Mental Health Bill [HL]

(Limited Text - Ministerial Extracts only)

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Berridge (Con)]

My Lords, on the amendment outlining the definition of “serious harm”, two situations were raised with us on the Joint Committee. One was that the change in the criteria is the main tool that will help with racial inequalities; I would be grateful if the Minister could outline how she envisages that will work in practice. The second point was about the period during which such serious harm has to be exhibited. We heard numerous times about people with psychosis, many of whom—I think it was over 70%—do not realise that they are getting ill when they are presenting. How poorly do they have to get? Sometimes the intervention might need to be sooner than in the definition we understood of “serious harm”, which was slightly different from that which the independent review had, which I think was of “significant harm”. If the Minister could address those two points, that would be very helpful.

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

My Lords, I thank noble Lords for their contributions to this important debate in which a number of key issues have been raised.

Amendment 23, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, relates to new Section 125D, regarding registers of people with a learning disability and autistic people who are at risk of detention. The amendment would remove new Section 125D(5), which defines

“specified risk factors for detention”.

I heard the noble Earl, Lord Howe, refer to this as an Aunt Sally amendment—I politely have “a probing amendment” here but I hope that we are in the same area—that is intended to clarify the definition of

“specified risk factors for detention under Part 2 of this Act”.

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[Earl Howe (Con)]

My Lords, I shall be very brief, because other noble Lords have already eloquently articulated the arguments that are almost self-evident about the importance of services for people with autism or a learning disability and, in particular, the importance of training all staff who may find themselves working in those fields. I agree very much with the remarks of my noble friend Lady Browning and the noble Lord, Lord Scriven, and I was particularly interested in the research mentioned by the noble Baroness, Lady Bennett of Manor Castle, which brings us into a whole new dimension, I think, in this debate.

The need to train all healthcare staff, no matter what role they perform or which part of the health service they serve in, should surely be taken as read. This should be training both in the initial identification of those with autism or a learning disability and in the skills needed to handle such individuals with the necessary sensitivity and insight. I was interested in what the noble Baroness, Lady Barker, had to say about that. The behaviour of a person who is on the autistic spectrum can be baffling to anyone who has had no experience of it, and because of that it can be open to misinterpretation. A situation of that kind carries dangers, which is why it is so necessary for healthcare staff to know how to react in a way that will make the situation better and not worse.

This is not the first time that we have debated this important topic. I believe we may be told by the Minister that mandatory training in these areas is already provided for in Section 20 of the Health and Social Care Act 2008. The provision reads:

“Regulations under this section must require service providers to ensure that each person working for the purpose of the regulated activities carried on by them receives training on learning disability and autism which is appropriate to the person’s role”.


That broad provision was inserted into the 2008 Act thanks to an amendment which your Lordships approved three years ago, during our debates on the Health and Care Act 2022.

So, a provision on training is already enshrined in law; the problem is that we have no way of knowing the extent to which it is being implemented in practice. Hence, Amendment 145 would require the Secretary of State to publish a review on mandatory training for all persons who treat patients with learning disabilities and autism under the 1983 Act and consult as necessary to determine the extent to which health service staff are actually in receipt of such training. I see this amendment as perhaps a logical partner to Amendment 152 in the name of the noble Baroness, Lady Bennett, and indeed, in his absence, to the amendment of the noble Lord, Lord Adebowale.

While the vast majority of people who provide care to people with learning disabilities and autism do so with compassion and professionalism, we have seen a number of failings in care for people with those conditions. At the same time, detention will continue to be necessary in some cases where a patient with autism or a learning disability is suffering from a separate mental health condition. In all those cases, regardless of the context in which a person presents, we need to have confidence that the people providing care have the training they need to deliver that care sensitively, and above all, capably. I would venture to say that the people who need to have most confidence in the system apart from the person receiving the care are the parents or nearest relatives of that person. Hence, I believe we need more transparency on how well the system is working than we have currently.

Incidentally, one of the things that could come out of a review of training is an opportunity to look at the current processes for whistleblowing. An important aspect of improving standards of care is to have a system of accountability that includes listening to everyone in the sector, from the most senior staff to the most junior. No one should be afraid to speak up when they see something going on that does not look right, and I should be very grateful to hear what the Minister has to say on this whole theme and on the other important issues that noble Lords have raised.

[Baroness Merron (Lab)]

My Lords, I express my gratitude to noble Lords, not just for their amendments but for the way in which this debate has been conducted. I appreciate much of what lies behind the contributions and amendments today.

I first turn to Amendment 33, tabled by the noble Lord, Lord Scriven, and supported by the noble Baroness, Lady Hollins, and also Amendment 150 in the name of the noble Lord, Lord Adebowale. All of these were spoken to throughout this group, including by the noble Baronesses, Lady Tyler and Lady Murphy. I noticed that Amendment 150 was particularly referred to by the noble Lord, Lord Patel, and the noble Earl, Lord Howe.

On the matter of data collection, I absolutely share my noble friend Lord Beamish’s view on its importance, the need for the visibility of data and the need to find out what is behind detention. However, I can give the reassurance that the data and statistics that were referred to are being collected and published. They will continue to be monitored and published monthly in the assuring transformation statistics for learning disability and autistic people, and I hope that will be helpful to my noble friend.

The amendments I am referring to, which the noble Lord, Lord Scriven, introduced, require the Secretary of State to publish plans within a specified timeframe, outlining the Government’s plan to allocate sufficient resources for the commissioning of services for the detention and treatment of autistic people and people with a learning disability, as well as costed plans which show how integrated care boards and local authorities will ensure provision of adequate community services for these groups.

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[Baroness Barker (LD)]

This is a key point for a lot of the amendments that noble Lords have asked about. Can the Minister write to all noble Lords with more detail of the training programme—its content, the timetable, who is going to be responsible for making sure that it is implemented and reviewed? Will she specifically deal, in that letter, with my question about whether tier 3 training is included?

[Baroness Merron (Lab)]

I would be very pleased to write to noble Lords, as the noble Baroness suggests.

Amendment 42A, in the name of the noble Baroness, Lady Browning, which the noble Lord, Lord Kakkar, also spoke to, relates to appropriate expertise in learning disability and autism for medical practitioners with responsibility for recommending admission for treatment. We strongly agree with the principle of this amendment. The current code of practice sets out that, where a patient is known to belong to a group for which particular expertise is desirable, at least one of the professionals involved in their assessment should have expertise in working with people from that group wherever possible. The code also makes clear that consideration should be given to any disability the person has in order that the assessment has regard to that in the way that it is carried out.

The noble Baroness, Lady Browning, asked further about how the Bill will make sure that professionals have the right skills and expertise. This whole area rightly comes up repeatedly when we debate.

I accept that it is crucial that those with a learning disability and autistic people are dealt with sensitively and professionally. It is crucial that clinicians are able to make distinctions between a learning disability or autism and any co-occurring mental health disorder—that point was made powerfully. It is a matter for clinical judgment to determine whether a person with a learning disability or an autistic person meets the criteria for detention under Part II, Section 3 due to a co-occurring psychiatric disorder. To assist clinicians in decision-making, we will update the code of practice to provide the guidance that will be necessary, and I hope that that will make a major change.

[Baroness Browning (Con)]

I am grateful to the Minister and very encouraged by her response. I want to flag up something else that I raised. Occasionally, at some point of crisis for undiagnosed adults, the question is asked: could this be autism? At that point, we need people who have a very good working knowledge for them to raise that question, because it can make a world of difference if they are right. It is not just about somebody who presents with a diagnosis; it is about those who are undiagnosed. I do not know the quantity, but my gut feeling is that there are quite a lot of adults out there who are still undiagnosed. I do not know how the Minister will accommodate that situation.

[Baroness Merron (Lab)]

The noble Baroness makes a good point. Indeed, not everybody has a diagnosis. I suggest that, when we look at provisions, we should make clear—through the appropriate means and not in primary legislation—how the practice should take account of the point that she made very well. I will be extremely mindful of that.

We believe that the code of practice is the most appropriate place to articulate the type of experience that might be required in this area, through a non-exhaustive list of practical examples, which would avoid the need to define in primary legislation exactly what constitutes sufficient experience. The reason for that is to allow flexibility on the particular needs and circumstances of the individual. As we update the code of practice, we will engage with expert stakeholders to improve practice and to reflect the new Act. The code will be laid before Parliament before its final publication. I thank the noble Baroness, Lady Murphy, for her comments in this area.

The number of long-term detentions was rightly raised by my noble friend Lord Beamish and the noble Baronesses, Lady Murphy and Lady Browning. The number of people with a learning disability and autistic people in mental health hospitals is indeed unacceptable. Too many people are still being detained who could be supported in their communities with the right provision. Work is under way to address this. For example, NHS England has allocated £124 million of transformation funding for services, which includes funding to reduce reliance on mental health in-patient settings. Noble Lords can be reassured that I will take a particular personal interest in this area.

[Lord Beamish (Lab)]

On that point, I welcome what my noble friend the Minister has announced, but the real problem is about housing, including specialist housing in different areas for individuals leaving secure units. That is not universal throughout this country, as people leaving mental health units are then having to travel long distances. Surely we need local plans, and that money going in locally to provide the housing needed.

[Baroness Merron (Lab)]

My noble friend makes a good point about housing; we discussed it on day 1 in Committee. We are working with our ministerial colleagues who deal with housing on the need for the right kind of housing to be available. The point was well made and is taken.

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[Baroness Bennett of Manor Castle (GP)]

I understand that the Minister may wish to write to me on this, but I wonder whether there is a real prioritisation of those experts by experience guiding that research, and what input there might be. If the Minister can write to me, that would be fine.

[Baroness Merron (Lab)]

I would be pleased to write to the noble Baroness.

As I set out in response to other noble Lords, I hope the Committee has heard how much I agree that the adequacy of training is a key issue. We are aware that developments in best practice in caring for people with a learning disability and autistic people need to be reflected throughout. As I set out, the Health and Care Act 2022 requires that staff be given the training appropriate to their role, and we expect that this should be reviewed in line with the up-to-date situation. The CQC assesses staff training as part of its regulatory function. For these reasons, I ask the noble Lord to withdraw his amendment.

[Lord Scriven (LD)]

My Lords, I thank noble Lords who have taken part in this useful and informative debate, and I thank the Minister for a thorough explanation of what happens. However, there does seem to be a disjoint between what is happening on the ground and what people in an office in Whitehall seem to think is happening. That is why noble Lords have discussed issues to do with data, training, a costed plan, research and development, and the implementation of people who at least have training and an expertise in diagnosis. Something just does not feel right. The Minister has explained what is happening, but without a fully costed plan up front, with targets, accountability and data ongoing, what will happen is what happens now. Things will be diverted and diluted, and we will not be able to hold the plan to account. For that reason, while I thank the Minister for the explanation she has given, I feel that we will return to this issue at a later stage to dig down and get that deliverable framework. In the meantime, I beg leave to withdraw my amendment.

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[Lord Kamall (Con)]

My Lords, given that all those who have spoken to this group of amendments have been brief, I shall try to be brief. Once again, I thank the noble Baroness, Lady Murphy, for discussing with me in an exchange of emails over the weekend the intent behind the amendments in her name.

The noble Baroness, Lady Murphy, makes a reasonable point about clauses in the Bill that contain the phrase “likelihood of the harm” or “serious harm may be caused”, because it is assumed that such risks are quantifiable and predictable. I was struck by her observation that psychiatrists, psychiatric nurses and academics have warned about the difficulty of being able to predict episodes of violent behaviour in individuals because the base rate for violence, particularly serious violence, in the population is low. One of the things that we keep saying throughout this debate is that we need to see the evidence and the data, and that that should drive decisions that are being made. Given that, I am grateful to the noble Baroness for sharing the statistics, which I will not repeat but which reinforce the point that she wanted to make.

Considering those statistics, I am sympathetic to two specific points that the noble Baroness made. The first is that making statements about individual risk based on such statistics is complex and possibly unsafe, and, as the noble Baroness said, may be unethical. The second is that it may be helpful to use structured risk-assessment systems in routine clinical practice, if used by appropriately trained staff, to predict possible violence at a group level. However, given that many noble Lords have spoken about patient-centred care and the importance of understanding the individual and their sensory profile, surely we should be looking at patients as individuals, where the clinician better understands the individual patient’s mental state, relevant history and response to treatment given his or her life circumstances.

I will be interested in the Minister’s response to the amendments in the name of the noble Baroness, Lady Murphy, urging the Government to replace wording such as “likelihood of the harm” or “serious harm may be caused”. These terms are inexact and somewhat ambiguous and do not appear to be driven by evidence. Perhaps there are more appropriate terms for more holistic and comprehensive assessments.

Amendment 45, tabled by the noble Baroness, Lady Tyler, proposes that the definition of appropriate medical treatment includes the setting in which treatment takes place. This takes us back to a point made on the first day in Committee by the noble Baroness, Lady Barker, and just now by the noble Baroness, Lady Tyler, that for those with autism and learning disabilities, being held possibly in noisy, bright, busy settings full of people who may be strange to them, and where they may feel powerless and worry about what will happen next, is likely to affect their mental health and well-being. Therefore, surely it is important that we take account of the points made by the noble Baronesses, Lady Barker and Lady Tyler, particularly in Amendment 45.

On Amendment 48, it is really important that care is led by the level of therapeutic benefit. That should be based on evidence to drive those decisions. Given that, I look forward to the Minister’s response.

[Baroness Merron (Lab)]

My Lords, I am most grateful for the contributions that have been made and the amendments that have been tabled.

I turn first to Amendments 37A, 37C, 38A, 38B, 42B, 42D, 42E, 42G and 42H, all tabled by the noble Baroness, Lady Murphy, and spoken to by other noble Lords, including the noble Lord, Lord Kamall, regarding the new criteria. Let me say at the outset that the new criteria explicitly require decision-makers to consider the risk of serious harm and the likelihood of those harms occurring in order to justify detention. Clearly, the reason for this is to ensure that any risks to the public and the patient are consistently considered as part of the assessment process, and to protect patients from lengthy detention when these risks are unlikely to occur. I hope that this will be helpful for some of the debate that we have had.

The amendments tabled by the noble Baroness, Lady Murphy, seek to revise the proposed new risk criteria to remove any mention of risk that “may be caused” or the “likelihood” of the risk transpiring. The purpose appears to be to remove any prospective assessment from the detention decision and instead focus on the risk as it can be established at the time. The noble Baroness, in her introduction, asked about the reasonableness of the words in the provisions, and I understand that this is where the concerns lie. I should also thank the noble Lord, Lord Kamall, for his comments on evidence and data and their importance. In answer to the noble Baroness, I should say that the independent review found that the current criteria for detention are too vague and recommended that the Government should update the detention criteria to be more explicit about how serious the harm has to be and how likely it is to occur to justify detention. The intention of the revised detention criteria in the Bill is not to ask clinicians to make predictions but to clarify that they should consider whether a harm is likely to occur, based on their assessment and knowledge of the person—something that the noble Lord, Lord Kamall, focused on—rather than based on risks which may never occur.

Any consideration of risk arguably preserves the need to look at what might happen rather than what is happening or has happened in more concrete factual terms. We think that it is important that the detention criteria allow clinicians to detain based on the risks that they think are likely to happen, rather than just the risks that have already materialised. This enables them to act early to prevent harm to the patient or others. In line with the intention of the noble Baroness’s amendments, this should be based on personalised individual risk assessments and information about the patient’s history and personal circumstances—again, something that I know noble Lords are exercised by, which is about the individual approach to this.

We did engage again on the changes to the detention criteria last summer, in light of the recommendation on this issue by the pre-legislative scrutiny committee, and to assure ourselves that the detention criteria struck the right balance between allowing clinicians to continue to take early action when they are concerned about a patient’s or others’ safety and the independent review’s concerns that people could be detained on the basis of risks that might never occur.

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[Earl Howe (Con)]

My Lords, there is little for me to do following the persuasive speech of my noble friend Lady May, other than to say how much I support her in putting forward her amendments. I hope that the Minister will approach the proposals my noble friend has made in a receptive and constructive way.

I was struck by the case put forward by my noble friend Lady Buscombe about how technology could assist in the handling of mental health incidents. I hope equally that the Minister will wish to follow up on my noble friend’s suggestions.

The question of whether police officers, and only police officers, should exercise the powers under the Act to remove a person suffering from a mental health crisis to a place of safety is one that, as my noble friend Lady May said, has been simmering in the Home Office and the Department of Health and Social Care for a decade or more. Extending those powers to suitably trained healthcare professionals would be a change that I suggest goes with the grain of this Bill as regards the emphasis that it places on looking after mental health patients in the best possible way. That is not a criticism of the police in any sense. The police do a magnificent job in tackling anything that they are called upon to do, but, as we have heard, the police themselves say that the vast majority of instances in which they are called upon to deal with a mental health incident do not require a policing response.

The issue of risk is important to consider. Statistically, as my noble friend said, most mental health incidents present no risk whatever to the police attending. Admittedly, it is not always possible to tell in advance how risky a particular encounter is likely to be, but I agree with my noble friend that, provided that a paramedic is suitably trained and equipped, they will have the necessary skill set to deal with any risk to their own safety, bearing in mind that if a police presence turns out to be necessary, they can always call for one.

I very much hope that, between now and Report, the Minister will agree to meet my noble friend, if that is what she wishes, to map out a way forward that will lead to a broadening of the Sections 135 and 136 powers.

[Baroness Merron (Lab)]

My Lords, this has been an interesting debate, with much agreement across the Committee. I noted the support from both the other Front Benches, from the noble Earl, Lord Howe, and the noble Baroness, Lady Tyler, for much of what has been said.

Let me first discuss Amendments 37B, 38C, 42C, 42F and 128B in the name of the noble Baroness, Lady May, along with Amendment 158 in the name of my noble friend Lord Davies of Brixton. I am most grateful to the noble Baroness and my noble friend for bringing this issue before the Committee today. Amendments 37B, 38C, 42C and 42F would add a new category of authorised persons and would provide that police constables and such authorised persons may detain a person under Sections 2, 3 and 5 of the Act.

I share the recognition from the noble Baroness, Lady Barker, of the noble Baroness, Lady May, who I commend for her work to pave the way and dramatically reduce the use of police cells as a place of safety for those who are experiencing a mental health crisis. I listened carefully to the noble Baroness’s words of advice to all government Ministers; all I can say is that I cannot think how much better we could be advised than by a former Home Secretary and Prime Minister.

I thank the noble Baroness, Lady Watkins, for what I might call her notes of caution in respect of extending provisions, and the noble Lord, Lord Meston, for sharing his first-hand experience to add to the debate today.

We understand the broad intention of these amendments and of Amendment 128B, also in the noble Baroness’s name, to reduce police involvement in mental health cases for all the reasons that were said, including the extra distress that an officer may—inadvertently, of course—bring to a very delicate crisis situation.

The noble Baroness, Lady May, asked how the Bill will ensure that pressure is not placed unduly on police resource. I understand that that is very much a driving consideration, so let me say a few things on that matter. We recognise the pressure on the police, who are responding to a very large volume of mental health-related incidents, although—this is not to dismiss the point—detentions under Section 136 have decreased this year by 10%, and we are removing police cells as a place of safety to reduce some of this burden. We recognise, in particular, that police time in health settings should be reduced. I give an assurance that we have committed to look at this issue and to update the code of practice to clarify the handover process between police and health, including in A&E, which the noble Baroness, Lady Tyler, spoke about. We recognise the confusion around the application of the legal framework that can tie up police time when it would be lawful for them to leave a patient with health staff.

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[Baroness Barker (LD)]

I thank the Minister for her characteristically full and attentive response. I understand why she is not too enamoured by my amendment, and I do not intend to push that much further. However, having listened to her response to the noble Baroness, Lady May, I cannot help but arrive at the conclusion that, while we are quite content, because we all agree, to see police officers being taken away, we are not going to change anybody else’s roles or responsibilities to plug what will be an inevitable gap. I return to something I have said today and previously: this will be the only mental health legislation for 20 years. If we let this go through, in the certain knowledge that we are creating a big gap which will not be filled by existing roles or the deployment of people within the NHS, we are being quite negligent. We are consigning a lot of people to finding themselves without appropriate support at moments of distress, and that goes for staff who happen to be around at the same time.

The noble Baroness, Lady May, is a fan of Geoffrey Boycott. I hope that she goes in to bat again and does not give up. There is an enormous gap here and we have just made it worse.

[Baroness Merron (Lab)]

I appreciate the contribution of the noble Baroness. None of us, including the Government, wishes to create a gap, either intentionally or unintentionally. I should have said in my remarks that the noble Earl, Lord Howe, asked whether I would meet the noble Baroness, Lady May, should she so wish. The answer is yes. I was glad to do so previously with the Secretary of State; it was extremely helpful.

I assure the noble Baroness, Lady Barker, that there is no intention to create a gap, and we would be happy to elaborate further. She is absolutely right to say that we should be cautious and that it would not be good legislation to do that. The challenge is whether the amendments before us are the answer. I hope that this is a helpful comment.

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[Baroness Butler-Sloss (CB)]

I too want to add, equally with great care, to this very interesting discussion. I am concerned about the police. I have not quite understood from the Minister her thoughts on a point that has been made twice now by the noble Lord, Lord Meston about everybody waiting for the police. Are the Government thinking of making it unnecessary for the police regularly to attend?

[Baroness Merron (Lab)]

I thank noble Lords for their interventions. To the noble and learned Baroness, Lady Butler-Sloss—how can I put this?—I say that the police should be there only when they are needed because they are the police. It is true—the point was made very well in the course of the debate introduced by the noble Baroness, Lady May—that it often goes beyond that. That is why “right care, right person” is something that colleagues are working on with police forces, as well as looking at the whole connection with health services. It is well understood.

I heard the comments of my noble friend, as well as those of the noble Baroness, Lady Watkins, following on from the noble Lord, Lord Scriven. When the noble Lord, Lord Scriven, was speaking, the words that came into my head were “chicken and egg”, about legislation and skills. We looked at skills, but—these are not quite the right words—not at the expense of addressing the question of whether the law is in the right place. They are connected, but I refer the noble Lord to the points made earlier, by me and the noble Baroness, Lady Watkins, about the response we have had from health and care professionals. It is about finding the right way. I take the point that there is a gap now. We do not want to make it worse, and we know that it is not acceptable.

[Baroness May of Maidenhead (Con)]

My Lords, may I say how grateful I am to all those across the House who have supported my amendments. When the Minister first stood up and started to respond, I got quite excited and hopeful. I thought the points had landed, but then, as she carried on speaking, my hopes were dashed as I realised that, in a very elegant way, she was actually rejecting all the points that I had made in my amendments.

The Minister emphasised the code of practice and dealing with the issue of the handover between police and medical professionals. The whole point of my amendments was to ensure fewer handovers between the police and medical professionals, because there would be fewer times when the police were called as the first responders to a mental health incident. The Minister kindly said she would meet with me, and I hope she might be willing for the noble Lord, Lord Davies, also to be part of that discussion.

The noble Baroness, Lady Barker, referenced my admiration for Sir Geoffrey Boycott. One thing about Sir Geoffrey Boycott was that his centuries tended to come quite slowly. Maybe the response and government reaction to this will be a little slower than I had anticipated; but, on the basis that I anticipate that that reaction may come and the century may be scored, I beg leave to withdraw the amendment.