Mental Health Bill [HL]
Monday 24th February 2025
(1 day, 14 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-V Fifth marshalled list for Committee - (20 Feb 2025)
Baroness Tyler of Enfield
“Cost and implementation reporting(1) The Secretary of State must lay a report before Parliament four months after the passage of the Act, and annually thereafter, assessing the costs and implementation dates of provisions in the Act.(2) The report must include details on—(a) the monetised and non-monetised costs to the health and social care system;(b) the monetised and non-monetised costs to the justice system;(c) costs associated with additional training for NHS staff responsible for treatment provisions;(d) costs related to community care services and infrastructure;(e) costs for additional training for approved mental health practitioners and independent mental health advocates;(f) additional costs incurred by local authorities;(g) housing and care-related costs for individuals with autism or learning disabilities; (h) additional costs incurred by the Care Quality Commission;(i) costs for training responsible clinicians and other relevant parties involved in patient care.(3) The report must also include a monitoring and evaluation strategy for the reforms introduced by the Act, including—(a) commencement timelines for the Act’s provisions;(b) an assessment of the Act’s impact on patient outcomes including user feedback; (c) relevant data to evaluate whether the reforms are being delivered as intended;(d) assessments of the impact of new safeguards and support mechanisms on patient and carer experiences.(4) Following the publication of the first report, the Secretary of State must arrange for the tabling of—(a) a motion for resolution on the report in the House of Commons moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of the report moved by a Minister of the Crown.(5) If the report is rejected by the House of Commons, the Secretary of State must deliver a statement to Parliament within a period of three months which addresses the contents of the report.(6) Subsequent reports are not subject to the provisions of subsection (4).”Member’s explanatory statement
This amendment requires the Secretary of State to present a report to Parliament detailing the costs and implementation assessments of the Act after one year, and annually thereafter. The first report published under this provision must be subject to a resolution motion in both Houses of Parliament.
Baroness Tyler of Enfield (LD)
My Lords, I rise to speak to Amendment 130 in the name of my noble friend Lord Scriven, who is unable to be in his place today. On these Benches, our view is that this amendment is essential to the success of reforms proposed in this Bill. It would ensure not only accountability but the continuous assessment of costs and implementation timelines related to the vital provisions of the Bill. In short, it is a costed plan. It is grouped with various other important amendments, some of which I strongly support.
The issue we have repeatedly encountered in both mental health policy and community care is that we end up with community but very little actual care within it. This gap leads to preventable health crises, placing individuals and services under immense strain. Therefore, we must do everything to avoid this outcome. Yet so far in Committee we have not heard the necessary reassurances that adequate provisions will be in place nor that they have been properly costed and strategically planned for community care.
At its core, this amendment champions the need for transparency in the investment and execution of mental health care, specifically within community settings, where the demand will be greatest when the changes in legislation are brought forward. We cannot afford to enact these mental health reforms without a clear understanding of their financial and structural impact on the health and social care system, the justice system, local authorities and, most importantly, the lives of those who rely on these services.
In short, the amendment would require the Secretary of State to lay a report before Parliament within four months of the passage of the Bill and annually thereafter. The report would provide a detailed assessment of both the monetised and non-monetised costs associated with the provisions of the Bill. Specifically, it would outline the financial commitments necessary for the training of NHS staff and approved mental health professionals, the expansion of community care services and the provision of adequate housing and care for individuals with autism or learning disabilities. Furthermore, the amendment would ensure that the Care Quality Commission was adequately resourced to uphold the highest standards of mental health provision. These are fundamental requirements, because without a clear cost framework and implementation plan, we risk leaving individuals in crisis without the support they need.
However, it is important to say that the amendment is not simply about numbers; it is about real lives. The monitoring and evaluation strategy included within this proposal would ensure that reforms were not just theoretical but delivered tangible improvements in patient care. It would require the Secretary of State to assess patient outcomes, collect user feedback and measure the effectiveness of new safeguards and support mechanisms.
If we fail to scrutinise and report on the costs and impact of this legislation, we risk underfunding critical services, delaying implementation, and ultimately failing those who are most vulnerable. Mental health services, particularly those delivered in the community, are a necessity and not a luxury. They prevent hospitalisations, support recovery and uphold the dignity of those living with mental health conditions. This amendment would ensure that these services were not only established but were adequately funded, effectively implemented and continuously improved.
I turn briefly to Amendments 163 and 164 from the noble Lord, Lord Stevens, which I see as complementary and mutually reinforcing to Amendment 130. In particular, Amendment 164 would ensure that mental health funding was not cut as a share of overall health service funding until this Act was fully implemented. The amendment supports the principle of parity of esteem by putting a floor under the aggregate mental health service funding share in England; in essence, enshrining the mental health investment standard in law, something that we very much support. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, in speaking chiefly to my Amendment 153, I shall say briefly that I very much agree with what the noble Baroness, Lady Tyler, just said and support, as does she, the related amendments that come after this. They interrelate with an amendment of mine that was discussed earlier in Committee about the funding of community services. Funding is the great issue right across the board, and it is essential that there is something in the Bill that addresses that. My amendment, although it looks somewhat different from the others in this group, is closely related to them, because, as the noble Baroness said, we have to be concerned about the implementation of the Bill and not just its nature.
My amendment says that for-profit companies should not deliver under the Bill. It does that in two ways. It says:
“Any new facilities or organisations created to deliver the provisions of this Act must not be operated by for-profit companies”.
It then says that within five years of the day on which this Act is passed, the Secretary of State must ensure that what is now for-profit in this space is transferred to not-for-profit. Why is that essential to implementation? I shall put it into three categories.
The first is the cost of paying profits from what should be money for the provision of services. The second is quality issues associated with for-profit companies; after all, their directors and management have a duty to maximise the return to shareholders. That is the way that for-profit companies are set up in this country. The third is that there are issues of stability.
Lord Stevens of Birmingham (CB)
My Lords, building on many of the important points we have just heard, I will speak to Amendments 163 and 164 in my name. I thank the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger, and the noble Lord, Lord Kamall, for their support for these two modest proposals, which are parsimoniously drafted but nevertheless potentially impactful if adopted.
The first amendment quite simply says that we will do away with “mañana, mañana” when it comes to implementing this Bill, which we have all spent so much time on and which the patients and advocates are so keen to see adopted, by putting a five-year backstop from the date on which the Bill becomes an Act through to commencement. Commencement of all its provisions must happen no later than five years after the Bill receives Royal Assent. The logic for that is that we all believe that, on balance, by the time the Bill has worked its way through Parliament, it ought to be an injection of improvement for mental health services, so why would we want to delay?
Of course, part of the answer is that there are some rate limiters, which are described elsewhere, including in the impact assessment. If we go through the impact assessment and say, “All right, what are the specific things that it suggests won’t be possible or won’t have got going until year 6 after Royal Assent?”, we will find it is a relatively modest number. For those who want to take a look, it is in table 1 of the impact assessment, at page 17. There are some changes to the second opinion doctor, to the CTOs, to the CTPs and so on, but both the pound note impact and the extra staffing at year 6 and beyond are incredibly modest compared with the overall size of mental health spending that we will incur. The incremental costs beyond year 5 are somewhere between £15 million and £25 million, on a budget that runs to billions. I believe that, in the real world, if we strain every sinew, it will be possible to get this thing done within five years.
There is another reason for thinking that it is useful to have a statutory backstop to implementation in the Act itself: the unfortunate tendency that we have seen in various other pieces of legislation that, when push comes to shove, the decision is made just to kick the can down the road a little further. I think it is fair to say that both principal parties have criticised the other for doing so with legislation that has passed. I think we had some measures in the health Act that the noble Lord, Lord Kamall, steered through on obesity and junk food. They never quite saw the light of day, despite Parliament deciding that they would be a good thing. The then Government were criticised for that. Likewise, we put the time in to create the Higher Education (Freedom of Speech) Act. I think the Opposition criticised the Government for delays in implementing it, despite the fact that Parliament had passed it. Of course, the cause célèbre is social care reform, where we have been happily kicking down the track legislation that has seen dither and delay for over two decades. That should not be the fate of this legislation. Therefore, this simple amendment would put in a backstop to save us from ourselves. Parliament is sovereign. If we want to get the job done, there is no reason to think that we cannot make these changes in less than the time it took this country to fight and win World War II. That is the rationale for Amendment 163.
Amendment 164 simply says that, during the intervening period while this Act is being implemented, it would be unreasonable to shrink the size of the slice of the pie going on mental health services, for all the reasons that we have heard throughout Committee. To make sure that there can be no argy-bargy on how the drafting is laid out, we have lifted the wording exactly from the health Act as it currently is on the statute book around the proportion incurred by NHS England and ICBs that, taken together, relates to mental health. It says that it
“must not fall as a share of their expenditure (taken together) on all health services”,
with a little kicker: to stop the Department of Health and Social Care marking its own homework, the National Audit Office will do a review after each year and provide a report that we can all scrutinise.
Here are some reasons why the Government should not object to this. First, it does not tie their hands on the overall sum of funding allocated to the National Health Service. That is a decision for the Executive and negotiated each year; nothing here would constrain the ability of the Government to increase or cut expenditure on the National Health Service. Nor would it constrain the ability of each integrated care board to make a judgment on its own priorities. It simply says that, in the round—taking the 42 ICBs and NHS England together—it would be unreasonable to think that the share of health service spending on mental health will go down at a time when there is an incredible gap between need and treatment, and when we are trying to implement this legislation.
Fortunately, just before Christmas the Secretary of State, Wes Streeting, signalled his support for the mental health investment standard. This is the opportunity to provide legislative cover for that very welcome announcement. It is possible that the current Secretary of State will not be the Secretary of State for the totality of this Parliament—nobody has a crystal ball. Looking out five years beyond Royal Assent, it is also possible that year 5 will be the first year of a new Parliament. So it is entirely reasonable for Parliament to support the Secretary of State’s intent by legislating in the way set out in Amendment 164, not least because there are some concerning signals from around the NHS that, for the first time since the mental health investment standard was introduced, it is possible that the share of funding on mental health will go down, not up, when taken in the round. We have not yet seen the figures, but perhaps the Minister can confirm whether that is correct. In any event, that simply serves to underline the acute importance of this safety net provision to ensure that the financial firepower is there to get this Act done.
Baroness Hollins (CB)
My Lords, I apologise for my absence from earlier debates in Committee. I will speak very briefly in support of these amendments. My noble friend said that we need to save ourselves from ourselves. Actually, we need to raise aspirations to change the culture of believing that it cannot be done and thinking that it will cost too much to take a more preventive approach, to care properly for people in the community and to achieve parity for mental health outcomes. These amendments are really important to try to achieve that, so I support them.
Baroness Neuberger (CB)
My Lords, I will speak very briefly in support of Amendments 163 and 164, to which I have added my name, and particularly about the length of time, the five years.
We first started talking about the reforms to the mental health legislation eight years ago, when we set up the review of the legislation under Sir Simon Wessely, and I was the vice-chair. It reported in 2018—seven years ago—and it was not even a very radical rethink of our mental health legislation. Yes, it will make a lot of difference to a lot of people—service users are very keen for this to come about, and they certainly do not want to wait longer than five years to see all the measures come into force—but this is relatively gentle stuff. At some stage we will need a much more radical rethink of our mental health legislation. Five years is quite a long time, so I rather hope the Minister can give us some comfort by saying that most of it will be done in two years, or perhaps three years at the outside.
Baroness Fox of Buckley (Non-Afl)
My Lords, first, I support Amendment 130 in the name of the noble Lord, Lord Scriven. I have been concerned, as we have discussed this Bill, that costs are likely to spiral. I am not objecting to that, but it seems to be the elephant in the room. Unless we know, the Bill will become a white elephant because people will just say that we cannot afford to do it. It is far better to have transparency, as has been argued.
Secondly, I oppose Amendment 153. For a number of reasons, I do not think we should prohibit for-profit entities being involved in this endeavour. The suggestion is that if we remove the profit motive, all will be well. A word of caution: not-for-profit organisations are not necessarily the most efficient, virtuous organisations, as we might imagine. In the charitable sector there are some worrying trends of money being spent, rather self-indulgently, on staffing and on all manner of extraneous and sometimes politicised endeavours.
We have seen the emergence of EDI—equality, diversity and inclusion—policies, which the Health Minister, Wes Streeting, has worried about happening in the state sector, and we have seen them become absolutely rampant in the charitable and not-for-profit sector. I want us to concentrate on the people the Bill is designed to help and therefore not to have our own political idea that only the state can deliver well—I just do not believe that is true.
For example, I have done work in prisons over a period of time—that also relates to the Bill—and have worked in both private and state-run prisons. Some private prisons are awful and some state-run prisons are worse—and, by the way, I have worked in some brilliant state-run prisons and some brilliant privately run prisons. We should judge on the basis of the quality of the care or the service that they provide, not some prior presumption that because they make profit they might be useless, somehow evil or not attending to their core mission.
Earl Howe (Con)
My Lords, I am right behind the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, in their Amendment 130. We know, and I believe that by and large we accept, that the Bill is not intended by the Government to hold out the prospect of instantaneous changes to the delivery of mental health care. It offers a series of measures that, over a period of years, should make a material difference to the well-being of a wide range of mentally ill people who require treatment, whether in a secure mental health setting or in the community.
The Minister has spoken of the need to view these measures in the broader context of the NHS 10-year plan and, certainly from the Government’s point of view, that is a perfectly reasonable position to take. However, if that is the Government’s policy, it begs a whole mass of questions around implementation and funding. For example, what do the Government see as the immediate high-priority measures that they wish to introduce? Which measures do they propose to defer, and for how long? What are the costs associated with these changes, both to the NHS and, as the noble Baroness, Lady Tyler, pointed out, to the justice system and local government? Bearing in mind Treasury constraints, when realistically do they believe a clear timeline for change will emerge? We have the impact assessment, but how far can we rely on that?
If those questions for the time being have to remain hanging in the air, as I suspect they will, I share the view of the noble Baroness, Lady Tyler, that Parliament, in the not-too-distant future, needs to be given an account of what the longer-term future looks like in a way that reflects not only the Government’s current thinking but, as time goes on, how their thinking evolves, as it surely will. There is therefore a strong case for a report to Parliament sometime in the next few months and on an annual basis thereafter, making clear both the timeline of ambition and the timeline of what in reality is being delivered.
I am conscious that we all need to keep our remarks succinct and to the point, so I will comment only briefly on the other amendments in this group. I am afraid I cannot support Amendment 153 in the name of the noble Baroness, Lady Bennett. I have always believed that what matters most in healthcare is not whether a service is delivered by a public or a private organisation but rather the quality of care to patients and whether good outcomes are achieved at acceptable cost.
Finally, my noble friend Lord Kamall has added his name to Amendments 163 and 164. These amendments stand absolutely four-square with the theme of Amendment 130, and on my noble friend’s behalf I express my warm support for them. The noble Lord, Lord Stevens, has said it all.
Just as we accept that we will not get any instant changes arising from the Bill, by a corresponding token, the Government cannot take that as a free pass from Parliament to defer implementing its provisions sine die. We cannot have a situation in which, prior to implementing the provisions, the principle of parity of esteem is quietly put to one side. I hope the Minister will have reassuring words to say on those very important points of principle.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to noble Lords for their contributions to this first debate today, and I start by saying how glad I am—I am sure other noble Lords will say this too—to see the noble Baroness, Lady Hollins, in her rightful place. I certainly heard her support for the amendments that we are discussing.
Before I turn to the amendments, it may be helpful to your Lordships’ Committee if I briefly set out some of the high-level plans for implementation of these reforms. I am grateful for the understanding—the noble Earl, Lord Howe, made this point—that time is required. I also understand the emphasis that noble Lords are putting on pace and, of course, we try to match those two things together, but I know we are all agreed on the need to get the Bill in the right place and the Act delivering.
The first priority after Royal Assent will be to draft and consult on the code of practice, and we will be engaging with people with lived experience and their families and carers, staff and professional groups, commissioners, providers and others to do this. The code will be laid before Parliament before final publication, and I am committed to working with noble Lords to ensure that we get this crucial piece of work absolutely right. We expect that this process will take at least a year.
Alongside the code, we will be developing secondary legislation, which will also be laid before Parliament, with more detail on areas such as statutory care and treatment plans. We will then need time to train the existing workforce on the new Act, the regulations and the code. This will likely be in 2026 and 2027, and we intend to commence the first major phase of reforms in 2027.
Of course, some reforms are going to take longer, as noble Lords will appreciate. The noble Baroness, Lady Neuberger, tempted me to go even further than five years, and I thank her for the temptation, but I know I will not be able to please her on this occasion. Of course, it takes time to train new second opinion appointed doctors, judges and approved clinicians, so, as set out in the impact assessment, we believe it will take 10 years to fully implement the reforms, but I emphasise that these timelines are indicative, and we will iterate these plans as we get more certainty on future funding and the wider workforce plans. Of course, I fully appreciate the importance of parliamentary scrutiny and accountability of this work, which is crucial, and I am committed to updating the House throughout the implementation period.
Turning to the amendments, I will start with Amendment 130 in the name of the noble Lord, Lord Scriven, kindly introduced by the noble Baroness, Lady Tyler. I say in response that any implementation plan, as proposed in the amendment, which would be published four months after Royal Assent, would be very unlikely to contain any more detail than is already in the impact assessment. It is important to prioritise drafting the new code and the secondary regulations after Royal Assent. I also confirm to your Lordships’ Committee that we will commission an independent evaluation of the reforms, alongside existing monitoring and reporting by the CQC.
As I have said, I fully expect to update the House during the planning and delivery of the reforms. However, a requirement in primary legislation to publish annually, and within four months of Royal Assent, would be premature.
Amendment 153, tabled by the noble Baroness, Lady Bennett, would prohibit for-profit companies from delivering provisions of the Act. I listened closely to the concerns raised by the noble Baroness, but I do not share the view that a ban on for-profit providers is the right approach, for the reasons that were set out by the noble Earl, Lord Howe, and the noble Baroness, Lady Fox. Our focus should indeed be on ensuring that we have high-quality and good value-for-money services. However, I assure the noble Baroness, Lady Bennett, that we are already investing in a significant quality transformation programme and piloting new models of care to ensure that care is focused on the individual, with maximum therapeutic benefit. That is where our priority lies and for that reason we are resisting this amendment.
Turning to Amendment 163, I am grateful to the noble Lords, Lord Stevens and Lord Kamall, and the noble Baronesses, Lady Tyler and Lady Neuberger, for bringing this issue before the Committee. As I said in my opening remarks, I too want to see the benefits of these reforms coming into play quickly and effectively. We intend to commence the reforms in phases, because some can be implemented more quickly than others, which need more time. This is not just about money but about building system and workforce capacity. For example, the impact assessment estimates that we need over 400 additional second opinion appointed doctors and over 300 additional approved clinicians. Many of these will be consultant psychiatrists, who would already need to have commenced training prior to the legislation for us to fully implement the Bill within five years, as required by this amendment. Rather than having a fixed deadline, as is proposed, we intend to monitor the impact of investment and test readiness to commence new powers on an ongoing basis, commencing each phase when we are confident that it is safe and effective to do so.
Finally, I turn to Amendment 164, tabled by the noble Lord, Lord Stevens, and supported by the noble Lord, Lord Kamall, and the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger. I associate myself with the comments about the commitment to treating physical and mental health equally, in line with this Government’s manifesto commitments. The mental health investment standard requires ICB spending on mental health to grow at least in line with overall recurrent funding allocations. Based on total planned spend for 2024-25, we expect all ICBs to meet the standard in this financial year.
There are already mechanisms to ensure that spending on mental health is prioritised. I refer noble Lords to Section 12F of the NHS Act 2006, which requires the Secretary of State for Health and Social Care to lay before Parliament an annual document setting out whether they expect NHS England and ICB spending on mental health to increase in the next year. The Secretary of State will publish this statement before the end of this financial year.
As several noble Lords said, funding for mental health spend goes beyond the scope of the Mental Health Act, which aims to improve the care and treatment of individuals who have a mental illness and need to be detained in hospital or subject to restrictions in the community. Therefore, I respectfully suggest that the Act is not the appropriate mechanism for holding the Government to account on mental health spend. I ask the noble Baroness to withdraw the amendment.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her very comprehensive response and all noble Lords who have spoken. It was very helpful that the Minister started by setting out some of what I think she called the “high-level” plans for implementation. It was good to hear about what is going to happen with the code of practice and about plans to bring forward secondary legislation. I hope I heard correctly that it will be 2027 when we see the first major stage of these reforms starting to happen on the ground. That is the good side of this debate; it is incredibly important, because this is one of those issues where the implementation is as important as the policy, and that is why it is right that we are having this discussion.
Baroness Tyler of Enfield
“Mental Health CommissionerAfter section 142B of the Mental Health Act 1983, insert—“Mental Health Commissioner
142C Independent Mental Health Commissioner: establishment(1) There is to be an office known as the Office of the Mental Health Commissioner.(2) The Office in subsection (1) must be established by the Secretary of State three months after the day on which the Mental Health Act 2025 is passed.(3) The Office of the Mental Health Commissioner will be led by an individual appointed by the Secretary of State titled the “Independent Mental Health Commissioner”.(4) The role in subsection (3) is referred to as the “Mental Health Commissioner”.142D Functions of the Commissioner(1) The Mental Health Commissioner is responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under the provisions of this Act and the Mental Health Act 2025, particularly regarding the provision of treatment, care, and detention of people with a mental disorder.(2) The Mental Health Commissioner is also responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under this Act which relate to the Mental Capacity Act 2005 and the Mental Health Act 2007.(3) The Mental Health Commissioner must publish an annual report on the use of functions discharged under this Act, which must assess—(a) the quality of mental health care treatment provided by relevant services;(b) the accessibility of mental health care treatment services;(c) the relationship between mental health and the criminal justice system;(d) inequalities of mental health care provision regarding protected characteristics under the Equality Act 2010; (e) the use and effectiveness of detention measures under this Act, including but not limited to Community Treatment Orders, for the purposes of therapeutic benefit outlined in section 1(2B);(f) challenges surrounding stigma of mental health conditions;(g) the accessibility of advice and support to mental health service users, their families and carers on their legal rights;(h) other issues deemed appropriate by the Mental Health Commissioner.(4) In fulfilling their duties under subsection (1), the Mental Health Commissioner may review, and monitor the operation of, arrangements falling within subsection (1), (2) and (3) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the principles in section 118(2B) of this Act.142E Appointment and tenure of officeThe Secretary of State may make regulations which make provision as to—(a) the appointment of the Mental Health Commissioner (including any conditions to be fulfilled for appointment);(b) the filling of vacancies in the office of Commissioner;(c) the tenure of office of the Mental Health Commissioner, including the circumstances in which they cease to hold office or may be removed or suspended from office.142F Remuneration of roleThe Secretary of State may—(a) pay the Commissioner such remuneration and allowances, and(b) pay, or make provision for the payment of, such pension or gratuities to or in respect of them, as may be provided for under the terms of their appointment.142G Appointment of staff(1) The Commissioner may appoint any staff they consider necessary for assisting in the exercise of their functions, one of whom must be Deputy Commissioner.(2) During any vacancy in the office of Commissioner or at any time when the Commissioner is for any reason unable to act, the Deputy Commissioner may exercise their functions (and any property or rights vested in the Commissioner may accordingly be dealt with by the deputy as if vested in them).(3) Any member of the Commissioner's staff may, so far as authorised by them, exercise any of their functions.(4) The duties of the Deputy Commissioner must be determined by the Commissioner.(5) Regulations may provide for the Commissioner to make periodic or other reports to the Secretary of State relating to the exercise of their functions and may require the reports to be published in the manner required by the regulations.142H Examination of cases(1) The Secretary of State may, by regulations, make provision for the examination by the Mental Health Commissioner of the cases of those who are detained under this Act receiving treatment by authorised mental health care providers.(2) The regulations may include provision about—(a) the types of case which may be examined; (b) the circumstances in which an examination may be made;(c) the procedure for conducting an examination, including provision about the representation of parties;(d) the publication of reports following an examination.(3) The Secretary of State may, by regulations, provide for the Office of the Mental Health Commissioner to access and examine relevant data on mental health treatment provision held by NHS England and any other authorities the Secretary of State considers appropriate.(4) In cases under subsection (3), reasonable steps must be taken to ensure that data provided to the Office of the Mental Health Commissioner is anonymised.(5) Regulations may, for the purposes of enabling the Mental Health Commissioner to examine or determine whether any recommendation made in a report following an examination has been complied with, make provision for—(a) requiring persons to provide the Mental Health Commissioner with information, or(b) requiring persons who hold or are accountable for information to provide the Mental Health Commissioner with explanations or other assistance, for the purpose of an examination or for the purposes of determining whether any recommendation made in a report following an examination has been complied with.(6) For the purposes mentioned in subsection (3), the Mental Health Commissioner has the same powers as the High Court in respect of—(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad), and(b) the provision of information.(7) No person may be compelled for the purposes mentioned in subsection (5) to give any evidence or provide any information which they could not be compelled to give or provide in civil proceedings before the High Court.(8) The regulations may make provision for the payment by the Mental Health Commissioner of sums in respect of expenses or allowances to persons who attend or provide information for the purposes mentioned in subsection (5).142I General powers(1) Subject to any directions given by the Secretary of State, the Commissioner may do anything which appears to them to be necessary or expedient for the purpose of, or in connection with, the exercise of their functions.(2) This may include—(a) collaborating with health services, public authorities, charitable organisations, and other entities deemed necessary by the Mental Health Commissioner that are responsible for the provision of mental health care across the United Kingdom, including, but not limited to NHS bodies, the Care Quality Commission, and the Parliamentary and Health Service Ombudsman;(b) making recommendations to the Secretary of State regarding treatment and detention provisions contained in this Act;(c) ensuring that authorities and public bodies with responsibilities for enforcement under the Mental Health Act 1983 have the necessary capacity and resources to undertake duties; (d) promoting mental health wellbeing;(e) ensuring access to treatment;(f) safeguarding the rights and welfare of patients;(g) other duties deemed to be necessary by the Secretary of State.142J Accounts(1) The Mental Health Commissioner must keep accounts in such form as the Secretary of State may determine.(2) The Mental Health Commissioner must prepare annual accounts in respect of each financial year in such form as the Secretary of State may determine.(3) The Mental Health Commissioner must provide copies of the annual accounts to the Secretary of State and the Comptroller and Auditor General within such period after the end of the financial year to which the accounts relate as the Secretary of State may determine.(4) The Comptroller and Auditor General must examine, certify, and report on the annual accounts and must lay copies of the accounts and of their report before Parliament.(5) In this paragraph “financial year”, in relation to the Mental Health Commissioner, means—(a) the period beginning with the date on which the Mental Health Commissioner is established and ending with the next 31st March following that date, and(b) each successive period of twelve months ending with 31st March.142K Regulations(1) Regulations under section 142E or 142H are to be made by statutory instrument.(2) A statutory instrument containing regulations under section 142E or 142H may not be made unless a draft of the instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.””
Baroness Tyler of Enfield (LD)
My Lords, I am sorry, it is me again. My Amendment 131 would establish a mental health commissioner for England as a new statutory office within government. I am quite conscious that it is a rather long and detailed amendment, but to my mind that reflects the importance of it to the successful implementation of the overall Act and the pivotal role that a commissioner would play. I am very grateful to the noble Lord, Lord Bradley, and to the noble Baronesses, Lady Murphy and Lady Bennett, for adding their names to my amendment, which gives a sense of strong cross-party support.
The Joint Committee recommended the creation of a statutory mental health commissioner to help drive the ongoing process of system reform and ensure accountability for implementation—I always felt that that was one of its seminal recommendations. I believe a mental health commissioner would provide sustained leadership for mental health, complementary to the existing roles and structures that we have, as well as monitoring the effective implementation of the Act. The commissioner would operate inside government and in the wider public sphere, giving the role real teeth.
Yes, the commissioner would have influence within government and the NHS, but they would also have the freedom to speak out when they considered it necessary to lead public debate, challenge stigma and break down boundaries and taboos. They could help galvanise action across departments and systems to improve population mental health and ensure that people living with mental illness are treated fairly and equitably in every sphere of life. In short, the commissioner could bring about a much-needed transformation in our mental health services. By establishing the role in statute, we would ensure that mental health would no longer be a topic that waxed and waned in its profile and importance within government and was reliant on either short-term interest or sometimes very hard-won attention.
Reflecting on the very important debate we had on reducing racial inequalities, I would consider that both assessing and taking action on inequalities in mental health would also be a critical role for the commissioner. Such a commissioner would be well placed to take responsibility for the oversight of a new responsible person role for addressing and reporting on racial disparities in mental health units at local level, as we discussed earlier in the debate on my Amendment 133.
We have an excellent example and model to follow in the way the Children’s Commissioner operates. From my extensive work on children’s issues over the years, I know how effective and influential that role has been, particularly during a period when there has been a change of Government. It has genuinely shifted the dial. I get the fact that it may not always feel 100% comfortable for the Government of the day, but they should embrace and welcome the additional scrutiny, ideas and recommendations that are based on engaging directly with people with lived experiences about their concerns.
That is certainly how it is happened with the Children’s Commissioner, who I think has done excellent work on children’s mental health. I know that it has proved to be empowering for children and young people to feel that their voice is being heard at the top table. I want that same opportunity to be in place for people with mental illness. It has the potential to make this Act a truly ground-breaking piece of social reform.
Mental health commissioners already exist in a number of international jurisdictions, including Scotland, Ireland, Canada, New Zealand and Australia. There is some helpful research from the Centre for Mental Health that shows the value of such roles in other countries.
I feel I can already anticipate the Minister’s response. At Second Reading, the Minister said the commissioner might duplicate the work of the Care Quality Commission. I do not think that is the case, as their roles would be complementary, as the Children’s Commissioner complements the work of Ofsted. The functions of the two are clearly different: they have different powers and responsibilities that between them provide extra benefit to the public that could not be achieved by one of them alone. Both have the powers of entry to inspect services that work with children, but their roles and the outcomes they seek to provide are very different. The Children’s Commissioner has a wide advocacy role across the whole of government, as well as civil society more broadly, so they can act in a way that Ofsted cannot possibly do.
So I very much hope that the Minister will be willing to discuss this with me when we meet later this week and, indeed, with other noble Lords who have expressed support, to discuss how we can really make this fly. I beg to move.
Lord Bradley (Lab)
My Lords, I strongly support Amendment 131, to which, as my noble friend Lady Tyler has stated, I have added my name. I can be brief because of the eloquence and comprehensive nature with which she introduced the amendment.
First, to note my registered interests, as this is probably the last day of Committee, the establishment of a mental health commissioner was recommended by the Joint scrutiny Committee of which I was a member. So it was a great disappointment that the Government did not include it in the Bill.
As I said at Second Reading, the mental health commissioner should be a voice at national level, promoting the interests of those who are detained and who are likely to be detained under the Mental Health Act, together with the interests of their families and carers, raising awareness of their needs and challenging stigma and stereotypes. Crucially, the commissioner should be at the forefront of tracking and scrutinising the implementation of these reforms.
There is widespread support for the establishment of the commissioner, both inside and outside Parliament and from statutory, non-statutory and charitable organisations. For example, the Centre for Mental Health, for which I am an ambassador, has stated:
“A Mental Health Commissioner … would offer sustained leadership for mental health—complementary to existing roles and structures in government. They would operate both within the machinery of state and in the media and wider public sphere. They would have influence within government and the NHS, but with the freedom to speak out when necessary: to lead public debate, challenge stigma, and break boundaries and taboos”.
I totally agree with this view. However, in reply to this proposal at Second Reading, supported by many noble Lords, the Minister pushed back on it stating that there are concerns that
“the proposed mental health commissioner’s function would be potentially largely duplicative of existing bodies and functions, and nobody wants to risk diluting accountability or causing confusion”.
The Minister went on to say:
“As noble Lords will know, Dr Penny Dash has been asked by the Secretary of State to assess if the current range and combination of organisations within the healthcare regulation landscape is effective and to make recommendations of what might be needed, and I think it is important that we await her recommendations”.—[Official Report, 25/11/24; col. 584.]
The key word here, I think, is “regulation”, and I do not agree with this view.
Since Second Reading, I have looked at the terms of reference of commissioners and regulators in various areas of public policy, and I believe that these roles are quite distinct. I agree with the noble Baroness, Lady Tyler: the role of the Children’s Commissioner and the separate role of the education regulator Ofsted are a good comparison. I do not think these two roles dilute accountability or cause confusion. Further, I cannot remember if it has ever been suggested that these roles should be amalgamated or that the Children’s Commissioner should be abolished. In fact, I believe that there is widespread support, particularly from the public, for the invaluable independent work undertaken by a Children’s Commissioner.
I also think the Minister herself has made a very persuasive case for a mental health commissioner in her many constructive responses to the amendments already debated, especially today. My noble friend has noted, among other things: the complexity of the legislation and its interrelationship with the Mental Capacity Act 2005, the need for significant investment in community services, the development of a skilled and complex workforce, and the number of years it will take to implement all the provisions of the Bill. This will need rigorous, robust and consistent oversight of implementation and wider health policy and service developments over the next decade and beyond.
The establishment of a mental health commissioner will ensure transparency and accountability and introduce a real force for good for the development and delivery of high-quality mental health services across the country. I hope the Minister will now agree and support this amendment.
Baroness Bennett of Manor Castle (GP)
My Lords, in following two such eloquent contributions, I can be extremely brief. I thank the noble Baroness, Lady Tyler, for what is clearly a major piece of work in producing this amendment. I attached my name to it because the creation of a mental health commissioner is such an important issue that it was crucial that there was a demonstration of support that was as wide as possible—a full slate of support here, even in Committee, as I am sure there will be should this come back on Report, unless the Minister says it is a great idea and she is going to go ahead with it right now.
I will add one other point of comparison, on something with which I have been a little involved myself: the comparison with the Patient Safety Commissioner. Noble Lords will remember that a case for the Patient Safety Commissioner was made from the then Government Back Benches, by Lady Cumberlege. She spent a couple of years fighting to finally get a Patient Safety Commissioner. We have seen the work that the Patient Safety Commissioner has done since the creation of the post: we have seen some very specific, detailed work on the issues of vaginal mesh and sodium valproate. Digging into the details and supporting a fight to get something done are really something that only these independent commissioner positions can do. Otherwise, very often, it falls to severely underfunded NGOs and perhaps to Members of Parliament who are enlisted in a cause but have many other calls on their time and resources as well.
We have discussed again and again how difficult it will be to bring this Bill into effect and, as the noble Baroness, Lady Tyler, said, to address the issues of discrimination and inequality that we know are already there. This is surely an absolutely obvious thing to do to help ensure—as so many noble Lords have been saying today and previously in Committee—that we get this done.
Lord Kamall (Con)
My Lords, before I begin my remarks, I want to say how pleased my noble friend Lord Howe and I are to see the noble Baroness, Lady Hollins, back in her place; I am sure that many noble Lords would echo that sentiment.
I thank the noble Baroness, Lady Tyler of Enfield, for moving this amendment to establish a statutory mental health commissioner. One of the motivations behind some of the amendments in my name and that of my noble friend Lord Howe is to probe the Government on those recommendations from the pre-legislative Joint Committee that did not make it into this draft Bill. As noble Lords will be aware, and as the noble Lord, Lord Bradley, has said, this is one such recommendation of the Joint Committee that did not make the cut.
We did consider tabling a similar amendment ourselves, but I have to admit that the amendment from the noble Baroness, Lady Tyler, did the job very well; there was no need to duplicate that. Having spoken to the noble Baroness and to her noble friend Lord Scriven, I know this is an issue that they and many other noble Lords feel passionate about. The noble Baroness, Lady Tyler, has today made a very good case for a commissioner. The noble Lord, Lord Scriven, has also spoken of the need for central co-ordination to ensure implementation of the provisions of this Bill—something that was referred to in the last group of amendments.
I pay tribute to the noble Lord as I know that he has considerable experience in the NHS and is all too aware of the problems involved in trying to deliver at scale. However, I admit that I have some reservations about the idea of a mental health commissioner. While I understand the arguments in favour, I am, like the Minister, concerned about the creation of a new bureaucracy that could possibly duplicate functions.
In their response to the recommendations of the Joint Committee, the previous Government noted that
“the government does not believe that a statutory mental health commissioner would add significant value within the framework currently provided by existing bodies”.
The Joint Committee pointed out that a Mental Health Act Commission was established by the Mental Health Act 1983, which stood alongside the Healthcare Commission and the Commission for Social Care Inspection. In 2009, the then Labour Government took the decision to combine these three bodies into one integrated regulator with responsibility for all health and adult social care. I say that not as a political point but as an observation.
Since then, the CQC has undertaken the functions of the previous Mental Health Act Commission, and its remit extends to ensuring protections for those who are detained under the Act or subject to a community treatment order. To do this, the CQC has a number of Mental Health Act reviewers, who can visit patients in hospital and raise concerns about treatment or detention with managers, and then report back to the commission. The CQC also has a dedicated team that assesses complaints about the use of the Mental Health Act, including issues around detention and the use of CTOs.
I also understand that the CQC provides second-opinion appointed doctors for patients who do not have the capacity to consent to treatment under Part 4 of the Act. This Bill strengthens the safeguards around second-opinion appointed doctors, such as creating a clinical checklist that must be certified by the second-opinion doctor.
In addition to the functions of the CQC, local authorities and ICBs provide independent mental health advocates; we have debated those in earlier groups. The Department of Health and Social Care also gives funding to local authorities to commission Healthwatch services, of which I understand there are about 152 across the country. Healthwatch is another statutory organisation that gathers feedback from the users and ensures that NHS leaders listen to and, hopefully, incorporate that feedback.
As we have seen, the Parliamentary and Health Service Ombudsman, alongside the CQC, supports individuals to raise complaints against the private sector, the NHS and all public health authorities.
The point I am trying to make is that there appears to be a plethora of services and public bodies that work to oversee the function of the Mental Health Act and try to ensure that patients have a voice in their care and treatment. While I appreciate that some of the proposed duties of the commissioner would be unique to that role, there appear to be elements of duplication in that role and those of existing public bodies. However, I am also conscious of the point made by the noble Baroness, Lady Tyler, about being complementary.
So, while I hear the arguments on both sides, I am still slightly sceptical about whether we need a stand-alone mental health commissioner. To be fair, we have not completely made up our minds yet, and my noble friend Lord Howe and I are weighing up the arguments. For that reason, I ask the Minister to help these deliberations by clarifying a few points. First, will she confirm whether the CQC will take on the role of implementing the provisions of the Bill? Perhaps more importantly, how will it be able to fulfil that function effectively, given the concerns expressed by the noble Baroness, Lady Tyler, the noble Lord, Lord Bradley, and others and their strong feeling in favour of an independent mental health commissioner?
What action will the Department of Health and Social Care take to ensure oversight of the CQC’s role in the implementation of this legislation? If the Government remain opposed to the creation of a commissioner, can the Minister reassure your Lordships on how existing bodies will address the Bill’s implementation and accountability for its implementation, without the need for a stand-alone mental health commissioner?
I hope the Minister is able to give these assurances. Otherwise, given what was said today by other noble Lords, I am sure we will come back to this issue on Report.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Baroness, Lady Tyler, for tabling Amendment 131, supported by the noble Baronesses, Lady Bennett and Lady Murphy, and my noble friend Lord Bradley. As noble Lords are aware, I understand the intent behind the amendment. We have carefully considered the proposed functions of the commissioner that it outlines, and we recognise that improvements are needed to ensure that the system works effectively. But as noble Lords are aware, we do not feel that a new body is the answer. As the noble Lord, Lord Kamall, said, it may only duplicate existing functions, rather than providing the clarity and leadership that I know everyone is seeking. I was particularly interested to hear the noble Lord give his reflections on the opinions of the previous Government about a proposed mental health commissioner.
Overseeing implementation of the reforms is the role of the Department of Health and Social Care, working with NHS England, the Ministry of Justice and the CQC in England, and, in Wales, with the Healthcare Inspectorate Wales.
On the interaction between this legislation and the Mental Capacity Act, we are committed to keeping that under close review to minimise challenges potentially faced by front-line professionals.
The annual report by the commissioner proposed in the amendment would overlap with the CQC’s annual Monitoring the Mental Health Act report. The CQC’s annual statutory reporting reflects the views of thousands of patients interviewed each year by the CQC. Many of the issues that the commissioner would assess and report on, such as the accessibility of advice and the quality of services, are already reported on by the CQC.
It is proposed that the commissioner would examine cases of people detained under the Act. This clearly overlaps with the functions of the CQC and Healthcare Inspectorate Wales, which have a statutory duty to monitor and, where appropriate, to investigate. The Act provides the regulator with similar powers—for example, to gather information to support it in exercising these powers.
The Health Services Safety Investigations Body is responsible for conducting independent investigations into patient safety concerns across England to identify ways to improve mental health care and patient safety. It has just concluded a series of investigations into in-patient mental health care and is currently undertaking further work.
With regard to the proposed commissioner’s general powers, it is the Government’s role, with NHS England, to ensure sufficient capacity and resources in the system. It is the role of NHSE’s national director for mental health and the medical director for mental health and neurodiversity, newly established last year, to oversee and take forward improvements to mental health services. It is already the role of the regulator to safeguard the rights and welfare of patients, while other organisations independently investigate complaints.
Minimising duplication with these organisations and functions would require significant remodelling of the system, interrupting ongoing programmes and responsibilities that are important to the smooth delivery of the Mental Health Act reforms. Having said that, we recognise that improvements need to be made in the quality of care and the patient safety landscape. We are committed to that goal and intend to overhaul the healthcare system to make it better for all patients.
The CQC has already begun to implement the recommendations made by Dr Penny Dash and Professor Sir Mike Richards: a new chief inspector for mental health will use their independent voice to amplify and respond to the experiences and outcomes of people who use services. Implementation of Mental Health Act reform will be at the top of their “to do” list.
On the wider landscape, we expect to hear soon from Dr Dash who, as noble Lords have said, is reviewing the broad range of organisations that impact on quality and safety, many of which I have mentioned today, and is due to report on whether greater value could be achieved through a different delivery model.
Reference was made in the debate to the role of the Children’s Commissioner, which the noble Baroness, Lady Tyler, particularly focused on. I want to place on record my gratitude to the Children’s Commissioner for the work done on children’s mental health. But, in reflecting on the debate earlier, I should say that the Children’s Commissioner is operating in a rather difference landscape. The proposed mental health commissioner would have a much narrower purview that, for the reasons I have stated, risks overlapping with existing organisations in a way that the Children’s Commissioner does not. I understand why the Children’s Commissioner is being looked to, but I cannot draw that direct comparison myself.
The challenges we have heard about in this debate have highlighted areas we need further to focus our efforts on. I look forward to speaking to the noble Baroness, Lady Tyler, about this topic this week, and I am sure that I will have further conversations about it. For all these reasons, I ask the noble Baroness to withdraw Amendment 131.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her response and thank other noble Lords for their support: in some cases, strong support; in others, what I can only describe as support up to a point—if you know what I mean.
The noble Lord, Lord Kamall, was right to say that we on these Benches feel passionate about this. We think it has the potential to make a real difference and transform not just mental health services at the crisis end—the detention end—but how the whole mental health landscape works.
I would just say in response that I am slightly surprised that the Government consider the current arrangements to be satisfactory. The Joint Committee clearly did not. It spent an awful lot of time looking into this and made a recommendation for a reason.
Baroness Parminter
“Notification of specialist eating disorder units having arrangements for special casesIn section 140 (Notification of hospitals having arrangements for special cases) of the Mental Health Act 1983, after “hospitals” insert “or specialist eating disorder units””Member's explanatory statement
This amendment seeks to extend the provisions related to the reception of patients in cases of special urgency and the accommodation of under-18s in specially suitable facilities which apply to hospitals under section 140 of the 1983 Act to include specialist eating disorder units.
Baroness Parminter (LD)
My Lords, this is a very limited amendment. It aims to prompt ICBs to ensure that there are adequate placements for those with severe eating disorders—both those who are sectioned and those who are not sectioned. There is a need for this because general acute mental health hospitals are not appropriate if we are going to ensure the best outcomes for people with eating disorders, and there are far too few beds out there at the moment.
Let us address that last point first. In the UK, at the moment, there are 450 adult beds—that is a combination of NHS and private beds—and less than half that number for children. However, last year there were 30,000 hospitalisations for people with eating disorders, which is a fourfold increase on 2010, when there were 7,000. This means that people are being placed in inappropriate settings, be that in general acute hospitals, the general hospital down the road, or in out-of-area placements. All of those will deliver non-optimal recovery rates and result in more costs in the long term to the country, as well as greater suffering for individuals and their families and carers.
It is pretty obvious to most people that eating disorders require specialist staff—it is not rocket science. People with very severe eating disorders, sectioned or otherwise, will often need nasogastric tube feeding, which is a specialist skill, and there will be issues around avoiding refeeding syndrome, along with the cardiac risk. It is very clear why there is a need for specialist staff. The APPG on Eating Disorders did a recent report on this, The Right to Health, which looked at why specialist eating disorder nurses are required. Those provisions are not in general mental health hospitals, or indeed in the general physical health hospital down the road. It is pretty clear to most people that you need specialist staff.
What is probably not so clear, if you are not familiar with eating disorders, is that the physical constraints of a general mental health facility are not appropriate or optimal for people with eating disorders. If you have a severe eating disorder, you need feeding six times a day. People who are very anxious about eating will need to be supervised, one to one, in a calm environment. That is not what you get in a general mental health facility. Those people will then need to be supervised, one to one, for a period after meals, to help them to keep that food, again in a calm and spacious environment where they can be managed one to one. Those individuals will all have diets, weekly prepared especially for them, which will require a specialist canteen. Not only will you need staff to facilitate the provisions of those meals but you will need an area where people with eating disorders can be helped over a period of weeks to refamiliarise themselves with preparing food and to not be anxious about touching or preparing food—so you will need a second kitchen. The provisions in a general mental health facility are not optimal for people with specialist eating disorders. The legislation as it stands asks ICBs to focus only on general mental health facilities.
I am not making the case that eating disorder sufferers are somehow special—please do not think that. I am just making the case that they are different. For too long, they have not had a focus on their needs, which is why we have so few eating disorder beds in this country at the moment. This is probably a very poor attempt, but it is my attempt to ensure that ICBs are given a gentle nudge by the Government to do what I think the Government want to do—which is to treat the majority of people with eating disorders in the community but, for those who require beds, ICBs must at the appropriate time ensure that there are such beds. We must not rely on general mental health facilities, which will not produce the outcomes that we need. I beg to move.
Baroness Browning (Con)
My Lords, I support the noble Baroness, Lady Parminter, on the particular point that she raises about eating disorders in her amendment and on a more general point.
In an earlier debate, I tried to make the case that people being diagnosed with autism by clinicians should be seen by clinicians who specialise in autism. I was reminded of this very much when the Minister, responding to an earlier amendment this afternoon, talked about parity of esteem in the health service between the physical health support provided and that for mental health. In the world of physical health, if you were to see an orthopaedic consultant, you would not necessarily see the same consultant, depending on the condition that you had. The same applies today with cardiology, whereby cardiologists now have more specialisms within that and you would therefore see the appropriate person. As raised by the noble Baroness, Lady Parminter, the facilities that go along with such specialised treatment and assessment are very important.
I put it to the Minister, prompted by the noble Baroness, Lady Parminter, and by the Minister’s own words, that it really is about time that, with regard to mental health as a generic term, whatever the condition, we stop—as they did even within my lifetime—locking people up in some old Victorian institution where they all get the same treatment, facilities and so on. Today, with our increased knowledge of mental health and of medication for mental health, and with the increased number of specialisms that we are now aware of, particularly around eating disorders, it is really about time, if there is truly to be parity of esteem, that mental health is treated as physical health is treated, and that the specialisms that occur and the specialists there to work within those specialisms are given weight within legislation so that facilities and specialists can be provided—because we know that they are not.
At the heart of the Bill before us is the fact that we are taking autism and learning disabilities out of the Mental Health Act 1983, in which they were all treated the same—lumped in together and treated by the same clinicians, whether they had a specialism in that area or not. This is a real opportunity for the Minister and the Government to make sure that there is true parity of esteem and that conditions such as eating disorders are respected and treated in the way in which they should be.
Baroness Butler-Sloss (CB)
My Lords, I remember a specific case of a friend’s 17 year-old daughter who was suffering from an eating disorder. She had to go into hospital, where she was not treated at all well; she was criticised for not eating—the very thing she had gone into hospital to get help for. She did not for quite some time get any specialised help on how to deal with her eating disorder. This amendment would deal with that issue.
Lord Kamall (Con)
My Lords, I thank the noble Baroness, Lady Parminter, for moving this amendment. Unlike in the last group of amendments, where there was limited support, we fully support her on this one. We know that the noble Baroness has tirelessly campaigned for better support for those with eating disorders. At Second Reading, she shared the experience of living with such disorders, and we all became much more familiar with some of the concerns. I also agree with my noble friend Lady Browning that it is about time we stopped treating all people with mental ill-health the same; we know that we have to look at it in far more granular detail.
The amendment speaks to the problems around the adequacy of provision of care for patients suffering with eating disorders. As the noble Baroness said, Section 140 of the Mental Health Act provides for reception of patients in cases of special emergency and the provision of accommodation and facilities suitable for under-18s, but it applies only to hospitals. I agree that there is a reasonable case to extend this to specialist eating disorder units. With that in mind, I hope the Minister will be receptive to this amendment.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Baroness, Lady Parminter, for bringing Amendment 132 to your Lordships’ Committee, for raising this important issue, for sharing at Second Reading, as the noble Lord, Lord Kamall, said, her personal experience of her daughter’s treatment and for sharing her overall experience of the provision of services today. The noble Baroness, Lady Browning, made the important point about different conditions needing different provision and support. That was amplified by the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord.
Eating disorders are of course serious mental health challenges, and it is vital that those with them can access effective help quickly. We will continue to work closely with NHS England to improve access to the right and timely care and treatment for those with an eating disorder.
The purpose of Section 140 is to ensure that approved mental health professionals are aware of the services available to help them to locate hospital beds in special cases. The intention of the amendment is to extend the duty on health authorities to notify local authorities of arrangements for urgent cases and under-18s to include specialist eating disorder units.
Section 140 applies to arrangements for people who need in-patient treatment in a hospital. That includes specialist eating disorder units where they provide in-patient treatment in a hospital setting and are appropriate for someone to be detained in. Therefore, while I understand the points being made, it is not necessary to specify that Section 140 applies to specialist eating disorder units. I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Parminter (LD)
My Lords, I am grateful to Members around the Committee who have shared my concerns about the need for proper provision for people with eating disorders. The noble Baroness, Lady Browning, rightly identified that there is a need for mental health provision to focus on the particular illnesses and to treat each appropriately.
I knew that my amendment would not be accepted; I was just desperate to find some way to raise this important issue, but I am grateful that my poor attempt has at least allowed for a debate in Committee and allowed me to share with Members a bit more about what it actually means if you are in a specialist eating disorder unit for a very long time. I would still love to see the words in the Bill, because every time ICBs and others think about provision for people with mental illnesses, including eating disorders, specialist eating disorder units should be in there, but I am not going to press the point either here or in the future. I am grateful for the support around the Committee, and I will keep trying to raise the issue whenever I can. With that, I beg leave to withdraw the amendment.
Baroness Tyler of Enfield
“General duty to secure sufficient resources for services in the community(1) It is the general duty of integrated care boards to ensure, insofar as is reasonably practical, that services in the community responsible for delivering care, treatment, or detention provisions under the Mental Health Act 1983 and this Act have the necessary resources, including financial support, to meet service demands.(2) Additional forms of resource may be determined by integrated care boards in consultation with relevant local authorities or health care service providers and may include—(a) sufficient numbers of trained medical professionals;(b) purpose-built facilities for patient care;(c) community services responsible for out-patient care.”Member’s explanatory statement
This amendment places a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand on services to ensure that the provisions of the bill function as intended.
Baroness Tyler of Enfield (LD)
My Lords, yes, I am afraid it is me again. I thank my noble friend Lord Scriven and the noble Baroness, Lady Bennett, for adding their names to Amendment 134. Of course, we have already acknowledged in many of our debates that the provisions in the Bill rely heavily on strong and effective community provision being in place, but there are real concerns within the sector that community provision is not currently sufficient to support the changes set out in the Bill. In my view, the new duties placed on local authorities and integrated care boards to ensure an “adequate supply” of community support lack teeth, and no real accountability measures have been put in place as yet to ensure that this duty is fulfilled. My Amendment 134 would place a general duty on integrated care boards to ensure that services in the community had the necessary level of resource to meet demand for services.
This amendment is closely related to the amendments in group 1, already debated—indeed, I am not quite sure why this one was not included in that group; groups remain a bit of a mystery to me. It is worth noting that the Equality and Human Rights Commission recommended in its response to the Joint Committee that the Government should, in line with the recommendation of the independent review, ensure that there was
“sufficient, high-quality, appropriate, community-based mental health services and pathways to meet the needs of all adults, children and young people”.
It stressed:
“These should include therapeutic alternatives to detention, preventative support to minimise the risk of crisis, and wider community services that enable good mental health and recovery”—
something I will be returning to in a later amendment. Is the Minister able to say what consideration the Government have given to that specific recommendation?
The EHRC also felt that the Bill needed strengthening
“to ensure sufficient community-based services in practice in order to end inappropriate detentions. This was highlighted in the most recent annual review of the Mental Health Act by the CQC, which stated: ‘While we support the government’s objective to reduce hospital admissions for people with a learning disability and autistic people under the MHA, this can only be achieved by an increase in community support, including trained staff, and high-quality alternatives to admission’”.
I want to finish by focusing on the workforce aspect. Following the previous Government’s 2021 White Paper, the Royal College of Psychiatrists commissioned an independent assessment of the impact of the proposed changes on the psychiatric workforce to better understand how many additional psychiatrists would be required to deliver the reforms in the proposed year of implementation and, indeed, 10 years later. Based on that White Paper, the research found that by 2023-24, an additional 333 full-time equivalent psychiatrists would be needed in England, costing £40 million per year, and that by 2033-34, a further 161 full-time equivalent psychiatrists would be needed. While these figures may not necessarily accurately reflect the exact number of psychiatrists needed to deliver the reforms we are talking about in the Bill, or the current timelines for the legislation, they demonstrate clearly the impact on a workforce which is already understaffed and carrying high vacancy levels.
Back in March 2016, NHS England set a target to have an additional 1,040 consultant psychiatrists in post in England by March 2024. Based on these targets, as of July last year there was a shortfall of some 770 psychiatrists across England. That is a big shortfall. The impact assessment, while absolutely voluminous, is—as far as I can see—silent on where these people are going to come from. However, it estimates costs of around £99 million for alternative mental health care for people no longer admitted to hospital. It also estimates some £5.5 billion of savings from fewer overall admissions and fewer detentions for people with a learning disability or autism. It goes on to say that the benefits
“should not be understood as cashable”.
Can the Minister say what specific mechanism will be used for diverting more money into community services?
Psychiatrists are absolutely critical but are only one part of the wider mental health workforce, which also includes mental health nurses, clinical psychologists, mental health social workers, occupational therapists and others. Can the Minister say whether detailed plans to grow the overall mental health workforce will be contained in the 10-year plan and the upcoming spending review?
I am conscious that I have asked quite a lot of detailed questions, so if the Minister would prefer to write to me with her response, that is fine. I add that I am sympathetic to the aims of Amendment 157 in the name of the noble Lord, Lord Davies. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to again follow the noble Baroness, Lady Tyler of Enfield, and offer support to her. I will be very brief because there has already been a comprehensive introduction.
It is useful to draw a comparison to see how we might look at some kind of composite as we get towards Report. This amendment places a general duty on integrated care boards to ensure that services in the community have the adequate levels of resource, which is why I signed it, but who gives the resources to the integrated care boards? Ultimately, it is the Government.
My earlier amendment sought a regular process of reports and parliamentary oversight, and I suggest that we need both. This is a good, strong amendment to give the duty to the ICBs. But we also need to see that there is the oversight and that ICBs have the capacity to support the duty they are being given.
Lord Davies of Brixton (Lab)
Amendment 157 in my name seeks to clarify the responsibilities of integrated care boards and local health boards to find beds in a timely manner for patients admitted under Section 140 of the Mental Health Act.
This amendment goes to the heart of why we have the Bill in the first place. In large part, the practical problems experienced in obtaining proper care for people led to the introduction of the Bill, Sir Simon Wessely’s review and the work of the Committee. It reflects an important aspect of the transformation that has taken place in the understanding and treatment of mental illness. It reflects the importance of timely and effective care for people experiencing a crisis in their mental health. The Bill seeks to fill in gaps in mental health care, which can mean the difference between rapid intervention and needless delay.
My amendment to Section 140 is both necessary and overdue. It would place a clear responsibility on every integrated care board and local health board to ensure that patients who are assessed as requiring hospital admission under the Act receive it in a timely and appropriate manner. To that end, it mandates a clear line of responsibility by requiring the appointment of a designated officer charged with overseeing that these admission arrangements, as outlined in the Act, are not only established but function effectively on a day-to-day basis. This is not a mere administrative adjustment; it is an important change, aimed at addressing real world issues that affect the lives of countless individuals. Mental health crises occur without warning and do not adhere to schedules or bureaucratic timelines.
The local health boards and integrated care boards are the crucial link between community services and hospital care. Placing a clear statutory duty on these organisations will create a clear line of responsibility to ensure that no patient is left waiting whenever immediate care is needed. The appointment of a designated officer will further enhance accountability and operational efficiency. To emphasise the point, an individual with the specific responsibility of overseeing these arrangements will provide a robust mechanism to promptly address any issues that arise and to ensure that every patient’s admission is swift and appropriate.
It is important to understand the broader implications of this amendment. Timely admission to hospital is not merely a procedural matter; it is a critical component of effective mental health care. Early intervention can mean the difference between a manageable crisis and a catastrophic decline in a patient’s condition. By ensuring that patients are admitted promptly, we will invest in early treatment, reduce the likelihood of complications and, ultimately, alleviate the burden on our healthcare system. This proactive approach will lead to improved outcomes for patients, greater satisfaction among healthcare professionals and a more sustainable model for mental health service delivery.
To conclude, my amendment is a necessary step forward. It would provide clarity, reinforce accountability and ensure that our mental health system remains responsive and effective. I urge my noble friend the Minister to respond positively to my amendment, not merely as a change in policy but as a commitment to the well-being and dignity of every individual who depends on our mental health services.
Baroness Ramsey of Wall Heath (Lab)
My Lords, I rise to support Amendment 134. I hope I get the etiquette right, as this is my first contribution in Committee. I know noble Lords will put me right if I get it wrong.
People with learning disabilities and autism are generally detained because insufficient community support is available to keep them and others safe. Amending the Mental Health Act to prevent them being detained under its provisions will therefore be ineffective unless it is accompanied by serious investment in such support. In fact, without such investment it could actually be worse for people with learning disabilities and autism: if the community support is not available, doctors and social workers will inevitably look for other ways to keep them safe. They might be tempted to use the Mental Capacity Act in some cases, thereby taking away almost all agency and rights, not just those in respect of treatment, or to get the police and prosecutors involved in response to challenging behaviours, simply because the involvement of the criminal justice system means they can still use detention under the amended MHA. What an irony it would be if amendments to the Mental Health Act designed explicitly to reduce detention actually led to worse forms of detention.
Amendment 134, which would require integrated care boards to ensure that resources are made available to secure the necessary community support, is absolutely vital for the Bill to be effective. I mention here, as it is relevant, that I support the spirit of Amendments 163 and 164 in the names of the noble Lord, Lord Stevens of Birmingham, and others. If the necessary investment is made by integrated care boards, the future for people with learning disabilities and autism could be so much brighter.
I have seen what a wonderful difference this approach can make. I will never forget my work visit, in relation to children and young people with learning disabilities and autism, to a state special school in the London Borough of Islington—part of the Bridge Trust for youngsters with severe learning disabilities and autism, among other special needs—and seeing how well supported they were by integrated teams of social workers and health and education professionals. I asked the chief executive officer, Dr Penny Barratt, who had set the school up, how it started. She told me that she had been listening to the news one day and heard a report about a boy with autism whose behaviour was so challenging that he was being held down by seven people in A&E. Her background as a special needs teacher meant she knew that the next step for him was bound to be long-term, segregated detention. She was inspired in that moment to do something about it. The special school was born and, wonderfully, that young man became one of its pupils. His needs were as great as ever, with no language, but expert care and support from loving professionals meant that he was having a fulfilling life in a room with other pupils—with no detention and no segregation. Let us legislate to make it clear that this is the sort of future that we want to see for all such young people.
Baroness Hollins (CB)
In adding my support to these amendments, I welcome particularly the contribution from the noble Baroness, Lady Ramsey.
This debate has emphasised why the pathway of care, from the community through to any kind of hospital admission and discharge, must be considered as a whole. It is not okay to separate bits off. That is why the amendments are so important: unless we put provision in place to make sure that, when admission is necessary, it is timely and to a place which has the skills to provide the therapeutic care that people require, detention and admission will in fact be longer and costlier. We cannot contemplate making legislation that does not take account of the whole patient pathway.
Lord Stevens of Birmingham (CB)
I have been inspired by the previous two contributions. I will briefly pick up a point that the noble Baroness, Lady Tyler, made about Amendment 134 on the availability of community services, particularly psychiatrists. I think the Minister referred to the longer training times for psychiatrists and other mental health professionals as one of the rate-limiting factors that would affect the speed with which the measures in the Bill could be implemented.
I have a request for the Minister. It is quite hard to tease out from the impact assessment what the Government think the incremental requirements for psychiatrists will be, year by year, over the implementation period. In fact, slightly perversely, they use mixed currency: the Minister responded, rightly, to Amendment 163 by saying, I think, that there was a requirement for 400 additional psychiatrists for the second opinion service; but when you look at the table in the impact assessment, it turns out that that is a headcount number driven by a number that is not a whole-time equivalent. However, for all the rest of the workforce, a whole-time equivalent number appears to be shown.
It would be good to nail down what the incremental requirement will be for psychiatrists, year by year and on a whole-time equivalent basis, so that between now and Report, colleagues can consider what the ramifications of that might be for a backstop on implementation. If that incremental requirement could be juxtaposed with what the Government think the organic increase will be in the number of psychiatrists over that period anyway, driven by the already published NHS workforce plan, that would be supremely helpful.
Baroness Barker (LD)
My Lords, I will try to draw together some of the strands that we have been discussing in this debate. When the Minister responds, please will she share with the Committee the department’s and the Government’s thoughts on workforce planning and the modelling they use for the prediction of demand?
As I listened to my noble friend Lady Parminter eloquently introduce her amendment, it brought to mind friends of mine. They have been in the position where their child was diagnosed with a very severe eating disorder, but they were told, “You are not sufficiently ill for anything to happen”. From that stage, nothing happened. If it were a physical illness, there would be some kind of process—although maybe not a care pathway. I am sorry, but I am one of those people who is very cynical about the use of the phrase “care pathway”; it is very overused throughout the whole of health, and particularly in mental health. People are diagnosed and then are just left, until they become so ill that they are in crisis and it is impossible to ignore them. We have seen the trends in the number of young people with eating disorders, which my noble friend Lady Parminter mentioned. What is the department doing to forecast the demand for specialists of that nature in future?
I want also to return to some of the conversations and debates that were sparked by the noble Lord, Lord Davies of Brixton. We know that the police are going to withdraw from being the first responders when people are in crisis. What modelling are the Government doing in terms of the community provision that is needed to deal with those people—who will still be in crisis? They are not going to stop having crises; in fact, they are probably more likely to show up in in hospitals than ever before, because that is where people go in the middle of the night when they have a crisis.
This is the sort of argument that the noble Baroness, Lady Tyler of Enfield, was trying to get to in her discussion of having a mental health commissioner. Who will be the person who is in a position to take the Government to task for their planning and preparation for demands on the health service in the future? That is the kind of thing that we are trying to get to, and which all of us, in various different ways, have been trying to get to all afternoon.
Baroness Hollins (CB)
Can I just say that I did not talk about a “care pathway”? Perhaps I should have said the “patient journey”, but I was talking about the patient pathway—the actual experience of the person—which is not separated in their life.
Lord Kamall (Con)
My Lords, I will be brief on this one. I thank the noble Baroness, Lady Tyler, for this amendment and thank all noble Lords, who made very valid points.
Clearly, this is another sensible proposal, highlighting as it does the importance of making sure that the ICBs commission sufficient mental health services in the community to meet the demand for them. As the noble Baroness, Lady Barker, said, where will people go in the middle of the night? I know that we will come back to some of these issues when we discuss the group on mental well-being but I thought it was important that those points were raised now.
The Committee may remember that this was the subject of Amendment 139 in the name of my noble friend Lord Howe, who spoke to it on the second day in Committee. The main difference between those amendments is, I think, that the noble Baroness, Lady Tyler, wishes to get ICBs focused on this very important task as soon as the Bill becomes law—and I agree with her intention on that. My only fear around the wording as it is currently drafted—I recognise that it is a probing amendment—is that
“insofar as is reasonably practical”
may provide an excuse, or, as we say, the proverbial long grass into which this duty could be conveniently kicked. I look forward to the Minister’s response.
Baroness Merron (Lab)
My Lords, I thank noble Lords for their contributions on both these amendments. I turn first to Amendment 134 in the name of the noble Baroness, Lady Tyler, and spoken to by my noble friend Lady Ramsey and the noble Baroness, Lady Barker, both of whom shared real-life examples to illustrate what is being spoken about here.
This duty to consider mental health needs, as well as the needs of those with a learning disability and autistic people, in the community as well as in hospital is already covered by ICBs under the National Health Service Act 2006, as amended by the Health and Care Act 2022. An ICB must arrange for the provision of services to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility.
ICBs and their mental health trusts are also required to prepare a joint forward plan that describes how the ICB will arrange for NHS services to meet its population’s physical and mental health needs, and the needs of those with a learning disability and autistic people.
On the general point with regard to the long-term workforce plan, which the noble Baroness, Lady Barker, mentioned, it will report in a few months’ time, later in the year, which I hope will give a lot more substance to answer the kinds of questions that are being raised. The noble Lord, Lord Stevens, asked about incremental requirements for psychiatrists on a year-by-year and whole-time-equivalent basis. I say to the noble Lord that the impact assessment sets out our best estimate at this point, but the plans need to be seen as somewhat iterative. With regard to further specific questions, including those raised by the noble Baroness, Lady Tyler, I will indeed be glad to write.
Turning now to Amendment 157, in the name of my noble friend Lord Davies and spoken to by the noble Lady Baroness, Lady Bennett, as we have already discussed in relation to Amendment 134, there is already a duty on ICBs to provide sufficient hospital and community services under the National Health Service Act 2006. Furthermore, chapter 16 of the Mental Health Act code of practice already states that local authorities, NHS commissioners, hospitals, police forces and ambulance services should have local partnership arrangements in place to deal with people experiencing crises in mental health.
We accept that there are issues with bed capacity and patient flow, as referred to by the noble Baroness, Lady Hollins. I will resist using the term “patient pathway”, but I certainly agree that they are part of what happens to a patient and they are indeed linked—whatever form of words we choose to use. That is why, in the recent NHS planning guidance, we have tasked local systems with reducing the length of stay in mental health wards and have committed £26 million to improve mental health crisis care, with a further £75 million to reduce inappropriate out-of-area placement. All this is already in train and does not suggest a requirement for primary legislation. So, for these reasons, I ask that the amendment be withdrawn.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister yet again for her response. We have had a number of discussions so far this afternoon in this broad area, and indeed, as was alluded to, on previous Committee days. They are interrelated, so it is sometimes hard to separate the individual groups. I think at the very heart of all of our discussions is concern about two things: first, how we ensure that there is sufficient provision within the community to provide the sorts of services we all hope to see and which are fundamental to the successful implementation of the Bill; and, secondly—I think this came out very clearly—the need for really good workforce planning and understanding it on a year-by-year basis.
I was encouraged to hear from the Minister that we can expect to see the long-term workforce plan—I think she said—in a few months’ time. I very much look forward to that. I hope it includes some of the workforce planning and modelling of community provision that my noble friend Lady Barker referred to, and I hope, above all things, that it is slightly clearer than the impact assessment, which, I have to be honest—it may just be me; it might have been late at night when I was looking at it—I found somewhat on the opaque side. I am really hoping for greater clarity when we see the long-term workforce plan. This issue is not going to go away. In what form we return to it at Report, I am not quite sure, but, for the moment, on that basis, I beg leave to withdraw the amendment.
Lord Davies of Brixton
“Mental Health Crisis Breathing SpaceAny person detained under sections 3, 37, 41 or 47 of the Mental Health Act 1983 must be offered support from the mental health crisis breathing space debt respite scheme.”Member’s explanatory statement
This amendment ensures that MHCBS, a debt respite scheme, is offered and available to patients detained under sections 3, 37, 41 and 47 of the Mental Health Act 1983.
Lord Davies of Brixton (Lab)
In moving Amendment 135, I am grateful for the support of the noble Baronesses, Lady Tyler of Enfield, Lady Bennett of Manor Castle and Lady Neuberger, and I will be a little disappointed if I do not get some support from the noble Lord, Lord Kamall.
This amendment would require that the established and successful procedure, the mental health crisis breathing space, is offered automatically to those detained under longer-term Sections of the Mental Health Act. This is the final one of a set of three amendments to the Mental Health Bill in my name that have addressed the financial implications for people who struggle with their mental health. In these debates I have previously referenced that I am on the advisory board of the Money and Mental Health Policy Institute. This amendment is based on the institute’s work.
I thank my noble friend the Minister for her engagement on my Amendments 59 and 121, which sought to ensure that routine enquiries on financial matters are embedded in care and treatment plans and advance choice documents. I am grateful for the Minister’s acknowledgement and understanding on these issues.
Amendment 135 calls for mental health crisis breathing space to be automatically offered to those detained under Sections 3, 37, 41 or 47 of the Mental Health Act. Of the three amendments in this set on financial issues, this one perhaps has the greatest scope for reducing the financial harms that people experience when they are facing a mental health crisis. The mental health crisis breathing space mechanism is a vital tool that can protect people in a mental health crisis from the impacts of problem debt by pausing enforcement action and contact from creditors, and freezing interest and charges on any debts. These protections are provided for as long as the treatment lasts—plus another 30 days.
When people access this scheme, it can be life-changing. It can be the difference between people leaving hospital after a mental health crisis to find that bills and debts have escalated, thus putting their recovery in jeopardy, and having the space that they need to get back on their feet. I share the words of one of the Money and Mental Health Policy Institute’s research community members who has personal experience of accessing the scheme:
“Breathing space … has totally changed my experience from feeling hounded and persecuted to supported and valued”,
taking away
“much fear and sleepless nights coupled with dire days of depression”.
However, in its current provision, use of the scheme is significantly below its potential and the numbers that were forecast by the Government. When introducing the scheme in May 2021, the Treasury anticipated that 27,000 people would use it in its first year. Yet the most recent figures from last November show that only 4,404 people have accessed it in total. This underutilisation is due not to a lack of demand or need but to how the scheme is designed and delivered.
Existing NHS guidance on acute in-patient mental health care already states that wards should offer mental health crisis breathing space to those who need it. This is well-intentioned but does little to drive take-up of the scheme. In practice, thousands of people who would benefit from the support of this tool are missing out simply because nobody asks. On top of this, awareness of the mechanism is extremely low among mental health care professionals, meaning that, even when financial difficulties are spotted, it does not always result in people accessing the protections that the mechanism affords.
My proposed addition to the legislation would ensure a statutory obligation to offer this mechanism to those who need it most, requiring services to be more thorough in its implementation, with greater levels of accountability. Specifically, automatically offering the breathing space to people detained for potentially longer-term conditions would ensure that those whose incomes are likely to be adversely impacted by extended admissions can be supported. This intervention would target the core group that the mechanism was intended for.
To outline the possible reach of such a targeted intervention, in 2023-24 there were almost 11,000 detentions under the relevant Sections of the Act, representing a fifth of all detentions. Formalising the automatic offer of mental health crisis breathing space to this targeted group would go a long way towards ensuring that the mechanism supports the number of people that the Treasury forecasted it to serve. Crucially, after the breathing space period has ended, people would have the opportunity to be offered formal debt advice, with specialist support for those who need it, to ensure that financial difficulties are resolved on a longer-term basis. Legislating for the scheme to be automatically offered to those detained under the longer-term provisions of the Act would be genuinely transformative in preventing more people from experiencing the acute financial harms that too often accompany a mental health crisis. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Lord, Lord Davies of Brixton, and to offer the strongest possible support. These are issues that the noble Lord and I—the noble Lord very much in the lead and me following along in support—have engaged with on financial services and markets Bills previously. They are crucial issues for people’s well-being and the well-being of our whole society.
The noble Baroness, Lady Hollins, was talking on the last group about the patient journey. For someone who has become ill, who is seeking treatment and who has the weight of debt sitting on their shoulder, it is worth thinking about how damaging that weight of debt can be to the whole experience of the patient journey. It is worth thinking about how this interacts with issues around discrimination and unequal outcomes that we have looked at regarding other parts of the Bill in terms of the intersectional pressures that people can experience.
In preparing for this, I was looking at the middle of last year and mental health awareness week. The Women’s Institute was focusing particularly on the impact of energy debt, and 14% of the people in the study were at that stage in debt to their energy suppliers. Nearly a third said that they were worrying seriously about this. A fifth said that they had suffered sleepless nights. For the people who are suffering under debt pressures—single parents, very often women, or people from disadvantaged communities that are already economically disadvantaged—all these things feed in together. This is simply a measure for that. “Breathing space” is so evocative of the sense of taking off that pressure and allowing people the chance to focus on their own recovery and their own treatment, rather than just worrying away about that debt. I cannot see why the Government, or why anyone, would oppose this very modest measure.
Baroness Neuberger (CB)
My Lords, I should have declared interests before, as chair of University College London Hospitals NHS Foundation Trust and of Whittington Health NHS Trust. I also was a vice-chair of the review of the Mental Health Act, which reported in 2018 and is relevant, because I very strongly support this amendment to which I have added my name. It is something that the review did not address. We should have done. We did not have it raised sufficiently strongly with us by service users to whom we talked a great deal. That was an omission. It is very important that we do this. I hope that the Minister can say that this will be included in the legislation in its final form, and that she will accept this amendment or something redrafted along its lines.
I am very grateful to the wonderful Money and Mental Health Policy Institute—I pay full tribute to the noble Lord, Lord Bradley—for its briefings. When, in 2022, it conducted a piece of research looking at the finances of 200 people who had received care from secondary mental health services, it found that, quite unsurprisingly, a majority of the people who responded had experienced an income drop while receiving support from mental health services and struggled to pay their mortgages or for food, or missed a payment on energy, rent, council tax, or whatever it might be. This was a problem that kept coming back and they kept talking about. But the majority also expressed real support for the idea of making plans, ahead of time, for how to deal with their finances and how this would all be managed when they were unwell, as many people have episodic periods of being unwell. It seems to me that that piece of work is a cast-iron argument in favour of using breathing space to tackle these financial issues. I very much hope that the Minister will be able to support this.
Baroness Tyler of Enfield (LD)
My Lords, I rise very briefly to add my support to this amendment. I have been very pleased to add my support to all three of the amendments that the noble Lord, Lord Davies, has tabled in this area of financial inclusion. I remind your Lordships’ Committee of my interests as a member of the Financial Inclusion Commission and president of the Money Advice Trust.
I have always been a strong supporter of breathing space. It is a really important debt respite scheme, which has made a huge difference to the lives of many people struggling with debt. The idea of automatically offering this to people who are detained under the Act is absolutely the right thing to do. There is just so much evidence about the links between people spiralling into mental health crises and then into financial crises, which makes their recovery so much harder. I was pleased to hear the noble Lord, Lord Davies, talk about the sort of debt advice which might also then be available.
Everything that needs to be said about this amendment has already been said, so I underline my support for it and, like other noble Lords, very much hope we might hear some encouraging words from the Minister.
Baroness Watkins of Tavistock (CB)
My Lords, I very much support this amendment and do so for an additional reason to those already given, which is that it will reduce the time staff have to spend discussing debt with severely ill people in a time of crisis. One thing we need to do is improve productivity in the health service—I declare my interests in relation to that—and free up clinical staff to really support patients. I believe that this intervention would actually enable that.
Lord Kamall (Con)
My Lords, in speaking to this amendment, I pay tribute to the work of the noble Lord, Lord Davies, in raising this issue in this House and through his work with the Money and Mental Health Policy Institute. The noble Lord, Lord Davies, said he hoped that he would get my support; I can assure him of that. Today, and in previous groups of amendments related to advance choice documents, the noble Lord spoke powerfully about the need to understand the link between financial problems and mental health problems. It also reminded us that while this may not be seen as a priority for people detained under the Mental Health Act, it is not difficult to imagine why they might neglect their personal finances—obviously, not their first priority. During this time, their bills will not be paid, debts will grow, and this could lead to debt collectors or bailiffs being called in, making the situation far worse.
I was particularly struck by the personal testimony that the noble Lord, Lord Davies, read out, in the earlier group of amendments, from the person who was helped by the Money and Mental Health Policy Institute, about not being asked whether there was anyone who could open their mail and keep on top of their day-to-day living. For them, as the noble Lord told us, it was a spiral of going in for treatment and coming out to find that their finances were in a bigger mess than before. What would that do to someone who was suffering from mental health issues? It was a bigger mess, leading to terror, shame and guilt, and in fact it undid the work of the treatment that they originally went in for. Also, as the noble Baroness, Lady Bennett, has said, the phrase “breathing space” is very evocative of what we are asking for here.
It is worth repeating that this amendment does not require health and care professionals to offer financial advice. We are not asking them to be financial advisers or to deal with issues that they are not experts in. It is about empowering them to identify people in need and refer them to the appropriate existing support. As the noble Baroness said earlier, this will improve productivity and save all that time that would be wasted. It need not cost much money, or indeed any money in some cases, but could save the patient from financial and mental distress and save taxpayers’ money. For this reason, we are supportive of this amendment.
Baroness Merron (Lab)
My Lords, I am grateful to my noble friend Lord Davies of Brixton for raising what is a very real issue, among many we are debating today in Committee. I thank him for Amendment 135, supported by the noble Baronesses, Lady Bennett, Lady Neuberger and Lady Tyler, and spoken to by the noble Baroness, Lady Watkins, and supported by the noble Lord, Lord Kamall. I certainly agree that breathing space can indeed be what could be described as a lifebelt for people in problem debt, especially where this is worsening or is indeed a trigger for their mental illness, as my noble friend Lord Davies spelled out and the noble Lord, Lord Kamall, endorsed.
Individuals who are detained in hospital for assessment or treatment under the Mental Health Act are eligible for this scheme, as are those receiving crisis treatment in the community from a specialist mental health service. Approved mental health professionals can refer eligible individuals to protect them from debt enforcement. These professionals are often the first on the scene when a person is in crisis and are responsible for arranging assessment for treatment under the Act. Therefore, when a person is admitted to hospital, they may already have been enrolled in the scheme and, if not, NHS England guidance sets out the financial support, including referral to breathing space, that should be offered to patients receiving acute in-patient mental health care, whether detained or voluntary. I can say to your Lordships’ Committee that we do intend to make this an explicit requirement in the Mental Health Act code of practice.
I feel that is particularly important as my noble friend Lord Davies raised the point about uptake. Certainly, I recognise that uptake has been lower for the scheme than originally anticipated. While we do not believe this is a representation of the scheme significantly underperforming, I assure my noble friend that we will continue to keep the scheme under review to ensure that it is working effectively for those who need it, and needed indeed it is. It is for these reasons that I hope that my noble friend will withdraw the amendment.
Lord Davies of Brixton (Lab)
I thank everyone who has taken part in the debate; the case was made clearly by everyone. I thank particularly the noble Baroness, Lady Watkins, for the additional point about the pressure on clinical staff. This issue was, of course, raised in the earlier amendments about the code of practice and the treatment plan; they are all of a piece. I will consider carefully what my noble friend the Minister said, and perhaps we will have some discussions, and we will see where they go. In the meantime, I beg leave to withdraw my amendment.
Earl Howe
“Accessibility for children with physical disabilities(1) The Mental Health Act 1983 is amended as follows.(2) In section 131A (Accommodation etc for children), after subsection (4) insert—“(4A) Where a child who is accommodated under this section has needs arising from a physical disability, the managers, in determining the suitability of the environment in which the child is accommodated, must ensure that such reasonable adjustments to the environment are made as they consider necessary.”” Member’s explanatory statement
This amendment seeks to ensure improvements in accessibility for children with physical impairments who are accommodated in mental health inpatient units.
Earl Howe (Con)
My Lords, in moving Amendment 142, I will speak to Amendments 143 and 144 standing in my name and that of my noble friend Lord Kamall. These amendments are about one critical issue that has proved seemingly intractable despite best efforts for many years: the way the mental health system looks after child patients. I am not talking just about child patients who have been compulsorily detained under the Mental Health Act, although they are the subject of Amendment 143; I am referring also to children admitted to a mental health unit as in-patients for any reason at all. That is the subject of Amendment 144.
Noble Lords who are veterans of the last Mental Health Bill in 2007—I can see one or two—will remember that the late Lord Williamson of Horton, former Convener of the Cross Bench Peers, made this issue his crusade with, unfortunately, only limited success. We are still living with the problem. The current Mental Health Act code of practice says that it is government policy for under-16s not to be admitted to an adult ward, which is fine as far as it goes—although, in my book, when we talk about children, we should include young people aged 17 and 18.
The Government promised to eliminate the inappropriate use of beds in adult wards, but that has not happened. Last year, the CQC reported that 196 children were admitted to adult mental health units in 2022-23. This is not a trivial matter. The patient group Blooming Change, which I have mentioned before, has provided me with some first-hand accounts from children and young people who have been placed on adult mental health wards and who have been through some harrowing experiences. One has said:
“As a child I spent over 50 days in a mixed gender crisis unit … There was some very scary stuff that happened … During my first day on the unit, I witnessed a team of police dressed in riot gear with riot shields and dogs doing a drug search … At one point my bedroom was next door to a man who broke a student nurse’s nose and smeared his own bodily fluids over his bedroom wall … I was constantly scared and on edge and the ward was constantly unsettled. The staff on the ward were not trained on child restraint, so I often ended up really hurt … it would be, like, really big men who were used to going up to forensics to restrain people and then coming to restrain me, a little girl at the time, basically. It was horrific”.
That may be an extreme case, and one trusts that it is, but there are many cases that fall not far short of that level of emotional damage. It certainly is not that extreme as regards the complete absence for a child of any therapeutic benefit.
Another witness said:
“The worst thing about adult wards is you can’t access any intervention at all. No art therapy, no psychiatrist, because you’re under 18, so they say they don’t have the appropriate training to work with you. When I was on an adult ward, all my medication went unreviewed. I wasn’t allowed to ask for anything, not even allowed outside”.
What is the best way of solving this problem? The approach I have taken in these amendments is to say that, when a person aged under 18 is in desperate need of in-patient mental health treatment, the clinical decision-making around admitting that person to a mental health unit should be as rigorous as it can be to avoid, as far as humanly possible, admitting that patient into an adult ward. There surely to be a determination around best interests. There also need to be procedural safeguards so that, if it is decided that an adult ward is the only available option in a particular case, there is appropriate transparency around that decision, such that the local authority is informed of the fact and the hospital itself publishes statistics in its annual report recording the number of instances during the year when this has occurred.
I also suggest that a report to the local authority is equally appropriate in a situation where a child is accommodated in a hospital or mental health unit situated outside the local authority area in which the child is ordinarily resident. In one of our earlier debates, we talked about the particular vulnerability of children who are treated in a hospital far away from home. Alerting the child protection officer working nearby would go some way at least to mitigating the risk of the child self-harming.
There may be some Members of the Committee who think I have been far too lily-livered in tabling these amendments and who feel I should have tabled much stronger amendments proposing the outright abolition of placements involving children on adult wards. I quite deliberately have not done that for the reason we touched on in earlier debates: we have to work with the world as we find it, not as we would ideally like it to be. We have to recognise that, in a few cases—sometimes desperate cases—a temporary stay on an adult mental health ward could be the only way of saving a child from death or serious injury and, in those cases, I suggest that it is not for us in Parliament to prohibit the practice outright.
On Amendment 142, a child being treated in a mental health in-patient unit who also has a physical disability can sometimes get a very raw deal. If the unit they are on has areas that are, in practice, inaccessible to that child, that simple fact can have a huge impact on their access to treatment. One member of Blooming Change has said:
“I am physically disabled, and for me, the room to speak to the psychologist was upstairs in the unit, and there was no way for me to access that space. I kept being told she would come down to see me somewhere else during my stay, but it didn’t happen, so for me, my physical impairments meant that I didn’t get equal access to the support”.
This is not the sort of amendment I would choose, in the normal way, to bring back on Report, but the questions it raises are important enough for me to ask the Minister whether the department and NHS England are sufficiently aware of that kind of problem and what, if anything, is being done to address it. I beg to move.
Baroness Berridge (Con)
My Lords, I rise to speak to Amendments 159 and 160. Amendment 159 is similar to Amendment 143. It merely proposes a different notification procedure where a child has been present on an adult ward, but it also requires notification to the local authority and applies to out-of-area placements, which were mentioned by my noble friend Lord Howe. It is important that that information is given to the local authority, as it has the duties to safeguard—particularly children in need. I will speak to this on Amendment 160.
I join with my noble friend’s comments on how the Bill treats those who are 16 and 17. We have raised the issue in relation to other areas of the Bill that, in law, they are children, and they are treated as children by the professionals, as outlined in the example of the psychiatrist saying, “I don’t have the training to do this”. Under-18s are treated as vulnerable young people and children. One can also draw attention to the fact that under-18s are no longer allowed to marry in our country. We are increasingly coming into line with the fact that you are a child, and have the protection of the law as one, until you are 18.
Amendment 160 relates to “children in need” under Section 17 of the Children Act. Recommendation 117 of the Wessely review said:
“Section 17 of the Children Act 1989 should be amended to clarify that any child or young person admitted to a mental health facility is regarded as a ‘child in need’ so that parents can ask for services from their local authority”.
That will, obviously, be particularly important if the child has been placed out of area.
That recommendation was rejected by the Government in their published response to the review, but I note that the review also asked for this provision to be if the child is admitted—that means as a voluntary patient, of course, as well as just being admitted under the Act. I have laid this amendment to clarify the Government’s response to this. That response stated that, basically, it is not necessary to amend the Children Act because disabled children, which includes children suffering from a mental disorder, are already deemed to be “children in need”, so there is no need for this recommendation.
Baroness Tyler of Enfield (LD)
My Lords, I rise very briefly to add my support to Amendments 143 and 144, in the name of the noble Earl, Lord Howe. I added my name to these amendments. I am also very sympathetic to the other amendments in this group, both Amendment 142 and the two amendments that the noble Baroness, Lady Berridge, has just spoken to.
The noble Earl, Lord Howe, introduced these amendments in an incredibly compelling, moving and, indeed, comprehensive way. In a way, I do not feel that there is very much for me to add. I did have to think quite hard—there was part of me that wanted an outright prohibition, but I recognise the state of the mental health services we have at the moment. Unfortunately, there are times—hopefully, in only a few desperate cases, as the noble Earl said, and for a very short time—when these measures have to be taken. As undesirable as I think it is, we need to recognise the world in which we live.
I would also like to underline—because most of the debate so far has been about children in adult wards, which is clearly hugely undesirable—the importance of considering children placed out of area. That is, so often, when there is no suitable or available bed. It goes back to the issues raised by my noble friend Lady Parminter about eating disorder beds. It is hugely detrimental for children and young people to be placed out of area, away from their support networks—their family and friends who they so desperately need as part of their recovery at a time of real crisis—so I want to underline the importance of that, as well as the importance of real transparency and rigour when a child is, very unfortunately, placed in an adult ward, hopefully for a very short period of time.
Baroness Butler-Sloss (CB)
My Lords, I come to this totally uneducated, so what I have heard this afternoon I have found very shocking. I agree with what has been said already, and I was particularly shocked by the comments from the noble Earl, Lord Howe. I would like to underline what the noble Baroness, Lady Berridge, has said about the fact that these are children. They may be 17 and a half but, under the Children Act 1989, they remain children and, across all legislation dealing with children, “best interests” comes in.
From what I have heard, it sounds as though adult wards do not understand that these are genuinely children and have to be treated separately but, much more importantly, that their best interests are not necessarily, or almost certainly not, the same as those of adults. I wonder whether it should not be permeating all establishments, private and public, that, if they have to take into an adult setting those under 18, they have to deal with them in a special way. I remain horrified by what was said and I hope that the Minister, who is a particularly sympathetic person, will pick this up and take it across the board.
Lord Berkeley of Knighton (CB)
My Lords, I am only marginally less shocked than the noble and learned Baroness. The reason for that is that I regularly visited a friend in an adult ward, suffering, funnily enough, from eating disorders, among other things. So I support Amendment 144 most strongly. What shocked me was that, over several years, there were two children I saw. They were witnessing not only acts of violence but sexual acts too that were quite clear—I will not go into the details, but it was completely inappropriate for a child to be witnessing this.
The final point I want to make hinges on what we have also heard: that there is only so much we can do. Of course, the reason for that, and it is another reason why these experiences are seared into my mind, is the state of funding for mental health. No one can turn that switch on immediately, but the root problem here is that this is a sector that is somehow pushed to the side. Therein lies a fundamental reason why we have to take a completely different attitude to mental health, and I am sure that the Minister feels quite strongly about that herself.
Baroness Merron (Lab)
My Lords, I will turn first to Amendments 142, 143 and 144, in the name of the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall, and joined by the noble Baroness, Lady Tyler, on Amendment 143 and 144. I will also address Amendment 159 in the name of the noble Baroness, Lady Berridge.
I thank the noble Earl, Lord Howe, for the way in which he introduced this subject and for the understanding and shock shared by the noble Lord, Lord Berkeley, and the noble and learned Baroness, Lady Butler-Sloss. I am sure we all share the thoughts and views that they have expressed. I also thank the noble Earl, Lord Howe, for his reference to Blooming Change. I certainly recognise the important work that it does. The way he introduced its observations and experience really highlighted the reality of what we are here to deal with.
On Amendment 142, it is crucial that people with physical disabilities have equal access to mental health services. Under the Equality Act 2010, those providing mental health services, including under the Mental Health Act, must make reasonable adjustments to ensure that people with disabilities are not at a disadvantage. Therefore, the aims of this amendment are already covered by existing legislative requirements. I heard what the noble Lord said about an example of where this was not the case. I can only add my own comment to say that this is, of course, not acceptable and not at all how legislation would expect a provider to act.
We will review the guidance on how to support individuals with a physical disability, including children, when we consult on the revised code of practice and as part of NHS England’s new service specification, which will set out requirements for children and young people’s mental health services. I hope that will be helpful to meet the points raised in Amendment 142.
I turn now to Amendments 143, 144 and 159. The policy of NHS England is clear that children and young people should be able to access the right type of service, as close to home as possible and in the least restrictive environment. We do not want to see children and young people on adult wards or placed far from home. We are working to secure the necessary investment to expand community-based support and specialist beds to prevent this from happening. I am grateful to the noble Earl, Lord Howe, for referring to the need to deal with where we are rather than where we might like to be. That is what we intend to do.
There are already provisions in the Act that seek to limit inappropriate placements for children and young people. Under Section 131A, hospital managers must ensure that the patient’s environment is suitable, having regard to their age. We believe that the careful consideration and nuance involved in determining any circumstances where it is in a child’s best interest to be treated on an adult ward or in an out-of-area placement fits better in a revised code of practice rather than legislation, which would apply fixed rules that could not be adapted to individual circumstances or service provision.
We will provide additional guidance on the process to determine, and review throughout a child’s detention and treatment, that the environment in which they are accommodated continues to be in their interests. Such matters can be addressed through the new service specification for specialised children and young people’s mental health services.
I assure the Committee that there are already clear operational processes in place to identify and monitor children and young people in inappropriate placements. It is a statutory requirement for the CQC to be notified within 48 hours if a child or young person is placed on an adult ward. The CQC reports on the number of people under 18 admitted to adult wards as part of its Monitoring the Mental Health Act reports.
The CQC project on improving regulation for children inappropriately placed will identify what CQC can do to prevent children being cared for by providers who cannot meet their needs and to reduce their risks of being exposed to poor-quality care. I assure the Committee that we will review the process for who should be notified, and in what circumstances, in the new service specification for specialised children and young people’s mental health services, and in the revised Mental Health Act code of practice.
I turn to Amendment 160, tabled by the noble Baroness, Lady Berridge, on the extension of Section 17 of the Children Act 1989 to include children detained under the Mental Health Act. Section 17 places a duty on local authorities to provide support for children who are unlikely to reach or maintain a satisfactory level of health or development, or where their health or development would be significantly impaired without the provision of services—or where the child is disabled.
Earl Howe (Con)
My Lords, I am grateful to all noble Lords who spoke in this short debate and grateful for the support that they have expressed for the amendments, both mine and the others in this group. My noble friend Lady Berridge drew my attention to an inadvertent slip of the tongue that I committed in my earlier contribution. When I sought to define a child, I meant of course to say that we should include young people aged 16 and 17. In that regard, I was particularly grateful for the powerful interventions from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Berkeley of Knighton, citing their own experiences.
I much appreciate the Minister’s comments in response to these amendments, particularly Amendments 143 and 144. I believe, from what she said, that she and I are on the same page when it comes to age-appropriate settings for child patients. It was reassuring to hear from her what is contained in the current code of practice and what is intended to be included in the revised service specification. I am also pleased to hear that the CQC has it as part of its role to report on these very important issues.
I will study what she has said in Hansard and consider what is best to do between now and Report, but, for now, I beg leave to withdraw the amendment.
Earl Howe
“Recording of use of force on mental health patients(1) Each NHS facility must keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder, by staff who work in that facility and in relation to the patient’s diagnosed or suspected mental disorder, in accordance with this section.(2) Subsection (1) does not apply in cases where the use of force is negligible.(3) Whether the use of force is “negligible” for the purposes of subsection (1) is to be determined in accordance with guidance published by the Secretary of State. (4) The record must include the following information—(a) the reason for the use of force;(b) the place, date and duration of the use of force;(c) the type or types of force used on the patient;(d) whether the type or types of force used on the patient formed part of the patient’s care plan;(e) name of the patient on whom force was used;(f) a description of how force was used;(g) the patient’s consistent identifier;(h) the name and job title of any member of staff who used force on the patient;(i) the reason any person who was not a member of staff in the facility was involved in the use of force on the patient;(j) the patient’s diagnosed or suspected mental disorder;(k) the relevant characteristics of the patient (if known);(l) whether the patient has a learning disability or autistic spectrum disorders;(m) a description of the outcome of the use of force;(n) whether the patient died or suffered any serious injury as a result of the use of force;(o) any efforts made to avoid the need to use force on the patient;(p) whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan.(5) The facility must keep the record for 3 years from the date on which it was made.(6) In subsection (4)(g) the “patient’s consistent identifier” means the consistent identifier specified under section 251A of the Health and Social Care Act 2012.(7) This section does not permit the facility to do anything which, but for this section, would be inconsistent with—(a) any provision of the data protection legislation, or(b) a common law duty of care or confidence.(8) In subsection (7) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).(9) In subsection (4)(k) the “relevant characteristics” in relation to a patient mean—(a) the patient’s age;(b) whether the patient has a disability, and if so, the nature of that disability;(c) the patient’s status regarding marriage or civil partnership;(d) whether the patient is pregnant;(e) the patient’s race;(f) the patient’s religion or belief;(g) the patient’s sex;(h) the patient’s sexual orientation.(10) Expressions used in subsection (9) and Chapter 2 of Part 1 of the Equality Act 2010 have the same meaning in that subsection as in that Chapter.”Member’s explanatory statement
This amendment would require NHS facilities to keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder.
Earl Howe (Con)
My Lords, I beg to move Amendment 146 standing in my name and that of my noble friend Lord Kamall. On the previous group of amendments, I cited the experience of a child held on an adult mental health ward being subject to restraint, where undue force was applied by the staff involved, causing unnecessary pain and distress to the patient.
In fact, the incidence of restraint being used on children being treated in mental health settings—and, indeed, general hospitals—is alarmingly high. This fact was recognised in the Mental Health Units (Use of Force) Act 2018, which came into effect in 2022. However, despite the provisions of that Act, not only has there been no drop in the number of restrictive interventions that children are subject to but there has been an increase.
In 2023-24, a total of 84,626 restrictive interventions were carried out on children, which is a 51% increase on the year before. That is the highest number of restrictive interventions recorded since figures were made available in 2019, despite what appears to be a drop in the number children being treated in mental health units. It is not only that restraint is being applied in these cases; all too often, because there is a physical struggle involved in the process of restraining someone, that patient ends up with an injury.
What lies at the root of this? Blooming Change believes that restraint amounting to abuse is entrenched in the system. Unfortunately, that rather depressing view was borne out last August by the Independent newspaper, which reported that children in a mental health in-patient unit in Coventry were captured on CCTV
“being dragged across the floor”
by the staff. There surely has to be something here about the need for staff in all mental health settings to receive training in the different techniques for de-escalating a crisis, with physical restraint being regarded as a last resort.
In fact, with the two very welcome principles set out in Clause 1, “least restriction” and “therapeutic benefit”, the training of staff in appropriate techniques of control will, one hopes, become an even more important priority than before. I hope the Minister can let me have some reassurance on this very troubling set of issues. I beg to move.
Baroness Hollins (CB)
My Lords, I declare my interest and my experience as a retired psychiatrist, working for the majority of my career with people with learning disabilities and autistic people.
In 2019, the then Secretary of State for Health asked me to oversee an important review of the use of another restrictive intervention, long-term segregation, known as LTS, for people with learning disabilities and autistic people. The Government published the oversight panel’s report of that review simultaneously with their quite positive response to its recommendations in November 2023.
Amendments 155 and 156 in this group address critical issues highlighted in the report about the use of LTS and the measures needed to eliminate its use for people detained under mental health legislation. The amendments aim to improve oversight and accountability in its use, while pointing to the urgent need for appropriate community services to prevent delayed discharges. The proposed changes are not merely administrative; they are a necessary response to urgent human rights questions raised by the use of LTS, and indeed these other restrictive interventions covered by the noble Earl, Lord Howe, whose amendment I support.
The report, aptly titled My Heart Breaks, found that the mental and physical health of children and young people and adults detained in long-term segregation deteriorates as a direct consequence of enforced isolation. In medicine, we call this iatrogenic harm, and it is unacceptable. LTS is often used in association with other restrictive practices. There is substantial research evidence pointing to the harms of such enforced social isolation, including in conditions of solitary confinement. Nor does it have therapeutic benefit. Oversight panel members considered that LTS should actually be renamed “solitary confinement” to avoid the normalisation of the practice in healthcare settings. Currently, rather less clear terminology is used, perhaps to disguise what is really happening in practice.
It is interesting to note that not all psychiatric hospitals have rooms in which to detain people. The type of accommodation used is sometimes totally unacceptable, with people being detained in rooms with no natural light, with a mattress on the floor and no toilet facilities.
Amendment 155 would require notification of LTS to the CQC within 72 hours of its commencement. It would require that the CQC must initiate an investigation if LTS was used for more than 15 days within any 30-day period, and if it were used for a person under the age of 18, or for a disabled person whose condition would be exacerbated by its use—for example, an already psychologically traumatised person who would be further traumatised by the sensory and social deprivation caused by its use, which is probably most people.
The amendment would require that the code of practice introduced minimum standards for LTS, including access to natural light, outdoor space and meaningful human contact. As I am sure most noble Lords would agree, these are basic necessities for dignity and well-being. Psychiatric hospitals still using LTS would be required to appoint a responsible officer to review and report on its use to the CQC. They would also be required to comply with recommendations from independent care (education) and treatment reviews, known as ICETRs, as they relate to LTS.
Amendment 156 seeks to ensure that therapeutic alternatives to LTS have been properly considered by requiring independently chaired reviews for any person detained in LTS. Since the end of the Department of Health’s programme of ICETRs in 2023, which reviewed 191 cases between 2020 and 2023, the CQC was commissioned to restart the programme. The new programme includes that the independent chairs must follow up to see whether the recommendations have been implemented, but funding has been committed only to the end of this current year, while LTS continues. These reviews must be kept in place until the use of LTS comes to an end, or for as long as it is in existence, so the amendment would require ICETRs to be continued, and it outlines the role, responsibilities and authority of the independent reviewer. I hope the Minister will be able to assure the Committee that the continuation of these independent reviews will be funded.
By limiting the duration of LTS, mandating independent oversight and requiring therapeutic alternatives, we could protect people’s rights and lay the groundwork for effective rehabilitation and reintegration back into their communities. Meeting minimum standards and reclassifying such segregation as “solitary confinement” would rightly underscore its appalling and often inhumane nature. I know many clinicians dislike that term because it is equated with punishment, but it describes the conditions that we sometimes saw.
The excuse is often given that LTS is the last resort for a person, but in fact it is usually the first resort and the first response, because no appropriate care and support have been provided. I have seen systemic failures that are leaving individuals in restrictive settings due to insufficient community-based support. While commissioners and clinicians often act with good intentions, they lack the co-ordination, resources and expertise needed to deliver the care that is needed to keep people safe.
The amendments simply aim to ensure therapeutic care close to home. They require that, by monitoring the continuing use of LTS and understanding the barriers to eliminating its use, the CQC would be able to identify the themes, trends and changes that are taking place over time in the use of this restrictive intervention. I urge the Minister to support the amendments.
Baroness Ramsey of Wall Heath (Lab)
My Lords, I support Amendments 155 and 156, to which I have added my name. If they were approved, the Care Quality Commission would be required to ensure independent reviews of the suitability of continued segregation, with a particular focus on the potential for community support to be preferable. The amendments would also increase transparency and set minimum standards, both of which I am sure noble Lords will wish to support.
When I chaired, from 2017 to 2020, NHS England’s transforming care steering group for children and young people with learning disabilities, autism or mental health problems and challenging behaviour, I heard heartbreaking testimony from parents whose teenage and young adult children were segregated for weeks and months on end, as referred to by the noble Baroness, Lady Hollins. For example, I visited a non-NHS provider outside London that had kept one young adult woman—whose story appeared in social media at the time, noble Lords may remember—in segregation, in a room with no window and no natural light, and passed food to her through a hatch. She was completely alone.
As I and other noble Lords have already argued, investment in the right type of community support is the only humane way forward. To ensure that proper use is made of this investment, we should send out a clear message that we expect community services to be used wherever possible, rather than segregation. The way to do this is for the Care Quality Commission to oversee a process of independent review in any case of segregation of a young person under 18, anyone with learning disabilities or autism, or anyone whose segregation exceeds 15 days.
Baroness Browning (Con)
My Lords, I too was pleased to add my name to Amendments 155 and 156 in the name of the noble Baroness, Lady Hollins. She has already spoken on this subject, and it would be remiss of me not to say that the title of the report she mentioned, My Heart Breaks—which is of course in her name and authorship—was chosen for a purpose. This is a heartbreaking situation, and on the piece of paper I am holding in my hand, headed GOV.UK, it says: My Heart Breaks—Solitary Confinement in Hospital Has No Therapeutic Benefit for People With a Learning Disability and Autistic People.
As we have heard, it is not just that it is not therapeutic; it is actually harmful. On the terminology, other speakers have already spelled out why they have dumbed down the real raw facts of the language that they use to describe this type of incarceration—for that is what it is. It reminds one of prisons. Look at the legal structures needed to put somebody into a prison, yet people who are ill are treated in the same way as prisoners.
I remember visiting a school for autistic children many years ago. It had a single room where they took children who were having a meltdown. It was a padded room, and they felt that was the appropriate treatment for children. We know, from the many debates in this House about people who have been held for extended periods in mental health hospitals, the damage it does and the difficulties when these practices are in place.
Ironically, this does not happen everywhere. You have to ask why it happens in some institutions and not in others. There is an answer to that. It is not because of a different profile of patients in these two different types of settings but because in some places they understand the problem and have sufficient training and resources. Training of personnel, particularly senior personnel, is key. If the person in charge says, “This is what we are going to do”, very few people in the structure below them are going to challenge it, so that is what they do and it becomes the norm.
Fifteen months ago the noble Baroness, Lady Hollins, produced this report, which now bears government approval and GOV.UK and the Department of Health and Social Care on it. It is now really time for the Government to adopt the amendments from the noble Baroness, Lady Hollins, and her recommendations. It is a wealth of experience that we can only admire, and I urge the Minister to please accept these recommendations. They come from the very highest level. We are very lucky in this House to have the expertise of my dear friend, the noble Baroness, Lady Hollins.
Baroness Fox of Buckley (Non-Afl)
My Lords, I will speak very briefly and on a slightly related topic. I want to talk about a different group of people who are in long-term segregation who are not sectioned and often do not get mentioned—prisoners. Long-term segregation is used when very mentally ill people in prison are not transferred to hospital and nobody knows what to do with them. They are put into isolation and left there, psychotic, delusional and forgotten—dumped, in effect.
The noble Baroness, Lady Browning, alluded to prisons, but even prisoners should not be treated like prisoners sometimes. The confusion and conflation of punishment and treatment outside prison is no less shocking when it is inside prison. You are not meant to punish somebody doubly because they are in prison and happen to get ill.
The Chief Inspector of Prisons, Charlie Taylor, has made the point that the segregation units are completely unsuitable for people who are severely unwell. They are also a significant drain on the hard-pressed staff, because very often the restraints are of people literally going out of their mind. They are not getting any medical intervention at all. According to the chief inspector, it requires multiple officers to unlock the cells even just to deliver meals.
Is it possible for the Minister to give any thoughts on that? Also, in a way, this is an appeal to the noble Baroness, Lady Hollins—if she takes this amendment forward—to bring that into the situation, even though I know I am slightly squeezing it in because I have Amendment 160A on reviewing prisons.
On Amendment 146 and the use of force, I absolutely agree with the mover of the amendment in relation to the need to keep records. That is obvious. I suppose the nightmare for us all is the misuse of force. It is horrifying—the stuff of nightmares—when people are ill.
I do not want to be naive. I know that when people are very ill and very psychotic, sometimes appropriate force is necessary; I just think it needs to be recorded. When I say force, I obviously do not mean violence or anything not within the realms of professional intervention. Sometimes I think we forget how ill people can be and how violent and how difficult it is for the people who work with them. We should record every instance of the use of force but be wary of demonising or damning every use of it, because it is not quite as simple as that.
Baroness Watkins of Tavistock (CB)
My Lords, I support all three amendments in this group but make the point that a lot of NHS care is now commissioned into the independent and charitable sectors. It is vital that records are kept in any care setting that is paid for by the NHS, not just by NHS facilities. I also believe that recording will reduce these kinds of behaviours because it will make people think much more carefully, particularly in long-term segregation. As you get to 10 days, people will be thinking, “How can we change the care we are delivering to avoid that 15-day reporting sanction?”. It really is imperative that we do this. We are treating some of the people who have the greatest needs in our society really badly.
Baroness Barker (LD)
My Lords, we on these Benches offer our support to the noble Baroness, Lady Hollins, for her two very thoughtful amendments and the way in which she introduced them. However, I want to turn our attention to Amendment 146, in the name of the noble Earl, Lord Howe.
I was a colleague of Norman Lamb, who was formerly a Minister in the department. He was one of the people who was, as a Minister, most active in addressing the issue of the overuse of force in mental health. This is a campaign that he has continued to develop in his chairmanship of South London and Maudsley NHS Foundation Trust. It is a subject that I am very glad we are focusing on again.
Anybody who has visited a mental health facility in which there are people who are having acute episodes will know that there are times when, for the safety of the person and the safety of others, it is necessary sometimes to use restraint. However, as I think the noble Earl was alluding to in his introduction, the overuse and frequent use of force is often an indicator of substandard care. Therefore, it is very important that incidences of use of force and the reasons for it, as in his carefully crafted amendment, are recorded.
There are two things that I want to pick up with the noble Earl. His amendment is very carefully crafted. In his introduction to it, he referred throughout to children, but his amendment relates not just to children but to all mental health patients. For that reason, I wish to concentrate on proposed new subsection (9). It says:
“In subsection (4)(k) the ‘relevant characteristics’ in relation to a patient mean—”,
and then lists all of the protected characteristics within the Equality Act, with one omission: gender reassignment. I therefore wish to ask him simply why people undergoing gender reassignment do not merit the same protection as everybody else.
Baroness Merron (Lab)
I thank noble Lords for their contributions. Let me first turn to Amendment 146, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall.
The amendment largely replicate duties under Section 6 of the Mental Health Units (Use of Force) Act 2018 for all patients in NHS mental health units. We recognise that the data suggests that the use of force for children and young people is still far too high, and we are working with NHS England to address this. Although the section I have referred to has not yet been commenced, the guidance is published and the data is already being recorded and reported, and we plan to commence the duty formally later this year. The amendment as drafted would capture a much broader range of patients than the use of force Act does—for example, all patients who are being treated for dementia or delirium in an acute hospital. Furthermore, it is not clear what use will be made of that data. Therefore, the volume of new data collection processes could be significant, but the benefits that would result from this are somewhat unclear.
I turn to Amendments 155 and 156, which have been put forward by the noble Baroness, Lady Hollins, regarding long-term segregation. The amendments are supported by the noble Lord, Lord Crisp, the noble Baroness, Lady Browning, and my noble friend Lady Ramsey, both of whom made important contributions to the debate.
Like other noble Lords, I thank the noble Baroness, Lady Hollins, for her work on this issue over many years, including her significant report, My Heart Breaks, which the noble Baroness, Lady Browning, rightly referenced. We are here today, I believe, in no small part due to the tenacity of the noble Baroness, Lady Hollins, and others who have fought for better outcomes for people under the Mental Health Act. I thank them all.
Baroness Hollins (CB)
There seemed to be an assumption that long-term segregation would continue and that perhaps ICETRs are not effective, but one thing that emerges from an independently chaired review is some learning about the barriers in place and the reasons why LTS is being used, rather than more therapeutic options. That is the reason for this kind of oversight being necessary. It is not necessarily that the ICETR itself will lead to recommendations being implemented; in my report, we found that the recommendations were not being followed—they were made and then not followed through. There needs to be much more effort to try to learn from what is happening and begin to change the culture of LTS as an okay response to somebody’s distress.
Baroness Merron (Lab)
I understand that point, and the noble Baroness makes it very well. I simply refer her to the points that I made about needing to look at evidence, the outcomes and the value of those reviews, and whether that is the right approach for everyone. I take on board her point, but my comments probably tell the Committee that we feel that there is more work to be done in this area.
Earl Howe (Con)
My Lords, once again, I express my appreciation to all noble Lords who have contributed to this debate. I highlight in particular the speech of the noble Baroness, Lady Hollins, which I found extremely powerful and persuasive, as did other noble Lords.
It strikes me that this is an especially appropriate grouping of amendments. The overuse of restraint in mental health settings and the use of completely untherapeutic long-term segregation are equally pressing and emotive concerns.
The noble Baroness, Lady Barker, pulled me up slightly on the issue of protection for those undergoing gender reassignment. The concern that I had in drafting the amendment was to cover protected characteristics across the piece, but she has drawn my attention to a lacuna, and I am very grateful.
I was somewhat disappointed with the Minister’s reply on the issue of restraint applied to mental health patients, which, as the noble Baroness, Lady Barker, pointed out, is an issue affecting adult patients as well as children. The amendment was drafted with precisely that in mind. The point that I sought to make was that, despite the statute law to which the Minister referred, the incidence of restraint on children in particular has rocketed, which raises questions about clinical practice, staffing and training around the code of practice. To my mind, it was a pity that the Minister had little to say about those possible areas for practical follow-up.
I shall read again what the Minister said about my amendment between now and Report. For now, I beg leave to withdraw the amendment.
Baroness Keeley
“Human Rights Act 1998: provision of treatment for a mental disorder as a public function(1) This section applies where—(a) a patient is receiving after-care under section 117 of the Mental Health Act 1983,(b) a patient is accommodated in a hospital for the purpose of being given medical treatment for mental disorder, or(c) a person’s health or social care arrangements in connection with their mental disorder give rise to a deprivation of their liberty, within the meaning of that term as under Article 5(1) of the European Convention on Human Rights.(2) The provider of treatment or care under subsection (1) is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature, if the treatment or care is arranged by or paid for (directly or indirectly, and in whole or in part) by a local authority in England, Wales or Scotland, or by an NHS Health Board, an NHS Integrated Care Board, or by a Health and Social Care Trust.”Member’s explanatory statement
This amendment ensures the Human Rights Act 1998 applies when people receive outsourced mental health treatment or after-care, or are deprived of their liberty in connection with a mental disorder. It addresses a gap in human rights protection exposed by Sammut & Ors v Next Steps Mental Healthcare Ltd & Anor [2024] EWHC 2265 (KB).
Baroness Keeley (Lab)
My Lords, I rise to explain the significance of Amendment 149 in my name, which aims to ensure that the Human Rights Act 1998 protects individuals whenever the NHS, local authorities or other state bodies outsource mental health treatment or aftercare to private providers. It also seeks to secure human rights protection whenever people are deprived of their liberty, in connection with mental disorders, by private health or social care providers. I start by saying that I am not in any way a legal expert, so I thank Dr Lucy Series and Professor Luke Clements for raising the need for this amendment. I also thank them for their help in drafting the amendments and providing notes and briefings on the issue, and for working with a number of noble Lords and the Bill team on it. I also thank the noble Baroness, Lady Barker, for her support for the amendment and adding her name to it.
A growing proportion of mental health treatment and most social care is now commissioned from the private sector by the NHS and local authorities, but human rights protection does not necessarily follow. When Parliament enacted the Human Rights Act 1998, it was intended to apply to private organisations delivering public functions on behalf of the state. However, the courts have narrowly interpreted public functions.
In the 2007 case YL v Birmingham City Council, the House of Lords ruled that private care providers, being commercial operators working for profit, were not performing public functions, even when providing state-commissioned and funded care services. That interpretation appears contrary to Parliament’s intent, but it remains legally binding. Parliament partially addressed that issue with Section 145 of the Health and Social Care Act 2008, and later with Section 73 of the Care Act. These provisions state that private care providers commissioned by local authorities under the Care Act 2014 or equivalent legislation in Scotland, Wales and Northern Ireland are performing public functions as defined by the Human Rights Act. This ensured that individuals whose care is arranged by the Care Act are protected by the Human Rights Act, regardless of whether their care is provided directly by the local authority or outsourced to a private provider.
However, the recent High Court case of Sammut v Next Steps Mental Healthcare Ltd shows that mental health patients and many other users of outsourced health and social care services were still not protected. Mr Sammut had schizophrenia and, after being discharged from hospital, he was placed in a private mental health nursing home, using Section 117 aftercare. He developed constipation, a known complication of the antipsychotic medication he was taking. After his death from bronchopneumonia, large intestinal obstruction and faecal impaction, his family alleged very serious clinical negligence and brought a claim arguing that his human rights were violated. However, their claim was unsuccessful, as the judge held that the Human Rights Act did not apply because Mr Sammut’s care was arranged under Section 117 of the Mental Health Act 1983, not under the Care Act.
This judgment highlights the narrow limitations of the Human Rights Act as a remedy for those using outsourced public services, such as private care provision or mental health treatment. This raises concerns about the human rights protection of thousands of other people who are deprived of their liberty in private health and social care settings in connection with their mental disorders.
This amendment addresses gaps in human rights protection for three groups of people: patients like Mr Sammut receiving mental health aftercare from private providers; any patient receiving in-patient mental health services, whether subject to the Mental Health Act or not; and anybody who is deprived of their liberty in connection with a mental disorder by a private provider of health or social care. It has not been possible in this amendment to include all the other groups whose lack of rights are now exposed by the Sammut case, so it does not include children’s social care, as it is not within the scope of this Bill, or people receiving NHS continuing healthcare or other outsourced health or social care not arranged under the Care Act.
However, the amendment would ensure better protection for people with mental disorders in private care settings. I know that Dr Series and Professor Clements are also working on raising the issues that I just mentioned in relation to other Bills, including the Children’s Wellbeing and Schools Bill, so that they will also ensure human rights protection for those who draw on outsourced treatment, care and support. I commend this simple but important amendment, and I hope it can be supported.
Baroness Chakrabarti (Lab)
My Lords, I apologise to the Committee for my not having been able to speak at Second Reading and for seeking to intervene on one amendment only in such an important Bill. That is the amendment from my noble friend Lady Keeley, supported by the noble Baroness, Lady Barker. I declare an interest as a council member of Justice, the NGO that will no doubt have sent briefings to many Members of the Committee on this important amendment.
Amendment 149 is a no-brainer, which warrants support and adoption by the Government and welcome from every political tradition represented in your Lordships’ House. It is no surprise to the Committee, I am sure, that I am a supporter of the Human Rights Act and the way in which it has protected vulnerable people and their families, including in mental health facilities. Those are some of the most potent stories about the Human Rights Act over the last near-quarter of a century.
Contracting out services will always be a matter of high politics in a democracy. It is literally the meat and drink of left-right debate over social and economic management. This was amply demonstrated in contributions on an earlier group by the noble Baronesses, Lady Bennett and Lady Fox, the noble Earl, Lord Howe, and my noble friend the Minister. However, no one in that debate ever advocates for either public or private provision on the basis that vulnerable people should be less well treated or protected.
It is my contention that everyone in the Committee should support Amendment 149, which would ensure Human Rights Act protection for publicly arranged mental health care, whether delivered by a public or private provider. No social democrat or liberal can approve of public authorities being able to contract out of constitutional protection, and no conservative can approve of public authorities being able to avoid responsibility for negligence or harm to individuals and their families, especially where coercive power is involved. Finally, I am sure that all Members of this Committee believe in equality before the law.
This amendment closes not so much a loophole as a glaring omission in legal protection as exposed by the case law and the Joint Committee on Human Rights. I commend it to the Committee.
Lord Pannick (CB)
My Lords, I too support the amendment from the noble Baroness, Lady Keeley, and I agree with every word spoken by the noble Baroness, Lady Chakrabarti. I am here today because I have an interest to declare, which is that I acted—unsuccessfully—in the case that caused the problem. In YL v Birmingham City Council, I was the unsuccessful counsel for YL, although I take comfort from the fact that of the five members of the Appellate Committee who sat on that case, the two who dissented were Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale—a formidable combination indeed. The noble and learned Baroness summed up the point in her dissenting speech in the Appellate Committee. She said that it is a function of a public nature for the purposes of the Human Rights Act when it is performed pursuant to statutory arrangements, when it is performed at public expense, and when it is performed in the public interest. It is as simple as that. I agree with her, I agree with the noble Baroness, Lady Keeley, and I very much hope the Minister will accept this amendment.
Baroness Barker (LD)
My Lords, it is usual in your Lordships’ House for the people with their names on the amendment to speak first; noble Lords will understand why I stood back, given the previous two speeches. I understand how the noble Lord, Lord Pannick, felt, having the noble and learned Baroness, Lady Hale, in his corner. I do not want to repeat anything that the noble Baroness, Lady Keeley, has said, because she summed it up extremely well.
We are very lucky; we get to talk to lawyers of calibre and fame. But I want to stand up for the solicitors, lawyers and independent mental health professionals who, day in and day out, go and see the people who are in real distress or are forgotten about, who nobody else is terribly interested in. They make it their business to make sure they are treated like human beings, wherever they are. I simply take the occasion to say this, because right now, we have to take every opportunity we have to defend the Human Rights Act and the application of universal human rights. It is no good having human rights that you pick and choose and apply to the people you like. It is why I picked the noble Earl, Lord Howe, up on his previous amendment.
We are very bad at explaining the importance of the Human Rights Act to people in the community; it is fair game for every newspaper hack or whoever wants to take a go at it, but it is about making sure that vulnerable people are treated as full human beings in our society. Therefore, I hope that even if we have not managed to fashion the exact perfect amendment, the noble Baroness will agree that this deserves to be in the legislation.
Baroness Butler-Sloss (CB)
My Lords, I came in today particularly to support Amendment 149, as others, including the noble Lord, Lord Pannick, have clearly done. What we are asking for is either for the loophole to be closed or for clarification. I share with the noble Baroness, Lady Keeley, the view that the judges produced a somewhat narrow definition of the situation. I agree with everything that has been said, and I do not want to repeat it, but with a narrow interpretation by the courts and with some lawyers here in Parliament and others who have put things so beautifully, Parliament can put right what is happening. That is what I am here to support: Parliament putting right what at the moment is not clear, is a loophole and needs to be put right.
Earl Howe (Con)
My Lords, I should like first to speak to Amendment 160BC standing in my name. Although it may not look like it, this is a probing amendment. I have tabled it because I have been made aware of concerns that there is a serious lack of clarity around one aspect of the Mental Health Act 1983 that would greatly benefit from a clarifying statement from the Minister.
Let us imagine a patient who is detained in a mental health hospital under the Act and who requires urgent treatment in another NHS setting, such as a general hospital. The treatment, let us further imagine, is kidney dialysis—that is just a random example. Unfortunately, in this case, the patient is deemed to lack decision-making capacity for his own health and well-being, and the doctors therefore agree that if he is transferred to the other hospital, he will need to be restrained during the time that he is receiving the treatment, because if he is not, there is a likelihood that the treatment will not be deliverable.
The question then arises: in that particular situation, does the Mental Health Act 1983 allow for the patient to be deprived of his liberty in a setting other than a mental health hospital in order for necessary life-saving treatment to be administered? I am aware that there are contrary opinions among lawyers and clinicians as to the answer to that question. Some believe that, in that example, it would be necessary for the managers of the mental health hospital to apply to the court for a deprivation of liberty order under the Mental Capacity Act, which the court could grant under its inherent jurisdiction. I understand that this is standard procedure in a number of mental health hospitals. By contrast, other experts are clear that Section 17(3) of the Act already provides authority to place the mental health patient into the custody of the managers of the acute hospital and that there is therefore no need to apply for a DoL order under the Mental Capacity Act in order to achieve this.
Section 17(3) of the Mental Health Act says:
“Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital”.
Those words appear to confirm the opinion that I have just set out—that the responsible clinician can authorise “leave of absence” in another hospital, with the patient being kept in custody so long as this is seen to be in the patient’s best interests.
Unfortunately, it also appears that there is more than one way of interpreting Section 17(3). There are those who maintain that what one might call the carte-blanche interpretation is too broad a reading of Section 17(3), which they insist needs to be read with Section 63 of the Act. Section 63 says:
“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment”.
Taken together, those two sections say that the Mental Health Act authorises treatment only for mental disorders and physical disorders that are part and parcel of the treatment for the mental disorder; in other words, for treatment of physical disorders that are not directly connected to the mental disorder, a court would need to make the appropriate order under the Mental Capacity Act. Who is right? I should be very grateful if the Minister would use this opportunity to bring some clarity to bear on this area of the law, around which there appears to be a veil of fog. Whatever the answer, will she ask NHS England to examine the guidance contained in the relevant part of the code of practice to ensure that it is as clear as possible about what the current law permits?
Finally, I shall comment briefly on Amendment 149, which the noble Baroness, Lady Keeley, has tabled jointly with the noble Baroness, Lady Barker. I fully support this amendment. At the same time, I regret that it appears to be necessary, and I say that with some personal feeling. The issue addressed by this amendment is precisely the same as the one which in 2014, as a Health Minister, I endeavoured to close down by means of a government amendment to the Care Bill, which now forms Section 73 of that Act.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Earl, Lord Howe, for his reflection on both the Almighty and our legal friends, and I thank noble Lords for their contributions to the debate on these amendments.
I turn first to Amendment 149 and thank my noble friend Lady Keeley, supported by the noble Baroness, Lady Barker, not just for tabling the amendment but for the time and attention they and their expert advisers have given to this. It has been much appreciated. I take this opportunity to express my condolences to the family of Paul Sammut for the tragic loss of their loved one.
We recognise the concern around unequal coverage and rights to redress under the Human Rights Act. The Sammut judgment highlighted the need to clarify the position of private health and care providers under the Human Rights Act when providing care arranged and paid for by the NHS or local authorities, something that has come up a number of times in our debates. I am grateful to my noble friend Lady Chakrabarti, the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for their good humour and their expert contributions on this matter. We are actively considering this matter and I look forward to engaging further with my noble friend Lady Keeley and the noble Baroness, Lady Barker, ahead of Report.
On Amendment 160BC in the name of the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall, deprivation of liberty for the treatment of a physical health disorder is always an important decision. We are concerned that this amendment would, in effect, remove the need for a separate authorisation where physical health treatment is needed. We do not think it is right to undermine the protections available under the Mental Health Act to patients who are already, as we have heard, in a vulnerable position.
Furthermore, the situation this amendment applies to is rare and, where it does arise, there are already frameworks in place to authorise a deprivation of liberty. These include: Section 17 leave under the Mental Health Act; deprivation of liberty safeguards under the Mental Capacity Act; and, in certain circumstances, the High Court. The safeguards provided by these frameworks are different, and decision-makers must use their professional judgment to decide which is most appropriate for the individual. We feel that retaining this flexibility is important.
While we recognise that there is, at times, confusion among clinical professionals around which legal framework to apply—it is a point well made—we do not believe that this amendment would bring the necessary clarity. We feel this is best clarified using the Mental Health Act code of practice. I say to the noble Earl, Lord Howe, that I will reflect on the detailed points that he raised and will be happy to write to him further on them. For all these reasons, I urge noble Lords not to press their amendments.
Baroness Barker (LD)
Before the Minister sits down, I thank her very much, but I wonder whether she could include some of the rest of us in her correspondence with the noble Earl? We are back to the same issue of the interface between the Mental Health Act and the Mental Capacity Act. We need to keep coming back to this to get more clarity on it, because nobody understands it now. Whatever the Minister comes up with will be only a sticking plaster until the point at which we recognise that these two pieces of legislation continue to rub up against each other and cause confusion. They need to be addressed together.
So, would the Minister please include more of us in the correspondence, including the noble Baroness, Lady Browning? A number of speeches she has made throughout our deliberations have indicated that this is exactly the sort of issue that she is concerned about, too.
Baroness Merron (Lab)
Yes indeed, I will be pleased to include the noble Lords referred to.
Baroness Keeley (Lab)
I am very grateful to all noble Lords who have spoken in the debate today, including the noble Baroness, Lady Barker, who has supported the work we have done on this, my noble friend Lady Chakrabarti and Justice, which I should have mentioned earlier. I am very thankful to the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for bringing their expertise. I thank my noble friend the Minister for her positive response and I look forward to talking to her more about this and taking forward this amendment. But for now, I beg leave to withdraw.