Mental Health Bill [HL]
Monday 27th January 2025
(3 days, 4 hours ago)
Lords ChamberMental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-IV(Corrected) Fourth marshalled list for Committee - (23 Jan 2025)
Baroness Browning
“Power of Tribunals to require a reportIn section 72 of the Mental Health Act 1983 (Power of Tribunals), after subsection (7) insert—“(8) The Tribunal may require a local authority, or an NHS body, to arrange for a report regarding such matters relating to a patient as the tribunal may direct to be made—(a) by one of its officers or employees;(b) by such other person as the authority, or the NHS body, considers appropriate.””Member's explanatory statement
This amendment would recreate the powers the Court of Protection has under section 49 of the Mental Capacity Act 2005, in section 72 of the MHA 1983 to assist discharge.
Baroness Browning (Con)
My Lords, Amendment 128 is in my name. A person with autistic spectrum disorder or a learning disability may be stuck in hospital for years; we know that they often are. We sincerely hope that matters will improve dramatically when this Bill is enacted, but we should not be so optimistic as to think that will happen in the near future. However, when somebody is in hospital that long and no longer needs clinical supervision—some in the autistic and learning disability community, for example, never needed to be in there at all—parents become extremely stressed and frustrated. There may be long periods when a close relative, often their adult child or a younger child, is stuck in these hospitals and the parents cannot get them out.
We heard in debate earlier this evening of the differences between the county courts and the mental health tribunals; of course, there are also people who sometimes resort to the Court of Protection. Although I heard noble and learned Lords giving their different views on these, most seemed not to regard the county courts as the most appropriate course. It is a fact, though, that the Court of Protection has had some success in getting out people who have been unduly held in mental health hospitals.
Amendment 128 proposes that mental health tribunals are strengthened to give them the same opportunity as the Court of Protection to make progress in releasing people from long stays in hospitals. If they are to do that, the mental health tribunals need to have more powers, particularly to require local authorities and the NHS to provide a report to enable discharge for a person who no longer clinically needs to be in hospital. This would give tribunals the same powers that the Court of Protection has under Section 49 of the Mental Capacity Act, because there has been some success.
The Court of Protection has been able to secure discharges because it is able to call for reports from local authorities and health services to put the case that it feels confident that it would be safe to discharge somebody. Parents who do this very often have to fund it themselves. Strengthening the tribunal cases, in line with the sort of powers that the Court of Protection has in getting information collated, to make sure the discharge package is sound is very important. This approach would be stronger and more effective than the Government’s proposal that tribunals make recommendations on Section 117.
That is what the Government propose, but I hope that the Minister will look carefully at this amendment. It would enhance mental health tribunals, increasing the number of people who have proper discharge packages through these tribunals. I do not see this as a competition between the Court of Protection and tribunals. Both have a place, and this will be important if we are to achieve what this Bill wants to achieve: to make sure that people do not stay in health mental hospitals a moment longer than they absolutely have to. I beg to move.
Earl Howe (Con)
My Lords, I believe we would all accept—and, personally, I am in no doubt—that my noble friend Lady Browning possesses a breadth and depth of experience in matters relating to autism and learning disability. By that, I mean that she has not just a familiarity with the day-to-day challenges of life for individuals with one or more of these conditions but a knowledge of the practical frustrations and hurdles that often have to be overcome if the best interests of such individuals are to be properly defended.
It is amply clear from what my noble friend has said that, if this amendment were inserted into the Bill, it would have the potential to make a material and beneficial difference to the process of discharging certain patients from a secure mental health unit in particular types of situations. As my noble friend said, and as we all know, there have been many instances where autistic patients have been detained inappropriately and for long periods under the Mental Health Act and where families have struggled to secure their relatives’ release.
I cannot see a logical reason why a mental health tribunal should not be placed on an equal legal footing with the Court of Protection in this very limited respect. I hope the Minister will agree.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to the noble Baroness, Lady Browning, for tabling Amendment 128 and for her contribution, along with that of the noble Earl, Lord Howe.
On the proposals in Amendment 128, I can tell your Lordships that, under the current tribunal procedure rules, the tribunal can direct responsible authorities, which could be a local authority or an NHS body, to provide evidence. The practice directions that apply in mental health cases place a requirement on the responsible authority to provide reports and records relating to the patient’s detention treatment and any after-care plans. The tribunal can use these reports to decide whether the detention criteria are being met. Therefore, it appears that the tribunal has extensive powers to require responsible authorities to provide the information to support its decision on whether to discharge a patient. I hope that the noble Baroness will be satisfied with this response and will withdraw her amendment.
Baroness Browning (Con)
My Lords, I am grateful to my noble friend for his support from the Front Bench and to the Minister for her reply. Although it was very reassuring, could I ask her to clarify something? Has the level of information leading to a proper discharge plan under the existing powers of tribunals been set in primary legislation, which is what I am asking for under this Bill, or is it in secondary legislation or guidance?
Baroness Merron (Lab)
I am happy to confirm that to the noble Baroness. The important thing for me is that we make sure that, as always, we can move with best practice and keep up with what is needed. With that in mind, I will confirm that later to the noble Baroness to ensure that I am correctly answering her detailed question.
Baroness Browning (Con)
I am grateful to the Minister, as always. She is always helpful with these difficult points. I will just flag up that if the tribunal power to get that information in order to encourage more discharges is not in statute, then perhaps we will return to it at a later date. I beg leave to withdraw the amendment.
Lord Bradley
“Implementation report: removal of police stations and prisons as places of safety(1) Within 6 months of the day on which this Act is passed, the Secretary of State must publish a report on how they will effectively implement the provisions contained with section 46 (Removal of police stations and prisons as places of safety) within the time limit specified by section 53(3A) (Commencement).(2) The report must include an assessment of—(a) how His Majesty’s Government will provide alternative places of safety with adequate capacity and geographical distribution,(b) the availability of remand to hospital under section 36 of the Mental Health Act 1983 (Remand of accused person to hospital for treatment) and,(c) any plans to extend section 36(1) of the Mental Health Act 1983 to Magistrates’ courts.(3) The Secretary of State must lay a copy of the report before Parliament.”Member’s explanatory statement
This amendment (connected with another in the name of Lord Bradley) seeks to ensure that the Secretary of State must publish a report on how they plan to implement the provisions contained within Clause 46 in an effective and timely manner.
Lord Bradley (Lab)
My Lords, my Amendments 128A and 163B concern the banning of prisons and police cells as places of safety. By way of background, in my report in 2009, which I have previously referenced, I recommended that discussions should immediately commence to identify suitable local mental health facilities as the places of safety, ensuring that police stations should no longer be used for this purpose at that time. That sat alongside the development of mental health and learning disabilities liaison and diversion teams based in police custody suites and the courts, particularly to support the police in dealing with people with these issues. There is now 100% geographical coverage of the country with those teams. A crucial further element was the development of what was called street triage, where mental health nurses sat alongside the police in emergency control rooms or in police vehicles around local communities, again to support and assist the police.
The recent policy, “right care, right place”, is rightly based on the same principles debated on Amendment 37B, moved by the noble Baroness, Lady May. Again, at that time there was growing concern that A&E departments were, and still are, a default position as places of safety, and therefore the need to develop alternative facilities, often located close to A&E departments, often called crisis care units, should be pursued. There is an agreed protocol with the police to hand over the patients for care and assessment to NHS staff in the way advocated now by Amendment 128B, which has already been debated and is a model that I believe should be replicated across the country.
My amendments today are an attempt to galvanise the Government into action to achieve that. Amendment 163B to Clause 53 would require that Clause 46 came into force no later than 12 months after the passing of the Act. Amendment 128A to Clause 46 would require that the Government must publish a report on how they would ensure effective implementation of that section within the timeframe specified. I am again concerned at the lack of clarity in the timeline for the implementation of provisions in this clause. The impact assessment currently does not show an estimated commencement date for the provision in Clause 46, stating instead:
“Departments are working together to ensure there are clear pathways and provision in place to safely enact these reforms and the timeline for implementation will depend on the conclusion of this work”.
Amendment 163B would require Clause 46 to come into force within 12 months of the passing of the Act.
Amendment 128A would require the Government, within six months of the passing of the Act, to publish a report assessing: how they will ensure effective provision of alternative places of safety with adequate capacity and distribution across geographical locations; the availability of remand to hospital under Section 36 of the Mental Health Act 1983; and any plans to extend the use of Section 36 of the Mental Health Act 1983 to magistrates’ courts. Such a report will be crucial to the successful implementation of Clause 46.
Further—and this replicates concerns already expressed in Committee—I am concerned about the lack of reliable data on the use of prisons as a place of safety. The impact assessment references this, noting that there is no
“reliable data on the number of people in prison as a place of safety”.
Without knowing how many people are being held in prison as a place of safety, it would be difficult to ensure adequate alternative provision is in place. This data should be recorded and made available to inform effective implementation of this clause. Perhaps the Minister in response might be able to assure us that this information will be made available to the Committee.
Taken together, the removal of police stations and prisons as places of safety can be successfully introduced in a timely way, which many organisations, such as the Centre for Mental Health—for which I am an ambassador—and the Prison Reform Trust, have a long advocated. I hope the Minister will agree.
Lord Kamall (Con)
My Lords, I welcome the amendments from the noble Lord, Lord Bradley. As usual, he has been very sensible and measured in the amendments he has tabled. As the noble Lord reminded us, he has been very patient on many of the measures he is proposing.
I will speak to Amendment 140, which is also in the name of my noble friend Lord Howe, and hopefully touch on some of the amendments from the noble Lord, Lord Bradley. On a positive note, I will say how much we welcome Clause 46 and its removal of police stations and prisons as places of safety under the Mental Health Act. I think that noble Lords across the Committee welcome that, and the Government are to be congratulated on it.
The Wessely review stated:
“Far and away the best way to improve the care and outcomes for those with the severest mental illnesses is to provide more and better alternatives to detention”.
It also remarked that, all too often, opportunities for early intervention were missed. The report noted that this means that the first contact a patient often has is with the police, rather than with a mental health professional. I know we have discussed this and the overall involvement of police a number of times in Committee. I am sure we may come back to this on Report, but all noble Lords are aware that this must be addressed. Clause 46 is therefore very important in implementing that recommendation from the Wessely review.
I want to focus on a sentence that comes after the recommendation in the Wessely report:
“That means that, where they do not currently exist, health-based places of safety will need to be commissioned”.
I think this goes to the heart of the issue the noble Lord, Lord Bradley, was talking about—implementation but also data. Amendment 140 attempts to probe the Government. It would require the Secretary of State to publish a report on alternative places of safety for patients who are liable to be detained, particularly focusing on community care. We need to know this; as the noble Lord, Lord Bradley, said, we need the data.
Noble Lords have raised many times that we know that everything is not going to be done overnight. We understand that. We know there is a 10-year timeframe. We want a better understanding of what will be delivered when. Some of it will be subject to spending reviews, but some of it will be delivered whatever the result of a spending review. It is all very well saying that police stations and prisons and cannot be used as places of safety—no disagreement there—but this will mean that patients have to be placed elsewhere. Clause 46(2)(a) states that a place of safety for an adult is
“any hospital the managers of which are willing temporarily to receive that person”.
So far, the Bill seems to say—the Minister may correct me—that the only place of safety is a hospital. If I have misunderstood, I am prepared to be corrected, but as all noble Lords will know, that is not always ideal. Capacity in hospitals is in short supply. What will happen if a place of safety is needed but there are no appropriate hospitals nearby that are willing to receive that person, for lack of available space or staff? That is why this amendment places a focus on community-based alternatives for places of safety. If we can shift some of the burden here away from hospitals and into the community, part of the problem might be alleviated.
On an earlier amendment, Amendment 151, the noble Baroness, Lady Bennett, said that we all know that capacity in the community is currently quite limited. The report required by my amendment would enable the Secretary of State and the Department for Health and Social Care to consider and create a plan to develop greater capacity in the community for this purpose. We understand that not everything can be delivered now, but we would like to see a plan so that we can understand the Government’s intentions, their own timeframe and how they intend to roll this out. The amendment once again aims to probe the Government on their implementation plan.
I thank the Minister for meeting my noble friend Lord Howe and me to discuss appropriate places of safety. In that meeting, the Minister mentioned the community crisis houses that the noble Lord, Lord Bradley, alluded to, and said that her department was investigating how these might be used as alternatives to hospital or, indeed, police stations. As Mind says on its website, crisis houses provide
“intensive, short-term support to help manage a mental health crisis in a residential setting, rather than in a hospital”.
They can vary; some may simply provide temporary overnight accommodation to ensure that those experiencing mental health crises have a safe space away from other areas of their life, while others may provide treatment as well. Many of these crisis houses are operated by voluntary and civil society organisations.
One of my great passions in politics is to champion the role of local community civil society groups, so that we do not always have to look to the state to provide all the solutions. I think that there is some real promise here, and the Government are to be congratulated on it, for the provision of community crisis houses to be expanded, so that they can act as health-based places of safety, as the Wessely review recommended.
The questions I have at this stage for the Minister are in the nature of a probing amendment. What progress has the department made in exploring these community crisis houses and, indeed, other community-based places of safety, as alternatives to police stations and prison cells? Can the Minister tell us, when the Government are implementing the provisions of Clause 46 and commissioning health-based places of safety, whether they will include discussions with local civil society organisations and charities about how best to implement them, perhaps in partnership? I am sure she will recognise that their expertise will be highly beneficial and that they often know their local community much better than officials do, whether those be national officials or sometimes even local government officials. I appreciate that the Minister will not necessarily have all the answers tonight but, if not, I look forward not only to her comments but to the letter that she will promise to write to us afterwards.
Baroness Merron (Lab)
My Lords, I thank my noble friend Lord Bradley for his contribution and for Amendments 128A and 163B. I also thank the noble Lord, Lord Kamall, for speaking to Amendment 140 in his name and that of the noble Earl, Lord Howe. We are committed to implementing these reforms as soon as is it safe and practical to do so. We will return to this matter on the next day in Committee.
As I have said before—I know that noble Lords have heard this—we are reluctant to commit to enacting single provisions or publishing single plans or reports at specific times, given their dependence on so many other developments, particularly spending reviews. Removing police stations and prisons as places of safety under Section 55, and removing police stations under Sections 135, 136 and 136A will, as noble Lords suggest, require making sure that viable alternatives and clear pathways into support are fully established and in place. Commencing by regulations enables the reforms to be enacted once this is the case.
I know that my noble friend Lord Bradley is aware of this, but I will repeat it in respect of these amendments. Officials from my department, the Ministry of Justice and the Home Office are working with health and justice partners across government to develop the necessary plans to ensure that sufficient resources and the right processes are in place, and to establish clear timelines for implementation.
Lord Bradley (Lab)
My Lords, I am grateful for the Minister’s response and pleased that progress is being well made to develop alternative facilities to ensure that the use of prisons and police stations as places of safety is banned as soon as possible. The purpose of my amendments was to keep momentum behind that programme. I hope we can properly implement these provisions in a timely way, because that would be to the greatest benefit of people affected by mental ill-health or learning disabilities who find themselves up against or in the criminal justice system. On that basis, I beg leave to withdraw my amendment.
Lord Bradley
“Implementation report: mental health care for bailed defendants(1) Within six months of the day on which this Act is passed, the Secretary of State must publish a report on how they will effectively implement the provisions contained within section 47 (Remand for a person’s own protection etc) within the time limit specified by section 53(3A) (Commencement).(2) The report must include an assessment of how His Majesty’s Government will ensure appropriate care and support for defendants with mental health conditions who, under the provision in section 47, cannot be kept in custody for their own protection.(3) The report must review—(a) the extent to which services providing such care and support have adequate capacity, and(b) their geographical distribution.(4) The Secretary of State must lay a copy of the report before both Houses of Parliament.”Member’s explanatory statement
This amendment (connected to another in the name of Lord Bradley) seeks to ensure that the Secretary of State publishes a report on how they plan to implement the provisions contained within clause 47 in a timely manner, and in a way which ensures that bailed defendants with mental health conditions (who can no longer be remanded for their own protection) receive appropriate care and support.
Lord Bradley (Lab)
My Lords, in moving Amendment 128C I will speak also to Amendment 163C in my name. These amendments relate to Clause 47, “Remand for a person’s own protection etc”, and Clause 53, “Commencement”. I will speak very briefly, because the purpose of these two interlinked amendments is substantially the same as the ones we just discussed: Amendments 128A and 163B. However, they stress that remand should always be part of our deliberations when we are talking about people who may find themselves in the criminal justice system.
Amendment 163C would require that Clause 47 comes into force no later than 12 months after the passing of the Bill. Amendment 128C would require the Government to publish a report on effective implementation of Clause 47. These two amendments encapsulate the need to make really rapid progress to ensure that there are adequate community alternatives and community health-based provision to support people who may be placed on remand, where the sole concern is the defendant’s mental health.
We have to ensure that these facilities are geographically spread across the country. We also have to ensure that we can see bail being used in a way that is commensurate with people who may have found themselves going to a place of safety, but with the same support required for their continued treatment as if they were already within the criminal justice system.
With that, I am happy to listen to a positive response from the Minister. I beg to move.
Lord Scriven (LD)
My Lords, I will be very brief because of the time. As with the previous group of amendments from the noble Lord, Lord Bradley, we are very supportive of the intention to try to tease out of government what the implementation plans are. It is really important to understand that being supportive of Clause 47 does not necessarily mean that we believe it will come into implementation in a timely fashion.
By supporting the noble Lord’s amendments, we wish to tease out of government the exact timing and resources that have been allocated; the planning the Government will have to do in terms of the number of provisions that will be required to implement this clause; the gap between the number of those facilities in place and those needed; and the estimate the Government have of when they would seek to put those facilities in place.
As the noble Lord, Lord Bradley, said, the location of those facilities—where there are gaps geographically and where they need to be filled—is very important. It is important that the Government furnish the Committee with those details so that we can fully understand not just the intention of implementation but the scale of the implementation plan required for this clause.
Lord Kamall (Con)
My Lords, just like in the last group, I will speak to and support the amendments in the name of the noble Lord, Lord Bradley. They follow the amendments in the previous group.
These Benches welcome Clause 47—another positive move—which addresses the issues arising from the current situation. As the noble Lord, Lord Bradley, said, bail can be refused solely on the basis of a mental health condition where it might otherwise have been granted.
In simple terms, as the noble Lord, Lord Scriven, said, this amendment returns to the theme that he, and many other noble Lords, have pushed the Government on—and I like the words used by the noble Lord—to “tease out” the plan and timetable for implementation from the Government, since it requires the Secretary of State to prepare a report on how they plan to implement these changes within the time period proposed in Amendment 163C.
We have to remember that the impact assessment states, in regard to the changes to remand for a person’s own protection, that:
“Departments are working together to ensure there are clear pathways and provision in place to safely enact these reforms and the timeline for implementation will depend on the conclusion of this work”.
That has been manifested this evening with the presence of a Minister from the Department of Health and Social Care and a Minister from the Ministry of Justice. However, there is currently no set date for the commencement of Clause 46, so it is all contingent on internal departmental assessments. We all understand how government works—how long it takes for things to happen, to get write-round and to get support across government—so I gently suggest to the Minister that the 12-month implementation timeline would be a useful target for the Government to work towards. It could help them to answer some of the questions that many noble Lords have asked in Committee on the plans for, and stages of, implementation. That is not to force the Government to move faster than they want to go, but just for us to understand the various milestones along the way in developing what is in the Bill.
It would also be helpful if the Minister could set out how much progress has been made both in the Ministry of Justice and the Department of Health and Social Care on establishing the pathways and processes to enable these remand reforms to go forward. This is especially true since the impact assessment also states—this is quite an interesting point—that:
“We expect the number of people on remand solely for mental health reasons to be low and therefore health and justice costs relating to this change are likely to be negligible, and therefore have not been monetised”.
We understand the challenges that the Government are often talking about—they have to wait for spending reviews, et cetera—but the impact assessment states that the number of people affected will be low. Can the Minister say whether either his department or the Department of Health and Social Care know what that means and how many people that will be? Does he know how many will be impacted by this change? If he accepts what is in the impact assessment—that the costs will be negligible—this could be a quick win for the Government in relative terms, depending of course on what other processes he feels have to be put in place before they can deliver this. I hope that the Minister can be a bit more helpful on his noble friend’s amendments, given that the costs are low.
We look forward to the Minister’s response, and I would be grateful if he could give an indicative timeframe or an indication of when a timeframe will be in place.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, I am grateful to my noble friend Lord Bradley for bringing this discussion before the Committee. These amendments would require the Secretary of State to publish a report on the implementation of Clause 47 within six months of the date on which the Bill is passed and that the reform comes into force a maximum of 12 months after the date on which the Bill is passed.
We are committed to implementing our reform to the Bail Act as soon as is practicable and as soon it is safe to do so. However, before moving to amend the legislation to embed these changes, we will need to make sure that viable alternatives are properly established and clear pathways to the right support are in place, whether in hospital or in the community. Commencing by regulations enables the flexibility to implement the reform at whatever point the necessary alternatives and pathways are safely in place.
I reassure my noble friend Lord Bradley—just as the Minister, my noble friend Lady Merron, did in relation to the previous groups of amendments—that my officials are working with colleagues across government to develop this and to ensure that sufficient resources and processes are in place. This includes the work of the north-east health and justice hub, which seeks to improve the way that courts, health services and prisons work together at a local level to smooth pathways into care, alongside the pilot team collecting data. That will help us better to understand the number of people remanded for their own protection solely on mental health grounds to inform planning.
The reform is currently due to commence by regulation, so we have the flexibility to implement it at whatever point the necessary alternatives to the pathways are in place. The rollout of the bail information service will be completed by autumn this year. This will help the courts to have the information they need to make decisions on bail for this cohort. However, we need to make sure that we have the reliable data on the number of people remanded for their own protection, because if this is rushed, it could create knock-on impacts for health services.
Lord Scriven (LD)
The noble Lord, Lord Kamall, quite rightly pointed out that the impact assessment says that the Government have already said that the numbers will be small and the costs negligible. Upon what data were those assumptions from the impact assessment made? If the Minister cannot give me the answer to that at the moment, could he provide the Committee with the detailed figures and data used to present that within the impact assessment?
Lord Timpson (Lab)
I thank the noble Lord for his question. I will be delighted to get the correct information, so that we get it exactly right. We will get it to him as soon as is practical.
Lord Bradley (Lab)
I am again grateful to the Minister for his response and pleased that he will provide that information, because it is fundamental to effective implementation of this policy. I also look forward, hopefully before Report, to visiting the north-east health and justice hub to see for myself what model it is developing, how applicable that could be across the country and at what cost. There is lots to do but, on that basis, I wish to withdraw my amendment.