Mental Health Bill [HL]

(Limited Text - Ministerial Extracts only)

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Lord Stevens of Birmingham (CB)]

Very briefly on the question that the noble Baroness, Lady Fox, raised, the notion of supply-induced demand is a well-known phenomenon across health services. However, I have to say to her that I think that we are a long way off that being the problem that is principally confronting children and young people’s mental health services. We have a massive gap between the need for effective therapies for children and young people and their availability.

When the process of trying to expand children and young people’s mental health services kicked off several years ago, the goal was that we would get to a situation where one in three children and young people with a diagnosable mental health condition would get some form of specialist mental health support. That number has now been exceeded. I was just looking at the stats published last week and, although I do not see the most up-to-date number for it, I would be surprised if more than one in two are currently getting specialist mental health support for a diagnosable mental health disorder, not just distress. So, we are a long way off confronting this problem of supply-induced demand, whatever broader cultural or therapeutic labelling questions that she rightly points to may be in the ether. Fundamentally, we are going to need more services to benefit the children and young people who need them, not pretend that this is somehow all vapourware, imaginary or a cultural deformity, unlike our predecessors in the Victorian era.

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

I thank noble Lords for their contributions on this important set of amendments. I say at the outset that I note the various observations that are outside the Bill, as the noble Baroness, Lady Barker, pointed out, but I have noted them and I am sure we will discuss them on a number of occasions.

First, I turn to Amendments 46 and 47, tabled by the noble Lord, Lord Kamall, and the noble Earl, Lord Howe. I have heard how many noble Lords are in support not just of those two amendments but all the amendments in the group. I am sure noble Lords will not be surprised to know that I understand where people are coming from and I will be pleased to go through the response to them.

The noble Earl, Lord Howe, spoke about “troubling and sensitive matters” and about being inspired by testimonies that came through the charity Blooming Change—I express my thanks to that organisation for the work it does. Officials in the department have met the group and it made a very helpful contribution. Hearing from those with lived experience is crucial to making sure that this is the best Bill, and I know that many noble Lords have done that, so I thank the noble Earl for bringing that into these amendments.

Amendments 46 and 47 would change the definition of appropriate medical treatment to include treatment which

“seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma”.

Childhood trauma can of course have a devastating impact on psychological well-being. Effective and compassionate in-patient care must be informed, as I have said, in co-production with people with lived experience and be trauma informed. NHS England’s Culture of Care Standards for Mental Health Inpatient Services certainly underlines this.

The noble Earl, Lord Howe, and other noble Lords raised concerns around in-patient settings and how appropriate they are, which I understand. I hope it will be helpful to say in answer that the new definition of “appropriate medical treatment” introduces the requirement that treatment has to have a reasonable prospect of benefiting the patient. We would expect the setting in which someone is going to be detained to be considered as part of this. Of course, I am more than aware—without wanting to go into the generics in this group or any other group—that the place in which we start, in terms of the suitability and availability of the right settings, is not where I am sure any of us would want to be.

We also know that the sensory environments in settings can cause difficulties for people with sensory sensitivities. To support NHS services to address sensory aspects of the environment, which the noble Baroness, Lady Bennett, referred to, NHS England has published a sensory-friendly resource pack, which outlines 10 principles to improve the sensory environment and signposts other resources.

The clause in the Bill that defines “appropriate medical treatment” already requires decision-makers to take into account the nature and degree of the disorder and all other circumstances, which could include childhood trauma, when considering whether medical treatment has a reasonable prospect of therapeutic benefit. The definition of medical treatment is unchanged and is indeed broad, including nursing care, psychological therapy and medication. All these interventions could include an overall aim to minimise distress and promote psychological well-being.

Amendments 50 and 51, tabled by the noble Baronesses, Lady Tyler and Lady Bennett, aim to ensure that the clinician considers non-drug-based interventions as part of the new “clinical checklist”. The checklist requires clinicians to identify and evaluate alternative forms of medical treatment when deciding whether to give a particular medical treatment to a patient. As I have already mentioned, the definition of medical treatment under the Act is broad. As well as non-drug-based interventions, it includes specialist mental health rehabilitation and care. On the point raised by the noble Baroness, Lady Bennett, which is an important one, it does include the therapeutic environment or setting. This requirement, as outlined, would apply to all patients falling under Part IV of the Act. It includes patients with a learning disability and autistic patients who are detained for assessment under Section 2 and patients detained for treatment under Part III.

With specific regard to those with a learning disability and autistic people, I recognise the concern that they are more likely to be prescribed an antipsychotic than the general population. I emphasise that psychotropic medication should only be given for the right reasons, in the lowest dose, for the shortest time. NHS England has a national programme of work to stop overmedication and the inappropriate prescribing of these medications, which is aimed in particular at people with a learning disability and autistic people. Noble Lords will be aware of the STOMP programme. Alongside it is a national supporting treatment and appropriate medication in paediatrics programme called STAMP—the two are not to be confused. These programmes work particularly closely with those with lived experience, families and carers organisations, and a wide range of health and social care professional bodies.

Amendment 53, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, would require the approved clinician to offer a patient any treatment that is appropriate, having applied the new clinical checklist. The reference to medical treatment in that checklist should already be read in accordance with Clause 8, which inserts a new definition of appropriate medical treatment to enact the principle of therapeutic benefit.

The clinician must also support the patient to participate in decision-making to make sure that they do not simply offer their preferred treatment to the patient, with no discussion or consideration of alternatives. The Bill also requires clinicians and, where relevant, the second opinion appointed doctor to provide a written record that the treatment being administered meets the definition of appropriate medical treatment. Therefore, it is felt that the Bill already meets the intention of this amendment. Furthermore, if the intention is to ensure that a range of treatments is being considered by the responsible clinician, I can reassure noble Lords that this is already the case, because, as I have said, the definition of medical treatment is broad.

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[Baroness Merron (Lab)]

I would be very pleased to look into it further, but, as I have described, this is a rolling programme. I emphasise that the CQC has that duty both to monitor but also to make the relevant bodies subject to sanctions if needed—in other words, more immediately. So I am concerned that through this amendment we could be creating a structure which is actually less flexible and responsive than the one we have now.

Amendment 148, tabled by the noble Lord, Lord Crisp, and the noble Baroness, Lady Hollins, would impose on integrated care boards—ICBs—a legally binding duty to provide local, in-person, specialist withdrawal treatments for patients on psychiatric medication prescribed during the course of their treatment by services under the Mental Health Act. In addition, there would be a duty on each ICB to send to the Secretary of State an annual report on the availability, uptake and outcomes of this support. Under this amendment, the Secretary of State would be obliged to lay these reports before Parliament. ICBs would also be subject to a requirement to provide a 24-hour helpline and online platform to support patients to receive withdrawal treatment.

Let me say at the outset that I recognise the difficulties that withdrawal can pose. I recall that the noble Lord, Lord Crisp, spoke on this very point in the Chamber last month and was also good enough to speak directly to me. It is, I agree, an issue that will not go away and, per the noble Lord’s request, I would be happy to arrange a meeting. I feel there is a whole area here to which we today, considering amendments, cannot do justice, so I would be pleased to do that. To the noble Lord, Lord Mawson, who has tabled Written Questions, I say that I look forward to answering them, and I hope that he will look forward to reading my Answers.

Where relevant, we would expect the patient’s statutory care and treatment plan to include a tapering plan and put in place whatever additional support is needed to enable a patient’s recovery and effective discharge. On the requirement to provide support in the community and report on availability, this is the responsibility of local health commissioners. In 2023, NHSE published a framework for ICBs and primary care boards on how to optimise personalised care for patients prescribed medicines associated with dependence or withdrawal symptoms. With regard to the requirement in the amendment for a 24-hour helpline, this would not seem proportionate, given the relatively low numbers of people who might need this service, who should already have a support plan in place, including access to relevant local support services.

Finally, Amendment 154, tabled by the noble Baroness, Lady Bennett, would allow the Secretary of State to make regulations giving people detained in hospital and those subject to community treatment or guardianship orders the ability to have certain care and treatment matters considered by a mental health tribunal.

This is a very complex area, as I am sure the noble Baroness is aware. The amendment seems to draw on the recommendation made by the independent review to give patients a new right of appeal to a single judge of the mental health tribunal regarding compulsory treatment. I recall that the previous Government publicly consulted on this new right, and the majority of respondents raised major concerns in this regard. The consultation was followed by further long and careful consideration with stakeholders, which led the then Government to the conclusion that this safeguard is just not viable. A solution could not be found that provided an efficient and effective route of appeal for patients while avoiding the risks of the tribunal intervening in clinical decision-making, alongside significant resource burdens. Many of these concerns were reflected in the report of the pre-legislative scrutiny committee, which also acknowledged the complexity of the issue.

We believe that the other provisions in the Bill will better achieve the same objectives of providing patient choice and autonomy, so while we do not support introducing a new role for the tribunal, I assure your Lordships that the emphasis on therapeutic benefit within the detention criteria will mean that whether care and treatment are proving effective will play a role in the tribunal’s consideration of whether or not detention should continue to be upheld. With these explanations, I hope that the noble Earl feels able to withdraw his amendment.

[Earl Howe (Con)]

My Lords, I am very grateful to all noble Lords who have contributed to this debate in such compelling ways, and I think we can see that when it comes to the experiences of children and young people in mental health units, we are dealing with a story that is a lot more substantial than mere anecdote. From briefing I have received, I am afraid I have been left in no doubt that the therapeutic environment in a number of mental health hospitals around the country—not all, of course—is, to put it mildly, a lot less than optimal.

Clearly, it is unacceptable for any patient, of whatever age, to be detained compulsorily without being offered treatment. It is unacceptable that drugs or restraint should be used as punishments. Challenging behaviour can be difficult to deal with, but staff should be trained to deal with it in a way that demonstrates that they understand the root causes of the behaviour. Those causes can be extremely complex.

To pick up another strand of the debate, I am in no doubt that medication has a place in mental health therapy. It can often be the treatment of choice. It is one tool in the toolbox. However, I very much agree with what the noble Lord, Lord Crisp, and the noble Baroness, Lady Tyler, had to say about social prescribing. It can not only be clinically effective but save costs if it is delivered, for example, by local charities that work in the fields of music, drama or art. Incidentally, it can help budding musicians, actors and artists in their downtime to train as music, art or drama therapists, which is an added bonus.

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[Earl Howe (Con)]

There are two answers to that. First, it is generally unthinkable for a Government to lay regulations without first having consulted the relevant parties. Secondly, if we are honest, putting something on the face of a Bill is not the whole story; there would need to be proper clinical guidance published alongside that for practical purposes for hospitals and elsewhere.

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for examining the important issues that have been raised in this group of amendments.

Amendment 55, in the name of the noble Baroness, Lady Tyler, supported by the noble Lord, Lord Scriven, seeks to change the Mental Capacity Act to allow young people aged 16 or 17 the ability to make a binding advance decision to refuse medical treatment for mental disorder. I shall set out some concerns about the amendment that may be helpful.

First, the amendment would mean that a young person who is not detained under the Mental Health Act could refuse a mental health treatment, even if it was life-sustaining. While the Mental Health Act and the Bill currently provide safeguards that enable a person’s advance decision to be overruled, detention under the Act may not always be appropriate. For example, if a 16 year-old is left very unwell following an attempted suicide, then currently they may be given treatment on the basis of what is in their best interests, under the Mental Capacity Act, if they lack capacity to consent at the time. However, under the amendment, if the 16 year-old had made an advance decision to refuse treatment necessary for their recovery or to sustain their life, then they might need to be detained under the Mental Health Act simply so that their advance decision could be overruled. This is important in terms of timely access to treatment and to avoid loss of life, of course.

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[Baroness Merron (Lab)]

The overall concern is as I have identified. Yes, indeed, as always, it is a complex area that we need to unpick, but our main concern has to be for the welfare of the young person. The concern about the amendment is that, inadvertently, it would work in the opposite direction.

To finish on Amendment 55—this might also be helpful to the noble Baroness, Lady Bennett—we are of the view that the Bill strikes the right balance between self-determination and responding to the needs and vulnerabilities of children and young people. For example, in the clinical checklist, many of the new treatment safeguards and provisions around care and treatment planning apply equally regardless of age and aim to ensure that treatment is more patient-led.

Amendment 56, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, is somewhat similar to Amendment 55 in seeking to change the Mental Capacity Act to provide a mechanism by which children and young people can make an advance decision to refuse medical treatment for mental disorder. However, under Amendment 56, the child or young person’s advance decision would have legal weight only if they were detained under the Mental Health Act. As I have already discussed, while we recognise the principled position to extend the rights of adults to children, giving under-18s the right to make an advance decision to refuse treatment would conflict with a long- standing legal principle established by common law in the courts and codified in the Mental Capacity Act and would, therefore, mean that the amendment would not achieve its desired effect. This principle recognises that, in some serious cases, the courts, parents or those with parental responsibility may overrule the refusal of a child or young person, especially in cases where the child’s life is at risk.

I reassure noble Lords that we are nevertheless committed to giving children and young people a voice as far as possible when it comes to decisions about their care and treatment. I refer again to the example of the clinical checklist, which requires consideration of a patient’s wishes and feelings, including those expressed in advance.

[Lord Scriven (LD)]

What legal status does the checklist that the Minister keeps referring to actually have?

[Baroness Merron (Lab)]

I will come back to the noble Lord on that, and I thank him for asking the question.

I was about to refer to the noble Baroness, Lady Tyler. I may not be doing so in quite the right place, so I hope she will forgive me, but I do not want to lose this point. She asked what engagement we have had with the Department for Education. Our officials have engaged with DfE officials on the development of the Bill, including on the interaction between the Bill and the Children Act, which I know is of quite a lot of interest to noble Lords. We have also discussed questions around the statutory test with both the DfE and the Ministry of Justice, given that competency tests apply in wider children’s settings than mental health. I hope that is helpful.

Amendment 136, tabled by the noble Baroness, Lady Tyler, would require the Government to hold a review of whether a statutory test of competence should be introduced into the Mental Health Act for under-16s within a year of the Bill being passed. While we recognise that there are competing views about Gillick competency, it is nevertheless the established framework for determining competency for children. To introduce a statutory test for under-16s only under the Mental Health Act is likely to risk undermining Gillick, which remains the accepted competence test for under-16s across all settings, including reproductive health and children’s social care, and the wider legislative framework on matters related to children.

[Baroness Butler-Sloss (CB)]

The trouble with Gillick is that it does not provide, for those who have to make the decision, how to do it.

[Baroness Merron (Lab)]

I appreciate the point that the noble and learned Baroness has made. As I said, I know there are competing views about its application. I reiterate the observation that it is the current established framework, but I hear what she is saying about what she believes are the implications of that.

[Baroness Berridge (Con)]

The Minister’s own policy document says that this test should be in the code of practice. How does that not also contribute to the undermining of Gillick that the Minister refers to?

[Baroness Merron (Lab)]

Actually, my feeling about the code of practice is something that I wanted to bring up, because it has come up quite a lot. The code of practice is statutory and aimed at practitioners, and it allows nuance and so on, but Gillick is in case law and it guides us throughout. The point I am trying to make is that if it is changed in respect of this Mental Health Bill then that has implications across the wider question of competency for younger people, and that is of great concern.

[Baroness Butler-Sloss (CB)]

I apologise for interrupting the noble Baroness again, but the fact is—I speak as a former lawyer and judge who applied Gillick—it does not actually give guidance. All it says, as I understand it, is that under-16s have to be listened to. That is great, and I totally agree. What it does not do—but the amendment of the noble Lord, Lord Meston, would—is set out the guidance that those who make the decisions need to have.

[Baroness Merron (Lab)]

Obviously, I am listening closely to the noble and learned Baroness’s experience and feeling on the matter, and I will certainly be pleased to reflect on the points that she and the noble Baroness, Lady Berridge, have made.

If I continue, that may be of some assistance—we will see. It is of concern to me that the possible creation of two different tests will potentially cause further confusion and uncertainty on the ground. We are therefore not in a position to welcome a statutory test of competence in the Mental Health Act.

Before I continue to Amendment 147, I will come back to the good question raised by the noble Lord, Lord Scriven, about the legal status of clinical checklists. Because they are in the Bill, they are a statutory requirement for clinicians, to be followed in respect of all patients. I hope that will be useful.

[Lord Scriven (LD)]

It is useful, but it is therefore contradictory to what the Minister has just said. If the checklist is statutory and it is legally binding that it has to be followed, how would a young person in that checklist having a view about their care be different from an advance directive? That is the issue. The Minister said the other alternative is that a person under 18 or 16 can make a decision in relation to the medical checklist, and she has just said that the decisions are legally binding. Alternatively, is it that carrying out the process is legally statutorily binding but the views of somebody who is 16 on that list are not?

[Baroness Merron (Lab)]

I was referring more to situations, of which I know the noble Lord is aware, where there is a need for intervention. I think I used the word “overruling”, and I used some examples where there was a risk to life. So it is about application in that regard. I will look at that question in greater detail when I reflect on this area of debate and, if there is more that I can add to assist the noble Lord, I will be pleased to do so.

Amendment 147 is in the name of the noble Lord, Lord Meston, supported by the noble Baroness, Lady Berridge, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Bennett. It would create a statutory test of competency for children in respect of decisions under the Mental Health Act. Under that test, competence for under-16s would be defined by reference to the functional test of capacity established in the Mental Capacity Act but without the diagnostic test, and by having due regard to the UN Convention on the Rights of the Child.

The courts have already made clear that the approach of the functional test is not suitable for children. We do not think that the functional test is appropriate or compatible with the UN Convention on the Rights of the Child, which the amendment itself makes reference to. The amendment, as drafted, is therefore not considered to be in line with established case law.

The noble Baroness, Lady Berridge, asked about the justification for not including a test in the Bill. As I have mentioned, Gillick is established in case law, not statute, and the code explains how the Gillick decision is to be applied. But this does not mean that the House of Lords decision is not mandatory. There is a duty to follow case law. It is not discretionary, as I know noble Lords are aware.

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[Lord Meston (CB)]

My Lords, I do not want to prolong this, but I have to say that, although I am disappointed and a little surprised by the response from the Government, the intention is to align the Mental Capacity Act and Gillick. It is frankly not correct, if I understand the situation, to say that it is not based on case law. I referred to a specific case in which the judge formulated, essentially, the test that appears in my amendment. As I say, I do not want to prolong this but, if necessary, I can refer the Government to that case.

[Baroness Merron (Lab)]

Perhaps I can just say to the noble Lord that, when I reflect on the discussions on this group, as well as all the others, it may be helpful to discuss this further.

Amendment 55 withdrawn.