basis, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 7
Funding and reporting
“(1) For each financial year until all sections of this Act have come into force, of the total health service expenditure by the bodies (taken together) in subsection (2), the proportion which relates to mental health spending—
(a) under the Mental Health Act 1983, and
(b) under this Act or which, in future, would be made under provision inserted into the Mental Health Act 1983 by this Act, (taken together) must not decrease.
(2) The bodies are the Department of Health and Social Care, NHS England and integrated care boards.”—(Dr Chambers.)
This new clause would require that mental health spending as a proportion of health service expenditure must not decrease in the implementation period of the Act.
Brought up, and read the First time.
Dr Chambers
I beg to move, That the clause be read a Second time.
We are aware from the Darzi report that mental health cases account for about 20% of the NHS burden, and currently receive about 10% of the funding. Our mental health services urgently need investment. Children at risk of self-harm, anorexia and suicide often wait months to be seen. I keep thinking about a few people I spoke to in Winchester who have teenage daughters with anorexia. They have been told that their daughters have to reach a lower BMI before they hit the threshold for treatment. That is horrific for the individuals, and we know that their anorexia will be more difficult to treat, will require more intensive, longer treatment, and will cost the NHS more in resources and finances.
Many people cannot access the care in the community that they need. In a context in which suicide and mental ill health is on the rise, it is therefore disappointing to us that the Government have removed key NHS targets on mental health, such as physical health checks for those with mental disorders. Supporting those with mental health conditions is a fundamental pillar of the Government’s welfare reforms and economic agenda, but we know there were about 1 million people waiting in 2024 for mental health services. That is why we need to ensure that the spend on mental health care does not decrease and that, if anything, it increases.
Anna Dixon (Shipley) (Lab)
As a member of the Public Accounts Committee, I carefully scrutinise the annual accounts of the Department of Health and Social Care. We have been urging that exactly how the breakdown of expenditure relates to issues is made more transparent within those accounts, such as how much is spent on mental health. Does the hon. Gentleman agree that there are other ways in which we can scrutinise and hold the Department to account for its spend on mental health?
Stephen Kinnock
I thank the hon. Member for Winchester for his new clause. This was raised in the other place and there are several issues with it that have not yet been fully addressed.
First, the new clause would apply only to spend under the Mental Health Act. The mental health system, and its accounting, is not structured based on the legal framework that patients are subject to. A single ward may contain a mix of patients under the Mental Health Act and informal patients who would not usually be considered to be under the Act. Community services will support some patients on community treatment orders, who are therefore subject to the Mental Health Act, but also many who are not and have never been subject to the Act. It would not be feasible or desirable to try to restructure accounting and reporting based on which patients are subject to the Act and which are not.
Secondly, the Government believe in prevention. We want to see better mental health outcomes, with more people cared for in the community so that the need for use of the Act is reduced. Over time, we want to see a shift in spend into preventive community services, which should in turn lead to a fall in the need for the use of the Mental Health Act. Few would disagree with that general aim, but the new clause would prevent that. By requiring share of spend under the Act to increase or remain the same, we are necessarily limiting the share of spend that could instead go towards preventing people from needing to use the Act in the first place.
We will need to invest to deliver these reforms, as the impact assessment makes clear; however, the new clause is flawed and not the right mechanism to achieve the necessary investment. Parliament already has the power to scrutinise departmental spend via the estimates process. We are required to report on the share of spend on mental health under the National Health Service Act 2006. This is sufficient to hold the Government to account. I therefore hope that the hon. Member for Winchester feels able to withdraw the motion.
Dr Chambers
I thank the Minister for his comments. If there is a duty to report the spend on mental health as a share of the whole budget, then I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 8
Mental Health Commissioner
“After section 142B of the Mental Health Act 1983, insert—
‘Mental Health Commissioner
142C Independent Mental Health Commissioner: establishment
(1) There is to be an office known as the Office of the Mental Health Commissioner.
(2) The Office in subsection (1) must be established by the Secretary of State three months after the day on which the Mental Health Act 2025 is passed.
(3) The Office of the Mental Health Commissioner will be led by an individual appointed by the Secretary of State titled the “Independent Mental Health Commissioner”.
(4) The role in subsection (3) is referred to as the “Mental Health Commissioner”.
(5) The Mental Health Commissioner may appoint staff to the Office of the Mental Health Commissioner they consider necessary for assisting in the exercise of their functions in section 142D.
142D Functions of the Commissioner
(1) The Mental Health Commissioner is responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under the provisions of this Act, the Mental Health Act 1983, and the Mental Capacity Act 2025 particularly regarding the provision of treatment, care, and detention of people with a mental disorder.
(2) The Mental Health Commissioner must publish an annual report on the use of functions discharged under this Act, which must assess—
(a) the quality of mental health care treatment provided by relevant services;
(b) the accessibility of mental health care treatment services;
(c) the relationship between mental health and the criminal justice system;
(d) inequalities of mental health care provision regarding protected characteristics under the Equality Act 2010;
(e) the use and effectiveness of detention measures under this Act, including but not limited to Community Treatment Orders, for the purposes of therapeutic benefit outlined in section 1(2B);
(f) challenges surrounding stigma of mental health conditions;
(g) the accessibility of advice and support to mental health service users, their families and carers on their legal rights;
(h) other issues deemed appropriate by the Mental Health Commissioner.
(3) In fulfilling their duties under subsection (1), the Mental Health Commissioner may review, and monitor the operation of, arrangements falling within subsection (1), (2) and (3) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the principles in section 118(2B) of this Act.
(4) Subject to any directions from the Secretary of State, the Commissioner may take action necessary or expedient in connection for the purposes of their functions.
(5) This may include—
(a) collaborating with health services, public authorities, charitable organisations, and other relevant entities, including NHS bodies, the Care Quality Commission, and the Parliamentary and Health Service Ombudsman;
(b) ensuring enforcement authorities and public bodies under the Mental Health Act 1983 have the necessary capacity and resources to adequately discharge duties under the Mental Health Act 1983 and this Act.
142E Appointment, Tenure, and Remuneration of the Mental Health Commissioner
(1) The Secretary of State may by regulation make provision for the appointment, tenure, removal, and general terms of appointment of the Mental Health Commissioner.
(2) The Secretary of State may also by regulation determine the Commissioner’s remuneration, allowances, and pension entitlements.
142F Examination of cases
(1) The Secretary of State may, by regulations, make provision for the examination by the Mental Health Commissioner of the cases of those who are detained under this Act receiving treatment by authorised mental health care providers.
(2) The Secretary of State may, by regulations, provide for the Office of the Mental Health Commissioner to access and examine relevant data on mental health treatment provision held by NHS England and any other authorities the Secretary of State considers appropriate.
142G Regulations
A statutory instrument containing regulations under sections 142E and 142F may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.’”—(Dr Chambers.)
This new clause establishes the office of the Mental Health Commissioner and makes provisions for relevant duties and responsibilities.
Brought up, and read the First time.
Dr Chambers
I beg to move, That the clause be read a Second time.
New clause 8 would establish the office of a mental health commissioner and makes provision for relevant duties and responsibilities. The commissioner would have a strategic, cross-government focus, working to promote mental health and tackle inequalities, and would be a powerful advocate for the rights and wellbeing of those living with mental health problems, who would finally have a voice at the top table. The commissioner would also play a vital role in the public sphere, tackling stigma and discrimination, and championing policies that support good mental health across society. The commissioner would have an independence to comment on the implementation of the reform of the Mental Health Act and any subsequent changes or issues that arise. International evidence highlights the impact that such a role can have in improving communities.
I keep coming back to a conversation I had in my office in Winchester with a psychiatrist whose wife also worked in the medical profession. He said that they were struggling to navigate the mental health system to get the healthcare that their child desperately needed. He made a really good point: if they, with their knowledge, expertise and experience, could not navigate the mental health system, what hope does anyone else have? That is why it is important to have someone with an overview who can advocate for patients, and the patient journey in general, to ensure that the process is streamlined and that people have the information they need to access the care they are entitled to.
Stephen Kinnock
I am grateful to the hon. Member for Winchester for bringing this issue, which was also debated extensively in the other place, before the Committee. Our view has not changed: the functions of the proposed commissioner clearly duplicate existing responsibilities of other organisations, most notably the Care Quality Commission. The Children’s Commissioner has expressed concerns that introducing a new mental health commissioner risks interfering with her own role in relation to children and young people’s mental health.
We recognise that the patient quality and oversight landscape is not working effectively, but I strongly doubt that inserting another body whose role overlaps with those already in place would help to address that issue. The landscape is already cluttered and fragmented. That is why last year we asked Dr Penny Dash to assess whether the current range and combination of organisations deliver effective leadership, listening and regulation for the health and care systems in relation to patient and user safety, or whether a new delivery model is needed. We will shortly see the results of her much-anticipated review.
We appreciate that our argument that the proposed mental health commissioner’s role would be duplicative of the CQC has previously been met with concerns about the effectiveness of that organisation. I reiterate that two major independent reviews into the wider role of the Care Quality Commission have reported under this Government, the recommendations from which the CQC has accepted in full. While we are confident in the progress that the CQC is making, we recognise that those reviews did not closely inspect the CQC’s statutory role and responsibilities in relation to monitoring the use of the Mental Health Act.
Therefore, in response to an amendment tabled in the other House, we committed to report on the CQC’s monitoring functions under the Act in the first of the Government’s annual reports on the implementation of the Bill. That will include reflections from the new chief inspector of mental health, Dr Arun Chopra, on the CQC’s statutory functions and its role as a key partner in delivering the reforms. I am looking forward to meeting Dr Arun Chopra very shortly in his new role.
Lastly, creating a mental health commissioner with a supporting office would require significant resources that we simply cannot justify. The original Mental Health Act commission was brought within the CQC to reduce Government spending and realise the benefits of aligning the CQC’s functions under the Mental Health Act with its functions under the Health and Social Care Act 2012, and to give it new powers to monitor via potential enforcement. Bearing in mind the radical reforms that we are making to the national health system to rid it of duplication, inefficiency and waste, we believe that now is not the time to reverse course on these matters.
Anna Dixon
I commend the work that the Minister and Penny Dash are doing to look at patient safety and the changes going on at the CQC. Could he reassure us that, within scope, he is also looking at the role of the Parliamentary and Health Service Ombudsman? There seems to be some confusion about whether complaints under the Act fall to the CQC or the PHSO.
Stephen Kinnock
The Dash review is looking at the landscape regarding all the different institutions and organisations, including the PHSO and the CQC, to map out how they interact with each other. Our view is that there is a lot of confusion and a lack of clarity, but we await the outcome of the review. I can confirm, however, that Penny Dash is looking at those matters. For those reasons, I ask the hon. Member for Winchester to withdraw the motion.
Dr Chambers
I thank the Minister for his reassurances. The issue is that the ability of the CQC to oversee implementation is limited, and it does not have a policy advisory function, which is something that a commissioner could do. Although we understand the Minister’s concerns about the office of a commissioner, the issue is important enough that we put it in our manifesto. We stood on a manifesto commitment to improve mental health access and streamline services via a commissioner. For that reason, we will press new clause 8 to a vote.
Zöe Franklin
I beg to move, That the clause be read a Second time.
The new clause would introduce a dedicated veterans’ mental health oversight officer, recognising that those who serve or have served in the UK or Commonwealth armed forces face distinct mental health challenges that are not always adequately met by the current system. Far too many veterans experience post-traumatic stress disorder, depression, anxiety or substance misuse that, sadly, is linked to their service. Yet they are often treated within a system that does not fully take account of those experiences, and they are sometimes detained under the Mental Health Act without the benefit of trauma-informed, veteran-specific pathways of care.
New clause 9 seeks to change that. It would create an independent officer, tasked with monitoring the use of the Mental Health Act in relation to veterans, advocating for tailored assessment and care linked to veterans’ service history, promoting alternatives to detention where appropriate, particularly through veteran-specific services, and reporting annually to Parliament on outcomes including rates of detention, recidivism and systemic barriers. It is not just about oversight; it is about respect and responsibility.
Gregory Stafford (Farnham and Bordon) (Con)
I am very sympathetic to the hon. Member’s concerns, but how does she see the new clause fitting in with the already established armed forces covenant, which protects and promotes healthcare for veterans across the country?
Zöe Franklin
I see them as absolutely sympathetic to each other and working in concert. We want to ensure that veterans have specific, tailored mental health care, as is outlined in the Bill. That is why the new clause would ensure that veterans’ unique needs are not just recognised but actively addressed. It is a practical and overdue step to improve care, safeguard rights and deliver the joined-up service that veterans deserve. After all, they give so much to our nation through their service.
I hope that the Minister will support the new clause, but if he does not, I hope that he will outline for the Committee how the Government will ensure that the aims of the new clause will be addressed through the Bill and its accompanying documents as they stand.
Stephen Kinnock
I am grateful to the hon. Member for Guildford for bringing the issue before the Committee. While most veterans lead healthy and successful lives following their service in the armed forces, we know that some may need mental health support. This Government are proud of the courage and dedication of our armed forces, and we are committed to ensuring that those who serve and served in the armed forces receive the best possible care.
All service personnel have access to mental health support throughout their career. The Defence Medical Services provide a responsive, flexible, accessible and comprehensive treatment service and, for leavers from the armed forces, NHS mental health services are available that are specially designed to support the unique needs of veterans. That includes veterans in mental health in-patient settings under the Mental Health Act and those within the criminal justice system. In England, these services are Op Courage and Op Nova, and in Wales there is Veterans NHS Wales. These bespoke services link with wider NHS mental health services to advocate for and support veterans to receive care tailored to their needs.
We are committed to giving veterans and armed forces personnel fair access to mental health care services and special consideration where appropriate. That is reflected in the core principles of the armed forces covenant, to which public bodies such as the NHS are legally bound to give regard. It is our firm view that a wealth of measures are already in place that respond to the unique needs and experiences of those who serve and have served in our armed forces. For that reason, I ask the hon. Member for Guildford to withdraw new clause 9.
Zöe Franklin
I thank the Minister for his comments—particularly about Op Courage, Op Nova and the armed forces covenant—and for his commitment to the veterans who have served this country and their courage, even when they face challenges with their mental health. The Liberal Democrats are willing to withdraw the amendment, but we will observe the passage of the Bill closely to ensure that it serves our veterans well across the UK. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 11
Costed plan to ensure community provision for individuals with learning disabilities and autism who are at risk of detention
“(1) Within 18 months of the day on which this Act is passed, the Secretary of State must publish a fully costed plan for how Integrated Care Boards and local authorities will ensure provision of adequate community services for individuals with learning disabilities and autistic people who are at risk of detention under Part 2 of the Mental Health Act 1983.
(2) As part of the development of that plan, a formal consultation process must take place to determine how the decision to enact the relevant parts of this Act will be made.
(3) The consultation must include input from relevant stakeholders, including—
(a) individuals with learning disabilities and autistic people;
(b) carers for people with learning disabilities and autistic people;
(c) healthcare professionals; and
(d) advocacy groups.”—(Dr Evans.)
This new clause requires a costed plan to ensure that ICBs and local authorities are able to provide adequate community services for individuals with learning disabilities and autistic people at risk of detention under Part 2 of the 1983 Act, informed by a consultation with a range of stakeholders.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Dr Evans
I beg to move, That the clause be read a Second time.
I rise to speak in support of the new clause, which was tabled by the Conservative party. It would place a duty on the Secretary of State to review the effectiveness of the regulatory authority’s role under the Mental Health Act 1983 within one year of the Act’s passage.
Allow me to provide the current legal and regulatory context. Under the framework in the Mental Health Act 1983, the Care Quality Commission, which is the regulatory authority in England, is tasked with monitoring and regulating providers of mental health services. We have debated some of this, and there are issues still to be addressed.
The CQC inspects hospitals, community mental health teams, and other relevant services to ensure compliance with statutory safeguards and standards. It publishes reports on providers and issues recommendations where it identifies failings. Additionally, there is an existing reporting framework under the Act whereby the Secretary of State is expected to oversee and ensure the Act’s proper implementation, with periodic ministerial reports to Parliament and CQC inspection outcomes made publicly available. However, there is currently no statutory requirement to review the CQC’s own role and effectiveness in carrying out these specific mental health functions. The gap means that although providers are scrutinised, the regulator itself escapes similar structured accountability and review.
This question was debated in the other place and I welcome the comments from the Minister in the Lords, Baroness Merron, who, in a letter, rightly highlights existing transparency measures. She states that,
“findings from CQC’s monitoring activity are reported annually in their Monitoring the Mental Health Act report, which is laid before Parliament and published publicly.”
That is true. She also notes the annual quality account reports produced by NHS healthcare providers under the Health Act 2009, which cover patient safety, treatment effectiveness, and patient feedback. True. Those are indeed important components of the current oversight framework, and we support the continuation and strengthening of those transparency mechanisms.
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
My hon. Friend makes a powerful point about transparency, but it is not just about that. Does he agree that it is also about having an evidence base that allows reform and improvement of the regulator?
Dr Evans
I do, and to expand the point, this is about understanding the performance of CQC as well. We know from the Dash report and from Mike Richards that there are, and have been, concerns about CQC performance. That is at the heart of this new clause—to try to make sure we actually look at the performance and regulation of the regulator. Those reports focus on the performance of mental health services and providers, but they do not amount to a dedicated statutory review of the regulator itself—specifically, the CQC’s role, effectiveness, and capacity under the Mental Health Act.
Annual reports primarily reflect the CQC’s monitoring outcomes rather than a comprehensive, independent evaluation of whether its regulatory functions are being discharged optimally, or whether it is adequately equipped to meet the new challenges posed by the legislation. In other words, reporting on what the regulator monitors is not the same as reviewing how well the regulator performs its duties.
The new clause would address that distinct gap by mandating a focused review with a parliamentary report and a Government response, thereby strengthening accountability at the regulatory level. The new clause aims to establish an additional layer of scrutiny, not duplicative reporting. It would require the Government, within 12 months of the Bill becoming law, to conduct a formal review of the CQC’s effectiveness, specifically in regulating mental health services under the 1983 Act. It mandates an assessment of whether the CQC is adequately fulfilling its duties, including monitoring, inspection, and enforcement responsibilities, as well as whether it will be capable of carrying out its duties under the new legislation. Given the well-documented problems in mental health, it seems entirely appropriate to address the key point: is the regulator regulating effectively?
Dr Shastri-Hurst
My hon. Friend makes a strong point about having a review to ensure that the regulator is operating effectively. Does he share some of my concerns that a one-off review may not demonstrate ongoing oversight and scrutiny of the performance of the regulator?
Dr Evans
We do not want to introduce too much bureaucracy, but ensuring an accountable statutory mechanism to ensure adequate oversight is incredibly important. Much of the debate about the Bill has been about whether we put things in primary legislation or in policy, or whether we allow policy and legislation to be done at a secondary level—or even leave them for the organisation to deal with. My concern with the CQC is that we have not seen the organisation step up in the way that it should do. That does not mean that it is not making progress, but we need to see further progress.
Aphra Brandreth (Chester South and Eddisbury) (Con)
It is a pleasure to serve under your chairmanship, Mr Vickers. I rise to speak in strong support of new clause 13, tabled by the shadow Minister. The new clause would place a duty on the Secretary of State to review the functions and effectiveness of the regulatory authority, which is currently the Care Quality Commission, within one year of the passage of the Bill. The new clause is a timely, necessary and constructive addition to the Bill.
As colleagues will know, the Care Quality Commission plays a dual role in relation to the Mental Health Act. First, as the regulator of services, it ensures that providers meet fundamental standards of care and safety. Secondly, through its specific responsibilities in visiting and speaking to those detained under the Act, it ensures that people’s rights are protected and that the law is used appropriately and humanely. That is no small task. It is a balance that requires the CQC to be not only reactive but proactive, and not only independent but responsive to the lived experiences of patients—especially to the voices of the most vulnerable. That is why the new clause matters. As we bring forward significant reforms to the Mental Health Act through the Bill, and rightly modernise and improve safeguards and place greater emphasis on autonomy, dignity and therapeutic benefit, we must also ensure that our system of oversight and regulation is fit for purpose.
I welcome the direction that the Bill sets. Its four core principles are rightly placed at the heart of the legislation: choice and autonomy, least restriction, therapeutic benefit, and seeing the person as an individual. Those principles must shape the way that care is delivered on the ground. That means they must also shape the way that care is monitored, inspected and held to account. A review of the regulator’s role is not about criticism for its own sake; it is about ensuring that the regulatory framework supports and reinforces the ambitions of the Bill and that it can respond to emerging challenges, shine a light where services are falling short and, crucially, act to protect patient rights.
Gregory Stafford
My hon. Friend is being slightly charitable to the CQC. Given Penny Dash’s review, we all know that the CQC has significant problems, otherwise we would not be reviewing it. Does my hon. Friend agree that the new clause is absolutely vital because of the failures of the CQC up to this point, and our lack of faith in it being able to meet the challenges that this legislation will bring to the mental health sector? Does she also share our concern about the CQC’s ability to regulate and scrutinise properly?
Aphra Brandreth
My hon. Friend is absolutely right. We have seen examples where regulators have not intervened quickly or robustly enough, and where systemic issues went unnoticed or unaddressed for far too long. We need to strengthen the remit and ensure that the CQC is properly equipped and held to the high standards that we expect of it.
I am an economist by background, so evaluation is something I think about a great deal. Reform, however well intentioned, must be followed by evidence, scrutiny and a willingness to learn and improve. The new clause ensures that we do not just set change in motion, but that we stop to ask whether it is working, whether the right things are being done, and if not, how we can improve.
The review required by the new clause would look not only backwards at whether the regulator has effectively carried out its existing duties under the Act, but, crucially, forwards, assessing whether it is ready to meet the responsibilities placed on it by the new reforms. I particularly welcome the requirement for the review to be published and laid before Parliament. Transparency is essential. It would allow Parliament to scrutinise but also gives patients, families, professionals and the public confidence that those questions are being asked seriously and answered publicly.
Ultimately, the new clause is about improving outcomes. When regulation works well it safeguards dignity, prevents harm, identifies and spreads good practice, develops trust and helps us build a system where the principles of this Bill—choice, autonomy, less restriction and greater therapeutic benefit—are not just written in statute, but visible in practice. That is especially important in mental health care, where so often the people subject to the Act are among the most vulnerable. Those in in-patient settings, particularly those who are detained, are often not in a position to advocate for themselves. They rely on a system that is vigilant, takes its safeguarding responsibilities seriously and puts patients’ rights first.
I hope that all members of this Committee will support the new clause. It is collaborative in its intent, constructive in its purpose and essential to delivering the meaningful reform that we all want to see. It reinforces the importance of accountability, transparency and listening to those most affected by this legislation. We owe it to those individuals and their families to make sure that we not only change the law, but also the culture and oversight that surrounds it. This review would help us do exactly that.
Stephen Kinnock
I am grateful to the Opposition spokesman, the hon. Member for Hinckley and Bosworth, for bringing this issue forward.
Two major independent reviews into the Care Quality Commission have reported under this Government: one by Dr Penny Dash, on the CQC’s operational effectiveness as a regulator of all health and social care providers including those in mental health, the other by Professor Sir Mike Richards on its single assessment framework. The CQC has accepted those recommendations in full, and although we are confident in the progress that the CQC is making, we recognise that the reviews did not closely inspect its statutory role in relation to monitoring the use of the Mental Health Act.
Those powers and duties are entirely distinct from those that the CQC uses to regulate the health and social care sector under the Health and Social Care Act 2008. In recognition of that gap, as the Opposition spokesman pointed out, we committed in the other place to report on that specific aspect of the CQC’s role in the first of the Government’s annual reports on the implementation of the Bill, which will be laid before Parliament one year after Royal Assent.
Dr Evans
The Minister mentioned the Government’s annual reports, but at other times he has said that they will issue written ministerial statements. Will he clarify which it will be? There is a big difference between a couple of paragraphs in a written ministerial statement laid before the House, and a full report. When debating the other clauses, new clauses and amendments, the Government’s answer has been that they will report back to Parliament in a year’s time. I am grateful for that, but clarity would be helpful, because a full and comprehensive report would give more weight to the Opposition in terms of understanding and transparency.
Stephen Kinnock
I can confirm that the information will be in a section of the written ministerial statement that will be tabled within 12 months of Royal Assent. We think that requirement makes the Bill more robust and effective, because it is an integral part of the entire ecosystem that we are looking at in terms of implementing this legislation and making sure we have the institutional capacity and capability. We think it helps to have the information as an integral part of the written ministerial statement, but the hon. Gentleman is right to point out that we should be clear in the definitions and language we use.
The written ministerial statement will be an overall implementation report. It will contain a number of sections, one of which will be on the role of the CQC and the inspection function. It will include reflections from the new chief inspector of mental health, Dr Arun Chopra, on the CQC’s statutory functions under the Mental Health Act, as well as its role as a key partner in the delivery of the reforms. The written ministerial statement—the report—will be laid before both Houses of Parliament within 12 months of Royal Assent. I hope the hon. Member for Hinckley and Bosworth therefore feels able to withdraw his new clause.
Question put, That the clause be read a Second time.
Dr Chambers
I beg to move, That the clause be read a Second time.
The new clause would require a review of the quality of accommodation for people detained or admitted to hospital under the Mental Health Act, and require the Secretary of State to publish a strategy to implement the recommendations of that review.
Lord Darzi found that many people are being treated in Victorian-era asylums. Many mental health hospitals are crumbling and the wards are not fit for purpose. Both the Care Quality Commission and the independent review of the Mental Health Act confirmed that many mental health wards are unsafe for staff and patients, and provide poor-quality care in unsuitable buildings. One CQC inspection report found that the seclusion rooms had low ceilings that contained electrical wires overhead, creating a safety hazard, and that staff could not see people clearly through the window panels because they were cloudy.
Is the Minister confident that the mental health estate is adequate to fulfil the Bill’s objectives? In particular, is the Minister satisfied that the mental health estate is sufficiently safe, in structural terms, and designed appropriately for those using it? For example, is it free of ligature points, and does it have sufficient in-patient capacity for children and young people?
Stephen Kinnock
I am grateful to the hon. Member for Winchester for bringing this issue before us. We are committed to closely monitoring the quality of in-patient care and driving continuous improvement in services. Indeed, we are already in the process of doing that, and a further review is not necessary to drive the changes forward.
The CQC’s role is to monitor the quality of in-patient services. Its annual “Monitoring the Mental Health Act” report specifically discusses the in-patient environment, and considers the quality of accommodation under the 1983 Act. The independent review in particular made a recommendation to replace dormitory provision with private rooms. To date, the NHS has invested £575 million in doing that, and we are committed to completing our programme of investment.
Anna Dixon
I draw attention to Lynfield Mount hospital in my constituency, which provides mental health in-patient care. It has a fantastic plan for upgrading its facilities, but at the moment it has secured only a proportion of the capital funding. Will the Minister meet me and local NHS leaders to see whether we can close the gap in the capital funding for that facility?
Stephen Kinnock
I congratulate Lynfield Mount on the important work it is doing—and I congratulate my hon. Friend on that extremely strategic intervention. Yes, I would of course be more than happy to meet her, and we will make sure to get that in the diary.
The Government have allocated £750 million for estates safety in 2025-26, to address high-priority estate issues across the NHS systems, including in the mental health estate. The CQC will continue to monitor the impact of the reforms through its existing monitoring and reporting duties. A further statutory review is therefore not required, so I ask the hon. Member for Winchester to withdraw his new clause.
Dr Chambers
I thank the Minister for his reassurances, especially on the ongoing reviews. I will withdraw the new clause, but I make the obvious point that this is about not only the health and safety of the staff and patients, but the public perception of mental health, and the stigma surrounding it if we are treating people in Victorian-era asylums. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 15
Review of impact of this Act on detention
“(1) The Secretary of State must, within a period of 12 months following the day on which this Act is passed, commission an independent review into the impact of relevant provisions on reducing the number of people detained under Part 2 of the Mental Health Act 1983.
(2) In subsection (1), ‘relevant provisions’ include—
(a) sections 4, 5 and 6,
(b) section 8,
(c) section 21, and
(d) sections 46 and 47.
(3) The Secretary of State must, within 12 months of the publication of the review in subsection (1), publish a strategy to implement the recommendations of that review.”—(Zöe Franklin.)
This new clause would require the Secretary of State to commission a review into the impact of relevant provisions in the Act in reducing the number of people detained, in particular the provisions relating to people with autism or a learning disability, on grounds for detention and for community treatment orders, medical treatment, care and treatment plans, and on after-care, and to implement any recommendations within 12 months of the publication of the review.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 18—Report on the impact of this Act on patients with eating disorders—
“(1) Within a period of 12 months following the day on which this Act is passed, the Secretary of State must publish a report on the impact of relevant provisions in this Act on patients with eating disorders.
(2) In subsection (1), ‘relevant provisions’ include—
(a) section 5 (Grounds for detention),
(b) section 11 (Making treatment decisions),
(c) section 17 (Urgent treatment to alleviate serious suffering),
(d) section 21 (Care and treatment plans), and
(e) section 47 (After-care services).”
This new clause would require the Secretary of State to report on the impact of this Bill on patients with eating disorders within 12 months of the passage of this Bill.
New clause 23—Impact assessment: children and young people in temporary foster care—
“(1) The Secretary of State must, within 18 months of the passing of this Act, publish and lay before Parliament an impact assessment on the impact of this Act on children and young people who are in temporary foster care.
(2) The impact assessment under this section must consider—
(a) whether the ordinary residence provisions result in delays or inequities in accessing treatment or after-care under this Act;
(b) the effect of transitions between placements on continuity of treatment under this Act; and
(c) any unintended consequences for children and young people in temporary foster care arising from the application of subsections (3) to (5) of section 125G of the Mental Health Act 1983.”
This new clause would require the Government to publish an impact assessment on the impact of this Act on children and young people in temporary foster care.
Zöe Franklin
New clause 15 calls for an independent review of whether the legislation achieves one of its core aims: reducing unnecessary detention under the Mental Health Act. People with learning disabilities and autistic people are still far too often detained in hospital settings, sometimes for months or years, despite clear evidence that community-based support would be more effective and humane. The Bill’s provisions—including those on grounds for detention, care and treatment planning and aftercare—are supposed to address that, but if we do not review their impact, there is a risk that they remain warm words without real change.
The new clause would ensure that the Government must review how well the new law is working, in particular for those most vulnerable to inappropriate detention, and then act on that evidence within a year. If we are serious about reform, which I believe the Government are given the content of the Bill, then the new clause would ensure serious scrutiny and accountability.
I turn to new clause 18. Eating disorders are complex, often misunderstood and frequently mismanaged in the mental health system. Too many patients face delayed interventions, inappropriate detention or a lack of tailored care, particularly when their condition does not fit into a narrow clinical threshold. The Bill introduces reforms to detention criteria, treatment decisions and care planning, but we must ensure that the changes actually work for people with eating disorders.
The new clause would require the Secretary of State to publish a report within 12 months that assesses the Bill’s impact on patients with eating disorders, including whether it is has improved access to appropriate treatment, safeguarded against unnecessary detention and strengthened aftercare. This is a matter not just of policy but of real people’s lives. We owe it to this vulnerable group to ensure that the reforms deliver real change, and that they are not left behind in a system that is still too often shaped by other conditions.
Finally, on new clause 23, children and young people in temporary foster care are some of the most vulnerable in our system. They often face multiple disruptions in care, placement and support, all of which can significantly impact their mental health. The new clause asks for a focused impact assessment on how the changes in the legislation will affect them. In particular, the new clause looks at whether the ordinary residence rules delay or block access to mental health treatment, whether placement changes disrupt continuity of care, and whether the provisions in section 125G of the Mental Health Act unintentionally harm this group.
Foster children should not fall through the cracks of bureaucracy. If we are serious about improving mental health services for all, we must understand and address the unique risks that face those who are moved frequently, often with little warning or support. An impact assessment is a necessary first step to ensure that their needs are not overlooked.
I commend all the new clauses to the Committee and look forward to hearing from the Minister.
Stephen Kinnock
On new clause 15, we want more people cared for in the community and fewer people reaching a point of crisis and detention, but we do not think it is right to use the legislation to drive down the numbers in an arbitrary way that could interfere with clinical decision making and create a risk that people do not receive the help that they need. An evaluation of the relevant clauses should therefore focus not purely on the reduction in detentions, but on the overall improvement of experience and outcomes. Such improvement is predicated on the independent review principles of choice and control, therapeutic benefit, and the person as an individual, as well as the principle of least restriction.
The timescales suggested in new clause 15 are not feasible. Following Royal Assent, our priority will be to update the code and for staff to be trained on the new legislation and code, before commencing the first phase of the reforms. The first phase of significant reforms cannot take effect until the work on the code and the training of staff are completed. Few, if any, of the sections mentioned in new clause 15 could therefore be commenced within 12 months, and it would be premature to commission a review of their effect on detention rates within that time period.
We plan to commission an independent evaluation of the reforms, subject to funding and fundable research applications. This will be a long-term, staged exercise, given the long period over which different reforms are expected to be sequentially commenced following the initial primary legislation. We will monitor the impact of the reforms on the number of detentions and disparities in detention rates, all of which are already published under the monthly Mental Health Act statistics. We have also committed to providing Parliament with an annual update on the implementation of the reforms. As we already plan to commission an independent evaluation of the Bill, and as the timescale set out in new clause 15 would not be feasible, I ask the hon. Member for Guildford to withdraw the new clause.
On new clauses 18 and 23, we have already published an impact assessment alongside the Bill, which was scrutinised by the Regulatory Policy Committee and rated fit for purpose. We have also committed to laying an annual report on the Bill’s implementation, through the written ministerial statement. We are committed to monitoring and evaluating the reforms to understand their impact on different groups affected by the legislation.
On new clause 18, we recognise the devastating impact that an eating disorder can have on someone’s life. The earlier treatment is provided, the greater the chance of recovery. The implementation and evaluation of the reforms will be a long-term, staged exercise. It would not be possible to assess the impact of the reforms on people with eating disorders within 12 months, as not all reforms will have been implemented. We will continue to work closely with NHS England to improve access to appropriate and timely care and treatment for people with an eating disorder.
On new clause 23, we recognise that there are inequalities in mental health prevalence and outcomes for children and young people in care. We are committed to ensuring that all children are able to access the care and treatment they need. We plan to develop bespoke guidance in the revised code on the care and treatment of children and young people, to account for the specific needs of that cohort. I hope that hon. Members will not press their new clauses.
Zöe Franklin
I thank the Minister for his comments; it was really helpful to hear about how he sees the timings in our new clause fitting with the ongoing work to implement the Mental Health Act and the commissioning of the independent review. I am concerned about his comment that the work will be dependent on funding. I hope that the funding for the important independent review will be ensured. However, on the basis of the Minister’s comments, I am happy not to press any of the new clauses. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 16
Transfer of patients: out of area placements
“(1) The Mental Health Act 1983 is amended as follows.
(2) After section 19 (transfer of patients), insert—
‘19A Transfer of patients: out of area placements
(1) The Secretary of State must reduce to zero, within five years of the passage of the Mental Health Act 2025, the number of patients transferred to a hospital outside of the area in which the patient is ordinarily resident.
(2) The Secretary of State must publish, within six months of the passage of the Mental Health Act 2025, a report to outline how the duty under this section will be met, including how provision for treatment under this Act will be increased.’”—(Dr Chambers.)
This new clause would require the transfer of patients to hospitals outside of their area to be reduced to zero within 5 years, and for the Secretary of State to produce a report on how this will be achieved.
Brought up, and read the First time.
Dr Chambers
I beg to move, That the clause be read a Second time.
The new clause would require the number of patients transferred to hospitals outside their area to be reduced to zero within five years, and the Secretary of State would have to produce a report on how this would be achieved. We should not underestimate the harm and distress caused to patients and their families when they are allocated an out-of-area mental health placement. At the end of March 2024, there were 900 active out-of-area placements in England, of which 89% were deemed inappropriate.
Patients must be treated in a centre close to their home and family, and that can be achieved by increasing capacity and co-ordination between services. The new clause calls on the Secretary of State to publish guidance within six months of the Bill’s passage, setting out what processes and funding will be available for that purpose. Vulnerable people deserve to be treated near to their families and home, and the new clause would ensure that happens.
Dr Shastri-Hurst
The new clause is underpinned by noble intentions, but does the hon. Gentleman believe that patients would be better served if such a process were in guidelines rather than in the Bill? That would ensure that it is deliverable.
Dr Chambers
I welcome the hon. Gentleman’s comments. That is a sensible and insightful point, and I will take on board the Minister’s response too.
Stephen Kinnock
We believe that everyone should receive treatment for mental illness as close to home as possible, but there are circumstances in which placement on a ward outside the area where a person usually resides is clinically necessary. Some specialised services—for example, treatment for an eating disorder—may require a person to be transferred to a placement away from home, and we wish to retain that option.
However, we know that too many patients are placed outside their local area, which is why we have set aside £75 million in capital funding for local systems to invest in reducing such placements for all patients. We are also trialling new models of care, including six pilots of 24/7 neighbourhood mental health centres, with the aim of treating more people in their local communities. Similar international models have achieved significant reductions in hospitalisation.
NHS England is developing a new model for specialised children’s and young people’s mental health services that aims to ensure that children and young people are treated in the least restrictive environment close to their family and home. I hope that that satisfies the hon. Gentleman and that he will withdraw the new clause.
Dr Chambers
I thank the Minister for his comments. He recognises the issue and is taking steps to address it, so I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 19
Report and Guidance: Improving Outcomes for LGBT Patients
“(1) The Secretary of State must, within 12 months of the day on which this Act is passed, prepare and lay before Parliament a report on the mental health outcomes of patients who are treated under the Mental Health Act 1983 and who identify as lesbian, gay, bisexual, or transgender (LGBT).
(2) The report under subsection (1) must include an assessment of—
(a) any differences between non-LGBT patients and LGBT patients in—
(i) the extent of the use of detention measures under the Mental Health Act 1983; and
(ii) treatment outcomes following detention, and
(b) the availability and accessibility of ‘culturally competent’ mental health treatment under the 1983 Act for LGBT patients.
(3) Following publication of the report under subsection (1), the Secretary of State must publish guidance for responsible bodies and individuals working with patients under the Mental Health Act 1983, including but not limited to those working in—
(a) mental health hospitals;
(b) places of safety;
(c) crisis accommodation; and
(d) relevant community mental health services.
(4) The guidance under subsection (3) must include—
(a) provisions about updated training standards for staff regarding the specific mental health needs and experiences of LGBT individuals, including training on non-discriminatory practice and inclusive communication approaches;
(b) steps to improve safety for LGBT patients in relevant mental health settings, with particular regard to addressing discrimination and harassment; and
(c) a definition of ‘cultural competent mental health treatment’ for the purposes of subsection (2).
(5) Responsible bodies and individuals working with patients under the Mental Health Act 1983 must have regard to guidance published under subsection (3).
(6) In preparing the report under subsection (1) and the guidance under subsection (3), the Secretary of State must consult—
(a) patients with a mental disorder who identify as LGBT;
(b) the families or carers of patients with a mental disorder who identify as LGBT;
(c) relevant professional bodies;
(d) integrated care boards;
(e) local authorities;
(f) providers of mental health treatment; and
(g) such other persons as the Secretary of State considers appropriate.
(7) The Secretary of State must update the guidance under subsection (3) at regular intervals, and no less frequently than every three years.”—(Zöe Franklin.)
This new clause would require the Secretary of State to report on mental health outcomes and disparities for LGBT patients in treatment under the Mental Health Act 1983 and publish guidance covering training and safety for this specific group.
Brought up, and read the First time.
Zöe Franklin
I beg to move, That the clause be read a Second time.
New clause 19 would require the Secretary of State to report on mental health outcomes for LGBT patients detained or treated under the Mental Health Act 1983, and to publish clear guidance to improve staff training, patient safety and inclusive care for that group. We all deserve appropriate support when experiencing poor mental health, and that support must be fair and respectful, no matter whether the patient identifies as lesbian, gay, bisexual or transgender. Members of the LGBT community should have confidence that they will be treated with dignity and should not face unequal or inappropriate treatment because of who they are. Unfortunately, we know that that is not always the reality.
Stonewall’s “LGBT in Britain—Health” report revealed deeply concerning findings: almost one in four LGBT individuals had heard discriminatory or negative remarks about them from healthcare staff, one in eight had experienced unequal treatment, one in 10 had been outed without their consent in healthcare settings, and one in seven had avoided treatment altogether for fear of discrimination. That is unacceptable anywhere in our health system, but it is especially alarming in mental health settings, where patients are already in distress and often detained, and may not be in a position to advocate for themselves.
Stephen Kinnock
I am grateful to the hon. Member for bringing this issue before the Committee. This Government are committed to tackling health inequalities. The NHS continues to pursue its advancing mental health equalities strategy, which sets out plans to address inequalities in access, experience and outcomes in mental health care, including for LGBTQ+ people. However, we do not think that a review within 12 months of the passage of this Bill is the right approach. First, there are known data quality issues with the recording of sexual orientation in the mental health services dataset, which, combined with small numbers, limits our ability to monitor outcomes accurately and reliably.
Secondly, we do not need a review before acting to improve patient experience under the Act. We will update the code of practice following the passage of this Bill, including the statutory guidance to the Mental Health Act, and will work with patient groups to consider what further guidance is needed to reduce disparities in use of the Act. That consideration will cover issues based on sexuality, gender, race and other protected characteristics. We are also committed to monitoring and evaluating the reforms, which will include an assessment of whether new safeguards and support mechanisms are being equitably accessed through different groups. For those reasons, I ask the hon. Member to withdraw the new clause.
Zöe Franklin
I thank the Minister for his comments, for the recognition that individuals in the LGBT community clearly have concerns about the way that mental health care is provided, and for the commitment to addressing those. I hope that at some point he will be able to advise on the timeline for looking to resolve the issue of the unreliability of data; it is crucial that we have accurate data in order to ensure good outcomes and improvements in mental health care. However, in the light of the Minister’s comments and commitment on the issue, we will not press the new clause, although I look forward to observing closely, as this Bill continues through the House, how it will address the current inequalities for the LGBT+ community. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 22
National strategy on mental health units
“(1) The Mental Health Act 1983 is amended as follows.
(2) In Part VIII (Miscellaneous Functions of Local Authorities and the Secretary of State), after section 118, insert—
‘118A National strategy on mental health units
(1) The Secretary of State must, within 12 months of the passing of the Mental Health Act 2025, publish a national strategy to set out how the Government will ensure that all relevant mental health units meet or exceed ‘good’ safety standards as assessed by the Care Quality Commission (CQC).
(2) A strategy issued under this section must address the following matters—
(a) recruitment, retention and training of mental health staff,
(b) patient-to-staff ratios, and
(c) safe staffing levels during crises and night shifts.
(3) Following publication of the strategy, a report on implementation progress must be laid before Parliament annually.
(4) For the purposes of this section, a ‘relevant mental health unit’ is a facility used for treatment under this Act.”—(Dr Chambers.)
This new clause would require the Secretary of State to publish a strategy, followed by an annual progress report, on how the Government will ensure that all mental health units used for treatment under the Mental Health Act 1983 are rated “good” or above by the CQC.
Brought up, and read the First time.
Dr Chambers
I beg to move, That the clause be read a Second time.
New clause 22 is quite similar to new clause 14, on the state of in-patient facilities. It would require the Secretary of State to publish a national strategy to ensure that all mental health units meet or exceed a good rating for safety, as assessed by the Care Quality Commission. It would also mandate annual progress reports to Parliament. We all know that far too many mental health settings fall below acceptable standards. The CQC has repeatedly flagged serious failings in in-patient mental health services, including unsafe staffing levels, poor physical conditions and risks of harm to patients. These are not isolated issues but persistent and systemic problems.
The new clause calls for a proper, co-ordinated response. It would require the Government to set out how they will address staffing shortages, improve recruitment and retention, and ensure safe staffing levels, particularly at night and during crisis periods, when the risk is often highest. It is not enough to rely on reactive inspections or piecemeal initiatives; we need a national strategy backed by data, accountability and regular reporting to the House. Too many vulnerable people are currently treated in mental health units that are overstretched, understaffed and, in some cases, unsafe. The new clause would begin to change that by setting clear expectations on monitoring progress and holding the Government to account. I commend the new clause to the Committee.
Stephen Kinnock
We all agree that patient safety is paramount. Anyone who receives treatment in an in-patient mental health facility deserves safe and high-quality care. There have been too many incidents of poor-quality and unsafe care resulting in trauma and sometimes tragedy.
Although we agree with the principle of the new clause, the overriding objective duplicates NHS England’s in-patient quality transformation programme, a national initiative aimed at improving the quality and safety of care in in-patient mental health, learning disability and autism services. The programme has been developed with service users, families and staff, and sets out a long-term vision for improving in-patient services.
The new clause focuses specifically on staffing arrangements. Although we of course agree that the workforce is an important consideration in ensuring safe in-patient care, it is not the only factor. By comparison, NHS England’s in-patient quality transformation programme takes a more comprehensive view of the factors that contribute to safe and effective in-patient care. For example, it includes support for the cultural changes required to create and sustain an in-patient environment in which patients and staff can flourish. The programme’s progress will be measured using a range of data and evidence, for example on patient and staff experience.
We know that more needs to be done to support the providers of mental health care to improve the quality of their services in a sustainable way, which is why we are putting in place a robust package of reforms to help to improve performance. There will be no more rewards for failing; instead, ICBs and providers that do well will be rewarded with greater freedoms, while the most challenged will receive focused intervention. For those reasons, I ask the hon. Gentleman to withdraw the new clause.
Dr Chambers
I thank the Minister for his comments and reassurances. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 24
Application in respect of patient already on hospital grounds
“(1) The Mental Health Act 1983 is amended as follows.
(2) In section 5(1) (Application in respect of a patient already in hospital), after ‘or,’ insert ‘that the patient has attended a hospital or been brought to a hospital to seek help or admission as a patient or,’”.—(Dr Shastri-Hurst.)
This new clause would allow people who have attended or been brought to a hospital to seek help or admission as a patient to pursue an application for admission under the Mental Health Act.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Natasha Irons (Croydon East) (Lab)
I beg to move, That the clause be read a Second time.
The new clause seeks to ensure that if a patient dies while in detention under the Mental Health Act, an independent inquiry into their death will be required. Unlike deaths in prison or police-related deaths, deaths while a person is detained under the Mental Health Act are not automatically investigated independently. Currently, if a person dies while detained under the Act, the trust responsible for their care should carry out an internal investigation into their death to find out what happened and whether lessons can be learned. Those investigations, known as serious incident investigations or root cause analysis, do not have any independent oversight and can vary a lot from trust to trust.
Inquest, the only charity in England and Wales providing expertise on state-related deaths and their investigation, has found that the current system for investigating such deaths is not fit for purpose. In its statement to the Lampard inquiry, it outlined an anonymised case from 2010 in which there was a stark contrast between the findings of the NHS trust that investigated the death of a patient detained under its care and the inquest that took place two years later. The trust found very few failings in care, whereas the jury at the later inquest were critical of the patient’s treatment, which directly led to their death. The question we must ask ourselves is why we would allow deaths while in detention under the Mental Health Act to be investigated by those in charge of custody, when deaths in any other setting would not be. We do not allow the police to judge their own actions if a death occurs in custody, so why should it be any different for those detained under the Mental Health Act?
Josh Dean (Hertford and Stortford) (Lab)
My hon. Friend is making a fantastic speech. In the really dire circumstances of a death in detention, we are dealing with the most difficult and, for family members and loved ones, the most devastating circumstances. Given that, does she agree that it is important to make sure that the circumstances are reviewed thoroughly and independently?
Natasha Irons
My hon. Friend is absolutely right. This is about transparency and providing answers for the families of patients when the very worst happens.
Independence has allowed investigations into deaths in places of custody to improve significantly. As outlined by the independent advisory panel on deaths in custody, patients detained under the Mental Health Act now have the highest mortality rate across all places of custody. Indeed, the rate is three times higher than in prisons, when taking into account estimates of time in custody and the number of people in each setting. Behind each of these tragedies are families who have unanswered questions and who have had to fight to find out what happened to their loved ones, and vulnerable people who should have received better care.
In my constituency, there is the story of Catherine Horton, who died in 2017 while in the care of the South London and Maudsley NHS trust. The inquest into her death found that the risk assessment was not properly updated, with no formal risk assessment conducted, and no care plan on her arrival or while at the facility. There is also the story of Tia Wilson, who died in 2021 in the care of the same trust. The inquest into her death found that there were multiple failures in managing her risk, which contributed to her death. Then there is the story of the brother of one of my constituents, who absconded from his care, went missing, and was later found dead in a wooded area a stone’s throw from her home.
For each of those cases, we know that internal reviews will have taken place and assurances of improvements will have been made, and yet issues with risk assessments remain and families are left pushing for answers. This is not unique to south London; the internal review process is failing to deliver the necessary improvements across the country. Without embedding independence into the process, we risk undoing a lot of the good work that the Bill seeks to achieve. Adding independence into the investigation of these incidents where the very worst things happen gives trusts a genuine space to learn the lessons. It would improve patient safety and provide families with the transparency they need.
Although we must all acknowledge the incredible work that trusts do across our country to provide care for people at their most vulnerable, we must also provide a proper framework for challenge and improvement. The new clause is an opportunity to treat the deaths of people detained under the Mental Health Act with the same seriousness and care as deaths in other custody settings, to embed transparency, and to make the meaningful improvements that all patients deserve.
Stephen Kinnock
I am very grateful to my hon. Friend for bringing this issue to the Committee. I thank her for her powerful speech, which drew on specific experiences of people who have been through very terrible and tragic processes. I have discussed some work on the broader issue of quality of care, but this is a vital issue, and I reiterate how grateful I am to her for enabling us to discuss it on the public record. We recognise that there have been too many incidents of poor-quality and unsafe care, which sometimes result in tragedy. I hope my hon. Friend is reassured by the measures we are taking to support providers of mental health care to improve the quality of their services. We have carefully considered her new clause, and I am afraid that we do not think this needs to be addressed through the Bill.
Natasha Irons
I thank the Minister for his comments. The cluttered and chaotic way in which we investigate these things is part of the problem, so I am glad to hear that there is a wider review of how we streamline the process better for patients, because we are seeing mistakes repeated over and over again. I am content to withdraw the new clause, but I would be grateful if the Minister would meet me to discuss the wider plans in this area and how I can support that work and take it forward.
Stephen Kinnock
I would be more than happy to meet my hon. Friend. It is also worth mentioning the independent advisory panel on deaths in custody report, which she mentioned. We are considering that carefully, so we should include it in our discussions.
Natasha Irons
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 26
Use of restraint and restrictive intervention
“(1) The Mental Health Act 1983 is amended as follows.
(2) In Part II (Compulsory Admission to Hospital and Guardianship), after section 7, insert—
‘7A Use of force in connection with admission for assessment or treatment
(1) A relevant organisation that operates a hospital must appoint a responsible person for the purposes of this section.
(2) The responsible person must—
(a) be employed by the relevant health organisation, and
(b) be of an appropriate level of seniority.
(3) The responsible person must keep a record of any use of force by staff who work in that hospital against a person (“P”) who—
(a) has been admitted for assessment or treatment under sections 2 to 5 of this Act; or
(b) is on the hospital premises and is at risk of detention under this Act.
(4) The Secretary of State must by regulations provide for the risk factors to be considered under subsection (3)(b).
(5) A record kept under this section must include—
(a) the reason for the use of force
(b) the place, date and duration of the use of force
(c) whether the type or types of force used on the patient formed part of the patient's care plan;
(d) the name of the patient on whom force was used;
(e) a description of how force was used;
(f) the patient's consistent identifier;
(g) the name and job title of any member of staff who used force on the patient;
(h) the reason any person who was not a member of staff in the hospital was involved in the use of force on the patient;
(i) the patient's mental disorder (if known);
(j) the relevant characteristics of the patient (if known);
(k) whether the patient has a learning disability or autistic spectrum disorders;
(l) a description of the outcome of the use of force;
(m) whether the patient died or suffered any serious injury as a result of the use of force;
(n) any efforts made to avoid the need to use force on the patient; and
(o) whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient's care plan.
(6) The responsible person must keep the record for three years from the date on which it was made.
(7) The Secretary of State must ensure that, at the end of each year, statistics are published regarding the use of force by staff who work in hospitals under the conditions set out in this section.’”—(Jen Craft.)
This new clause would require hospitals to record information on all incidents in which force is used against patients with mental disorders, in line with the reporting currently required in mental health units, including force against those at risk of detention for assessment or treatment. It would also require the Government to publish annual figures on the same topic.
Brought up, and read the First time.
Jen Craft (Thurrock) (Lab)
I beg to move, That the clause be read a Second time.
I will speak briefly to the new clause, which was tabled by my hon. Friend the Member for Sheffield Hallam (Olivia Blake). Its aim is to close a loophole in the current framework by which use of restraint is recorded. Currently, the use of restraint is governed by the Mental Health Units (Use of Force) Act 2018, which mandates that where force or restraint is used in a mental health unit, that must be recorded and reported. There are, however, a number of patients who are treated outside mental health units and therefore do not fall within the scope of the Act. My hon. Friend the Member for Sheffield Hallam has spoken about the issue, to which her attention was particularly drawn in the context of the treatment of patients with eating disorders. This happens quite often, either where there is a shortage of beds in a mental health unit or where the patient in question has co-occurring physical health conditions that require treatment outside such a unit.
Restraint is used regularly and often on patients with eating disorders, by which I mean restraining them to force them to eat, but there is currently no mechanism by which its use must be recorded. If a patient, particularly a young person, who is in hospital but is not in a mental health unit is subject to this restraint, which may be deemed necessary to preserve life and in their best interests, there is currently no mechanism by which that is recorded.
Josh Dean
We touched earlier on the safeguards around electroconvulsive therapy. Does my hon. Friend agree that when someone with an eating disorder is restrained, particularly in circumstances that involve the administration of nasogastric tube feeding, such safeguards are really important because of the invasive nature of the treatment and the potential restraint used in delivering it?
Jen Craft
My hon. Friend is absolutely right. The crucial purpose of the new clause is to ensure that the use of restraint is recorded at all times, as well as highlighting that quite often the restraint may be carried out not by a member of the medical staff, but by hospital security, for example. I think we can only imagine the real horror and force involved in that.
Anna Dixon
I thank my hon. Friend for drawing attention to this gap in the current law. Would she acknowledge that there is now evidence that the use of restraint and restrictive interventions can have serious long-term effects on a patient’s health and wellbeing? Indeed, there can also be an impact on those staff members who are required to carry it out, often with poor training.
Jen Craft
I completely agree. The long-term implications and impacts of restraint on health and wellbeing have been widely documented and acknowledged. It is vital, if a patient is subjected to these measures, that their use is recorded and the patient, in turn, can understand why.
The Committee has spent significant time talking about the importance of patient inclusion in their treatment plans. Earlier clauses, which I will not revisit at length, deal with the importance of enabling patients to select how and where they are treated, as well as advance choice documents. They are vital to the patient experience, because they involve and include them in how they are treated. We acknowledge that such involvement has a massive impact on the patient’s ability to heal, get better, recover from their mental illness and, in some cases, get well enough to go home. It is vital, if people are subject to restraint and the use of force, that it is recorded in an appropriate manner.
This new clause seeks to mandate the recording of its use by staff, as well as information such as the member of staff who applied the force, whether they are medical, and, vitally, demographic data. My hon. Friend the Member for Southend East and Leigh—I hope I have that right—
Jen Craft
My apologies; they are both lovely places. My hon. Friend spoke earlier about the impact that mental health treatment can have on people in regard to race and ethnicity, and the importance of including demographic data. We know that black people are disproportionately subject to use of force and restraint, which is why recording this data in a mental health unit is acknowledged as important. However, if a patient is subject to restraint outside a mental health unit, there is currently no mechanism to record that.
The new clause would also require the Secretary of State to publish annual statistics on how restraint has been used outside a mental health unit. I believe that the Minister’s predecessor agreed to look at closing this loophole. To date, however, action has not necessarily been forthcoming. People continue to be subject to the use of force or restraint, and we have no means of knowing how often it has occurred, to whom it has occurred or whether it has taken place inappropriately. I encourage the Minister and other members of the Committee to consider how we can ensure that the use of restraint and force is appropriately recorded in all medical settings, not just in mental health units.
Stephen Kinnock
I thank my hon. Friend the Member for Sheffield Hallam for tabling this important new clause, and I thank my hon. Friend the Member for Thurrock for moving it on her behalf.
The new clause seeks to recreate some of the duties from the Mental Health Units (Use of Force) Act 2018, but apply them to patients detained under sections 2, 3, 4 or 5 of the Mental Health Act or those at risk of detention under that Act. This would cover patients receiving mental health treatment who are not in specialist mental health beds, such as young people with eating disorders who are detained in general paediatric wards.
There are practical reasons why we do not support the new clause as it is drafted. For the vast majority of mental health patients, this duty would duplicate duties that already exist under the 2018 Act. Although the new clause would go further in requiring the recording of use of force outside mental health units, it does not require any further use of that data to develop policies or train staff, which is a key element of the 2018 Act. As drafted, the new clause would introduce new duties to record and report data, without there being any clear further use of that data.
I accept, however, that we need to do more to reduce the use of restraint for all patients detained or at risk of detention under the Mental Health Act. NHS England has an ongoing programme of work, overseen by the reducing restrictive practice oversight group, to address this issue for people experiencing acute distress and mental health difficulties. My officials have also written to the CQC to commission it to develop a viable and proportionate mechanism for reporting use of restraint to the CQC, drawing on the views of NHS Providers and NHS England. Any potential changes can be made in regulations and would not require primary legislation, so we can continue this work in parallel with the passage of the Bill, delivering on our commitment to reduce the use of force for mental health patients. For those reasons, I hope that my hon. Friend the Member for Thurrock will withdraw the new clause.
Jen Craft
I thank the Minister for his comments. I am reassured, as I am sure my hon. Friend the Member for Sheffield Hallam will be, to hear that he accepts the need to do more about the use of restraint, regardless of the setting in which it occurs. I am also pleased to hear about the measures by which he is seeking to do so in parallel with the passage of the Bill. I am content with what the Minister said, and I imagine my hon. Friend the Member for Sheffield Hallam will be, too. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Clause 55
Power of Secretary of State to make consequential provision
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
Clauses 56 to 58 stand part.
Government amendment 39.
Clause 59 stand part.
I should say to Members that we have 10 minutes left. If they want to conclude the Committee’s business this morning, they should bear that in mind.
Stephen Kinnock
Clauses 55 to 59 are the general provisions of the Bill. They include the powers to make provision that is consequential on the Bill by regulations. The clauses also set out the territorial extent of the measures, and the commencement and short title of the Bill.
Clause 55 will allow the Secretary of State to make regulations that make provisions that are consequential on the Bill. The power may be used to
“amend, repeal or revoke provision made by or under primary legislation passed—
(a) before this Act, or
(b) later in the same session of Parliament as this Act.”
Clause 56 will provide an equivalent power for Welsh Ministers to make consequential provision in areas of their devolved legislative competence. Regulations that make consequential provision will be subject to the affirmative scrutiny procedure where they amend or repeal primary legislation, and to the negative procedure where they amend or revoke secondary legislation.
Clause 57 sets out the extent of the Bill. The majority of the Bill will extend to England and Wales, but the general provisions in clauses 55 to 59 will apply UK-wide. We have tabled two amendments, Government amendments 37 and 38, that will modify section 6(3)(b) of the Human Rights Act 1998, extending its protection to cover private care providers when providing certain services arranged or paid for by public authorities. That change, if accepted, will extend UK-wide; we tabled the amendments to clause 57 to reflect that position.
Dr Evans
I will be brief. On this clause, I will be grateful if the Government can ensure good co-operation between the devolved powers, and if the Minister can set out how he will engage with the Welsh Government before exercising the power.
On clause 57, what consideration has been given to cross-border issues to ensure that there are no unintended consequences between the likes of England and Wales or Scotland and England? Clause 58 covers commencement; will there be a clear published timetable for that over the next 10 years? Will Government allow Parliament sight of the transitional provisions? We have talked about the annual written ministerial statement, which we have clarified, but will there be further tracking reports that we can look at?
Clause 59 states that the Bill will not impose new public spending or taxation, and yet the impact assessment lists £1.9 billion for the NHS in England, £396 million for local authorities, £2.5 billion for supporting housing and social care, and £287 million for legal costs and tribunals. Clearly, costs are associated with the Bill’s implementation over the next 10 years, so a money resolution is rightly required. When I raised those issues on our first and second days in Committee, the Minister rightly could not answer, because we had not had the Government’s settlement. We have now had that settlement, so I will be grateful to understand how the funding is to be applied to mental health on the community side and with regards to the Bill. Finally, given that we are dealing with Scotland, Wales and Northern Ireland, what are the Barnett consequentials of the Bill in ensuring the support implied in the clauses?
I am grateful to the Committee, the Clerks, the Chairs, everyone here and everyone who has helped me prepare. Committee stage has been a joy, but also a long trial to get through. I am glad to be present as the Bill proceeds, because it is the right thing for the country.
Stephen Kinnock
I thank the shadow Minister for his question about devolved powers. We have worked closely with the Welsh Government on the Bill. The Senedd has yet to vote, but the Welsh Government in their legislative consent memorandum recommended that it grants consent to the Bill. We also seek a legislative consent motion from the Northern Ireland Executive for extending—in Government amendments 37 and 38—the remit of the Human Rights Act 1998 to cover private care providers when providing certain services arranged for or paid by local by public authorities. I will look into the cross-border issues and, if something is there, I will certainly write to update the shadow Minister.
On the published timetable, the written ministerial statement will absolutely be a report on progress over the 12 months and will have a forward plan in it. I cannot say at this moment whether it will be a forward plan all the way through the proposed 10-year commencement period, because some of that will go beyond the spending review period, for example, but I assure the hon. Member that a timetable will at least cover the period of the initial spending review. I do not know whether there will be tracking reports—I will check that point with officials—but my sense is that the written ministerial statement will be the main hook to hang this on.
The shadow Minister asked about the money resolution. We have the overall financial envelope for the DHSC. There is now—how should I describe this?—intense dialogue going on between departments within the DHSC and across portfolios, so I think it will take a couple of weeks before we get the carve-up of the envelope across the different portfolios.
I note the shadow Minister’s point about the Barnett consequentials. I will look into it and come back to him.
It remains for me to thank you, Mr Vickers; everyone in Committee, for their very hard work; and all the staff and officials, to whom we are hugely grateful. I commend the Bill to the Committee.
Question put and agreed to.
Clause 55 accordingly ordered to stand part of the Bill.
Clause 56 ordered to stand part of the Bill.
Clause 57
Extent
Amendments made: 37, in clause 57, page 68, line 3, at end insert “subject to subsection (2).”
This is consequential on amendment 38.
Amendment 38, in clause 57, page 68, line 4, leave out “This section, section 55” and insert—
“Section (Human Rights Act 1998: extension to certain private care providers), section 55, this section”.—(Stephen Kinnock.)
This ensures that NC10 extends to England and Wales, Scotland and Northern Ireland.
Clause 57, as amended, ordered to stand part of the Bill.
Clause 58 ordered to stand part of the Bill.
Clause 59
Short title
Amendment made: 39, in clause 59, page 68, line 25, leave out subsection (2).—(Stephen Kinnock.)
This removes the privilege amendment inserted in the Lords.
Clause 59, as amended, ordered to stand part of the Bill.
Bill, as amended, to be reported.