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 Amendment Paper: HL Bill 47-IV(Corrected) Fourth marshalled list for Committee - (23 Jan 2025)
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank noble Lords for an extremely helpful debate. I want to say how much I understand the concerns around the nominated person regarding children and parents, and the great need to get this right in the way that noble Lords have rightly unpicked today.
It is very important that parents are involved in a child or young person’s care. I say to noble Lords, as this has come up before, that we do not intend or wish to undermine the rights or responsibilities of parents. In the vast majority of cases, the nominated person for a child or young person will be their parent or whoever has parental responsibility, either because they have decided that themselves, with the relevant competence or capacity, or because they are appointed by the approved mental health professional.
For under-16s the Bill sets out that if they lack competence to make this decision, the approved mental health professional must appoint a parent, or a person or local authority with parental responsibility. The Bill aligns with the Mental Capacity Act on decision-making capability, with young people aged 16 and over considered to have the capacity to make relevant decisions. We think it is important, as I know noble Lords do, that children and young people have the right to choose a nominated person, and I understand the need to get the nominated person right. Some 67% of over 1,200 respondents to the White Paper consultation supported extending this right to under-16s.
We must have the right processes and safeguards for all patients, and additional protections for children and young people. These safeguards will cover the nomination process and the ability to overrule the nominated person or remove someone from the role if they are not acting in the patient’s best interests. The noble Baronesses, Lady Bennett and Lady Berridge, and the noble Lord, Lord Meston, have all put forward amendments to give responsibility to the tribunal or the Court of Protection in these matters. The county court already has a role in displacing the nearest relative. We believe that it has the expertise, procedural tools and legal framework to handle sensitive disputes involving external parties, such as conflicts of interest or allegations of abuse. I emphasise the word “sensitive”. I believe that the debate today has acknowledged that we are in very sensitive territory and that we need to get this right.
The noble Lord, Lord Meston, mentioned the training of judges. I can confirm that we will be working with the county court to ensure that it is aware of and can fulfil the requirements of the new provision.
The noble Baroness, Lady Berridge, asked for figures on county court applications, and I will be very glad to write to her and answer her fully. Similarly, I will be very pleased to write to her in detail on the matter of legal aid.
The Act and the Bill allow for someone who is not acting in the interests of the patient to be overruled or removed from this role. On Amendment 68 specifically, the Bill enables the responsible clinician to overrule the nominated person on the grounds included the amendment, so I am grateful for its being brought before us today. This will be quicker and will avoid burdens on the tribunal.
On Amendment 69, transferring the role of the nominated person to the Court of Protection would expand the court’s remit to under-16s. Currently, the court can deal only with the financial affairs of under-16s. The Court of Protection makes decisions for those lacking capacity, but patients need to have capacity to have appointed their own nominated person. Where they lack capacity or competence, the approved mental health professional will appoint, and the Bill sets out the grounds for them to terminate the appointment.
On Amendments 77 and 84, the noble Baroness, Lady Berridge, asked about the concept of a temporary nominated person. This is in recognition that such an appointment by an approved mental health professional is only until the person concerned has the relevant capacity or competence to choose their own—that is what is meant by the word “temporary” here.
The First-tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales are focused on reviewing detention under the Mental Health Act. The provisions of the amendments would add additional burden on that tribunal. My concern is that it would risk undermining its core function and delay detention reviews, which I know is not something that noble Lords would wish.
Amendment 70, tabled by the noble and learned Baroness, Lady Butler-Sloss, would specify that parents, guardians and anyone with parental responsibility can apply to the court to displace a nominated person. The Bill already allows anyone involved in the patient’s care or welfare to apply to the county court to terminate the appointment of a nominated person. This includes parents, guardians and anyone with parental responsibility, as her amendment seeks.
On Amendments 72 and 73, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, I wholeheartedly agree that the law has to prevent exploitation and manipulation. The nomination process is indeed intended to ensure that the decision is the patient’s own. I recognise the circumstances that the noble Earl, Lord Howe, and other noble Lords described as possibilities. We have to consider all the potential scenarios, which are very real challenges to us. A health or social care professional, or an advocate, must witness the nomination and confirm in writing that the nominated person is suitable and that there has been no fraud or undue pressure. On the point the noble Earl raised, the code of practice will include guidance on how to determine this.
Amendment 76 was tabled by the noble and learned Baroness, Lady Butler-Sloss. We understand the desire to involve parents in the decision, and for the vast majority this will be appropriate. We are concerned that the amendment’s requirement to consult a parent, guardian or someone with parental responsibility could risk undermining the principle of giving children and young people a choice. It could also, in a different way, pressure the child into choosing the parent, in circumstances that might be far from desirable. Although we do not think that we should require consultation with the parents in all circumstances, we would expect the witness to discuss the nomination with parents and others with interest in the welfare of the child as part of the assessment of suitability. We will consult on guidance in the code on how practitioners should encourage the child or young person to involve their parents, even if they are not the nominated person, unless it is inappropriate.
On Amendment 82, tabled by the noble Baroness, Lady Berridge, I agree that parents and carers are to be given information about the care and treatment of their child. If a child nominates a person other than their parent as their nominated person, their parents retain legal rights under parental responsibility. These rights include the right to be consulted on certain decisions and to receive information about the child’s care. The Bill also introduces a duty on the responsible clinician to consult with people involved in the child’s welfare on care and treatment planning, which includes parents and carers.
With those comments in mind, I ask noble Lords not to press their amendments.
Baroness Bennett of Manor Castle (GP)
My Lords, I thank the Minister for her careful and detailed response to an important group of amendments. It may affect only a small number of cases, but they are cases where we really need to get this right. Those two adjectives apply very well to this whole debate.
I will make a couple of comments in response. We have had three suggestions about where the applications to remove the nominated person should be. Personally, I do not have a strong view. I thought the point from the noble Baroness, Lady Berridge, about legal aid was important. Justice unfunded is justice denied, so it really is important that there is that full and necessary support, wherever they end up.
With that, I pick up the important point made by the noble Earl, Lord Howe, about the witness being such an important person to ensure that this process goes well. The noble Earl talked about making sure the guidance is right. I add that we have to make sure that the resources are there, thinking about our overstretched mental health services. We need to ensure that the person who will be the witness has the time to put in the resources to ensure that they can properly be a witness. It may not be a subject of law, but it certainly needs to be thought about.
Earl Howe (Con)
My Lords, in this group of amendments my noble friend Lady Berridge has raised an armada of issues which I think it is clear to all of us cannot be ducked. These issues, as she said, were examined at length both during the independent review and by the Joint Committee, but it has to be said that in both instances it proved too much of a challenge to identify a satisfactory resolution to them. For that reason, as we observed in our debate on the previous group, the weight of these matters now rests on the shoulders of this Committee and of the Government.
In summary, we need arrangements that are robust enough to ensure that a nominated person’s appointment can be effectively challenged, and that, in certain circumstances, where necessary, the exercise of their powers can be legally contested and blocked. Without those measures, we shall leave an unacceptable lacuna in the law and, more pertinently, run a high risk of exposing children to personal danger.
My noble friend is to be thanked for assisting this Committee’s deliberations with the clear way in which she has set out the challenge, and I hope and trust that the Minister will wish to grip the challenge with her usual vigour.
Baroness Merron (Lab)
My Lords, like the noble Earl, Lord Howe, I am most grateful to the noble Baroness, Lady Berridge, for introducing an appropriately wide range of scenarios, questions and testing. That is important for the Committee but also for our ongoing work. As the noble Baroness, Lady Tyler, said, to describe this area as complex is to use too small a word, and I think we are all wrestling with that to get it in the right place. I know that noble Lords are aware that the work is ongoing, and I thank them for their engagement and interest in this issue. As I said previously, I very much understand the need for a robust process to keep children and young people safe and ensure that only appropriate individuals can take on the role of nominated person, while giving children and young people that right to choose.
I will respond collectively to the amendments put forward in this group. As I set out earlier, we agree that in the vast majority of cases there is an expectation that a parent or whoever has parental responsibility would take on this role, and that would include consideration of special guardians and child arrangement orders. We also agree that, where parental responsibility has been removed due to care proceedings, in the vast majority of cases it is unlikely to be appropriate for such a person to take up this role. My reference to this being a complicated area—
Baroness Merron (Lab)
Perhaps the noble Baroness will let me make a bit of progress.
Baroness Berridge (Con)
I think I need to clarify a point of law—I am looking to the noble Lord, Lord Meston. In care proceedings, is parental responsibility removed? I do not believe it is; it remains with the parents. That is very important.
Baroness Merron (Lab)
I thank noble Lords for that exchange, which brings me to my repeated point about the complicated area in which we are treading.
As was highlighted by the pre-legislative scrutiny committee, we will set out our expectations in the code of practice as to whom approved mental health professionals would appoint, or the witness would confirm suitability of, in a range of circumstances, including in the more and most complex cases. We will consult on this to ensure that we cover as many scenarios as we can.
I can confirm to the noble Baroness, Lady Berridge, that we are working with NHS England, the Department for Education, the Association of Directors of Children’s Services and others to ensure that our policy and guidance reflect what can be a very complex arrangement for some children under the Children Act.
The Bill is clear that where an approved mental health professional is appointing a nominated person for an under-16 they must appoint someone who has parental responsibility, and the amendments extend this approach to all under-18s. As I said previously, we are allowing more flexibility for 16 and 17 year-olds rather than prescribing in legislation who this must be.
While the amendments put forward a wide range of circumstances, we all know—and the noble Baroness, Lady Berridge, demonstrated this—that there will be nuanced and complex cases, especially for 16 and 17 year-olds. Someone outside the proposed list, such as a step-parent, may be the most appropriate person, or a kinship care arrangement may be in place. These amendments propose regulatory powers in recognition of this but we feel that updating statutory guidance will allow us to keep this up to date and in review as new policy is implemented.
The noble Baroness, Lady Berridge, asked about differences between special guardian orders and special care orders. The Bill says that the approved mental health professional must appoint the local authority or anyone else with parental responsibility as the nominated person. The special guardian, as someone with parental responsibility, would be appointed if a special guardianship order was in place. In relation to the proposal for two people to take on this role, as the nominated person exercises specific statutory functions under the Mental Health Act, we feel it is right that only one person has these limited powers, to avoid the potential for disagreement and confusion about who can exercise the relevant power.
We recognise that there will usually be more than one person with parental responsibility and that the approved mental health professional will need to determine who should be the nominated person. Under the current system, this would be the older parent, which we do not think is necessarily appropriate. We will provide guidance for approved mental health professionals in the code of practice. This may include which of the parents is recorded as the child’s next of kin, who the child lives with and who is accompanying the child.
The noble Baroness, Lady Tyler, helpfully inquired about the status of the nominated persons paper that was sent out in an attempt to be helpful. It was developed very much to support the debate, which it certainly has done, and we intend to develop it further. I very much welcome the further engagement from Peers and we will continue to formally consult as part of the code of practice so that it is an aid to the considerations of noble Lords. I hope it is doing that.
In the current nearest relative provision, only one parent will hold this role. As I mentioned in the previous debate, this will not exclude the other parent from being involved in their child’s care. Whether or not they are the nominated person, parents and carers should be given information about the care and treatment of their child, unless it is inappropriate. This is reflected in the Bill. We absolutely agree that someone should be removed as the nominated person if they are not acting in the interest of the patient. Criteria are included in the Bill for when an approved mental health professional may terminate an appointment, one of which is when the person is
“otherwise not a suitable person to act as a nominated person”.
On the points made by a number of noble Lords, suitability includes whether there is any risk to the patient. This may include if the person is behaving in a way that indicates they are unsuitable for the role; for example, if they are exercising their powers without due regard to the welfare of the person.
Baroness Browning (Con)
Reflecting on what the Minister has just said, would that close the Bournewood gap, which we tried to close in earlier legislation, where a professional carer cared for an autistic man who was not able to articulate for himself, but was overruled by the clinician? I am just trying to get my head round what she has just said because that was the Bournewood gap and, as the Minister will know, it ended up in the European Court before it was resolved.
Baroness Merron (Lab)
We need to be considering that as one of the scenarios and I would certainly be very glad to give the noble Baroness and noble Lords a more considered response to the very important point that has just been raised.
Under this policy, an approved mental health professional would terminate their appointment if the nominated person is not acting in line with the patient’s interests. I really wish to emphasise this.
For all these reasons and the responses I have given, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Berridge (Con)
My Lords, I am grateful to noble Lords who have spoken and for the considered nature of the response and the clarification regarding the special guardianship. However, as we have outlined, other people remain having parental responsibility and it seems that under the Bill, as it is only one person, it could be that the residual person still has parental responsibility. It could just be that person under the Bill and not, in that situation, who is appointed.
I am concerned, not only by the outline at the beginning in relation to parental responsibility being removed. I just feel that there is a lack of understanding—with all due respect to the Minister’s diligence, thoroughness and engagement with colleagues—about the depth of the issue that we have here. She mentioned “would” appoint. That seems something that can be under the Mental Health Act code—“would” seems to be that as long as you document your reasons for that, you can move. It seems that from the situation I have outlined, in which the 16 or 17 year-old has been removed from the dad’s care because he has been shown to be, and proven by the family court to be, a danger, he could be appointed as the nominated person. Then we are relying on a speedy process in the county court—which we are not sure we always get legal aid for—to remove him. I am concerned by phrases such as “more flexibility for 16 and 17 year-olds”. Does that include the 16 and 17 year-olds who are under special guardianship or where there is a care order?
It seems that there is a conflict, based on what the co-leader of the AMHPs is saying, what the review has said and what the response says. We have a conflict between two pieces of legislation that we must continue to grapple with. On phrases such as “working with the DfE”, I asked specifically whether there had been a meeting with the Minister for Children and Families. The responsibility for a serious case review sits with that department. If we are to some extent right, this risk to children will manifest itself in an imperfect system. Obviously, there are professionals and clinicians, but we all know of cases that have gone wrong and ended up in inquiries.
I remain concerned by the lack of clarification on legal advice. Legally, in some ways this is fascinating—but it is not fascinating because it involves child protection. I welcome the engagement and I am sure that we will meet again in regard to this, but the severity of the risks that we are exposing, and allowing young people and AMHPs to go behind findings of fact in the family courts made under the Children Act is an incredibly serious issue. I hope that the Minister will be furnished with that kind of geeky legal advice, because for the children’s sake we need that.
However, I am grateful for the manner of her engagement and of course beg leave to withdraw the amendment.
Baroness Merron
Member’s explanatory statement
This amendment, my other amendments to Clause 31 and my new clause inserted after Clause 31 would provide for commencement two months after Royal Assent of provisions about tribunal reviews concerning patients subject to conditions amounting to a deprivation of liberty.
Baroness Merron
“References: restricted patients not subject to deprivation of liberty conditions(1) The Mental Health Act 1983 is amended as follows.(2) In section 71 (references by Secretary of State concerning restricted patients), for subsection (2) substitute—“(2) The Secretary of State must refer to the appropriate tribunal the case of any restricted patient detained in a hospital if—(a) the patient’s case has not been considered by the appropriate tribunal within the last 12 months, whether on the patient’s own application or otherwise, and(b) there is no pending application or reference to the appropriate tribunal in relation to the patient’s case.” (3) In section 75 (applications and references concerning conditionally discharged restricted patients)—(a) before subsection (2C) (as inserted bysection 31(3)(a)of this Act) insert—“(2B) Where a restricted patient has been conditionally discharged, is not subject to conditions amounting to a deprivation of liberty and has not been recalled to hospital, the Secretary of State must refer the patient’s case to the appropriate tribunal on the expiry of—(a) the period of two years beginning—(i) in the case of a patient who has previously been subject to conditions amounting to a deprivation of liberty, with the date on which the patient most recently ceased to be subject to such conditions, and(ii) in any other case, with the date on which the patient was conditionally discharged, and(b) each subsequent period of four years.”;(b) in subsection (2D), after “subsection” insert “(2B) or”;(c) in subsection (2E) omit “, is subject to conditions amounting to a deprivation of liberty”;(d) in subsection (2F), after “subsection” insert “(2B),”;(e) in subsection (2H), after “subsection” insert “(2B),”;(f) in subsection (3), after “subsection”, in the second place it occurs, insert “(2B),”.(4) The amendments made by this section apply in relation to any person who is a restricted patient within the meaning given by subsection (1) of section 79 of the Mental Health Act 1983, or is treated as a restricted patient as a result of that subsection, whether the person became such a patient (or treated as such a patient) before or after the coming into force of this section.”Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Lord Kamall (Con)
My Lords, I thank all noble Lords who spoke to the amendments. I also thank the Government for allowing the Minister for Prisons, Probation and Reducing Reoffending to reply to this group. That is very much welcomed by the Committee. I think it was the noble Lord’s father who once said, “Kindness is good for business”. In this case, he might find that kindness is good for his noble friend the Minister. Given how hard she has been working on the Bill, I think she deserves some respite, so I am sure that that is very welcome.
So far, we have debated the importance of limiting detentions for those with autism or learning disabilities without co-occurring mental disorders. We have also debated the community treatment orders. But until now, we have not covered the provisions of the Bill relating to this new statutory 28-day time-limited period for transfers from prisons to hospitals. As the noble Lord, Lord Bradley, has said, he has been very patient. Therefore, the Government enshrining this target in law is welcome. Unfortunately, progress towards the goal of 28 days, as set out in the 2021 guidance and the White Paper, has been slower than anticipated.
His Majesty’s Inspectorate of Prisons, in its 2024 report The Long Wait—I am sure the noble Lord is aware of this—said that
“people linger in prison for weeks, often months and even, in the worst cases, for more than a year waiting for their transfer to be completed”.
Unfortunately, even though the 28-day guidance was there from 2022-23, only 15% of patients in that period were transferred to hospital within that timeframe. Sadly, the average wait was 85 days, and one prisoner was identified as waiting 462 days for transfer to hospital.
These Benches welcome the 28-day limit being put on a statutory footing, but, as other noble Lords have said—not only on this group of amendments but on others—once again, there is an issue of implementation here. Just because it is in legislation does not mean it will deliver the improvements that are necessary.
The noble Lord’s colleague—the noble Baroness, Lady Merron—has been very candid with noble Lords, saying that not everything in the Bill will be delivered now, and that there is a 10-year timetable for implementation. Given that, will the Minister say, at this stage, whether the 28-day limit is an aspiration or something that could be delivered immediately? If, at this stage, it is an aspiration and—understandably so—awaiting future spending reviews, is he able to give an indicative timeframe? Is the hope for the next 12 months, the next five years or, perhaps, up to 10 years? That information would be very welcome to noble Lords. Many noble Lords have been asking this throughout this debate. We understand that not everything is going to be solved overnight, but it would be good if we could have as much information as possible on the Government’s intentions and aspirations, including indicative timetables, where they are possible. We also understand that not everything is going to be clearly tagged at this stage.
Another finding from the prison inspectorate’s report was that there were serious flaws with the data held on patients who were awaiting transfer. I understand that there is no publicly available data describing the access and waiting times for beds. The Minister might be able to correct me on that. Some of the data on the numbers of prisoners awaiting transfer obtained from providers had significant gaps, due to a lack of consistent and accurate reporting, and some data contained errors and unreliability. This might also impact on Amendments 97 and 98 from the noble Lord, Lord Stevens.
The noble Baroness, Lady Merron, may well tire of hearing me repeat the importance of collecting accurate and complete data, but, as I and many other noble Lords have said on many occasions, we really cannot solve many of the problems we face without data that is as accurate and timely as possible. Therefore, I urge both Ministers to take up the issue of data reporting for patients awaiting transfer from prison to hospital with their respective departments.
Turning to Amendment 96C in the name of the noble Lord, Lord Bradley, which creates an accountable person who will be appointed to oversee the transfer process and ensure that the statutory 28-day limit is completed, I think this, once again, speaks to the point of implementation. This could be a sensible way of holding providers to account and working with them to address the shortcomings in patient transfers. Given the Government’s 10-year timeframe for implementation, noble Lords have raised the importance of oversight and accountability. Therefore, in the remarks from the Minister and in any subsequent letter, I hope that the Government will be able to address the issue of implementation and to give an indicative timetable. I look forward to the Minister’s response.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, this is the first time that I have helped take a Bill through Committee, so I am grateful to noble Lords for bearing with me while I acquaint myself with the procedures. I appreciate the questions and suggestions from noble Lords because this is a subject that is very close to my heart, as someone who has recruited many of the people whom we are talking about, over many years. I have always thought it was very sad when colleagues whom I had recruited often had to leave because of their mental health problems and other complexities that they then found themselves in within the system.
Amendment 96, tabled by the noble Baroness, Lady Murphy, would remove the change to the detention criteria in Clause 34, provided for prisoners who become mentally disordered in prison and require transfer to hospital. This would mean that a physical hospital place must be identified before the detention criteria are met for transfer from prison to hospital under the Act. This differs from how “available” treatment is interpreted across the rest of the Act, and therefore risks delaying access to treatment. It would also affect the implementation of the statutory time limit in Clause 35, as the Secretary of State would not be able to issue a transfer warrant until a bed is identified, regardless of the patient’s needs.
Clause 34 aims to correct a divergence in the detention criteria, as opposed to creating one. I appreciate that the noble Baroness is seeking further clarity on how Clause 34 will operate and the intention of the wording. My officials would be happy to hold a teach-in with the noble Baroness on this. I therefore ask the noble Baroness to withdraw her amendment.
I turn to Amendments 96A to 96C, tabled by my noble friend Lord Bradley. We have known each other for nearly 10 years, six years after the important topic came on to his radar. Amendment 96A would place a legislative time limit on the referring body to issue a referral notice within two days of receiving a request for an initial medical report to assess whether an individual meets the criteria for transfer. The timing of the statutory referral notice being issued will not impact when the time limit begins. This starts from the day that the healthcare team requests the assessment, referred to in the Bill as “the initial request”. This amendment would therefore not benefit transfer timeliness. Additionally, placing a statutory time limit on the healthcare team in a detention setting to issue a referral notice would not be operationally viable, because not all services operate seven days a week. The current wording of “as soon as practicable” accounts for this and encourages the referral notice to be issued at the earliest point for each case.
Amendment 96B would place a duty on all relevant agencies to ensure, as opposed to “seek to ensure”, that the transfer is completed within 28 days. Due to the multiagency co-ordination required in the transfer process, there is no one body that could ensure punctual transfers. This is why we softened the duty, so that those in receipt of a referral notice must seek to ensure that the patient was transferred within 28 days. Having consulted with relevant agencies, we are confident that this is appropriate, given the complexities in the transfer process.
Amendment 96C, also mentioned by the noble Lords, Lord Kamall and Lord Bradley, would introduce a “specified accountable person”, appointed by the healthcare provider for the relevant place of detention, who would be responsible for ensuring that people are transferred within the 28-day time limit in Clause 35.
Lord Stevens of Birmingham (CB)
Can I just make sure I heard the Minister correctly? I think he said the that one of the reasons it would not be appropriate to do as the noble Lord, Lord Bradley, suggested—that is, to set out a statutory definition—was because it would take too long to do it and would delay implementation of the 28-day standard. I think he now just said it is intended that that will come into force in 18 to 24 months, the implication being that he thinks it would take 18 to 24 months to produce a piece of statutory guidance about what constitutes an exceptional circumstance. Is that correct?
Lord Timpson (Lab)
Having been in discussions with colleagues over the past couple of weeks on this point, I tested with them the processes involved in making sure that we can make this as robust as possible. One of the issues surrounding exceptional circumstances is the need for flexibility so that some of our professionals do not unwittingly break the law in exceptional circumstances. I am happy to write to the noble Lord with further details.
Lord Bradley (Lab)
Before my noble friend completes his summing up, I welcome him to his first Committee session. He kindly offered to meet me to discuss the accountable person for the process of transfer. Can he assure me that that meeting will take place well before Report?
Lord Timpson (Lab)
I will very happily meet as soon as possible and well before the next stage.
Baroness Butler-Sloss (CB)
I appreciate that this is this Minister’s first time, but I would like to speak to his team in the department through him. I find it very difficult to understand why the Minister’s team thinks it is necessary or, indeed, appropriate to invite my noble friend Lady Murphy for a “teach-in”. Does the Minister really mean that? It seems to me utterly inappropriate, and my noble friend could not say it.
Lord Timpson (Lab)
I thank the noble and learned Baroness for her comments. I hope the noble Baroness accepts my apology for the way it was phrased. As this is my first Committee, I have been getting a number of messages from officials, and I was trying to work out what I said at which point. I apologise. I will very happily meet the noble Baroness.
Baroness Buscombe (Con)
At the risk of giving the Minister a rather hard time on his first outing in Committee, on the point made by the noble Baroness, Lady Fox, about people saying that it will not happen, is he not fearful, as I am, that, given the way life is, if we do not rid ourselves of words such as “as soon as practicable” and “seek to”, as suggested in Amendments 96A and 96B, in practice it really will not happen?
Lord Timpson (Lab)
I thank the noble Baroness for the question. One of the questions that I have been asking colleagues is on exactly this point around whether this will happen. I have been reassured by asking policy colleagues many probing questions that the points in the Bill make it as tight as possible without conflicting professionals in the way they are going about their role.
Lord Scriven (LD)
I welcome the Minister to his first Committee. Clearly, a lot of work has been done on this to work out within 18 months what is required. Will the Minister let the Committee know what the gap is between existing provision and what would be required in terms of beds and staffing for this 28-day provision to come into force? That is an important piece of information that the Committee needs to understand to see whether it is just an aspiration or there are the resources needed to make it real.
Lord Timpson (Lab)
I will ask officials to get me that information and to pass it on.
Baroness Merron (Lab)
My Lords, I thank all noble Lords for their amendments and considerations, including the noble Baroness, Lady Barker, for her observations on the group before us.
On Amendment 99, tabled by the noble Lord, Lord Kamall, services already capture data on instances of police using relevant powers to take patients to emergency departments. The Home Office collects national policing data on detentions under Section 136 of the Act and removal to a place of safety, including the number of times that A&E has been used. NHS England’s emergency care dataset includes data on mental health, including how patients are referred to hospital and their conveyance methods. I understand the points that the noble Lord was seeking to probe, but we feel that it is not necessary to create a new legislative requirement.
My response to Amendment 137, also tabled by the noble Lord, Lord Kamall, will focus on the position in England, because I imagine that that is what the noble Lord is particularly interested in, and of course different arrangements apply in Wales. We recognise the importance of preventing illegal drug use in mental health units and take the issue extremely seriously. All units must have robust policies in place to prevent the introduction of illegal drugs. To pick up the point that the noble Lord put to me about the recording of drug-related incidents, I assure him that such incidents would be recorded as a patient safety incident. While published data does not break down the nature of an incident to get an aggregate view at national level, details of incidents will nevertheless be shared with NHSE and the CQC to allow appropriate action then to be taken.
As I have referred to, providers must inform the CQC of certain events affecting their services. Inspectors review all reported concerns, as I have said, and that is important to determine the necessary follow-up actions. Issues that relate to the introduction and use of illegal drugs in an in-patient setting would be reflected in the CQC’s regulatory inspection findings where concerns have been identified, with potential consequences for ratings and for regulatory sanctions. We believe that there are already processes in place for the CQC in England to receive information about drug-related incidents. We feel that this is a better use of the capacity—which is not infinite, as the noble Lord knows—of the regulator, rather than having a national report on the overall efficacy of the systems that are in place.
Amendment 151 was tabled by the noble Baroness, Lady Bennett of Manor Castle, and spoken to by a number of noble Lords, and I am grateful for their input. A number of other amendments have called for statutory reports on current community services. As I have said previously in response to those debates, we recognise that reducing detentions cannot be achieved by legislation alone, and will absolutely depend on the right services in the community. The CQC publishes an annual survey on community mental health support, and we will be publishing a 10-year plan for the NHS later this year. Progress in community mental health services is already being made. In the last 12 months, more than 400,000 adults have received help through new models of care, which aim to give people with severe mental illness greater choice and control over their care. However, we recognise that more needs to be done.
I want to pick out a particular focus on innovation in this amendment. The noble Baroness, Lady Bennett, referred to the fact that the impact assessment does not include costs for community services. That is not quite the case. There are significant costs associated with the changes to learning disability and autism, which are included in the impact assessment. I agree that wider reforms in community mental health services are needed for the reforms to achieve their intended benefits in full, but they are not a direct consequence of this Bill. That is why they are not costed in the impact assessment. I hope that will be a useful clarification for the noble Baroness.
As I mentioned last Monday, NHS England is already piloting the 24/7 neighbourhood mental health centre model in England, building on learning from international exemplars, some of which have been brought to the attention of your Lordships’ House by various noble Lords, and I have welcomed that. Six early implementers are bringing together their community crisis and in-patient functions into one open-access neighbourhood team that is available 24 hours a day, seven days a week. That means that people with mental health needs can walk in, or self-refer, as can their loved ones or concerned professionals. We are currently commissioning an evaluation of these welcome pilots, which is due to report in June 2026.
The noble Baroness, Lady Bennett, referred to reports last week of an increase in the number of young people admitted to general hospital wards with mental health concerns. NHS England is in the process of developing a new model for specialised children’s and young people’s mental health services, supported by a new service specification and quality standards. That new model would support the delivery of specialist services in the community and in-patient settings to ensure that children and young people are treated in age-appropriate in-patient environments, as well as the least restrictive environment close to the child’s or young person’s family and home. The noble Baroness’s point is well made, and I hope that will be helpful.
Baroness Bennett of Manor Castle (GP)
I welcome what the Minister has said about the pilots and the significant changes being made to existing mental health services. Short of someone putting down an Oral Question or securing a debate, how will Parliament be able to monitor that? We know that, in the health service and more broadly, successful pilots happen but then disappear without trace and never get implemented. How will Parliament be able to assess progress from the pilot stage to implementation, along with broader changes? What mechanisms are there?
Baroness Merron (Lab)
The noble Baroness makes a fair point, and that is something I shall return to later in Committee. I am keen, as I hope noble Lords know, to speak in your Lordships’ House about progress that is and is not made, and I will continue to do that.
Overall on this group, given the amount of plans and reporting already in place, we do not think that additional statutory review, particularly in relation to Amendment 151, is necessary. For all the reasons that I have put to the Committee, I hope noble Lords will be good enough not to press their amendments.
Lord Kamall (Con)
My Lords, I thank the Minister for her response and thank all noble Lords for their contributions to this group. I should have also mentioned that I am very sympathetic to the intention behind Amendment 151 from the noble Baroness, Lady Bennett. Noble Lords throughout this debate have been speaking about community resources and accountability for those resources; indeed, I have a related amendment in the seventh group. In some ways, the Minister has partly answered that probing amendment.
I am grateful to the noble Baroness, Lady Barker, and will reflect on the points she made. As the noble Baroness, Lady Tyler, said previously, this was a probing amendment to see what data was being collected. Noble Lords will understand that, if we want to improve a situation, we need to collect data. It may not be perfect, and perhaps we can have some conversations between now and Report about that. I am very grateful that the Minister said that this data is collected. I wonder if she could write to us with links to where it can be found. That could address some of the concerns raised by stakeholders who wrote to us, which led to this amendment being tabled.
I remember that, when I read the work of the pre-legislative scrutiny committee, the Metropolitan Police service’s submission said that, in 2021, for the first time more patients were conveyed to a health setting in a police vehicle than in an ambulance. I wonder if that is still true or if that situation has been reversed. The purpose of these amendments was to seek what data was available, so that we can address the problems that Amendment 99 and 137 sought to address. With those comments, I beg leave to withdraw the amendment.
Baroness Butler-Sloss (CB)
In the absence of the noble Baroness, Lady Murphy, I will just say that I support all these amendments. I expressed concern about under-16s and those aged 16-18, but that does not stop me thinking that these advance choice documents are an excellent plan. However, I am concerned about the point that the noble Baroness makes with Amendment 120. An independent mental health advocate would be extremely helpful, because there may be quite a lot of people who really would not know how to make an advance choice document, would be very concerned about it and might write down some really not very sensible things, when they could have help as to what they really wanted. I strongly support the noble Baroness’s amendment.
Baroness Merron (Lab)
My Lords, I am grateful for all the contributions in this group. I will start with Amendment 115, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall. Under the Bill, services should not only offer individuals who are likely to benefit from making an ACD information and support to do so, they should proactively support such individuals. This is functionally equivalent to a right to request an advance choice document.
The amendment applies to large groups. We have concerns that, for example, it may be practically challenging or sometimes inappropriate to contact people who were detained some time ago. We intend to identify groups in the code of practice that services should target; it can then be updated in response to changing best practice and emerging research.
On the point raised by the noble Earl, Lord Howe, and referred to by the noble Lord, Lord Stevens, and the noble Baroness, Lady Browning, about how advance choice document information is made available to patients, we will set out in the code of practice detailed guidance on how services should discharge their duties under the Bill to inform and support individuals to make an ACD. Any failure to implement the duty in this aspect of the code could ultimately be challenged in the courts. I hope that gives some indication of the strength of that provision in the Bill.
The noble Lord, Lord Stevens, raised the implementation timeline, as outlined in the impact assessment. We want to ensure that there is appropriate resource in the system before ACDs can be brought in. I am sure noble Lords understand that this is critical, for ACDs to have the right level of impact. For example, the effect of ACDs is dependent on the expansion of the second opinion appointed doctor service. In the meantime, services can, of course, progress with putting ACDs that deal with patient needs and wishes overall should they become detained. That would very much build on the work that South London and Maudsley, and others, have done.
I turn to Amendments 117 and 125 in the name of the noble Baroness, Lady Barker. I confirm that we are committed to mitigating the barriers that get in the way of creating an advance choice document. The code will make it clear that commissioners should provide accessible information in response to individual needs, with flexibility around how individuals make their preferences known—the point that the noble Baroness raised. We plan to create a standard advance choice document template for people to complete, with supporting guidance. That should prompt thoughts about the things that an individual may wish to consider and decide before they become unwell. I can assure noble Lords that the template will be available digitally as well as in hard copy. Our intention is that a digital version of the document will be created for easy access by professionals as needed.
Amendment 120, tabled by the noble Baroness, Lady Murphy, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, has the stated intention that mental health in-patients create an ACD. While the Bill does not prevent this, in most cases it will not be the best time, as patients may be very unwell and lack capacity. Insights from the South London and Maudsley NHS Foundation Trust with King’s College London suggest that encouraging people to create an advance choice document after discharge—when their health has improved and the support network can help—can be useful. The person’s community mental health team is best placed to provide support, rather than an independent mental health advocate whose role is to support people who are detained. The duty on commissioners in the Bill is intended to focus on the community and other contexts outside of hospital. We feel that this is more likely to increase the uptake of advance choice documents.
Baroness Barker (LD)
The crucial question that the noble Baroness is asking is around which staff can access this information and where. That means that the information in the ACD has to be always available to whoever is seeing the patient, wherever they happen to be. Does that mean that, as in palliative care, the ACD will become part of an electronic patient record, and that there will be an expectation that all practitioners, wherever they are, will refer to it all the time?
Baroness Merron (Lab)
The noble Baroness makes a good point. I am sure she is aware that one of the main pillars of change as we move towards the 10-year plan is shifting from analogue to digital. I am sure that this will be part of those considerations.
I now turn to Amendment 121, tabled by my noble friend Lord Davies of Brixton and supported by the noble Baronesses, Lady Tyler and Lady Neuberger. The noble Baroness, Lady Tyler, spoke to this very amendment. We know that financial problems can worsen or trigger mental illness. We agree that individuals should be encouraged to include in their ACD any care and support to help them manage their financial circumstances when unwell. The code of practice will include guidance from professionals on this point, while the template will prompt people to consider financial matters.
On Amendment 122, tabled by the noble Baroness, Lady Browning, and supported by the noble Lord, Lord Patel, it is important for practitioners to be aware of, and, where applicable, to consult with, the person’s attorney. However, we do not agree with requiring people to include all of the information contained in the lasting power of attorney in their ACD. The document is owned by the individual, who should be free to include what matters to them. Some of the information in a person’s lasting power of attorney may not be relevant, and copying over its contents may introduce inaccuracies due to human error. We intend to encourage service users to include the existence of an LPA where applicable in their advance choice documents, and practitioners can then be made aware and take the relevant steps.
On Amendment 123, tabled by the noble Baroness, Lady Browning, we agree with the aim that is stated here. The code of practice will set out all of the groups which services should proactively target to make an advance choice document, including people on the dynamic support register. The code can be updated in line with emerging research and best practice, as I have said a number of times before, and can include detail and nuance that is not possible in primary legislation.
With those remarks from me in mind, I hope that noble Lords will feel able not to press their amendments.
Lord Scriven (LD)
I have one very quick question. Throughout the whole of Committee, since day one, the Minister has referred to the code of practice being updated. Can she tell us the date by which it will have been updated? It is quite important for implementation and some dates that the Minister keeps referring to. If she cannot let us know now, she could write to the Committee.
Baroness Merron (Lab)
I would be very glad to share the date if I could put a date on it. It will be after Royal Assent, and I will keep noble Lords updated.
Earl Howe (Con)
My Lords, I very much appreciate the support from around the Committee for my Amendment 115. I support all the other amendments in this group, each of which is designed to bolster the rigour and thoroughness of the advance choice document process.
It is good to hear from the Minister that the code of practice will include guidance on how information on ACDs will be made known to relevant would-be patients. I shall need to reflect on this, but I confess I retain a worry in this area. The CQC in its annual report of 2020-21 on monitoring the Mental Health Act reported that many patients do not have their rights explained to them during their treatment. This is despite the existing requirement in the Mental Health Act code of practice for hospital managers to provide information both orally and in writing. Clearly, if someone without an existing ACD is admitted to a mental health unit for treatment, it will be too late for them to execute a valid ACD during that episode of care. The time to be informed that an ACD could be an appropriate thing for them to draw up is once they are discharged, to cater for possible future contingencies.
I suggest that the CQCs finding is still relevant, its point being that the NHS is not all that good at providing information to patients in a timely or appropriate way. Therefore, I think that creating a duty to do so would add value—perhaps not in the precise terms I have used in the amendment, but in similar language. That could, incidentally, be achieved quite easily if mental health patients were automatically invited to complete a debriefing report following discharge from hospital in the way that I suggested in an earlier amendment.
The prize, let us remember, could be significant. I refer noble Lords back to remarks by the noble Baroness, Lady Murphy, in an earlier debate, where she indicated that independent advocates have been proved as central to the success of advance choice documents—a facilitator, in other words. She referred to a study in North Carolina that showed that providing a facilitator in the form of an independent advocate increased the number of people making a psychiatric advance directive from 3% to 60%. That is a very powerful set of figures.
I hope the Minister will be open to further discussion on this and the other amendments in the group between now and Report. Meanwhile, I beg leave to withdraw my Amendment 115.
Baroness Merron
Member's explanatory statement
See the explanatory statement for my amendment to Clause 4, page 5, line 20.