Mental Health Units (Use of Force) Bill (First sitting)
Wednesday 28th March 2018
(6 years, 7 months ago)
Public Bill CommitteesMental Health Units (Use of Force) Act 2018 View all Mental Health Units (Use of Force) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 March 2018 - (28 Mar 2018)
The Chair
Good morning. Welcome to the Public Bill Committee on the Mental Health Units (Use of Force) Bill. I remind everyone to turn off their electronic devices. Tragically, tea and coffee are not permitted.
Ordered,
That, if proceedings on the Mental Health Units (Use of Force) Bill are not completed at this day’s sitting, the Committee shall meet on Wednesdays while the House is sitting at 9.30 am.— (Mr Reed.)
The Chair
On the basis of the motion just agreed, and given that the required notice period in Public Bill Committees is three working days, amendments should be tabled by 3 pm on Fridays for consideration on Wednesdays. I encourage Members to submit amendments earlier, if they can. I advise Members that, as a general rule, I do not intend to call starred amendments, which have not been tabled with adequate notice.
Mr Steve Reed (Croydon North) (Lab/Co-op)
I beg to move,
That the Bill be considered in the following order, namely, Clauses 1 to 6, Clauses 9 to 11, Clauses 7 and 8, Clauses 12 to 20, new Clauses, new Schedules, remaining proceedings on the Bill.
It is a pleasure to serve under your chairmanship, Ms Buck. We have finally got the Bill to Committee, and I am delighted that we are all here. The Committee has been delayed for four weeks in a row, because of the Government’s failure to lay a money resolution, which would allow us to consider the Bill in its entirety and all the amendments. Even this morning we will not be able to consider several amendments because a money resolution has still not been laid, despite the fact that the Bill enjoys the support of the Government and received the unanimous support of the House on Second Reading. When I asked the Government why the money resolution had not been laid, they said it was not possible because of the heavy schedule of business going through the Chamber, but both yesterday and last Tuesday the Adjournment was early because of insufficient business going through the House.
I want to register my disappointment that the money resolution has not been laid at this stage, and I urge Government and other Members to use their influence with the Whips to encourage the Government to do so as soon as possible. The Bill contains an important reform that will dramatically improve safety for many highly vulnerable people using mental health services, and I see no reason for it to continue to be delayed in such a fashion.
The Parliamentary Under-Secretary of State for Health (Jackie Doyle-Price)
It is a pleasure to serve under your chairmanship this morning, Ms Buck. I thank the hon. Gentleman for the points he has made. He is absolutely right to say that the Government support the measure. We support it very much because of the co-operative discussions that we have had, to get it to a place where everyone can agree. I fully endorse his point that the Bill is an important social reform; it is an important ingredient in our broader agenda to improve the treatment of people with mental health problems and illness.
The hon. Gentleman made his point about the need for a money resolution robustly. I will relay his representations to the House business managers, so that we can proceed without delay, as we all want such an important reforming measure to be on the statute book as soon as possible.
Question put and agreed to.
Clause 1
Key definitions
Mr Reed
I beg to move amendment 2, in clause 1, page 1, line 5, leave out subsection (3) and insert—
‘(3) “Mental health unit” means—
(a) a health service hospital, or part of a health service hospital, in England, the purpose of which is to provide treatment to in-patients for mental disorder, or
(b) an independent hospital, or part of an independent hospital, in England—
(i) the purpose of which is to provide treatment to in-patients for mental disorder, and
(ii) where at least some of that treatment is provided, or is intended to be provided, for the purposes of the NHS.’
This amendment replaces the definition of “mental health unit” with a new definition which clarifies that a unit may form part of a hospital. The amendment also removes care homes and registered establishments from the definition, and includes mental health units in an independent hospital within the definition only where the unit provides NHS treatment.
The Chair
With this it will be convenient to discuss the following:
Amendment 3, in clause 1, page 1, line 8, leave out subsection (4) and insert—
‘( ) In subsection (3) the reference to treatment provided for the purposes of the NHS is to be read as a service provided for those purposes in accordance with the National Health Service Act 2006.’
This amendment ensures that “treatment for the purposes of the NHS” is read in accordance with the National Health Service Act 2006. It also makes a change which is consequential on the removal of care homes from the definition of “mental health unit” (see Amendment 2).
Amendment 4, in clause 1, page 1, line 12, leave out subsection (5) and insert—
‘( ) “Patient” means a person who is in a mental health unit for the purpose of treatment for mental disorder or assessment.’
This amendment provides a new definition of “patient”. This definition makes clear that a patient includes a person who is in a mental health unit in order to be treated for mental disorder or to be assessed in the unit.
Amendment 6, in clause 1, page 2, line 1, leave out subsections (7) and (8) and insert—
‘(7) References to “use of force” are to—
(a) the use of physical, mechanical or chemical restraint on a patient, or
(b) the isolation of a patient.
(7A) In subsection (7)—
“physical restraint” means the use of physical contact which is intended to prevent, restrict or subdue movement of any part of the patient’s body;
“mechanical restraint” means the use of a device which—
(a) is intended to prevent, restrict or subdue movement of any part of the patient’s body, and
(b) is for the primary purpose of behavioural control;
“chemical restraint” means the use of medication which is intended to prevent, restrict or subdue movement of any part of the patient’s body;
“isolation” means any seclusion or segregation that is imposed on a patient.’
This amendment provides a revised definition of “use of force” which uses simpler language. It also removes threats from the definition and includes the isolation of a patient in the definition.
New clause 7—Interpretation—
‘In this Act—
“health service hospital” has the same meaning as in section 275(1) of the National Health Service Act 2006;
“independent hospital” has the same meaning as in section 145(1) of the Mental Health Act 1983;
“the NHS” has the same meaning as in section 64(4) of the Health and Social Care Act 2012;
“responsible person” has the meaning given by section 2(1);
“relevant health organisation” means—
(a) an NHS trust;
(b) an NHS foundation trust;
(c) any person who provides health care services for the purposes of the NHS within the meaning of Part 3 of the Health and Social Care Act 2012;
“staff” means any person who works for a relevant health organisation that operates a mental health unit (whether as an employee or a contractor) who—
(a) may be authorised to use force on a patient in the unit,
(b) may authorise the use of force on a particular patient in the unit, or
(c) has the function of providing general authority for the use of force in the unit.’
This new clause compiles various definitions for terms that are used throughout the Bill.
Mr Reed
I thank the Minister for her earlier comments. It has been a great pleasure to work with her and her team in such a constructive manner. I said in the Chamber that we would pursue the Bill in a constructive, co-operative and cross-party manner, and that is what all Members have tried to do so far. I suspect that we will not detain the Committee for too long this morning, such is the level of consensus on the amendments, so perhaps I should get on with it without any further ado.
Clause 1 sets out some of the important terms used throughout the Bill. The amendments are minor and aim to ensure that those terms are clearly defined. Amendment 2 strengthens the definition of “mental health unit” to make clear that any such unit may form part of a hospital. Amendment 3 ensures that “treatment provided” is read in accordance with the National Health Service Act 2006. Amendment 4 defines what the Bill means by “patient”, which is someone in a mental health unit who is there to be treated or assessed for mental ill health. Amendment 6 clarifies the definition of “use of force”, using more straightforward language, and it includes “isolation” as part of that definition. New clause 7 compiles and explains various other definitions used throughout the Bill.
Jackie Doyle-Price
I confirm that the Government entirely support these amendments, which make the language in the Bill consistent with the 2015 code of practice under the Mental Health Act 1983, and with broader guidance. That makes for a much tidier way of achieving the objectives of the Bill.
Amendment 2 agreed to.
Amendments made: 3, in clause 1, page 1, line 8, leave out subsection (4) and insert—
‘( ) In subsection (3) the reference to treatment provided for the purposes of the NHS is to be read as a service provided for those purposes in accordance with the National Health Service Act 2006.’
This amendment ensures that “treatment for the purposes of the NHS” is read in accordance with the National Health Service Act 2006. It also makes a change which is consequential on the removal of care homes from the definition of “mental health unit” (see Amendment 2).
Amendment 4, in clause 1, page 1, line 12, leave out subsection (5) and insert—
‘( ) “Patient” means a person who is in a mental health unit for the purpose of treatment for mental disorder or assessment.’—(Mr Reed.)
This amendment provides a new definition of “patient”. This definition makes clear that a patient includes a person who is in a mental health unit in order to be treated for mental disorder or to be assessed in the unit.
The Chair
With this it will be convenient to discuss the following:
Amendment 7, in clause 2, page 2, line 26, leave out subsections (1) to (3) and insert—
‘( ) A relevant health organisation that operates a mental health unit must appoint a responsible person for that unit for the purposes of this Act.
( ) The responsible person must be—
(a) employed by the relevant health organisation, and
(b) of an appropriate level of seniority.
( ) Where a relevant health organisation operates more than one mental health unit that organisation must appoint a single responsible person in relation to all of the mental health units operated by that organisation.’
This amendment replaces the requirement for mental health units to have a “registered manager” with a requirement to appoint a “responsible person”. That person must be employed by a relevant health organisation and be of an appropriate level of seniority. If an organisation operates multiple units, only one responsible person needs to be appointed in relation to those units.
Amendment 11, in clause 3, page 2, line 38, leave out “registered manager” and insert “responsible person”
This amendment is consequential on Amendment 7.
Amendment 60, in clause 7, page 4, line 38, leave out “registered manager” and insert “responsible person”
This amendment is consequential on Amendment 7.
Mr Reed
The clause establishes a named accountable individual in a mental health unit who will be responsible for a reduction in the use of force. It seeks to create established, clearer lines of accountability for the existence of appropriate policy, and for when things go wrong, so that it will be possible to find somebody who can explain exactly what circumstances might have led to any problems or failings with the use of force.
Amendment 7 replaces the phrase “registered manager” with “responsible person”. The change in language avoids confusion with existing Care Quality Commission regulations that use the phrase “registered manager”, but the intention remains the same. By introducing the legal concept of a responsible person for mental health units, the Bill increases accountability and leadership. Ultimately, the responsible person will be accountable for the requirement that the Bill places on mental health units, so it is important properly to define them as a senior officer in the organisation. They will set the organisation-wide direction for a reduction in the use of force. The responsible person will be at board level, with more detail about who is appropriate set out in guidance by the Secretary of State under clause 6. Amendments 5, 11 and 60 are consequential on changes of the phrase “registered manager” to “responsible person”.
Jackie Doyle-Price
The Government support the amendments. Perhaps one of the most important aspects of the Bill is that it enshrines accountability for ensuring that any institution fulfils its responsibilities. The buck needs to stop somewhere, and it is important that happens with someone at board level. The amendments are important for improving leadership, governance and accountability for the use of force. The amendments were drafted in line with the existing positive and proactive care guidance. It is also worth emphasising that this will not incur any additional burden on healthcare organisations; it will simply strengthen and enshrine accountability. On that basis, the Government are happy to approve the amendments.
Amendment 5 agreed to.
Amendment made: 6, in clause 1, page 2, line 1, leave out subsections (7) and (8) and insert—
‘(7) References to “use of force” are to—
(a) the use of physical, mechanical or chemical restraint on a patient, or
(b) the isolation of a patient.
(7A) In subsection (7)—
“physical restraint” means the use of physical contact which is intended to prevent, restrict or subdue movement of any part of the patient’s body;
“mechanical restraint” means the use of a device which—
(a) is intended to prevent, restrict or subdue movement of any part of the patient’s body, and
(b) is for the primary purpose of behavioural control;
“chemical restraint” means the use of medication which is intended to prevent, restrict or subdue movement of any part of the patient’s body;
“isolation” means any seclusion or segregation that is imposed on a patient.’—(Mr Reed.)
This amendment provides a revised definition of “use of force” which uses simpler language. It also removes threats from the definition and includes the isolation of a patient in the definition.
Clause 1, as amended, ordered to stand part of the Bill.
Clause 2
Mental health units to have a registered manager
Amendment made: 7, in clause 2, page 2, line 26, leave out subsections (1) to (3) and insert—
“( ) A relevant health organisation that operates a mental health unit must appoint a responsible person for that unit for the purposes of this Act.
( ) The responsible person must be—
(a) employed by the relevant health organisation, and
(b) of an appropriate level of seniority.
( ) Where a relevant health organisation operates more than one mental health unit that organisation must appoint a single responsible person in relation to all of the mental health units operated by that organisation.”.—(Mr Reed.)
This amendment replaces the requirement for mental health units to have a “registered manager” with a requirement to appoint a “responsible person”. That person must be employed by a relevant health organisation and be of an appropriate level of seniority. If an organisation operates multiple units, only one responsible person needs to be appointed in relation to those units.
Clause 2, as amended, ordered to stand part of the Bill.
Clause 3
Policy on use of force
Mr Reed
I beg to move amendment 8, in clause 3, page 2, line 36, leave out subsection (1) and insert—
‘(1) The responsible person for each mental health unit must publish a policy regarding the use of force by staff who work in that unit.’.
This amendment replaces Clause 3(1) and provides a clearer duty for the responsible person to publish a policy regarding the use of force in mental health units.
The Chair
With this it will be convenient to discuss the following:
Amendment 9, in clause 3, page 2, line 37, at end insert—
‘( ) Where a responsible person is appointed in relation to all of the mental health units operated by a relevant health organisation, the responsible person must publish a single policy under subsection (1) in relation to those units.’.
This amendment provides that if there is a single responsible person for all of the mental health units operated by a relevant health organisation, the person needs to provide a single policy for those units.
Amendment 10, in clause 3, page 2, line 37, at end insert—
‘( ) Before publishing a policy under subsection (1), the responsible person must consult any persons that the responsible person considers appropriate.’.
This amendment requires the responsible person to consult before publishing the policy under Clause 3.
Amendment 12, in clause 3, page 2, line 38, leave out second “the” and insert “any”.
This amendment is consequential on Amendment 13.
Amendment 13, in clause 3, page 2, line 40, leave out subsections (3) and (4) and insert—
‘( ) The responsible person may from time to time revise any policy published under this section and, if this is done, must publish the policy as revised.
( ) If the responsible person considers that any revisions would amount to a substantial change in the policy, the responsible person must consult any persons that the responsible person considers appropriate before publishing the revised policy.’.
This amendment requires a further consultation under Clause 3 if the responsible person intends to make substantial changes to the policy published under that clause. Amendment 12 is consequential on this amendment.
Amendment 14, in clause 3, page 3, line 2, leave out “minimise and”.
This amendment removes the requirement that the policy under Clause 3 must minimise the use of force. Instead it will require the policy to reduce the use of force.
Amendment 15, in clause 3, page 3, line 2, leave out
‘at the mental health unit’
and insert
‘in the mental health unit by staff who work in that unit’.
This amendment ensures consistency with Clause 3(1) as amended by Amendment 8.
Amendment 16, in clause 3, page 3, line 3, leave out subsection (6).
This amendment removes the requirement for the registered manager to take all reasonable steps to ensure compliance with the policy published under Clause 3.
Amendment 17, in clause 3, page 3, line 6, leave out subsection (7).
This amendment removes a consultation requirement that is superseded by the changes made by Amendment 10.
Mr Reed
This is a very important clause, because it establishes the requirement for mental health units to have in place a policy regarding the use of force in that unit. That requirement does not currently exist, so there is wide divergence and variation between procedures, practice and means for controlling and managing the use of force in different health units, which can be detrimental to the safety of patients.
A written policy will effectively govern the use of force within the units, and there is a real opportunity for NHS trusts to work with service users and their families to formalise and replicate the best of what many are already doing to reduce the use of force. The use of force varies enormously across NHS trusts. Some already have robust policies in place to minimise the use of force but others do not. The amendment will put an end to the regional disparity between trusts. Based on currently available figures, the variation can be as wide as between 5% and 50% of patients being subject to the use of force while attending mental health units for treatment.
Luciana Berger (Liverpool, Wavertree) (Lab/Co-op)
I congratulate my hon. Friend on bringing forward the Bill, which is a fantastic achievement. The fact that he has used his private Member’s Bill slot for this Bill is to be highly commended. My local mental health trust, Mersey Care, adopts the “no force first” approach, which is very important. I just wanted to shine a spotlight on the fact that some trusts adopt that approach. I welcome the fact that the Bill seeks to eradicate the differences in approach across the country.
Mr Reed
I thank my hon. Friend for her intervention. Mersey Care is well known to me and to many others in the room as a fine example of the best practice that we wish to replicate everywhere across the country, so that patients, wherever they are, can enjoy the very best levels of service, to which they ought to be entitled.
I will go through the amendments in the grouping. Collectively, they are intended to add greater clarity and consistency to the policies. Amendment 9 provides that, for relevant organisations that operate a number of health units, the responsible person needs to publish only one policy to cover all staff in all those units. Amendments 10 and 13 ensure that the policy is consulted on when it is first published and when changes are made. It is important that the responsible person considers and consults the views of current and previous service users to ensure that their experiences form part of improving policy and guidance into the future.
Amendment 14 requires the policy to include reducing the use of force, which is a key purpose of the Bill, and a key commitment that the use of force should only ever be used as a genuine last resort, as indeed it is in Mersey Care and other mental health trusts. We should be clear that this is only a start—we would like the use of force to be minimised and not just reduced—but this puts into legislation the Government’s intention to reduce the use of force, and we will be holding them to that.
Amendment 16 places into statutory guidance a requirement on the responsible person to take all reasonable steps to ensure compliance with the policy, and makes a failure to have regard for the guidance a breach of the statutory duty.
Jackie Doyle-Price
The Government entirely support the need for every institution to which the Act will apply to make a policy on the use of force. Central to that is the concept of accountability; having a named person, as we have already discussed, plus a policy for an organisation to be held to account to, is clearly important to achieve that. The Government support these amendments and see them as important ingredients in reducing the use of force overall in mental health units. We will ensure that any guidance produced under this clause gives further detail about what policies should include. We expect that to look like what is already set out in positive and proactive care guidance. We expect it to say that responsible persons will have a duty to have regard to this guidance in the development of their organisation’s policy, which will help ensure that each policy meets the same basic criteria as well as allowing for local flexibility.
I associate myself with the comments of the hon. Members for Liverpool, Wavertree and for Croydon North on Mersey Care, which offers a good example. The culture of transparency in itself generates sensible use of force, and only when appropriate. It is a truism for everybody in this room that we want to see minimal use of force. There are occasions when, for the safety of both patient and staff, it sometimes needs to be used, but the way to be sure that it is only used appropriately is to have that culture of accountability. Many organisations could learn from Mersey Care in that regard. We support these amendments.
Amendment 8 agreed to.
Amendments made: 9, in clause 3, page 2, line 37, at end insert—
‘( ) Where a responsible person is appointed in relation to all of the mental health units operated by a relevant health organisation, the responsible person must publish a single policy under subsection (1) in relation to those units.’.
This amendment provides that if there is a single responsible person for all of the mental health units operated by a relevant health organisation, the person needs to provide a single policy for those units.
Amendment 10, in clause 3, page 2, line 37, at end insert—
‘( ) Before publishing a policy under subsection (1), the responsible person must consult any persons that the responsible person considers appropriate.’
This amendment requires the responsible person to consult before publishing the policy under Clause 3.
Amendment 11, in clause 3, page 2, line 38, leave out “registered manager” and insert “responsible person”.
This amendment is consequential on Amendment 7.
Amendment 12, in clause 3, page 2, line 38, leave out second “the” and insert “any”.
This amendment is consequential on Amendment 13.
Amendment 13, in clause 3, page 2, line 40, leave out subsections (3) and (4) and insert—
‘( ) The responsible person may from time to time revise any policy published under this section and, if this is done, must publish the policy as revised.
( ) If the responsible person considers that any revisions would amount to a substantial change in the policy, the responsible person must consult any persons that the responsible person considers appropriate before publishing the revised policy.’
This amendment requires a further consultation under Clause 3 if the responsible person intends to make substantial changes to the policy published under that clause. Amendment 12 is consequential on this amendment.
Amendment 14, in clause 3, page 3, line 2, leave out “minimise and”.
This amendment removes the requirement that the policy under Clause 3 must minimise the use of force. Instead it will require the policy to reduce the use of force.
Amendment 15, in clause 3, page 3, line 2, leave out
“at the mental health unit”
and insert
“in the mental health unit by staff who work in that unit”.
This amendment ensures consistency with Clause 3(1) as amended by Amendment 8.
Amendment 16, in clause 3, page 3, line 3, leave out subsection (6).
This amendment removes the requirement for the registered manager to take all reasonable steps to ensure compliance with the policy published under Clause 3.
Amendment 17, in clause 3, page 3, line 6, leave out subsection (7).—(Mr Reed.)
This amendment removes a consultation requirement that is superseded by the changes made by Amendment 10.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4
Information about use of force
Mr Reed
I beg to move amendment 84, in clause 4, page 3, line 12, leave out subsections (1) to (3) and insert—
‘(1) The responsible person for each mental health unit must publish information for patients about the rights of patients in relation to the use of force by staff who work in that unit.
(1A) Before publishing the information under subsection (1), the responsible person must consult any persons that the responsible person considers appropriate.
(1B) The responsible person must provide any information published under this section—
(a) to each patient, and
(b) to any other person who is in the unit and to whom the responsible person considers it appropriate to provide the information in connection with the patient.
(1C) The information must be provided to the patient—
(a) if the patient is in the mental health unit at the time when this section comes into force, as soon as reasonably practicable after that time;
(b) in any other case, as soon as reasonably practicable after the patient is admitted to the mental health unit.’
This amendment replaces Clause 4(1) to (2) with a duty to publish information about the rights of patients in relation to the use of force in a mental health unit. Before publishing the information, a consultation must be carried out. The published information must be given to patients in the mental health unit and to new patients admitted to the unit, and to any other person considered appropriate if in the unit.
The Chair
With this it will be convenient to discuss the following:
Amendment 19, in clause 4, page 3, line 24, leave out from “provided” to “in” in line 27.
This amendment removes the requirement that the Secretary of State must prescribe the form that information under Clause 4 must be provided.
Amendment 20, in clause 4, page 3, line 27, leave out “with regard to” and insert “having regard to”.
This amendment is a drafting change to Clause 4(4)(b).
Amendment 21, in clause 4, page 3, leave out line 28.
This amendment removes a paragraph that deals with providing information under Clause 4 that has regard to the patient’s communication needs because that paragraph is unnecessary.
Amendment 22, in clause 4, page 3, line 29, leave out “capacity” and insert “ability”.
This amendment is a drafting change to avoid confusion with the terminology of the Mental Capacity Act 2005.
Amendment 23, in clause 4, page 3, line 30, leave out subsection (5).
This amendment is a drafting change linked to Amendment 22.
Amendment 24, in clause 4, page 3, line 31, at end insert—
‘( ) The responsible person must keep under review any information published under this section.
( ) The responsible person may from time to time revise any information published under this section and, if this is done, must publish the information as revised.
( ) If the responsible person considers that any revisions would amount to a substantial change in the information, the responsible person must consult any persons that the responsible person considers appropriate before publishing the revised information.’
This amendment requires the responsible person to keep information published under Clause 4 under review. If the responsible person intends to make substantial changes to the information published under that clause, then a consultation must be conducted.
Amendment 85, in clause 4, page 3, line 31, at end insert—
‘( ) The duty to provide information to a patient under subsection (1B) does not apply if—
(a) the patient refuses to accept the information, or
(b) the responsible person considers that the provision of the information to the patient would cause the patient distress.
( ) The duty to provide information to another person under subsection (1B) does not apply if—
(a) the patient requests that the information is not provided to the person, or
(b) the responsible person considers that the provision of the information to the person would cause the patient distress.’
This amendment provides exceptions to the duties to provide information under Clause 4. It provides that a patient can refuse to accept the information or request that it is not provided to another person, and the information does not need to be provided if it would cause distress to the patient.
Mr Reed
The amendment deals with the requirement to provide patients with information about their rights. Many patients entering a mental health unit will be in a state of considerable distress. Many of them will be unaware of their rights regarding the use of force. Currently it is not universal practice that those patients are informed about what those rights are so that they can ensure that those rights are not infringed.
It is important that any patient entering a mental health unit is aware of what may or may not be done to them regarding the use of force, so that if people in the unit seek to do things to them that go beyond their rights, they are able to call it out and stop it. This applies not just to the individual concerned, but to their carers, family members or close relatives who might be there with them, who are often unfamiliar with mental health units and have equally high levels of concern. It is important that they, too, are aware of what their loved one’s rights are.
Jackie Doyle-Price
I said at the beginning of today’s proceedings that I view the measures enshrined in the Bill as an important social reform. These amendments and this clause go to the heart of that, in the sense that it is all about empowering patients and enshrining their rights. That is very much the spirit in which we are embarking on the review of the Mental Health Act, so we completely support the clause and the amendments.
The amendments ensure that other appropriate people, such as patients’ carers and relatives, will normally receive information about use of force, which is key for patients who do not always understand the information that is given to them, as the hon. Gentleman suggested. It is also important to understand that sometimes too much information can cause patients further distress at a difficult time. In those circumstances, a good relationship with relatives and carers is extremely important. That can be as much about empowering the patients as furnishing the individual with such information.
On the specific concern that amendment 85 might cause a loophole, I must emphasise that the exception is not about letting any unit off, but about recognising when it might be appropriate so that information will not cause further unintended distress and ensuring that patients’ interests are protected. Different patients will require different approaches, and a one-size-fits-all approach does not count.
When the measure is set alongside the other provisions in the Bill, we are satisfied that we have the right balance between protecting the rights of patients and empowering them—and empowering their carers and relatives to look after them—while having appropriate safeguards to prevent further distress. I support the amendments.
Amendment 84 agreed to.
Amendments made: 19, in clause 4, page 3, line 24, leave out from “provided” to “in” in line 27.
This amendment removes the requirement that the Secretary of State must prescribe the form that information under Clause 4 must be provided.
Amendment 20, in clause 4, page 3, line 27, leave out “with regard to” and insert “having regard to”.
This amendment is a drafting change to Clause 4(4)(b).
Amendment 21, in clause 4, page 3, leave out line 28.
This amendment removes a paragraph that deals with providing information under Clause 4 that has regard to the patient’s communication needs because that paragraph is unnecessary.
Amendment 22, in clause 4, page 3, line 29, leave out “capacity” and insert “ability”.
This amendment is a drafting change to avoid confusion with the terminology of the Mental Capacity Act 2005.
Amendment 23, in clause 4, page 3, line 30, leave out subsection (5).
This amendment is a drafting change linked to Amendment 22.
Amendment 24, in clause 4, page 3, line 31, at end insert—
“( ) The responsible person must keep under review any information published under this section.
( ) The responsible person may from time to time revise any information published under this section and, if this is done, must publish the information as revised.
( ) If the responsible person considers that any revisions would amount to a substantial change in the information, the responsible person must consult any persons that the responsible person considers appropriate before publishing the revised information.”.
This amendment requires the responsible person to keep information published under Clause 4 under review. If the responsible person intends to make substantial changes to the information published under that clause, then a consultation must be conducted.
Amendment 85, in clause 4, page 3, line 31, at end insert—
‘( ) The duty to provide information to a patient under subsection (1B) does not apply if—
(a) the patient refuses to accept the information, or
(b) the responsible person considers that the provision of the information to the patient would cause the patient distress.
( ) The duty to provide information to another person under subsection (1B) does not apply if—
(a) the patient requests that the information is not provided to the person, or
(b) the responsible person considers that the provision of the information to the person would cause the patient distress.’—(Mr Reed.)
This amendment provides exceptions to the duties to provide information under Clause 4. It provides that a patient can refuse to accept the information or request that it is not provided to another person, and the information does not need to be provided if it would cause distress to the patient.
Clause 4, as amended, ordered to stand part of the Bill.
Clause 5
Training in appropriate use of force
Mr Reed
I beg to move amendment 86, in clause 5, page 3, line 33, leave out subsection (1) and insert—
‘(1) The responsible person for each mental health unit must provide training for staff that relates to the use of force by staff who work in that unit.
(1A) The training provided under subsection (1) must include training on the following topics—
(a) how to involve patients in the planning, development and delivery of care and treatment in the mental health unit,
(b) showing respect for patients’ past and present wishes and feelings,
(c) showing respect for diversity generally,
(d) avoiding unlawful discrimination, harassment and victimisation,
(e) the use of techniques for avoiding or reducing the use of force,
(f) the risks associated with the use of force,
(g) the impact of trauma (whether historic or otherwise) on a patient’s mental and physical health,
(h) the impact of any use of force on a patient’s mental and physical health,
(i) the impact of any use of force on a patient’s development,
(j) how to ensure the safety of patients and the public, and
(k) the principal legal or ethical issues associated with the use of force.’.
This amendment replaces Clause 5(1) with a revised duty on the responsible person to ensure that training is provided for staff that covers a wide range of topics relating to the use of force in mental health units.
The Chair
With this it will be convenient to discuss amendment 87, in clause 5, page 3, line 39, leave out subsection (2) and insert—
‘(2) Subject to subsection (2A), training must be provided—
(a) in the case of a person who is a member of staff when this section comes into force, as soon as reasonably practicable after this section comes into force, or
(b) in the case of a person who becomes a member of staff after this section comes into force, as soon as reasonably practicable after they become a member of staff.
(2A) Subsection (2) does not apply if the responsible person considers that any training provided to the person before this section came into force or before the person became a member of staff—
(a) was given sufficiently recently, and
(b) meets the standards of the training provided under this section.
(2B) Refresher training must be provided at regular intervals whilst a person is a member of staff.
(2C) In subsection (2B) “refresher training” means training that updates or supplements the training provided under subsection (1).’.
The amendment sets out when training under Clause 5 should be given to staff. A definition of “staff” is given in NC7.
Mr Reed
These amendments are to the clause relating to improving training for staff working in mental health units before they are able to use force of any description against patients. It is clearly better for patient safety that any staff administering force should be properly trained, but it is worth noting that it is also important for staff safety that they are properly trained before they engage in administering force to patients.
Helen Hayes (Dulwich and West Norwood) (Lab)
I commend my hon. Friend for introducing the Bill. On the need for training, I want to flag my experience of young patients with autism being held in secure psychiatric units. In my experience, there is a lack of expertise and training across the board for staff treating young people with autism, so they fail to understand that much challenging behaviour arises from the intense levels of anxiety experienced by young people with autism. In such circumstances, the use of force further compounds that anxiety, and indeed traumatises those young people. I ask the Minister whether, when laying down guidance to accompany the Bill, specific regard will be given to the lack of training and understanding of autism within our mental health services?
Mr Reed
I am grateful to my hon. Friend for making that important point and I look forward to hearing the Minister’s comment. That point has been made to me by many service users and advocacy groups, including Rethink Mental Illness, YoungMinds and others.
Many of the approaches outlined in the Bill ought to be applied more widely for people who experience mental ill health in many other circumstances. I hope that the Government’s ongoing review into mental health will do that. I hope that some of the principles in the Bill will take us forward and allow that review, when it reports back, to make a bigger impact than it perhaps might have made otherwise.
Moving back to the principles of training in general, the Bill includes provisions on training to recognise the Equality Act 2010 and de-escalation techniques that reduce the need for force to be used in any circumstances. The amendment will also strengthen the requirement for trauma-informed care. It is important to include in the Bill that staff are trained in the impact of further traumatising patients, whose mental ill health may have already been exacerbated by forms of trauma.
I am informed by Agenda that more than 50% of female patients in mental health units have experienced physical or sexual abuse by men, which in most cases contributes significantly to their mental ill health. After those experiences, being forcibly restrained—generally by groups of men—can further traumatise those women and make their mental health conditions even worse, so it is very important that staff are fully aware and trained in the risks of re-traumatising patients who have already been traumatised.
It is also important that training takes full account of the risks of unlawful discrimination regarding race. Dame Elish Angiolini’s report last year into deaths and serious incidents in police custody found that:
“The stereotyping of young Black men as ‘dangerous, violent and volatile’ is a longstanding trope that is ingrained in the minds of many in our society.”
We only have to look at pictures of the faces of people who have died in state custody, including in mental health custody, to see how severe the risk of unconscious bias in the system is. A much higher proportion of those faces will be of young black men than the proportion present in the population as a whole. In order to ensure that staff will not be acting out of prejudice against people who enter a publicly funded health service for treatment on equal terms with everyone else, it is important that staff are trained to be fully aware of the risks of unconscious bias and racism in that service.
Putting anti-discrimination training into legislation is a move towards ending such unlawful discrimination, as is the overall aim of the Bill, and towards exposing the use of force to much closer scrutiny by standardising data recording across the whole country, so that it is possible to compare performance in mental health units on the same basis in different parts of the country. That is not currently possible, and it is a loophole that was pointed to by Dame Elish Angiolini in her report. I am pleased that the Bill will close the loophole.
Crucially, staff must also be trained in the use of techniques to avoid or reduce the use of force—essentially de-escalation. That makes the situation safer for everyone involved. It is critical that anything that might trigger behaviours in a patient that could lead to their being restrained should be avoided, if at all possible, so that the use of force can be minimised.
Amendment 86 sets out a revised duty on the responsible person to ensure that training is provided for staff in mental health units. Amendment 87 sets out when training should be provided to staff. It should be provided as soon as the provision comes into force, and there should be refresher training at regular intervals. That will build the institutional knowledge needed to ensure that force will only ever be used as a genuine last resort.
Luciana Berger
My hon. Friend, and many other Members, will probably have seen the “Dispatches” programme last month, in which a temporary member of staff went to work in a privately owned but NHS-funded mental health unit. That undercover report revealed scenes that were difficult to watch. Part of the challenge was that the individual was not given any appropriate training when she was asked to care for some very unwell people in secure parts of the accommodation. I want to reinforce what my hon. Friend has been saying: the issue is critical for existing and new staff, and often there are too many temporary staff working in such units.
Mr Reed
My hon. Friend makes an important point, clearly and eloquently. There are no circumstances in which an untrained member of staff, whether full-time or not, should be able to use force—effectively violence—on a patient. If they have not been properly trained, that should be an absolute no.
Jackie Doyle-Price
The clause relates to ensuring that all members of staff are appropriately trained on when it is appropriate to use force. It is worth emphasising that it will make any institution or organisation safer for patients, but also for staff. It is important to prioritise and enhance training in de-escalation techniques. That will make for a safer environment for everyone, with less harm to patients, and will probably help to some extent with their continuing care and recovery. I totally endorse the clause, and the amendments, which will make it more effective. Clearly these measures are important for a Government whose approach to leadership in health involves prioritising patient safety.
We see the provisions as an opportunity to build on the positive and proactive care guidance. The amended clause will now go much further to address the points made by the hon. Members for Croydon North and for Liverpool, Wavertree. Only people working in a professional capacity would be able to use force on patients; any volunteers would not be able to do so. In that sense, it is a much stronger measure, because we are giving a clear view that the use of force is not something that volunteers should be involved in.
The Chair
With this it will be convenient to discuss the following:
Amendment 29, in clause 6, page 4, line 3, leave out “registered managers” and insert
“responsible persons and relevant health organisations”.
This amendment is consequential on Amendment 7 as well as including relevant health organisations as subjects of the guidance published under Clause 6.
Amendment 30, in clause 6, page 4, line 3, at end insert—
‘(1A) In exercising functions under this Act, responsible persons and relevant health organisations must have regard to guidance published under this section.’
This amendment places a duty on responsible persons and relevant health organisations to have regard to the guidance published under Clause 6.
Amendment 31, in clause 6, page 4, line 3, at end insert—
‘(1B) The Secretary of State must keep under review any guidance published under this section.’
This amendment places a duty on the Secretary of State to review any guidance published under Clause 6.
Amendment 32, in clause 6, page 4, line 3, at end insert—
‘(1C) Before publishing guidance under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.’
This amendment imposes a duty onto the Secretary of State to consult before publishing guidance under Clause 6.
Amendment 33, in clause 6, page 4, line 4, leave out subsection (2).
This amendment removes Clause 6(2) which is legally unnecessary.
Amendment 34, in clause 6, page 4, line 10, leave out subsection (3) and insert—
‘(3A) The Secretary of State may from time to time revise the guidance published under this section and, if this is done, must publish the guidance as revised.
(3B) If the Secretary of State considers that any revisions would amount to a substantial change in the guidance, the Secretary of State must consult such persons as the Secretary of State considers appropriate before publishing any revised guidance.’
This amendment places a duty onto the Secretary of State to consult before publishing revised guidance under Clause 6 where the revisions to the guidance are substantial.
New clause 3—Delegation of responsible person’s functions—
‘(1) The responsible person for each mental health unit may delegate any functions exercisable by the responsible person under this Act to a relevant person only in accordance with this section.
(2) The responsible person may only delegate a function to a relevant person if the relevant person is of an appropriate level of seniority.
(3) The delegation of a function does not affect the responsibility of the responsible person for the exercise of the responsible person’s functions under this Act.
(4) The delegation of a function does not prevent the responsible person from exercising the function.
(5) In this section “relevant person” means a person employed by the relevant health organisation that operates the mental health unit.’
This new clause gives a power to the responsible person to delegate functions under the Bill subject to the limitation that the person to whom functions are delegated is of an appropriate level of seniority. The obligations associated with the functions remain with the responsible person despite any delegation.
Mr Reed
Rather than including too much prescriptive guidance in the Bill, we have decided that it is best dealt with through statutory guidance, so that it can always be kept up to date with the latest best practice or other information and can be changed more quickly than legislation. Clause 6 sets out the requirements for guidance to be issued to set out compliance with the various requirements of the Bill. Amendment 28 places a duty on the Secretary of State to produce that guidance. That is a more appropriate level at which to produce the guidance than the CQC, although the CQC will have an important role to play in monitoring and regulating compliance with the Bill. The guidance will be statutory, so a failure to have regard to it will be a breach of a statutory duty. The amendments provide me with the assurance that operators of mental health units will be fully aware of their duties and the requirements under the Act.
New clause 3 gives the responsible person the power to delegate their functions under the Bill to another employee of appropriate seniority, but it does not mean that the responsible person will no longer be accountable for that function. It is important that in every unit there is always a named individual who is responsible for compliance with the provisions of the Bill and accountable, should there be any failure to comply with the provisions.
Jackie Doyle-Price
I agree that it is more appropriate for the Secretary of State to produce the guidance under the clause. The guidance will provide mental health units and the healthcare organisations that operate them with a detailed explanation of the requirements of the Bill. That will help to ensure that they understand the obligations they are under and, in turn, help them reduce the use of force so that it is only ever used as a last resort and carried out appropriately.
I want to clarify something I said earlier, in case I gave a slightly wrong impression when I referred to volunteers. We do not expect volunteers to use force and, accordingly, we do not expect them to be given training. There will not be an outright ban, but clearly the emphasis in the Bill means that only appropriately trained professional staff will be involved.
The duty to consult will ensure that there is input from a wide range of partners and stakeholders, so that the guidance is well received within the health service. On that basis, the Government are content to support the amendments. We are also content to support the new clause, which will allow a responsible person to delegate some of their functions to the right person within the organisation, but still retain overall accountability for compliance with the requirements of the Bill.
Amendment 28 agreed to.
Amendments made: 29, in clause 6, page 4, line 3, leave out “registered managers” and insert
“responsible persons and relevant health organisations”
This amendment is consequential on Amendment 7 as well as including relevant health organisations as subjects of the guidance published under Clause 6.
Amendment 30, in clause 6, page 4, line 3, at end insert—
‘(1A) In exercising functions under this Act, responsible persons and relevant health organisations must have regard to guidance published under this section.’
This amendment places a duty on responsible persons and relevant health organisations to have regard to the guidance published under Clause 6.
Amendment 31, in clause 6, page 4, line 3, at end insert—
‘(1B) The Secretary of State must keep under review any guidance published under this section.’
This amendment places a duty on the Secretary of State to review any guidance published under Clause 6.
Amendment 32, in clause 6, page 4, line 3, at end insert—
‘(1C) Before publishing guidance under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.’
This amendment imposes a duty onto the Secretary of State to consult before publishing guidance under Clause 6.
Amendment 33, in clause 6, page 4, line 4, leave out subsection (2)
This amendment removes Clause 6(2) which is legally unnecessary.
Amendment 34, in clause 6, page 4, line 10, leave out subsection (3) and insert—
‘(3A) The Secretary of State may from time to time revise the guidance published under this section and, if this is done, must publish the guidance as revised.
(3B) If the Secretary of State considers that any revisions would amount to a substantial change in the guidance, the Secretary of State must consult such persons as the Secretary of State considers appropriate before publishing any revised guidance.’
This amendment places a duty onto the Secretary of State to consult before publishing revised guidance under Clause 6 where the revisions to the guidance are substantial.—(Mr Reed.)
Clause 6, as amended, ordered to stand part of the Bill.
Clause 9
Annual report by the Secretary of State
Mr Reed
I beg to move amendment 70, in clause 9, page 5, line 39, leave out subsections (1) to (4) and insert—
‘(1) As soon as reasonably practicable after the end of each calendar year, the Secretary of State—
(a) must conduct a review of any reports made under paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009 that were published during that year relating to the death of a patient as a result of the use of force in a mental health unit by staff who work in that unit, and
(b) may conduct a review of any other findings made during that year relating to the death of a patient as a result of the use of force in a mental health unit by staff who work in that unit.
(1A) Having conducted a review under subsection (1), the Secretary of State must publish a report that includes the Secretary of State’s conclusions arising from that review.
(1B) The Secretary of State may delegate the conduct of a review under subsection (1) and the publication of a report under subsection (1A).
(1C) For the purposes of subsection (1)(b) “other findings” include, in relation to the death of a patient as a result of the use of force in a mental health unit, any finding or determination that is made—
(a) by the Care Quality Commission as the result of any review or investigation conducted by the Commission, or
(b) by a relevant health organisation as the result of any investigation into a serious incident.’
This amendment replaces the provisions of Clause 9 with a duty imposed on the Secretary of State to review reports each year made by coroners under the Coroners and Justice Act 2008 (often referred to as “regulation 28 reports”). The Secretary of State can also review other findings. After the review, a report must be published that includes the Secretary of State’s conclusions arising from the review.
This clause is very important. When there has been a fatality in a mental health unit, a coroner investigates the circumstances and the causes of that death and produces a report. I sat in for part of the coroner’s hearing following the death of Olaseni Lewis in Croydon. The coroner’s findings in that case were very damning of failures that had occurred leading up to that young man’s death, which were certainly avoidable, had lessons from previous coroners’ inquiries been properly learned and applied.
The purpose of the amendment and the clause is to ensure that all findings from coroners’ reports over a year are collated by the Secretary of State and published in an annual report, with the Secretary of State’s conclusions on how the state is learning from any incidents that occurred during that year.
That is an important step towards transparency and a culture in which lessons are learned quickly and effectively. A striking element of the findings in coroners’ reports over the years is how frequently the same recommendations are made again and again. If there was learning in the system and those lessons were being applied, that repetition would be far less likely to occur.
The proposal is to ensure that when those findings are made, they do not vanish into the ether; they must to properly understood and incorporated into the future development of best practice, to keep mental health patients safe. Amendment 70 would make the necessary provisions for the Secretary of State to carry out the publication of the reports.
Jackie Doyle-Price
Transparency is such an important ingredient in ensuring that we strengthen the rights of patients in mental health settings, and ensuring the accountability of organisations that are discharging their responsibilities at the behest of the state. That is why transparency is at the heart of the measures in the Bill.
Having read more than my fair share of coroners’ reports since taking this job, I fully endorse the provisions in the clause and the amendment. It is important that the broader system learns lessons when things go wrong. If we learn lessons when things go wrong, the chances that they will not happen again are much stronger. It is very important that the healthcare system is able to learn lessons from any death of a patient in a mental health unit that results from the use of force.
Drawing together the lessons learnt from a variety of sources into one report will allow greater transparency and shine a light on the issues that need to be tackled by organisations, and it will ensure that the learning from these tragic events is not lost. For that reason, the Government support the amendment.
Amendment 70 agreed to.
Clause 9, as amended, ordered to stand part of the Bill.
Clause 10
Requiring information regarding the use of force
Question proposed, That the clause stand part of the Bill.
Mr Reed
This will be brief. I am asking the Committee to vote against clause 10, because the provisions that were originally included in it have now been placed in clause 7, where they have also been strengthened, so the clause is no longer required.
Question put and negatived.
Clause 10 accordingly disagreed to.
Clause 11
Duty to notify Secretary of State of deaths
Question proposed, That the clause stand part of the Bill.
Mr Reed
Similarly, I am asking the Committee to vote against clause 11, because it duplicates existing duties in regulations 16 and 17 of the Care Quality Commission (Registration) Regulations 2009, so it is no longer required.
Question put and negatived.
Clause 11 accordingly disagreed to.
The Chair
We have made very good progress this morning, but we can go no further with the line-by-line consideration until the House has passed a money resolution for the Bill. I invite Steve Reed to move the Adjournment motion.
Ordered, That further consideration be now adjourned. —(Mr Reed.)