Mental Health Units (Use of Force) Bill

2nd reading (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

Second Reading

13:34

Moved by

[Baroness Massey of Darwen]

That the Bill be now read a second time.

Relevant document: 31st Report from the Delegated Powers Committee

[Baroness Massey of Darwen (Lab)]

My Lords, it is an honour to speak on this short but important Bill, and I am glad to see that the speakers here today all have experience of and commitment to mental health, young people, police systems and making systems better.

I shall illustrate why this short Bill is so important. In 2010, a young man, Olaseni Lewis, known as Seni, was a patient at the Bethlem Royal Hospital in Croydon. There was an incident in which Seni attempted to leave the hospital’s mental health unit and he was restrained face down by police officers. He suffered a heart attack and died four days later. He was a constituent of Steve Reed MP, who originally took this Bill through another place.

I thank Steve Reed and congratulate him on introducing the Bill with such passion and clarity. As he said at Third Reading, which was completed in July this year,

“the Bill in its current state will, if passed, give the United Kingdom some of the best legislation in the world to protect mental health patients from abusive or excessive restraint”.—[Official Report, Commons, 15/6/18; col. 1266.]

That is what we all want. It is not a party-political issue—all parties supported the Bill in another place. It is a matter of human rights and human dignity, and of how vulnerable people are treated in a system that should be there to protect them.

I thank Steve Reed for holding meetings with me, and I also thank Jackie Doyle-Price, the Minister for Public Health, and the noble Lord, Lord O’Shaughnessy, our Minister here today, for attending a very helpful meeting earlier this week. Both Ministers recognise the vital role that this Bill would play in getting more order into a system that is subject to so much criticism. In another place, Ms Doyle-Price stated that,

“the existing guidance is not having the impact that the Government expected, and … we must do more”.—[Official Report, Commons, 15/6/18; col. 1267.]

She has shown her determination and passion to make things better, and our deliberations today will, I know, contribute to that.

I also thank the numerous NGOs that have focused on this Bill with briefings and discussions—NGOs from mental health and disability organisations, the Restraint Reduction Network, the Crisis Prevention Institute and children’s organisations. Their work is, as ever, much appreciated. As we know, the voluntary sector is a highly respected force in our society for its critical judgments and for advocating change when needed.

I shall not go through the Bill in detail; I shall bring forward specific concerns and questions for the Minister later. I shall simply say that, as we know, Clause 1 deals with definitions such as “patient”; Clauses 2, 3, 4 and 5 discuss the duties of the responsible person in a mental health unit, including training; Clauses 6 to 9 relate to reporting incidents of the use of force and the investigation of deaths and record-keeping; and Clauses 7 and 8 require the Secretary of State to publish an annual report and to conduct a review of reports. Clause 9 refers to the investigations of death and serious injury in mental health units; Clauses 10 and 11 speak of the duties of the responsible person and of delegation; Clause 12 makes provisions related to wearing and operating body cameras when police attend a mental health unit; and Clauses 13 to 16 make provisions on the interpretation of the Bill and its financial implications. Finally, Clause 17 applies the extent of the Bill to England and Wales.

How big is the problem of the use of force in mental health units? The Crisis Prevention Institute found, from a series of information requests sent to mental health trusts in England in 2016-17, that 3,652 patients were injured while being restrained during NHS treatment, that 13% of trusts did not have a policy in place to reduce the use of restraint, that 97,000 restraints took place, with more than 2,600 staff assaulted by patients during interventions, and that 46 people have died. This is simply not good enough.

I want to probe five issues in relation to the Bill: guidance to the Bill, the issue of training of personnel working with people in mental health units, patient involvement, the treatment of children in mental health units and the disproportionate use of restraint.

First, guidance will be crucial to the success of the measures suggested. There is already statutory guidance but it is not working well enough. Guidance is essential because every nitty-gritty definition cannot be included in the Bill. Guidance must be clear and firm and must be monitored to check that it is actually working. Will the Minister tell us when new guidance will be issued? Will contributions from NGOs, parliamentarians, and staff and clients from mental health institutions be taken into account? How will that consultation work? I do not intend to move amendments to the Bill, but I hope we can be assured that the guidance will be detailed and strong.

The second issue is training, which is vital to deliver the outcomes that we all want. What kind of training are we talking about? Those of us who have delivered training know that it is not just about giving lectures and telling people what to do. It is about exploring feelings about issues; sharing experiences; getting below the surface of deep and fundamental problems that might exist; and using client groups to suggest recommendations about behaviour. In relation to the Bill, will a training manual be produced that includes case studies of good practice or will all this go into the guidance?

Thirdly, how will the views of patients be sought? Patients need to understand their rights and be able to contribute to decision-making about their treatment. If people feel respected, they are more likely to understand the issues and contribute to solving problems.

I come now to the fourth issue: disproportionate restraint. Among patients admitted to mental health units, there may be people of different races and faiths, and different ages and abilities, both physical and mental. Today, I received a letter from someone who works with people with Alzheimer’s who have suffered in these institutions. At the Second Reading of the Bill in another place, Steve Reed said:

“If we look at the faces of the people who have died after severe restraint in a mental health hospital, we see many more young black faces than in the population as a whole”.—[Official Report, Commons, 3/11/17; col. 1090.]


The same is of course true of the youth justice system. There is a huge need for training to understand and deal with the issue of bias and lack of recognition of race, culture and special needs. Units seem to act independently, and therefore standardisation on recording data is needed. How will guidance address this issue?

Finally, I have a particular concern about the treatment of children and young people in both the youth justice system and mental health units. Children are children first, and anyone under 18 is a child according to the United Nations Convention on the Rights of the Child, which we have signed. Children on the cusp of 18 are at particular risk: in institutions they are frequently treated as adults and are placed with adults. This is inappropriate and can place them in danger. How will guidance deal with the issue of children?

This is an excellent and much-needed Bill. I look forward to contributions from all colleagues and I hope to hear a satisfactory and positive response from the Minister. I beg to move.

13:43

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to my noble friend Lady Massey for bringing this Bill forward in your Lordships’ House. I am also grateful to my honourable friend Steve Reed for the work he did in bringing the Bill through the House of Commons following the death of Seni Lewis at Bethlem Royal Hospital in 2010. We should pay tribute to the persistence of the family of Seni Lewis in wanting to see positive change as a result of their truly traumatic experience. I talked to Steve Reed about what he wanted to achieve when he was at first successful in the ballot for Private Members’ Bills in the House of Commons and I am very pleased that we have reached this stage today.

This Bill is extremely important and valuable in its own right, but I am afraid that I do not want to talk about what is in the Bill itself, but about what is not in the Bill. I should also make it clear that I have no intention of moving amendments in Committee, because every effort should be made to get this Bill intact on to the statute book. I will raise in this speech issues that were raised in Committee in the House of Commons—along with a lot of other stuff, as it happens. I aim to get greater clarity from the Government and get the Minister to reflect on these points and take them back to his department.

I bring to this Bill my experience for a number of years as chair of the Independent Advisory Panel on Deaths in Custody. My panel was responsible for looking at deaths in the custody of the state and what more should be done to protect the lives of those to whom the state holds specific obligations in terms of Article 2 of the European Convention on Human Rights. Our remit covered deaths in prison and in police custody as well as the deaths of those detained under the Mental Health Act. If you die in prison, your death is automatically investigated by the Prisons and Probation Ombudsman, and the report of that ombudsman subsequently informs the inquest. If you die in police custody, the death is automatically referred to what is now the Independent Office for Police Conduct, formerly the IPCC, and again the report produced informs the inquest.

I am not pretending that either of those two processes—for prisons or for police custody—is in any way perfect. I certainly have many criticisms of them, and will continue to do so. But those are not a matter for today. The important issue of those processes is that they happened automatically and were both palpably independent of the institutions concerned. What is more, they were thorough enough to ensure that the coroners’ court had drawn to its attention the key issues of substance.

Another point is relevant to the Minister and the Department of Health and Social Care. Those two specialist bodies developed a level of expertise and experience through looking at those types of death that meant that not only could they be more effective in terms of their investigation, because they had seen similar things before and the investigators had worked on similar issues, but the Prisons and Probation Ombudsman or the IPCC could report thematic findings that could helpfully influence the practice across the police or prison services. Because of that expertise and the fact that they were looking repeatedly at similar types of incident, they could come back to the institutions as a whole or the relevant government departments and say, “This is a common theme. These are issues that need to be addressed across the system”. That is what is missing from the arrangements that we have at present, and even the arrangements that will exist after the passage of this Bill.

Like many noble Lords, I have received briefing from the charity Inquest, which I have known for many years and worked with in my work on the independent advisory panel. It has extensive casework involving families affected by deaths in state custody. Inquest believes that the current system of investigations following non-natural deaths in mental health settings is simply not sufficient. A system of truly independent, pre-inquest investigations, equivalent to others in detention settings, with a mechanism for national oversight and learning, is absolutely necessary to reduce the number of deaths and serious incidents such as those involving the use of force. But they will also illuminate other categories of death as well. Frankly, it is iniquitous that institutions that are responsible for the treatment and care of mental health patients should not be subject to the same scrutiny as other institutions of detention such as the police, prison and immigration detention. This risks leaving ongoing injustices for bereaved families.

I am sure that we will hear from the Minister about level 3 investigations as part of the 2015 serious incident framework. They are a step forward compared with what there was before, which I can—no doubt totally unfairly—characterise by saying that you would ask the guy sitting next to you in the office to investigate the failings of the service for which you were responsible. That was deemed a sufficient inquiry. Yes, there is an arrangement under the serious incident framework. It is the only mechanism for independent investigation and scrutiny prior to the coroner’s inquest. But the issues with the mechanism is that level 3 investigations are used inconsistently and rarely take place. Perhaps the Minister can do something about that. In many cases, given the seriousness of the death, you would have expected an independent investigation to take place within the framework, but there has been a failure to do so. This Bill looks specifically at restraint. I would have thought that any death involving restraint must automatically be one where serious questions are raised around wider issues of practice and should be subject to a full and proper level 3-type enhanced investigation.

While the serious incident framework may provide for an independent team to conduct an investigation, the commissioning and management of the independent process is not institutionally or practically independent as it continues to sit within the NHS management structures. There is also no oversight outside of the NHS on whether investigations should take place and no oversight or external assessment of the quality of those investigations. Moreover, the investigations that do take place under the serious incident framework are of varying quality. They are often deficient in terms of their scope, timeliness, quality, independence and family involvement. There are also concerns about the lack of publication of investigation reports and the methods of identifying learning beyond that of the individual trust or provider. That is a key point because we want to make sure that if there is relevant learning, it will almost certainly apply not just to the individual institution, but much more broadly than that. The internal nature of the investigations means that there is no visibility or oversight around the implementation of the recommendations or identification of common themes and issues which may be of relevance nationally.

I have heard it argued that such an investigation is not necessary because that is the job of the coroner’s court, but my experience of looking at coroners’ investigations is that they are always enhanced and facilitated by the receipt of an independent report setting out the key issues. That provides a scope for the coroner’s inquiry and investigations. This is something that has to be revisited in those terms. I would ask the Minister to take this aspect away and look at it again, although not in the context of this Bill. Is the Minister confident that he is really fulfilling his personal Article 2 obligations in the absence of a more robust and independent system? Can he say, hand on heart, that he believes that the systems which are currently in place will identify wider lessons and enable them to be disseminated throughout the mental health sector?

My second and final concern, for those who feel that I am going on for too long, is about the funding of the legal costs of inquests for the families of those who die in mental hospitals. One of my most vivid memories from the listening days that Inquest organised for my panel was an account of a family whose family member had died in a mental hospital. I do not know how many noble Lords have been to a coroner’s court, but they are often held in bleak environments without even the grandeur of a court setting. For a bereaved family, for whom the whole process is very emotional, the atmosphere is both bewildering and demoralising. This family found themselves having to share the rather small waiting area with not only those whom they felt might have been responsible for their loved one’s death but the large teams of lawyers, funded at public expense, representing each and every one of those people. The family described to me how they walked down the corridor, trying to get to this small waiting room first to get a seat, and heard the trundling of the lawyers with their wheelie suitcases full of papers coming down the corridor behind them. They had to walk faster and faster to make sure that they got three seats in the room. That is a graphic image and a reminder of how isolated the families concerned will feel.

The purpose of an inquest is to find out what happened and determine the cause of death, yet every person involved will be legally represented at our—the public’s—expense to put the position of the client’s actions in the best possible light. Only the family of the person who lost their life in such circumstances will not automatically be represented publicly. I have no problem with people engaged in the issue being funded and supported, but it is grotesquely inequitable and unfair that the family—unless they have substantial means—are not similarly represented to ensure that the coroner is able to pursue all the issues that need exploring. No doubt the Minister will have been briefed that families can obtain legal aid. In practice, this is unlikely and difficult. The income rules are onerous and the pot is already small.

At present, the legal costs of the trust, the commissioner, if it is a relevant party, the nurses, the doctors and the police—if they are involved—and so on are all covered by the public purse; all except the group of individuals who care the most about knowing what happened to their loved one. What is to stop the Minister saying today that in the interests of fairness, of justice and of making sure that lessons applicable elsewhere can be identified, he will instruct the trust responsible for the individual who has died to meet the legal representation costs of the bereaved family? In practice, this will only be a small proportion of the legal costs associated with the death. If he feels that this is too difficult and too onerous a burden on the trust concerned, perhaps those costs should be borne by his department or NHS England, which would incentivise both organisations to ensure that such deaths are minimised in future. I look forward to the Minister’s reply but in the meantime, I look forward to this valuable Bill passing through your Lordships’ House without amendment.

13:58

[Lord Adebowale (CB)]

I rise to put forward my view on the Bill. Before doing so, I congratulate Steve Reed in the other place and the noble Baroness, Lady Massey, on bringing the Bill forward. I agree entirely with the points made by the noble Baroness and the noble Lord, Lord Harris. I declare my interests as a board member of NHS England and the chief executive of Turning Point, which provides services to people with mental health challenges.

Before I begin, I want to raise an issue that came out of my work in 2012 looking at the Metropolitan Police’s response to mental health. I looked at 55 deaths associated with the police response to mental health before they got anywhere near a mental health unit. All of them involved the use of pain restraint, which has resulted in the deaths of too many individuals. I ask the Minister to take a look at that report in considering his approach to the Bill. The Bill is excellent and goes a long way to resolving some of the issues, but I do not feel that the concerns raised in bringing the Bill to the House will be fully addressed until we can look at the police response to mental health. I am more than happy to forward to him my commission’s recommendations.

As I said, the Bill is very welcome. It could take the next few steps to provide strong guidance; it would be a shame if it could not. It is very rare that the voluntary sector’s lobbying on these issues is so in tune with the Government’s support for a Bill, such that we should take into account almost word for word what it is saying in the Bill’s accompanying guidance. Its recommendations are sensible and clear on extending the definition of the use of force to cover threats of the use of force and coercion, which, as I have observed when talking to patients in mental health institutions, can be a real restriction on their ability to receive good care.

The guidance needs to clarify that force cannot be used with the intention of causing pain, suffering or humiliation, save for the purpose of lawful self-defence. That would also be helpful. It needs to ensure that a mental health unit’s policy includes a commitment to reducing the overall use of force and to clarify that the post-incident reviews need to take into account the patient’s perspective and that of their relatives. When you have looked into the eyes of relatives who have suffered the tragedies of deaths as a result of restraint, you can see how important that is. Ensuring that the patient’s legal rights advocacy relating to use of any force is communicated to them would also be sensible and entirely appropriate. Establishing proper standards of training in these units would also be useful.

We need to take into account two points. It is vital that we eliminate any loopholes in the recording of the use of force of any kind in units, such that we can have transparency. We have to ensure accountability and transparency in the use of force, in particular the disproportionate use of force on those people from black and minority ethnic communities. It is a burning injustice that this issue has been allowed to continue. The statistics tell the story but we do not react to them. We should publish those statistics so that we can see just how disproportionately it affects those people from minority ethnic groups.

This is a good Bill that is supported by expertise from outside the House. It would be a shame if were not to use that expertise to strengthen it and the guidance that supports its implementation.

14:03

[Baroness Tyler of Enfield (LD)]

My Lords, I strongly support the Bill and I know that it has strong support from Liberal Democrats generally. I pay tribute to Steve Reed, who introduced the Bill in the other place, and to the noble Baroness, Lady Massey, for the way she introduced it. To clarify, I too will not be bringing forward amendments. I fervently hope that the Bill reaches the statute book as quickly as possible.

The Bill is a major and much-needed step forward in reducing the use of force in mental health units across the country. I am pleased that we have cross-party support on this point. The provisions in the Bill for greater transparency, oversight and accountability will lead to vital improvements in the care and protection of children, young people and adults who are experiencing a mental health crisis, and to ensuring that their rights and protections are made as robust as possible.

When I looked at the evidence for the Bill to say why it is so timely, I looked at the figures about the use of restraint. They have been going up very significantly in recent years, despite statutory guidance saying that restraint should be used only as a last resort.

When I looked at the figures, I was perturbed to see that children and young people under the age of 20 seem to be subject to the use of force four times more than adults in mental health in-patient units—a point made also by the noble Baroness, Lady Massey. I was concerned, too, to read that girls and women are subject on average to double the number of restrictive interventions experienced by boys and men. Clearly, not only will such restraint be frightening and potentially dangerous but it can retraumatise women and children who may have experienced violence and abuse. I will return to that point later.

Above all, I hope that the Bill proves to be a fitting tribute to the life of Seni Lewis, a young man who tragically died following prolonged physical and mechanical restraint by 11 police officers called to assist healthcare staff back in 2010. Sadly, nothing can bring Seni back, but I hope that the passing of this Bill brings some meaning to those tragic events.

I was struck when reading about that dreadful incident to learn that Seni had been admitted as a voluntary patient, but, following his family’s departure and his becoming increasingly frightened and disoriented, the police were called by hospital staff but his family were not contacted. That is very concerning. Seven years later, an inquest jury unanimously concluded that multiple failures in care had led staff to call the police and that the restraint used by officers was excessive, unreasonable, disproportionate and therefore contributed to Seni’s death.

An issue that I want to highlight today, and which the Bill goes a long way to address, is patient awareness and involvement and the involvement of families. In reality, most patients and their families do not understand their rights in relation to the use of force or even what type of restraint may be used. In some settings, it is clear that force is routinely used without adequate involvement of the patient or their representative in decision-making. Advocates are not routinely involved in post-incident reviews. I hope that the Bill, through Clause 4 and, even more so, in guidance, will be able to rectify that.

Noble Lords have already referred to the inadequate training that currently takes place, with an emphasis on painful techniques rather than de-escalating a situation. Much can be done to improve training and to move away from using combative and uncompassionate approaches towards a much greater focus on de-escalation.

I look back at what the Care Quality Commission said about training in 2017:

“Wards where the level of physical restraint was low had staff trained in the specialised skills required to anticipate and de-escalate behaviours or situations that might lead to aggression or self-harm”.


Those are important points.

There are a number of other points that I want us to probe as the Bill goes through. As I said, we might be able to cover them in the guidance. The noble Lord, Lord Adebowale, has mentioned a number of them, so I do not want to repeat what he said. Ensuring that each mental health unit policy includes a commitment to reducing the use of force needs to be spelled out. Ensuring that a post-incident review occurs to establish the patient’s perspective following the use of force is incredibly important and has not happened nearly enough up to now. Ensuring that patients’ legal rights to advocacy are communicated to them and their families is also important. I also think that, in order to ensure accountability and transparency, parliamentary oversight is really important. We have a critical role if progress is to be made towards reducing the use of force through the annual statement. It is there in the Bill, but there is an issue about timing. It is really important that the annual statement that, as I understand it, the Secretary of State will be obliged to make will be so timed to include the annual statistics produced by, I think, NHS Digital, so that we can carry out good and proper scrutiny. I think that that is extremely important.

I shall finish by saying a few things about the situation for children, young people and women in particular. I have already made some reference to this. When I was looking at the statistics about the scale, the frequency and the impact, I was really alarmed. Frankly, I was very alarmed when I read that, back in 2016, more than one in six in-patient CAMHS providers did not know how often patients were being restrained and how this compared to benchmarks from previous years. If we do not even know that, that is really worrying. I was really concerned to see that children and young people seem to be subject to the use of force four times more than adults over 20. That seemed really alarming to me. Often, these incidents of restraint—I think this relates to adult patients—happen in the first week of admission, a long time before things have settled down.

In terms of gender, I have already mentioned my real concern over the figures for girls and women, who experience, on average, double the number of restrictive interventions. Again, I was frankly surprised to read that; I do not know why, but I was. I want to understand more about why that happens and what we need to do about it, because it seems to me that that is not a situation we should allow. I then looked at the impact of this and realised that it is happening in secure settings—non-mental health settings—in secure children’s homes, secure training centres and young offender institutions. So there is a lot for this Bill to address.

I looked back at what Ofsted had to say on the matter back in 2012. Ofsted made it clear then that restraint should usually be used as a last resort, never as a punishment; that staff should always be trying to calm things down, to de-escalate; that it should not be used by staff just to keep good order and control. Extremely importantly—this is the point I wish to emphasise—restraint should never be used on very young children, children who had only just come in to care, disabled children, children with mental health issues and children who have been sexually abused. That is one of the reasons why this report is so very important and why I feel so strongly about it. That was 2012. In 2016 and 2017, the Children’s Commissioner’s findings from her visits to medium, secure and forensic in-patient settings for children and young people were indicating high levels of restraint and seclusion in units with a learning disability specialism. She found:

“There is no evidence base for the effectiveness of prone restraint in reducing the frequency or intensity of behaviours that challenge. It is a hugely traumatic and damaging experience for children and their families”.


I hope that someone can give me reassurance on my final point, which has been raised by people who are working very hard to ensure that we get the Bill right. I hope that the Minister can give me explicit clarification and reassurance that the Bill applies to children—that it applies to all ages. If so, that is fine, we can all be reassured, but there seems to be an element of doubt and, for the reasons I have set out, I think it is terribly important that we know that children and young people are covered by the Bill.

14:14

[Baroness Thornton (Lab)]

My Lords, I congratulate my noble friend on her excellent introduction to the Bill and on this short but very expert debate.

I agree with my honourable friend in the Commons, Justin Madders, when he indicated the Opposition’s support for the Bill:

“I thank my hon. Friend the Member for Croydon North (Mr Reed) for introducing the Bill; he certainly made a powerful case for it. Everything we have heard has made it clear why the Bill is necessary. … Restraint is used too often and disproportionately in certain sections of society. This cannot be allowed to continue. When she responds, I hope the Minister will support the Bill and allow it to be sent to Committee”.—[Official Report, Commons, 3/11/17; cols. 1107-09.]


As we know, the Government are to be congratulated on their willingness to support the Bill.

As noble Lords have said, the purpose of the Bill is to improve,

“the oversight and management of the appropriate use of force in relation to people in mental health units”.

It aims to do this in various ways, including through extensive training and requiring police officers to wear body cameras while in mental health units.

The case that has been referred to, of Seni Lewis dying due to improper force, is not isolated or a rare mishap. The current reality is that there is a severe lack of trained workers, leaving it open for patients in these health units to be abused and mistreated. The Crisis Prevention Institute found that in 2016-17—other noble Lords have referred to this—3,652 patients were injured while being restrained during NHS treatment. This is widely recognised as unacceptable, as shown by the unanimous support the Bill gained as it went through the Commons.

I am going to refer particularly to women who die after being restrained. In July, the organisation that looks at the issues faced by women facing multiple deprivation and abuse, Agenda, published research which said that 32 women died after experiencing restraint over a five-year period. It continued:

“The data, on patients detained under the Mental Health Act, suggests women were more likely to have restraint-related deaths than men between 2012/13 and 2016/17. Younger women made up a large number of the restraint-related deaths – 13 were aged 30 and under, compared to 4 men in that age range. More than a fifth of women who died were from Black, Asian and Minority Ethnic backgrounds, according to the figures, which were originally gathered by the Care Quality Commission”.


The director of Agenda, Katharine Sacks-Jones, said at the time:

“It is a national scandal that so many women are dying in our hospitals after being subjected to restraint. Mental health units are meant to be caring, therapeutic environments for women and girls feeling at their most vulnerable, not places where their lives”,


should be,

“put at risk. This bill is a real opportunity to reduce the use of this potentially lethal practice”.

I hope that we will see it go through your Lordships’ House.

However, that issue of the gender-based and other equality-based issues is one that I would like the Minister to address because of those factors. The idea that a woman who may be suffering from mental health problems and has been abused should then be subject to restraint in a mental health unit is really unthinkable and cruel. The guidance that flows from this legislation really has to address those issues.

A whole series of amendments were tabled in the Commons, which we will probably not be discussing in your Lordships’ House because we want to get the Bill on the statute book and do not want to risk it. However, those amendments tabled to the Bill in the Commons raised some very important points. I hope that the Minister will address the issues they raised, many of which have been raised by noble Lords already. They include: that training for staff should include training on trauma-informed care to understand how trauma exposure can affect patients’ neurological, biological, psychological and social development; to ensure that staff are required to have training on a patient’s right to advocacy, so as to improve the legal rights of the patient and capability of the staff; to ensure that the training for staff includes training on safeguarding procedures, to increase the protections for patients and the knowledge and capabilities of staff; and to ensure that training on the use of force complies with the quality standards so that the Secretary of State can delegate the training standards to a different agency, for example Health Education England.

The noble Baroness has already mentioned the importance of recording and accountability. I want to raise the use of the word “negligible”. It seems to me that it provides a loophole and could decrease transparency. I hope the Minister will be able to address that issue because I would hate us to find ourselves back here in three or four years’ time discussing this issue again because we have managed to put on to the statute book something that creates a loophole which is then used to not solve this problem.

I agree with noble Lords that the Secretary of State coming to Parliament with the statistics about mental health units and the use of force is very important. Is the Minister confident that, if we put this legislation on the statute book, the legislation and the guidance will be sufficiently robust to achieve what my honourable friend Steve Reed wanted to achieve when he set off on this journey, which was to not allow these tragedies to happen again?

14:20

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)]

My Lords, I shall begin by thanking three sets of people for getting us this far. The first is the noble Baroness, Lady Massey, whom I thank for introducing this Bill and for the opportunity to respond and contribute to the Second Reading. The second is Steve Reed, the MP for Croydon North, who, as all noble Lords have said, has done much of the work to get the Bill to where it is today. We know how difficult the journey of a Private Member’s Bill is, but that it has got this far in this good shape and has this broad support shows not just how important this issue is, but what a fantastic job he has done. I congratulate him. The third set of people are the parents and family of Olaseni Lewis. They have been through a heartbreaking experience, but they have nevertheless fought and campaigned tirelessly for justice for their son. I join other Members of the House in expressing my admiration for them, their resolve and the work they have done to ensure that other families do not to suffer in the way they and their son sadly had to.

This is an emotive subject. It touches the lives of people when they are at their most vulnerable, but at the same time we need to be conscious of the fact that patients must have trust in all NHS services in whatever setting. In that context, the topic of restrictive interventions is always difficult. They are never without risk. Going through an intervention and, I believe, delivering one can be a frightening and traumatic experience for patients and staff at a time when those patients are unwell. The Government are clear that restrictive interventions should only be used as a last resort when all attempts to de-escalate a situation have been employed.

Noble Lords are aware that in April 2014 the Government launched the positive and safe programme, which aimed to reduce the use of these kinds of restrictive interventions in the health and social care sector. That included the non-statutory guidance, Positive and Proactive Care: Reducing the Need for Restrictive Interventions. It was intended to inform the Care Quality Commission’s programme of monitoring and inspections.

What has been identified not just in this debate but during the passage of the Bill in the other place and by my honourable friend the Minister is that the existing guidance is not having the impact the Government expected and that much more needs to be done. For that reason as well as others, the Government are in full support of this Bill.

The noble Baroness, Lady Massey, was right in saying that this Bill is a good example of cross-party collaboration. A number of changes have been incorporated since it was first introduced to respond to multiple concerns, many of which have been raised this afternoon and by other parliamentarians, campaigners and staff. I pay tribute to all those who have contributed to the improvement of the legislation in the other place.

I shall deal quickly with some of the amendments that were made in the other place because they demonstrate how the Bill has been improved and that it is in a good place now. First, we have included “isolation” and “segregation” in the key definitions of use of force to address stakeholder concerns that these commonly used techniques would not be recorded and reported on nationally if they were not included in the Bill. We clarified the role of the responsible person in Clause 2 so that a board-level or equivalent person has responsibility for reducing restrictive interventions.

We have added to Clause 3 so that the policy on the use of force must set out what steps will be taken to reduce the use of force in the mental health unit, something that has been mentioned many times today. We strengthened Clause 4 in relation to sharing information with the patient about their rights, so that the responsible person has to take whatever steps are reasonably practicable to ensure not only that a patient is aware of the information about their rights but that they understand it. Critically, on the point that was raised by the noble Baroness, Lady Tyler, it will ensure that every patient and their family members or carers understand what the patient’s rights are in relation to the use of force while they are in a mental health unit, a really important improvement.

In Clause 5 we have expanded the topics that must be covered in training courses to recognise the impact that trauma may have on a patient’s physical and mental health and, as the noble Baroness, Lady Thornton, said, what is known as trauma-informed care. I will return to the issue of training but I will say at this point that we have also now included a requirement for staff to receive refresher training as appropriate, so it is not just one-off training.

We have expanded the list of information that must be recorded in Clause 6 to include a description of how force was used and the outcome of that use of force to increase transparency and accountability, while also amending the time for which records must be kept so that it is proportionate and in line with data protection law.

In Clause 7 we have ensured that the responsibility for publishing annual statistics sits with the Secretary of State in order to enable NHS Digital to collect national data and produce and publish those statistics. Following this debate today, in response to the question from the noble Baroness, Lady Tyler, I will clarify the timing of the publication of the statistics so that it can be done in a way that shines the greatest light on that information. I shall write to her and all noble Lords with more details on that.

In Clause 8 we have further committed to an annual review of published reports by coroners under paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009—more commonly known as regulation 28 reports—relating to the death of a patient as a result of the use of force, and any other findings made during that year. This will enable lessons to be learned across the system. This was one of the points made by the noble Lord, Lord Harris, and again, I will respond to that in a bit more detail in a moment.

Clause 9 is the result of much discussion about investigations, to ensure that mental health units have regard to any guidance relating to investigating deaths or serious injuries that is published by a range of organisations including the CQC, NHS Improvement and NHS England, as has been referenced. This puts the NHS Serious Incident Framework on a legal footing and gives strength to the requirement to carry out an independent investigation into an unexpected death, including the death of a patient following the use of force.

Finally on the improvements made in the other place, the clause on police body cameras was amended to ensure that the use of body-worn video is proportionate, legitimate, necessary and in line with the College of Policing guidance on its use. It was also amended to clarify that failure to bring or use body-worn video when attending an incident in a mental health unit is not in itself a criminal offence.

I thank noble Lords for indulging me in mentioning those points. I wanted to demonstrate the improvements that have been made in response to stakeholders from the charitable and voluntary sector. By virtue of those improvements, we can be confident that the Bill is in very good shape and, in response to the question from the noble Baroness, Lady Thornton, has the best possible chance of delivering the outcomes we want. We want to ensure that the Bill goes through in its current shape but, like my colleague Jackie Doyle-Price, I will be more than happy to meet any noble Lords who want further reassurance on any of the questions they have asked, although I shall try to deal with some of them as well as I can now.

I turn to some of the specific points and questions raised by the noble Baroness, Lady Massey, and other noble Lords. First, on the timing of the statutory guidance, calls to see drafts of it and the timetable for its publication, Jackie Doyle-Price in the other place accepted the need to move quickly and said that publication within 12 months of the Bill being passed would be appropriate in the context. I believe that this is reasonable, given the complexity of the guidance that we will need to consider. On the critical question of how it will be drawn up, we plan to establish and consult with an expert reference group, including experts in the field of restrictive interventions and people with lived experience, as well as carrying out a public consultation on the guidance before it is published. I reassure noble Lords that we will work closely with key stakeholders to take account of their contributions, and the discussions on the Bill in both Houses, in developing the guidance. I hope all noble Lords who have taken part in this debate will have the opportunity to contribute to the development of that guidance.

The issue of diversity and the disproportionate use of force for black and minority-ethnic groups was raised by the noble Lord, Lord Adebowale. Annual figures from the mental health services dataset showed that in 2017 the number of people subject to restrictive interventions was 9,771. Collectively, these people experienced more than 71,000 incidents of restrictive interventions. They also showed that they were disproportionately affecting patients from the BAME community, as well as women and children, as was mentioned by the noble Baronesses, Lady Thornton and Lady Tyler. This is clearly unacceptable, but we do not yet have a consistent and rich enough dataset to understand exactly where the problems in the disproportionate use of force take place, when they take place, in what settings, and so on. It is precisely for that reason that we want that rich dataset to inform practice and action, and to respond accordingly. I should be pleased to follow up our debate today with noble Lords, once data is available, to think about what action could be taken to address the discrepancies in performance.

The noble Baronesses, Lady Tyler and Lady Massey, asked about children. I can confirm that the Bill applies to all patients in a mental health unit, including children, for the purposes of treatment for a mental disorder. The children and young people who are being looked after in those mental health units are, of course, among the most vulnerable patients, and I absolutely acknowledge that staff will require a different skill set when looking after them. I will come to the issue of staff training in a moment, but Clause 5 sets out the requirements for staff training, including involving patients in their care, and this will be a different conversation for children and young people than for an adult. I reassure noble Lords that the statutory guidance that we produce will have specific examples and principles of good practice for how to carry out those conversations with young people and children, as well as with adults.

I should like to address some questions raised about the use of force. Although it has not been raised in this debate, it was asked in the other place whether the words “threat to use force” and “coercion” should be included. The reason for resisting that is that we believe that they can be useful terms when used properly as part of de-escalation techniques. As the noble Baroness, Lady Tyler, pointed out, those techniques are incredibly important in reducing the use of force wherever possible.

Nevertheless, we need to ensure that there is proper oversight to ensure that threats are not used improperly. That is part of the policy that we will expect the responsible persons to put in place to ensure proper responsibility, and proper accountability within the organisation for the reduction of the use of force and not merely substituting for it by other means.

Of course, as noble Lords have pointed out, staff must be properly trained. On those occasions where restrictive interventions are needed, we must feel confident that mental health unit staff have the techniques at their hands to use properly. In response to the question asked by the noble Baroness, Lady Massey, and other noble Lords, I say that Clause 5 sets out as a minimum the list of training topics which must be covered. The list in the Bill is not exhaustive, but covers the essential topic areas key to ensuring that, where necessary, force is used in a safe way using the least restrictive force. I mentioned that that will include ensuring that staff receive refresher training at regular intervals to ensure that they are up-to-date with the latest techniques and new approaches.

While we are on the topic of force, I shall address the question asked by the noble Baroness, Lady Thornton, about the use of the term “negligible”. As I have said, Clause 6 imposes a duty to keep a record of any use of force on the patient by staff who work in that unit. It sets out what information should be recorded and how long those records should be kept.

The clause also states that the duty to record does not apply to the use of negligible use of force. This is because, in consultation with our health partners, it was felt that staff should not be burdened with the need to record lower-level therapeutic activities, such as the use of a lap belt when moving someone in a wheelchair, or guiding someone by the arm down a corridor or through a doorway. These are activities that happen many times every day and, if we did not have this exception, staff would have to record such events as a use of force. This would significantly increase the time spent recording which would take staff away from caring for patients.

[Baroness Thornton]

Maybe that is the wrong word, then. Maybe the Bill should say “therapeutic” or something which does not allow a loophole which says: “Oh well, that slap was only negligible”. That might be the wrong word to use.

[Lord O'Shaughnessy]

The noble Baroness makes a good point, which is relevant to the point made by the Delegated Powers and Regulatory Reform Committee when it reported on the Bill, which I will use this opportunity to address. This was about our proposal that definitions should be within statutory guidance. This determines the appropriate mechanism for making the definition, to ensure that the kind of problems pointed out by the noble Baroness do not arise. The committee noted that the guidance under Clause 6(3) will determine whether a use of force is negligible, and thus affect the legal obligations of responsible persons in mental health units. The committee’s view is that this should be set out in regulations, in order to provide an appropriate level of parliamentary scrutiny. I have replied to the committee on this issue this morning and will share my letter with noble Lords.

We considered whether the meaning of a “negligible” use of force could be set out in regulations or, indeed, on the face of the Bill. However, the range of techniques that may be used for physical interventions alone is many and varied, from the most serious, such as prone restraint, to something as simple as guiding a patient by the elbow down a corridor or through a doorway. Furthermore, what is negligible will generally be a matter of degree rather than kind. It was concluded that the meaning would be more effectively illustrated through example case studies in guidance, which would also allow for more rapid revision to take account of changes in practice. The decision to require “negligible” to be determined in accordance with the guidance was taken to ensure consistency of approach to recording uses of force across the sector. Because the information recorded under Clause 6 will be used for the preparation of national statistics about the use of force under Clause 7, if responsible persons are taking a different approach to recording information—a current problem—that will affect the interpretation and value of the statistics.

The Government accept the committee’s concerns about the sensitive nature of the subject. This is why the Bill imposes constraints on the issue of guidance, one of which is to require the Secretary of State to consult any person he or she considers appropriate. In practice, that will mean consulting experts in the field of restrictive interventions and those with lived experience whom the Government consider appropriate for this type of guidance. It is not usually the case that we go against the advice of the committee, but in this instance we felt that the nuance required around the definitions of “negligible”, combined with the strength of force that is needed to provide consistency for statistics, meant that this particular definition within a form of statutory guidance was the appropriate way forward. I hope that noble Lords will accept that; if further discussion is warranted, I would be happy to follow it up.

My final point is on the issue of deaths of patients, which was at the heart of the questions asked by the noble Lord, Lord Harris. There was a lot of debate on Clause 9 in the other place and the clause was revised in Committee, but concerns remained about the timeliness, quality and independence of the investigations that would be made whenever a patient dies following the use of force. As Clause 9 is drafted, if a patient dies or suffers a serious injury in a mental health unit, the responsible person must have regard to any guidance relating to the investigation of deaths or serious injuries published by a list of organisations which are responsible for regulating and monitoring the NHS, such as the CQC. As I said, this means that the NHS serious incident framework is put on a statutory footing. The noble Lord, Lord Harris, gave some examples of how this would work in practice and talked about level 3 investigations. However, prior to that there is a legal duty, under the Mental Health Act, to report the death of a patient to the CQC. After that, an independent investigation should always be considered following the death of a patient in those circumstances.

As the noble Lord pointed out, level 3 investigations under the framework are those that will probably be most suited to these kinds of incidents, where the integrity of an internal investigation is likely to be challenged or where it will be difficult for an organisation to conduct such an investigation internally in an objective manner. I want to be clear that no one involved in the investigation process should be involved in the direct care of the patients affected, nor should they work directly with those involved in the delivery of that care. Following such an investigation, there would of course be an inquest, including a legal duty to report the death to the coroner, who has a duty to investigate violent or unexpected deaths. I hope that gives the noble Lord some reassurance about the objectivity and independence of the investigatory framework that would follow such a death. I am more than happy to discuss that further with him, and to make sure that the point he made is properly reflected: that there is an opportunity not just to investigate individual deaths but to look for thematic issues at a higher level—of the kind that he outlined and indeed used to be responsible for carrying out and which the IPCC used to carry out—which may be suitable for the new health services investigation board that we are introducing. That is something that I would like to discuss further with him.

The noble Lord also briefly asked about support for families. Legal aid is, I believe, the most appropriate way for that support to be offered. The Ministry of Justice has considered this in response to the Dame Elish Angiolini report and will also consider deaths in these settings on the same basis as deaths in prisons and police custody. Again, I hope that provides some reassurance, but if he wants to discuss that further I would be more than pleased to.

I hope that I have addressed all issues and questions raised in the debate today. I just finish by saying how important the Government consider this legislation to be and how much we support the noble Baroness in bringing it forward. Noble Lords have indicated that they do not intend to amend the Bill, and of course we are all conscious of time, but I am more than happy to speak to any noble Lords about remaining questions to make sure that we can put their minds at ease, provide the necessary reassurance and move ahead as quickly as possible.

14:42

[Baroness Massey of Darwen]

My Lords, I thank all noble Lords who have taken part in the Second Reading of this Bill. I have found the debate most moving, which cannot often be said about debates in your Lordships’ House. It has been both interesting and moving, and it is a pleasure to be in the midst of people who are so concerned about vulnerable people—children and adults. I hope that the family of Seni will consider this debate something of a tribute to him and to themselves for all their work in bringing this to our attention and the development of a Bill that could be a very significant piece of progress.

I shall just make a few comments about speeches that noble Lords have made. I liked the very incisive comments of my noble friend Lord Harris and his clarity in talking about the investigation of deaths in custody, based of course on his own vast experience of this. I learned a lot from his speech and I hope that the Minister will take that up further, as there was a lot in there that needs to be looked at again in writing, assessing how it could contribute to any possible future guidance. The noble Lord, Lord Adebowale, also has huge experience of working with vulnerable young people and with mental health issues. He emphasised the need to take account in the guidance of the work of NGOs, which I—and I think all of us—totally support. The noble Baroness, Lady Tyler, and I have worked for years on the issues relating to children and young people and I am glad that she reinforced comments on that, as did other noble Lords, and that she gave her support to the Bill. Her point about consultation with parents is important, as was the issue also raised by my noble friend Lady Thornton about the traumatisation of women who may have been subjected already to violence and be in distress. She also mentioned training in the prevention of the use of restraint.

My noble friend Lady Thornton raised many good points about equality. I think she said that it was “unthinkable and cruel” that people who have problems should be subject to more, and sometimes regular, violence. She recalled the amendments tabled in the other place and said that we should take account of them, and I agree. I am trying not to use the word “negligible” here. At least I can say it. I thank my noble friend for her comments in winding up.

The Minister made some helpful points about the importance of cross-party collaboration in the Bill, and said that more needs to be done. He covered many issues that have been raised today, and I know that he is passionate about this, because we have talked about it. It would be a good idea if we had a full meeting after this debate. Things have come up that we need to tease out the meanings of, like that terrible word “negligible”, and the word “patient” itself, including children in that. What is a child? We need a definition. Is a child someone under 18? In fact, some organisations use “child” to cover up to age 24. Let us get some correct definitions. Let us listen to what my noble friend Lord Harris said, to what all other noble Lords said, and to the NGOs. The Minister is generous to suggest a meeting, and it would be useful, just to tidy up some of the things we have talked about and to reinforce some of the issues. I would appreciate that, and perhaps we can talk about it afterwards.

Having said all that, I thank all noble Lords. I said I was moved by the debate, and I was. We have done justice to a serious and important issue here, and I hope that we will see it move forward a bit more rapidly than I heard the Minister say. I do not know whether that is possible, but we need guidance as quickly as possible, although not rushed guidance. However, with consideration, we can make this into good guidance that will have some impact on the ground where people work and are in mental health units. I also take the point that the people administering this violence may also be suffering somewhat. I am of the view that violence never solves anything at all; we need a different approach to this, which can come only from training, discussion and sympathetic listening to people who are in this position. I ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 2.48 pm.