Baroness Merron

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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)

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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 Many elements of the Mental Health Act 1983 are outdated.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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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

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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.

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

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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”.

Baroness Merron (Lab)

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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 Merron (Lab)

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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 Merron (Lab)

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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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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 Merron (Lab)

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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.

Baroness Merron (Lab)

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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.

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

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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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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)

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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 Merron (Lab)

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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)

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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 Merron (Lab)

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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.

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

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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.

Baroness Merron (Lab)

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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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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 Merron (Lab)

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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 Merron (Lab)

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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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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.

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

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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 Merron (Lab)

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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 Merron (Lab)

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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 Merron (Lab)

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I appreciate that point, and I certainly would be happy to have a look at that.

Baroness Merron (Lab)

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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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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.

Baroness Merron (Lab)

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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—

Baroness Merron (Lab)

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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.

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

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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 Merron (Lab)

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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)

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

Baroness Merron (Lab)

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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 Merron (Lab)

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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.

The Minister of State, Ministry of Justice (Lord Timpson) (Lab)

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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 Timpson (Lab)

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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 Timpson (Lab)

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I will very happily meet as soon as possible and well before the next stage.

Lord Timpson (Lab)

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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.

Lord Timpson (Lab)

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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 Timpson (Lab)

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I will ask officials to get me that information and to pass it on.

Baroness Merron (Lab)

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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 Merron (Lab)

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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.

Baroness Merron (Lab)

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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 Merron (Lab)

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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.

Baroness Merron (Lab)

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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.

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

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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 Merron (Lab)

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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 Merron (Lab)

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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.

The Minister of State, Ministry of Justice (Lord Timpson) (Lab)

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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 Timpson (Lab)

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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.