Mental Health Bill [HL]

Report stage
Monday 31st March 2025 Lords Chamber

Report (1st Day)

Relevant documents: 10th and 18th Reports from the Delegated Powers Committee. Welsh legislative consent sought.

15:52

1: After Clause 3, insert the following new Clause—
“Application of the Mental Capacity Act 2005: autism and learning disability
(1) In Schedule 1A to the Mental Capacity Act 2005, paragraph 2, after the last line of the table, insert—

“Case F

P has autism or a learning disability and is not subject to any of the mental health regimes

See paragraph 5A”

(2) In Schedule 1A to the Mental Capacity Act 2005, paragraph 5, at end insert—
“5A (1) This paragraph applies in Case F in the table in paragraph 2.
(2) P is ineligible if the following conditions are met.
(3) The first condition is that P objects to being—
(a) admitted for treatment as a mental health patient, or
(b) given some or all of the mental health treatment.
(4) The second condition is that a donee or deputy has not made a valid
decision to consent to each matter to which P objects.
(5) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following—
(a) P’s behaviour,
(b) P’s wishes and feelings, and
(c) P’s views, beliefs and values.
(6) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them.
(7) For the avoidance of doubt, Case F and this paragraph do not apply to determine P’s ineligibility in respect of admission for assessment of mental disorder.””
Member’s explanatory statement
This amendment to the Mental Capacity Act 2005 would prevent the Deprivation of Liberty Safeguards scheme being used to replace detention under section 3 of the Mental Health Act for people with learning difficulties or autism who do not have a mental health condition.

[Baroness Browning (Con)]

My Lords, I will speak to Amendment 1, which is in my name, and then to Amendment 4, in the same group, to which I have added my name.

Amendment 1 is exactly the same amendment that I tabled in Committee. I have brought it forward yet again because I felt it was so important and I did not feel that we went into as much detail as we should have to recognise the real challenge that the Mental Capacity Act could have to the Mental Health Act, as amended by the Bill we are debating. I am enormously grateful to the Minister; she has not only had a one-to-one meeting with me specifically about this clause but has sent me a letter. I hope it will be appropriate for me to quote some of it.

I am concerned, as are others, including many charities—I refer to the charities I am registered to in the record—such as the National Autistic Society, Mencap and of course the Law Society, which I am grateful to for drafting this particular amendment. There is a difficulty with the Mental Capacity Act. Under the Bill, we wish to prevent people with autism and learning disabilities who have no additional identified mental health condition being deprived of their liberty—they should not be. The worry is that the existing Mental Capacity Act will be used instead to take away their liberty and admit them to a mental health hospital. We know the history in this area, which we have debated many times in this House.

In my discussion with the Minister, I raised with her the fact that the NHSE service model for commissioners sets this out very clearly. At 4.3, it says:

“Alternative short term accommodation (available for a few weeks)”—


we are talking about just a few weeks—

“should be available to people, as and when it is needed, to be used in times of crisis or potential crisis as a place where they can go for a short period, preventing an avoidable admission into a hospital setting. It might also provide a setting for assessment from teams providing intensive multi-disciplinary health and care support (see principle 7) where that assessment cannot be carried out in the individual’s home”.

I think we all recognise that there will be some circumstances under which people will not be able to remain wherever they are, in either their domestic home or their normal place of residence. But, none the less, there should be alternatives to them being admitted to a mental health hospital.

To detain them under the Mental Capacity Act and the DoLS—deprivation of liberty safeguards—has other consequences. Those rights in the Mental Capacity Act include the rights of the nearest relative or nominated person to object to discharge, accessible and automatic referrals to tribunals, independent reviews of medical treatment, statutory care and treatment plans, and of course Section 117 aftercare. So it is not a question just of the Mental Capacity Act being used to deprive people of their liberties; there are associated issues that almost take away even more rights from the individual.

As I mentioned, the Minister and I have discussed this in some detail and I am very grateful to her for agreeing in her letter to me, first, that she has concern—I believe she has genuine concern—about this area. In order to mitigate what might happen under the Mental Capacity Act, she has shared something with me in her letter. I hope this does not seem impertinent, but it is such a good letter and I hope she will put it in the Library, because I am sure it would be of interest to many people in the House. She gave me a lot of data about how the Government are already making sure, and will continue to make sure, that there is proper monitoring of people who are detained under the Mental Capacity Act who may have autism or a learning disability but who do not have an associated mental health condition.

In bold letters, the letter says:

“Ahead of the changes to Part 2, Section 3, we commit to monitoring the data on the number of people with a learning disability and autistic people detained under the MCA”—


Mental Capacity Act—

“and will include a line on this in our standard publications”.

The existing data shows that the number is very few—it is in single figures. But, although it is in single figures, the Act that we hope to put on the statute book does not want anybody: we do not want even one person detained, as they have been previously. We hope that the Mental Capacity Act will not be used.

In addition to this commitment in bold from the Minister in this letter, I am half-comforted, because the other half of the equation is what happens if people are to stay in the community but in specialised environments and with specialised staff to deal with what might be a crisis. We have mentioned that, with autistic people, there could be a meltdown, which can be quite traumatic for the individual and for the people around them dealing with them, but is not a psychotic incident—an autistic meltdown is not a psychotic incident and it does not warrant automatic admission to a mental health hospital. How are we to identify suitable places when these facilities are needed? Again, the Minister has made commitments to the services that should be available in the community for people with autism and learning disabilities to make sure that those services and facilities are available.

16:00

It is at this point that I take a deep breath, because the Minister will know that she has already indicated in Committee that many of the facilities that are needed and are expected as a result of this legislation need to be in place before this legislation is enacted. Already, at the time that we are debating it, we are expecting that this is not one of those Bills that will get Royal Assent and then be enacted pretty quickly; there are going to be delays while services and facilities are put in place. That is a very good thing—but in terms of the alternative facilities to what I would describe as incarceration, we need to be quite sure that there will be the resources, and this is something that will not be enacted for many years. I am not expecting it this year and I would be surprised if it was next year—but, after that, I would be getting worried if that facility was not available. When the Minister replies, I hope that she will be able to give some more tangible examples of how these facilities will go ahead and who will be responsible for them.

I am very grateful to the Minister, who has taken great care and gone into a great deal of detail on both these counts—on the data and the collection—to make sure that people are not caught in the Mental Capacity Act trap. She has also made it very clear that she is expecting, as a result of this legislation, facilities to be available to deal with this in a competent and humane way.

I move on to say a few words about Amendment 4 in the name of my noble friend Lady Hollins. I have added my name to that amendment, which also looks at the sorts of services and facilities that will be available to autistic people and people with learning disabilities. At this point, I wish to say something to the Minister—and I hope that, if she has not investigated it, she will agree to investigate it.

At the time when we are debating this, there is a Select Committee upstairs looking into the Autism Act 2009. Some of us are on that committee but unable to attend this afternoon because we are here in the Chamber. In 2009, I served in the Commons on the Autism Bill, a Private Member’s Bill from the late Dame Cheryl Gillan MP, and we put on the statute book the Act—the only Act of Parliament, other than the Mental Health Act itself, that is particular to a specific condition. We had a lot of compromise in getting the 2009 Act on to the statute book, but one of the good things that we got was a bit of a guarantee from a Minister about the duties to provide services for people with autism. I would like to put that on the record. It is a very short piece of legislation—I am holding the whole Act of Parliament in my hand at the moment and I shall quote Section 3(2), with the heading “Local authorities and NHS bodies: duty to act under guidance”, which says:

“Guidance or revised guidance is to be treated as if it were general guidance of the Secretary of State under section 7 of the Local Authority Social Services Act 1970 (c. 42) (local authorities to exercise social services functions under guidance of Secretary of State)”.

Underneath it, it says, for the purpose of that revised guidance, that it applies also to NHS bodies.

Therefore, both health and social services, unusually, come within the remit of this guidance, which has been on the statute book for a long time. Basically, it says that if services for people with autism are not provided or do not come up to scratch, the Secretary of State—under the local authority Act—has the power to call in the local authorities or health to question them as to why those services have not been provided.

I have to tell the House that in the years since the Act went on the statute book, I have periodically put down Written Questions to ask Ministers how many times the Secretary of State has called in someone from health or from a local authority because their services to the autistic community have been wanting. I can categorically say that, shockingly, no Secretary of State has ever exercised the power in the Autism Act. The Minister will get the point immediately, but I am worried that commitments in the Bill we are talking about today will somehow fall down the same black hole that this has gone down. This is one of the main reasons why I was particularly anxious that this House should post-legislatively review the Autism Act 2009.

I hope that when the Minister responds to these amendments, even if she has not read the Autism Act or is not familiar with this particular part of it, she will give some commitment that Secretaries of State will not ignore the promises made about services in this Bill and that we can be sure that those services will be in place before the Bill is enacted. I beg to move.

[Baroness Hollins (CB)]

My Lords, I will speak to a number of amendments in my name. I thank noble Lords who have added their support. I also support the amendment in the name of the noble Baroness, Lady Browning. I thank the Minister for the very helpful meetings and correspondence about the outstanding issues my amendments seek to rectify. I apologise for the slightly lengthy explanation that follows.

I declare my interests: I have the benefit of expertise from a psychiatrist attached to the Royal College of Psychiatrists parliamentary scholar programme and research support from a PhD student from King’s College London. Until November 2024, I was chair of the independent oversight panel to review the use of seclusion and segregation for adults with learning disabilities and autistic people. I am grateful to panel members for advice on my amendments relating to long-term segregation. The key message of the report published by the panel, My Heart Breaks, was that long-term segregation has no therapeutic benefits and that it can retraumatise already traumatised people.

When the Mental Health Act was introduced in the early 1980s, our understanding of learning disability and autism was limited, and therapeutic interventions were inadequately developed or trialled. The impact of trauma on the development of people’s behaviour—the behavioural responses to their trauma—and mental illness was very poorly understood. Regrettably, during the 2007 review, the appalling conditions experienced by patients subject to long-term segregation had yet to gain public awareness, so this group of people was once again overlooked and harmful restrictive practices persisted unchecked.

We now possess a much clearer understanding about the nature of learning disability and autism. We therefore know that they cannot be cured my medication or short-term therapies, and we understand the harmful impact of restrictive practices.

We know that therapeutic community-based settings offer far better outcomes where they exist, enabling people to lead fulfilling and productive lives, and community care is more cost effective than prolonged in-patient stays. Although I acknowledge the introduction of the Mental Health Units (Use of Force) Act 2018, this legislation alone cannot address the deeper systemic issues that I have encountered in my work.

The Bill is an opportunity to add the necessary external scrutiny, and the stricter safeguards needed for long-term segregation. Without this, we risk becoming more of a record-keeping tool rather than a catalyst for real change, and the Bill relies heavily on the Mental Health Act code of practice, which is guidance and not law. In practice, we know that services do not always follow it. It is a large document; I reckon that most psychiatrists probably have not read it. It is huge already, and we are going to add more to it.

The amendments I propose directly address these shortcomings. Amendment 55 would require notification of long-term segregation within 72 hours, significantly strengthening oversight from the beginning of this restrictive practice. The Minister has told me that the CQC is already looking for the best way to introduce notification, and I hope she can say more about that. If she is not minded to place this in primary legislation, please can we have an estimate of when this restrictive practice notification will be brought into practice?

Amendment 3 mandates immediate investigation and safeguarding reviews when minimum standards—which would need to be outlined in the code of practice—are breached, or when long-term segregation becomes prolonged or repetitive. Given the profound deprivation of liberty involved, I believe these safeguards are essential. If the Minister accepts no other amendment, can she please accept Amendment 3? One might assume that safeguarding is already in place, but my review found that there were certain definitions of what safeguarding is, and being in long-term segregation for long periods of time was not one of them.

Amendment 56 mandates independent reviews that would provide external oversight within 28 days of a patient being placed in long-term segregation. Experience shows that independent evaluations, especially when they are multidisciplinary, are one of the most effective mechanisms for disrupting institutional inertia and preventing prolonged and unnecessary segregation.

The introduction of independently chaired care (education) and treatment reviews by the Government in 2019 has already demonstrated the value of external scrutiny, but these reviews are only funded until the end of the current year. They have exposed and addressed issues that have been tolerated or overlooked within the host hospital for years. The impact is clear: when independent professionals review cases, inappropriate long-term segregation is far more likely to be challenged and addressed. Given their success, I believe that independent reviews should be a statutory requirement. If the Minister is not minded to accept Amendment 56, could she reassure your Lordships’ House that these independent reviews will continue to be funded for as long as long-term segregation exists?

We already have statutory oversight mechanisms for other hospital interventions. Medication and electroconvulsive therapy require review by second opinion doctors under the SOAD CQC system, yet long-term segregation—one of the most restrictive interventions possible—lacks equivalent scrutiny. Although tribunals oversee a patient’s detention under the Act, they rarely examine specific treatment decisions, such as segregation. A formal independent review process could be built into existing legal and oversight structures, such as SOAD and the CQC, without requiring significant structural adjustments. Of course, there will be workforce shortages in the short term. However, the cost of independent reviews is undoubtedly lower than the financial and human rights costs of keeping patients in long-term segregation for years.

The Government plan to revise the code of practice. Amendment 52 seeks mandatory updates to the code of practice to provide clear guidance about the minimum standards needed for the accommodation used, and strict standards for the initiation, continuation and termination of the enforced social isolation that is euphemistically called “long-term segregation”. Defining minimum standards is critical, given the appalling conditions in which some people are being detained. They are beyond your Lordships’ imaginations, I assure you.

Amendment 57 mandates the appointment of an independent responsible officer by a hospital manager to proactively monitor and address the use of LTS, to ensure compliance with independent recommendations and to actively promote less restrictive alternatives. This too could be brought into practice very quickly, because the SOAD independent review and obligations on hospital managers are already in place.

I thank Mencap, the National Autistic Society, the Challenging Behaviour Foundation and VoiceAbility for their help drafting Amendments 4 and 5, which would require His Majesty’s Government to publish a fully costed plan to provide sufficient community services. These services are needed to switch on the important learning disability and autism elements of the Bill. One of these amendments was originally tabled for Committee and has been revised in light of the Minister’s response. Both would require the Government to consult with stakeholders to develop and publish a costed plan to ensure that integrated care boards and local authorities provide a sufficient number of the right services, as needed, to people with learning disabilities and autistic people.

16:15

More than 2,000 people were still in in-patient units in February. Progress has been slow and key targets to get people out of hospital have been missed. With only a 29% decrease in the number of in-patients over the past 10 years and a wide variation in progress across the country, provisions in this Bill could make a real difference, ending the inappropriate detention of people with a learning disability and autistic people. However, campaigners and people with lived experience have serious concerns—I share them—that, without a plan to develop sufficient services, the pessimist’s fears will be proved correct. The key point here is that people with a learning disability and autistic people will be treated the same way as any other citizens under the future Act; they will no longer be detained for treatment under Section 3 of the Mental Health Act when they do not also have a coexisting mental illness. That is right, is it not? However, this equalisation switches on only when His Majesty’s Government judge that sufficient community support is in place.

I am not alone in being concerned that, without a comprehensive and fully resourced plan to build capacity in the community, this vital change will be delayed indefinitely and not implemented. That is the worry. I do not think that this amendment restricts the ability of His Majesty’s Government to make progress in any way; all it is asking for is a plan. If the amendment is not considered necessary, what plans is the Minister putting in place to consult on and publish a robust replacement for the Building the Right Support action plan, which is now out of date and has failed to achieve the promised transformation?

Furthermore, my Amendment 5 would require the Government to publish a yearly report on progress being made against the targets in the plan. The pace of change would be stepped up by requiring the Government to lay the plan before Parliament within one year of the Bill being granted Royal Assent, and requiring the Secretary of State to review and revise the plan as needed, until the relevant changes in respect of Section 3 are switched on by the Secretary of State.

There is still time to consult with stakeholders, charities and, crucially, people with a learning disability and autistic people to ensure that a comprehensive and sufficient plan is drafted. All that could and should happen now; this is all needed to end the inappropriate detention of people with a learning disability and autistic people who do not have a coexisting serious mental illness. Amendment 68 simply requires that Section 3 comes into force after two years.

I urge the Minister to support these important amendments, to ensure that there are essential protections for people with a learning disability and autism, and to redirect resources towards humane, community-based care.

[Baroness Meacher (CB)]

My Lords, I rise to speak very briefly to the issue of people with autism and learning disabilities being detained in hospital. Clause 3(4) amends the Mental Health Act to prevent people being detained under Section 3—in other words, for six months—if they have autism or learning disabilities. Should this not also be preventing detention of people with autism and learning disabilities at all, and certainly for 28 days, for example? Limiting this restriction to Section 3 is unhelpful for people suffering with these disabilities. This is a small point to raise with the Minister.

[Lord Crisp (CB)]

My Lords, I have added my name to one of my noble friend Lady Hollins’s amendments on community services and to four of those on long-term seclusion. I will speak very briefly to each topic.

On community services—I also support my noble friend Lord Adebowale’s amendment on this issue—I understand the Government’s concerns about timing and, presumably, costs, but I believe nevertheless that the Bill should provide legislative pressure to deliver community services for autistic people and people with learning disabilities. There is little point in using the Bill to set out a new legislative framework for this group if this does not include some notion of a plan or timetable, and it is highly likely that the service will simply fall back into the established patterns of non-therapeutic containment if this is not included.

I fully endorse the point made by the noble Baroness, Lady Browning, about the Autism Act. As one of the witnesses to the autism committee recently said, this is a pretty good law, but where is the action? Where is the implementation? That is the point, and we need some reassurance on a plan being forthcoming within a reasonable timeframe.

On long-term seclusion, I suspect that most members of the public would be surprised to know that what amounts to, in some cases, solitary confinement—I use that pejorative phrase deliberately—is used for such long periods in our institutions. We are talking about 15 days at a time and potentially more than that, over the course of a month, if there is a break between the 15 days and the next 14 days, for example. We should be particularly concerned about what happens out of sight in these institutions, where what should be a very rare occurrence at best can become all too easily routine.

These amendments open this long-term seclusion to greater scrutiny and control. They may not prevent it happening altogether, but they will help to make it a rarer occurrence. I refer in particular to two amendments, neither of which I have my name against—that is my mistake rather than anything else. Amendments 3 and 53 both refer to the code of practice and require that if people are kept in long-term seclusion for 15 days, or indeed the majority of 30 days, there will be clear monitoring and subsequent active intervention to take account of that. They are entirely reasonable amendments and do not raise funding, timing or any other issues. They are about ensuring proper scrutiny of what is happening to vulnerable people in some of our institutions.

In saying that, I am reminded of reading the report from Blooming Change, a young people’s organisation. I quoted the report at Second Reading, and it describes problems with safety and quality. There are descriptions of being injured during restraint, being drugged and restrained, and being scared all the time. It includes the terribly sad quotation:

“‘hospital makes you worse’… going into hospital with one problem and then leaving with trauma, new behaviours, new diagnoses, assaults, PTSD – it’s awful.”

We ought to be able to ensure that the code of practice for long-term seclusion is adhered to and that where it is not, it is properly investigated.

[Lord Scriven (LD)]

My Lords, I rise to speak to a number of amendments that I have added my name to, particularly those in the name of the noble Baroness, Lady Hollins. In Committee, the whole issue of people with learning disabilities and autism caused a number of concerns. I note that the Minister has gone some way towards dealing with some of those concerns, and it is a tribute to her listening and enaction skills that progress has been made.

I think it would be fair to say that there are still some concerns on Benches across the House about potential unintended consequences for people with learning disabilities and autism if the Bill goes through in its present form. In some areas, I would describe the statement from the Minister as, “It’ll be all right on the night”—but we know that, sometimes, it is not all right on the night, and things will happen.

The noble Baroness, Lady Hollins, puts forward quite an important base for long-term segregation. There is no evidence that it has a long-term therapeutic benefit for people who have learning disabilities and autism, and so the provision for it still being there, without laser-focused monitoring and intervention, is a weakness. The Minister really has to convince the House that the Government have a plan to deal with this.

The worry about having too much faith in the code of practice, as we found out in Committee, is that simple words such as “should” and “must” have very different meanings for whether or not there is a statutory obligation on an organisation. It would be interesting to hear the Minister’s view on the focus in the code of practice and on strengthening the words used.

Amendment 4, to which I have added my name, is something that the House should focus on and understand. Throughout the history of implementation of improvements in mental health and other areas where community carers come in, they have always fallen down on implementation, due to a lack of either funding or resources. Amendment 4 focuses on implementation. As the noble Lord, Lord Crisp, has just said, in the Autism Act 2009 Committee, we heard from two witnesses who said there is a plethora of policy but it is always the plan on implementation that fails. The amendment in the name of the noble Baroness, Lady Hollins, focuses on that implementation and asks that the Government have a real plan to do that.

It was worrying as we went through Committee, particularly when issues were raised about the numbers in the impact assessment, that the Minister pointed out that they are indicative. The amendment in the name of the noble Baroness, Lady Hollins, is required because, if we take a look at the trend of the percentage of total healthcare spend that has been allocated to mental health, including the Government’s announcement last week, we find that there have now been two years in which the total spend will be reduced. That means that some of the good ideas that the Government have mentioned with regard to the implementation of this Bill and community services are potentially at risk.

I do not know whether the noble Baroness will press her amendment, but, if she does, she will have the support of these Benches. We think this is vital, and we are not quite convinced, unless the Minister says something to that effect from the Dispatch Box, that that crack—that real weakness—has been dealt with.

[Lord Kamall (Con)]

My Lords, before I begin my remarks, I express my gratitude to the Minister and to officials for their engagement with not only me but other noble Lords between Committee and now. I know I am not alone in appreciating the amount of time and work that the Minister and officials have put into meeting with us, addressing our concerns, and even having follow-up meetings; that was very much appreciated.

I will speak to Amendment 1, in the name of my noble friend Lady Browning, and briefly address some of the other amendments in this group. We supported my noble friend Lady Browning’s intention to retable this amendment, which seeks to address the loophole which could lead to the use of the Mental Capacity Act to detain patients with learning disabilities but without a recurring condition.

As noble Lords have acknowledged, both in Committee and today, once the legal basis for detention under the Mental Health Act is removed for these patients, there was always a profound risk of them falling under the deprivation of liberty safeguards. Nobody wishes to see extra safeguards introduced into the Mental Health Act for that to be simply replaced with detention by another Act. My noble friend said today that she has received further assurances from the Minister—we are grateful for those assurances—and that she is no longer minded to test the opinion of the House. Had she been minded to test the opinion of the House, she would have had our full support, but I am grateful for the assurances that the Minister has given to my noble friend.

16:30

My noble friend Lord Howe has added his name to Amendment 6, in the name of the noble Lord, Lord Adebowale. Noble Lords around the House have raised concerns about the provision of community services. In Committee, my noble friend and I brought our own amendments to that effect. We particularly want to see more community services delivered in partnership with local charities, civil society organisations and other community organisations. It is right that noble Lords continue to push the Government to ensure sufficient community mental health services.

The noble Baroness, Lady Hollins, has tabled her own amendment that addresses the provision of community services for those with learning disabilities and autism. As with her other amendments, we are incredibly sympathetic to its intentions. I recall that one of my first debates when I was a Minister was addressing the issue of long-term detention. I know the Minister will remember that debate, when we heard horrific examples of people being detained for many years. There was a story only a few weeks ago of someone who had been detained for about 40 years. Although we are sympathetic, we feel that some of the amendments are, I fear, a bit too prescriptive. We will not be supporting them if they are called to a vote but neither will we vote against them.

Amendment 56, from the noble Baroness, Lady Hollins, seems sensible to us. The Government have some explaining to do as to how they are planning to ensure greater safeguards for those subject to long-term segregation. If the noble Baroness, Lady Hollins, is not satisfied by the Minister’s response, when Amendment 56 is called we may be minded to support her. With that, we look forward to the Minister’s comments.

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

My Lords, I start by saying how grateful I am to noble Lords for their amendments and for the contributions they have made today. I express my thanks at the beginning of this first day of Report for the generosity of time and expertise of noble Lords from across the House—I have greatly appreciated it.

I turn now to the specifics. As the noble Baroness, Lady Browning, is aware, I agree with the principle behind Amendment 1, but there are limited circumstances where it might be appropriate to use the Mental Capacity Act to ensure that patients get the right support. I am glad that the noble Baroness welcomed my letter and that it was helpful. For people who have recently received treatment for a psychiatric disorder under the Mental Health Act, the Mental Capacity Act may be required to continue to support the individual in hospital in the short term while a community-based placement is being arranged.

Monitoring our reforms will indeed be crucial, as many noble Lords have said today. The NHS England assuring transformation dataset collects data on the number of people with a learning disability and autistic people detained in mental health in-patient settings under the Mental Capacity Act. As the noble Baroness herself referred to, the current number is fewer than five; nevertheless, it is, as she said, important.

I reiterate from this Dispatch Box the commitment that I made in the letter. Ahead of reforms to Part II, Section 3, we commit to monitoring the number of people with a learning disability and autistic people who are detained under the Mental Capacity Act, and will include a line on this in standard publications. Should we see an increase in this number following the reforms and discover that the Mental Capacity Act is being used inappropriately, we will ensure that appropriate action is taken.

I thank the noble Baroness, Lady Hollins, for her work on long-term segregation. Many noble Lords have raised facilities and community resourcing. I will address this, and the concerns about commitments in this Act being applied, when I turn to Amendments 4 to 6. On Amendments 3 and 55, there is a requirement in the Mental Health Units (Use of Force) Act 2018 to publish instances of isolation in mental health units. We have consulted on making this and other restrictive practices notifiable to the CQC within 72 hours for all patients in mental health hospitals, allowing the regulator to take prompt appropriate action.

Practical concerns were raised through the consultation that was held, which we are legally required to consider. I hope noble Lords will understand that because of this I am unable to commit to mandating reporting at this stage or to give a timeline, which I was asked for. However, noble Lords can be well assured that I more than understand the urgency. My officials have written to the CQC to commission it to develop a proportionate reporting mechanism, as has been referred to, and these changes can be made in regulations.

The noble Baroness, Lady Hollins, asked about restricted practice notification. Because this is to be made in regulations, clearly that will be, as usual, when parliamentary time allows. Every NHS-funded organisation is responsible for ensuring that safeguarding duties are applied. The code of practice requires the local safeguarding team to be made aware of any patient in long-term segregation.

On Amendment 56, the code of practice already sets out that a patient’s situation should be reviewed by a clinician at least once every 24 hours and at least weekly by the multidisciplinary team. The CQC has received funding to continue the programme of independent care or care (education) and treatment reviews for two years, and reviews recommenced in May 2024. We need to consider the programme’s impacts and the outcome of the spending review before future decisions are taken. Doing this outside legislation allows for flexibility. The independent care (education) and treatment reviews model has evolved as we have learned about what works best. We want to be able to continue to deliver the right approach. On Amendment 52, we will review the guidance in the code of practice on the use of long-term segregation, drawing on available evidence. This does not require primary legislation.

To my point on drawing on available evidence, we will indeed use the report of the noble Baroness, Lady Hollins, alongside other evidence, to consider changes that need to be made to the Mental Health Act code of practice, which we will review as part of the implementation of the Mental Health Act reforms after Royal Assent. We hope that this, alongside other actions that we are taking—including the continuation of ICETRs and NHS England’s quality transformation programme—will make progress to reduce long-term segregation.

There were points raised about Amendment 53, which we will return to in the debate on the fifth group. On Amendment 57, it is our belief that this duplicates existing requirements. The Mental Health Units (Use of Force) Act 2018, once fully implemented, will require mental health units to have a responsible person who must keep a record of any use of force by staff.

I absolutely understand the concerns that many noble Lords have raised about community support. This has driven Amendments 4 to 6. I also recognise the need for accountability and scrutiny of these reforms—a point that has been made several times.

I say to the noble Lord, Lord Scriven, that I hope I am about to do better by him than, “It will be all right on the night”, but he will be able to judge that. I am pleased with what I can commit, which is that within a year of Royal Assent, and each year subsequently, we will lay a Written Ministerial Statement in both Houses. This will include setting out details of the work that has been done over the preceding 12 months to implement this legislation and plans for how we will implement future reforms. It will include progress on the learning disability and autism reforms and plans for community provision.

Regarding Amendment 68 and the remarks by the noble Lord, Lord Crisp, we have heard concerns about possible unintended consequences, such as the potential criminalisation of individuals or detention via other legislative routes. To avoid such scenarios, we will commence changes to Section 3 only once there are strong community services in place and it is safe to do so, because flexibility is essential.

I hope that these commitments will satisfy noble Lords not to press their amendments.

[Baroness Hollins (CB)]

Will parliamentarians be able to question and amend the plan that will be laid before Parliament every year? The lack of ability to influence that process and that plan concerns noble Lords.

[Baroness Merron (Lab)]

I have heard from noble Lords that they are concerned with having transparency, holding the Government to account and being updated on the situation. I absolutely agree with all those points, which is why I am pleased to make that commitment. Parliament has a number of routes available to it to hold the Government to account. I have just outlined the manner in which we will be transparent and the way the Government will be held to account by having to do that. As always, parliamentarians have the ability to scrutinise in many ways.

[Baroness Browning (Con)]

My Lords, we have heard a lot of very salient and not just helpful but wise words in the debate on this group of amendments. I thank the Minister for standing at the Dispatch Box and making commitments that are now on the record with this Bill. When people ask what Parliament’s intention was, she has left us in no doubt on some important points, particularly on my amendment concerning the need to monitor the use of the Mental Capacity Act in respect of autistic people and people with learning disabilities. I am grateful that she has done that and for a similar commitment I think I heard her make around some of the concerns that the noble Baroness, Lady Hollins, had.

Finally, the Minister has not given us exact dates as to when implementation will take place. We imagine it may be staged—not all in one go—but before the end of this year, the committee upstairs will report on the post-legislative scrutiny of the Autism Act. That will cover a wide range of issues, particularly services to people with autism. I hope that, perhaps in her deliberations on this Bill, when she sees that report—I cannot predict what the outcome of that will be—she will take those into account as well. For certain, services provided under the Autism Act, if they are provided in a timely way, will reduce the number of services that will be needed under the Mental Health Act. It is not rocket science; it is pretty basic that if you provide those services, that downward spiral in mental health is reduced. With that, I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Clause 4: People with autism or learning disability

Amendment 2

Moved by

[Baroness Butler-Sloss]

2: Clause 4, page 7, line 32, at end insert—
“(v) a person or persons with parental responsibility who have not received a court order restricting the exercise of their parental responsibility.”

[Baroness Butler-Sloss (CB)]

My Lords, I have three amendments in this group—Amendments 2, 25 and 27. They all relate to the relationship between parents, special guardians and others with parental responsibility, and the Bill.

I must first say that I am extremely grateful to the Minister and her team for having been allowed to try these points out on her on several occasions. I am afraid that I did not make a great deal of progress, but I hope that I made just a little. I do not propose to ask for the view of the House on any of these three amendments, but I hope that they will go into the code of conduct.

16:45

Amendment 2 relates to the preparation of reports. Those with parental responsibility are not currently referred to. The whole of the Bill—very oddly, to me—has little relationship with the Children Act. Since those aged under 18 are children, particularly those aged under 16, what concerns me about the Bill is that it does not seem to recognise that parents and other people with parental responsibility ought to have a say—absolutely not a veto, but at least to be consulted. Except for one very minor place in the Bill, they are not consulted at all.

My second amendment is on the ability to apply to the county court such that a nominated person should not be allowed to take that job and that their name should be terminated. The Bill currently does not include anyone with parental responsibility for a child aged under 16, who can nominate somebody without consulting the parents and without the parents currently having any opportunity under the Bill to say that that is not a suitable person.

Let me take an example that would not be all that unusual of a child aged under 16—14 or 15 years old—who is quite bright and already has a boyfriend. There is nothing unusual about that. They might already have a very unsuitable boyfriend and, regretfully, there is nothing unusual about that. Other people can go to the county court and say, “That boyfriend is entirely unsuitable and certainly should not be the nominated person”, but, under the Bill, the parents with whom the child has been living do not have any opportunity to be consulted or to go to the county court to ask it to rethink this nominated person.

Amendment 27 addresses the formalities for the appointment of a nominated person. Again, a competent child aged under 16 may perfectly well appoint his or her own nominated person without any reference to their parents. Under the Bill, there is a witness, who has to consult various people among whom—there is quite a long list—are not the parents, the special guardian or anybody with parental responsibility. Quite simply, the Children Act has been completely ignored.

However, I have had very interesting and helpful discussions with the Minister, who is to be congratulated on being prepared to put up with me going to talk to her extremely late in the evening. I hope that she will say in her reply that all this will be in the code of practice. If we can include parents, special guardians and other people with parental responsibility, where a court has not in fact said that their parental responsibility should either be terminated or reduced, and if ordinary decent parents can at least be referred to in the code of practice and expected to play a part, however small—not a veto, just a consultation part—that would be second best, but it would be better than nothing.

The other amendment I want to refer to is Amendment 34, which puts into effect that which I have been asking for and is being put forward by the noble Baroness, Lady Berridge. I very much support her amendment. I beg to move.

[Baroness Berridge (Con)]

My Lords, I shall speak to Amendment 34; I thank the noble Baroness, Lady Tyler, for adding her name to it. I am grateful too to the Minister for beginning, by way of the government amendments, to ensure that the Mental Health Bill does not conflict with orders of the family court under the Children Act.

Amendment 34 would ensure that the AMHP—approved mental health professional—appointing the nominated person for a child who lacks competence must appoint either the special guardian, when the family court has ordered one, or the parent with whom the child lives under a child arrangements order. His Majesty’s Government’s amendment reflects the current position under Section 37 of the Mental Health Act, and this amendment merely reflects the current position under Section 38. Under the Bill, however, the nearest relative becomes the nominated person and moves from a “must” in the Mental Health Act to a “should” in a code of practice.

According to the Government’s policy paper, His Majesty’s Government wished to give the AMHP the discretion to appoint someone other than that special guardian or the parent with whom the court has ordered that the child resides. Both those court orders affect parental responsibility. A special guardian takes all effective day-to-day decisions for the child and, according to the Children Act 1989, parents are left only with consent to a change of name or if the child is to leave the jurisdiction.

A kinship carer or foster carer is given parental responsibility by way of a court order after a report that has to be produced by the local authority to the court. Under a child arrangements order, the matter of who the child lives with or sees is determined, again, by a court order. A matter that is usually part of parental responsibility decided between the parents is now the subject of a court order. Breaching that order is, in fact, contempt of court—or a breach of a court order, as is normally said.

Many of these admissions of sick children who have no capacity are in the evenings or at weekends. That is what I was informed last Thursday by Dominic Marley of the AMHP Leads Network, whose clear view is that it does not want to be foisted with the discretion that His Majesty’s Government offer them. Why? It is because, quite simply, AMHPs are not equipped, unlike the family courts, to assess that there is now no risk of harm to a child, or to appoint someone other than the special guardian or the parent with whom the child resides.

How can AMHPs assess, at 10 pm on a Saturday night, that the daily life of a child is no longer what was outlined in the special guardianship order, or if the child now lives with that parent without a problem, even though that parent may have a history of not being able to care for them due to illness, or a history of violence, but has now recovered or reformed sufficiently? How can AMHPs assess that the parent who was ordered not to have contact after a week-long trial of the evidence in the family court is, in fact, safe to have contact with the child as the nominated person? AMHPs are simply not equipped to delve into complex family issues that have already been determined by the family court—nor, when they are trying to do a mental health assessment of a sick child, do they want to be distracted by this.

The remedy, as the noble and learned Baroness, Lady Butler-Sloss, outlined, is to enable the reformed parent in either of those cases to go to the county court under the nominated persons process, which, indeed, often hears cases within 24 hours. There is, of course, also the remedy to go back to the family court, but that would take longer. It is for that court to assess, we hope with a family judge, what the position is and whether that parent is now safe to be involved in the child’s life as the nominated person. It is unfair to put that responsibility on AMHPs, who see only a small number of Children Act cases each year. Also, as these cases are not straightforward—by definition, they have been subject to an order in the family court—AMHPs would almost certainly need His Majesty’s Government to provide out-of-hours specialist legal advice across England and Wales to help them do this. That matter would, obviously, be open to litigation.

AMHPs and the staff of a unit should not have this responsibility or discretion. What if a father who has a no contact order is given access as the nominated person and harms the child? Even if that does not happen, I cannot help wondering, can the mother go to the family court and say that the dad is in breach of the no contact order or in contempt of court by seeing the child as the nominated person? And would the dad defend that breach and say, “I need to call the AMHP to the family court”? This seems to be getting rather expensive and complicated. Family court orders should be respected, so who the AMHP must appoint as the nominated person should again be on the face of the Bill. Most importantly, this would eradicate the risk of harm to a child from a parent, who has been found by a court to be a risk to their child, getting contact with them, or getting access as the nominated person until another court determines otherwise. Court orders are amended by court orders, not AMHPs.

After eight years of looking at the Mental Health Act to reform it, we are now at Report stage and there are still significant conflicts between this Bill and the Children Act. I am left wondering why. Sadly, despite the considerable engagement that other noble Lords have mentioned by the Minister, which I know is appreciated, as of last Thursday, His Majesty’s Government have not met with the lead AMHP network that I have outlined, which represents over 90% of local authorities in England and Wales and has been in existence for over 20 years. The network is not aware of any other professional network being in existence. It was promised by the last Government that, before a Bill was produced to Parliament, it would be met with. As of last Thursday, His Majesty’s Government have also not consulted with the British Association of Social Workers, which has a special interest group of AMHPs. Why not? Will the Minister please outline precisely whether any AMHPs have been met with and, if so, tell us who are they are and make them known? The network I have spoken to is very concerned about this discretion.

The Minister has immunity while being a servant of the Crown; AMHPs and the staff of a secure mental health unit do not. All the AMHPs are asking for is what is indeed reflected in Whitehall. The DHSE has responsibility for the Mental Health Act and DfE for the Children Act. This is not their expertise. I do hope I will not be attaching this Hansard to a letter to a coroner, a CQC inquiry or any other inquiry if, God forbid, a child is harmed or killed in a secure unit by a parent.

Governing is about deciding. Without Amendment 34, His Majesty’s Government have, in my view, decided to take an unnecessary risk with the safety of some of our sickest children. As noble Lords may be aware from how I have outlined this speech, I intend to divide the House if necessary—but I hope the Minister will concede the point.

[Lord Meston (CB)]

My Lords, I would like to support both the amendments of the noble and learned Baroness, Lady Butler-Sloss, and the amendment just spoken to by the noble Baroness, Lady Berridge. It seems to me that, in the potentially complex and fluctuating family situations with which mental health professionals may find themselves having to deal, it is absolutely fundamental that they identify and consult those who have parental responsibility. It would be quite wrong, even in a hasty or urgent situation, for such people to be marginalised.

So far as the amendment from the noble Baroness, Lady Berridge, is concerned, I likewise entirely agree that the practical realities of operative family court orders, which may or may not be relevant, will certainly need to be understood and properly looked at before any urgent decisions are made. They will also need to be fully considered later when more measured decisions have to be made. For that reason, I would certainly wish to support her amendment.

[Baroness Tyler of Enfield (LD)]

My Lords, I shall comment on this important group of amendments. I have real sympathy with the amendments that have been tabled. I join others in thanking the Minister for the helpful and constructive conversations that we have had since Committee in a number of areas, including this one.

17:00

I welcome the Minister’s amendment, which recognises that approved mental health practitioners must appoint local authorities as the nominated person for children and young people subject to care orders. That is really important. I was also pleased to add my name to Amendment 34 in the name of the noble Baroness, Lady Berridge, because that would ensure that the Mental Health Bill aligned fully with the Children Act, particularly the various orders in relation to parental responsibility that are outlined in that Act.

Those two things are important and, I hope, would bring much-needed clarity and consistency to the difficult job that approved mental health professionals do. If they do not have that degree of consistency, they could potentially leave themselves vulnerable to legal challenge. These amendments, taken together, would ensure that the Children Act was no longer, as the noble and learned Baroness, Lady Butler-Sloss, said, ignored and that, through the scrutiny of this Bill, we had ensured that these two very important Acts were aligned.

[Earl Howe (Con)]

My Lords, this is Report and I do not propose to do more than underscore all that is been said by noble Lords who have spoken, particularly my noble friend Lady Berridge. Approved mental health professionals carry with them a huge responsibility for the well-being of those whose interests they are called upon to protect. When a child or young person suffers a mental health crisis, it is the job of the AMHP to make the right assessments, take the right decisions and follow the right procedures under the law to ensure that the young person is looked after appropriately and swiftly. To do that, he or she needs a clear set of ground rules to follow.

We need to imagine a situation, such as the one posited by my noble friend, in which a child’s mental and emotional condition is such that they lack decision-making competence. An AMHP is then called in. In that situation, when it comes to appointing a nominated person for the child, the scope for confusion and indeed delay is enormous. Who should be appointed? Is it the mother or the father, or is there someone else who should take precedence?

The Minister has acknowledged through the government amendments before us that, when there is a care order for the child, the AMHP should have no choice but to appoint the local authority as the nominated person for the child. That is a welcome step forward but, as my noble friend has rightly said, what if there is a special guardianship order or child arrangement order issued by the court under the terms of the Children Act? In those circumstances, too, the AMHP should be relieved of the obligation of making a decision that, if it is the wrong one, could leave them open to legal challenge. I very much hope the Minister will be receptive to the powerful arguments that my noble friend and the noble and learned Baroness, Lady Butler-Sloss, have advanced on these significant issues.

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for their contributions in this important area, and I thank the noble and learned Baroness, Lady Butler-Sloss, for Amendment 2.

On that point, I can say that a copy of the report made following a care and treatment review must be sent to those who have a legal duty to have regard to the review recommendations, so that they are implemented appropriately. We agree that parents play an important role. However, it may not be appropriate for the report to be sent to parents in every case: for example, where safeguarding concerns have been raised. Inappropriate sharing of information could result in the patient withdrawing their consent to the review. So we will provide statutory guidance on the role of the parent to assist the responsible commissioner in considering who to involve in care and treatment reviews.

On Amendment 25, also tabled by the noble and learned Baroness, Lady Butler-Sloss, the Bill already allows anyone involved in the patient’s care or welfare, which includes parents, to apply to the county court to terminate the appointment of a nominated person. I can assure the noble and learned Baroness that we will make this clear in the code of practice and the Explanatory Notes for the Bill, as she has raised an important point.

To address Amendment 27, we are concerned that making it a requirement for parents always to be consulted when a nominated person is chosen could put undue pressure on a child to choose a parent. However, we agree that the witness should consider the views of parents and others who may have insight into the suitability of a nomination. I can tell the House that we will therefore set out in the statutory code of practice how the views of the family and others should be fed into the witnessing process.

I have also heard the concern of the noble Baroness, Lady Berridge, about the nominated person regarding children who lack competence. In response to this, as she acknowledged, I have tabled Amendments 29 to 33 to make it clear who an approved mental health professional must appoint in certain circumstances. For an over-18 lacking capacity, an approved mental health professional must appoint a competent lasting power of attorney or Court of Protection deputy, if they have one. For all under-18s lacking capacity or competence, where there is a care order, they must appoint a local authority which has parental responsibility for them or, if relevant, a competent Court of Protection deputy. Where there is no care order, the approved mental health professional can appoint a person who does not have parental responsibility for 16 and 17 year-olds. This allows for suitable alternative arrangements, for example, informal kinship arrangements for young people who live independently. I hope that this reassurance and commitment on my behalf provides the further clarity for which the noble Baroness has been advocating.

Finally, in response to Amendment 34, we agree that in the vast majority of cases we would expect a parent, or whoever has parental responsibility, to be appointed. This would include consideration of special guardians and child arrangement orders. As I have set out before, we do not agree that a person with residual parental responsibility should always be blocked from being a nominated person. A child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child. For example, the parent might struggle with their own health issues but could still be an effective nominated person.

The situation is different in the case of a care order because the local authority is being given lead parental responsibility. We have engaged with the Children’s Commissioner on this point. As I believe the noble Baroness may be aware, I recently met the Children’s Commissioner on a range of issues, including discussions about the Mental Health Act.

If there are no relevant people, approved mental health professionals must follow the patient’s past and present wishes and feelings when deciding who to appoint. We do not believe that the eldest person should be given preference, as this represents an outdated assignment of responsibility. I assure the noble Baroness, Lady Berridge, that I have been advised that my officials met the chair—but I understand that the term is lead—of the AMHP Leads Network last November.

I can make a further commitment, which I hope will be helpful to your Lordships’ House. I am committing to establishing an expert taskforce to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process for children and young people. Views will be very much welcomed on who should be part of this; I have already invited the noble Baroness, Lady Berridge, and the noble and learned Baroness, Lady Butler-Sloss, to make suggestions about that. With these reasons, I hope that noble Lords can support our amendments and will not press their amendments.

[Baroness Berridge (Con)]

Before the Minister sits down, the information I have is that Dominic Marley of the AMHP Leads Network had not seen a draft of the Bill that was to go before Parliament. Can the Minister confirm that? The Minister has outlined that there can be an assessment of ill-health already before the courts. Is she confident in legislating when a group of professionals are saying that they are not competent to assess the illness or otherwise of that parent and that the matter, already determined by a court, needs to go back to a court to be re-evaluated? They say that they are not competent to do what you are asking of them.

[Baroness Merron (Lab)]

I note what the noble Baroness has said. We have discussed these issues a number of times in the Chamber and outside. On her second point, the situation is as I have outlined, and I do not feel I should go further today. These are the points I wish to bring before your Lordships’ House. I am happy to take up the points she raised separately. However, on her point about the exact details of the meeting, to be quite honest I cannot give that level of detail. I am very happy to find out more from my officials. The noble Baroness originally asked whether there had been a meeting, and the answer is yes.

[Baroness Buscombe (Con)]

My Lords, the Minister will know that I pledged at the very beginning, before the Bill came to this House, that I would do all I could to help its passage. I made that pledge to the Secretary of State. Given the continued conflict, as we see it, with the Children Act, would the Minister be prepared between now and Third Reading—rather than us dividing the House on this later—to have a little more discussion on this issue? We discussed it at great length during our inquiry into the draft Mental Health Bill. To us, it is a significant point that does not appear to have been properly resolved. In wanting to support the Government in making sure, as my noble friend has said, that they are not opening themselves to legal challenge, and to ensure a safe passage of the Bill, can I put that possibility to the Minister?

[Baroness Merron (Lab)]

I am grateful to the noble Baroness, not least because she has also given me a bit of time to add to my earlier answer to the noble Baroness, Lady Berridge, about the meeting with the lead of the AMHP Leads Network last November. That meeting took place after the Bill was published.

On the point the noble Baroness raised, whether the House will be divided will be a matter for the noble Baroness, Lady Berridge, and others to decide, but I am always happy to have discussions. If the noble Baroness wishes to do that, I will be very pleased to, as always.

[Baroness Butler-Sloss (CB)]

I do not think I need to say anything else. I am relieved to hear from the Minister that it will be expressly in the code of practice. I am also grateful for the idea that I can put forward some suggestions, which would be very helpful. I do not propose to take any further steps on my three amendments, and I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3 not moved.

Amendment 4

Tabled by

[Baroness Hollins]

4: Clause 4, page 10, line 5, at end insert—
“125FA Community Services Sufficiency Plan: commissioning of services for autistic people and people with a learning disability(1) The Secretary of State must prepare and lay before Parliament a document setting out a plan for resourcing and commissioning sufficient community services for autistic people and people with a learning disability to ensure the operability of provisions in the Mental Health Act 2025. (2) The document shall be referred to as the “Community Services Sufficiency Plan”.(3) The Community Services Sufficiency Plan must be published within one year of the day on which the Mental Health Act 2025 is passed.(4) The Community Services Sufficiency Plan must include—(a) a definition of “sufficient community services” in relation to autistic people and people with a learning disability, including how sufficient community services will be assessed regarding the operability of provisions in the Mental Health Act 2025;(b) the actions that the Secretary of State will take to ensure community services are available to meet demand for autistic people and people with a learning disability after the end of the 28-day detention period under section 2(4) of this Act (admission for assessment);(c) the actions that the Secretary of State will take to ensure that sufficient community services for autistic people and people with a learning disability are available to prevent detention under section 3 of this Act (admission for treatment);(d) plans to allocate appropriate resource to ensure operability of services, including, but not limited to, financial resource;(e) plans to ensure that responsible bodies and individuals receive the necessary training in autism and learning disability to carry out support, diagnosis, and treatment;(f) plans for data collection to support the commissioning of sufficient services for autistic people and people with a learning disability;(g) targets and milestones relevant to—(i) the number of autistic people and people with a learning disability who are detained under this Act, and(ii) the development of sufficient community services for autistic people and people with a learning disability,(h) any other information the Secretary of State deems relevant.(5) For a period of 10 years beginning on the day on which the Community Services Sufficiency Plan is first published, the Secretary of State—(a) must keep the plan under review, and(b) may revise it.(6) If the Secretary of State revises the Community Services Sufficiency Plan, the Secretary of State must publish it as revised.”

[Baroness Hollins (CB)]

My Lords, I am grateful for the promises made by the Minister, but they are not wholly reassuring and I had intended to test the opinion of the House. However, I would like to put on record the lack of support from the Opposition Benches, even though I have the support of many Members of the Cross-Bench group and noble Lords on the Liberal Democrat Benches. This lack of support is surprising, given the failure of their own plan, Building the Right Support. I fear it would be wasting the time of your Lordships’ House for me to proceed, so, instead, I will keep an eagle eye on the progress of the promised plan and the resources allocated to make it achievable, as well as the degree of challenge and amendment that will be facilitated. I will not move Amendment 4.

Amendment 4 not moved.

Amendments 5 and 6 not moved.

17:15

Clause 5: Grounds for detention

Amendment 7

Moved by

[Lord Kamall]

7: Clause 5, page 11, line 22, after “detained” insert “by a constable or other authorised person”
Member’s explanatory statement
This amendment and others in the name of Lord Kamall seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.

[Lord Kamall (Con)]

My Lords, these amendments in my name and that of my noble friend Lord Howe are really amendments from my noble friend Lady May, who unfortunately cannot be in her place today. As my noble friend told the House in Committee, when she was Home Secretary, a recurring concern raised by police officers was being called out to situations where they were expected to determine whether someone was at the point of crisis and what should happen to that individual. As we know, that usually meant taking the individual to a police cell as a place of safety—an issue that is addressed in other parts of the Bill. But police officers continue to be concerned that they are asked to deal with something for which they have no, or insufficient, training or knowledge.

As my noble friend reminded the House, a police presence is also often not good for the individual, as not only is that individual not being given the healthcare support they need, but the presence of an officer in uniform coming to deal with them could exacerbate their mental health situation. Even if the police officer is able to get somebody to a hospital, they might still be required to sit with an individual to make sure they do not harm themselves or others. My noble friend Lady May cited the Metropolitan Police’s evidence to the Joint Committee on the draft Bill, where it gave an example of a patient in A&E who was required to be guarded by eight Metropolitan Police officers over 29 hours to prevent them being a high-risk missing person.

In its letter to the current Secretary of State, the National Police Chiefs’ Council was concerned that the law as it currently stands

“arguably views mental health through the lens of crime and policing related risk, which raises … issues including disproportionality in the criminal justice system, discrimination, adverse outcomes for people suffering with poor mental health as well as increasing stigma attached to mental health”.

I make it clear that, although this amendment removes the statutory demand for the police to be the primary responders to incidents of mental health where there is an immediate risk to life or serious injury, the police will still have a role to play.

The amendments specify that the authorised person attending an individual should be

“trained and equipped to carry out detentions”

and should not be

“put at unnecessary risk by carrying out those functions”.

This is in line with the College of Policing’s 2019 mental health snapshot, which found that almost 95% of calls that police attend that are flagged as a mental health response do not require a police response.

The Minister will be aware that, in the joint Home Office and Department of Health review and survey of Sections 135 and 136 powers, 68% of respondents agreed that all or part of Sections 135 and 136 powers should be extended so that healthcare professionals could use them, provided that they were not putting themselves at risk. Paramedics in particular supported a change, with more than 90% agreeing and more than 60% strongly agreeing.

However, this is not just about the interests of the police and healthcare professionals. More importantly, we need to focus on the individual at the point of mental health crisis. They deserve the right response, the right care and the right person.

I note that the Minister, in our conversations—I appreciate her giving forewarning of this—discussed how the amendment as it stands appears to give the police more powers. I discussed that with my noble friend Lady May before I came to the Chamber, and she was surprised at this and said that it was somewhat disappointing, given the constructive meetings that the Minister and my noble friend have had, and given that the Metropolitan Police said that they were supportive of this move when my noble friend met representatives last year.

There is clearly a difference of opinion here, and we appreciate that we need to find a way forward. I know that my noble friend Lady May is open to discussions with the Minister to ensure that the principle behind these amendments is met. Could the Minister give a guarantee to meet my noble friend and that, following these discussions back and forth, she will be able to bring back an amendment at Third Reading?

The fundamental principle remains unchanged: the role of police in detentions under the Mental Health Act must be reduced, and it must be reduced for the patients’ and the workers’ benefit. If the Government can accept the principle but not necessarily the precise wording, I hope that the Minister will be able to give the assurances that I and my noble friend Lady May have asked for. I am afraid that, if the Minister cannot give the assurance that she can bring forward an amendment at Third Reading, having had discussions with my noble friend Lady May, we will have to test the opinion of the House. I hope that the Minister can help to find a constructive way forward with my noble friend.

[Lord Davies of Brixton (Lab)]

I am extremely pleased that the noble Lord, Lord Kamall, has moved his amendment for the Opposition. I will not be voting for it, but I am pleased that it has been moved because in Committee I moved amendments along the same lines.

I know that my noble friend the Minister agrees with the suggestion that there is a challenge here for the Government—she told me so. This issue is not going to go away, and it would be a constructive way forward for there to be a meeting—I would ask to be included in any such meeting. We are clear about where we want to get to, and that the appropriate phrase is “right care, right person”. I do not think that that is currently being delivered, so something needs to be done. I hope that we can move to a better system, in a constructive way.

[Baroness Barker (LD)]

My Lords, like the noble Lord, Lord Davies of Brixton, I find myself in exactly the same place. We all know why the police have said that they are not the appropriate people to be first responders when somebody is having a mental health crisis and presenting a danger either to other people or to themselves. We also know that not putting anything in place, or not putting the right people in place, means that somebody having a crisis will not necessarily be seen by an appropriate person.

A number of us have looked at this and talked to people in the field, and we think that what will happen is that there will be a response from somebody on the front line in the National Health Service, either in an A&E department—because that is where a lot of people will go—or, more likely, from an ambulance. That will put the ambulance service under even greater strain and pressure than it is under now.

It is the hope of those of us who have been involved in the discussions so far—and the intent, I think, of the noble Baroness, Lady May, who is the prime mover behind this—that we do not do that. We should not wait until there is a terrible incident in which somebody is badly harmed; we must try to foresee that situation.

I suspect that, around the country, since the police have taken the decision that they have, front-line health services have had to come up with new ways of responding. The issue has not gone away; people are still going to have mental health crises in which they are a danger to themselves or seem to present a danger to others.

I propose that we follow the suggestion from the noble Lord, Lord Kamall, that there be further discussion on this—preferably with people from mental health organisations and from different parts of the NHS, as well as the police force—to see whether we can come up with something that will plug a very obvious gap.

As I have said before during the passage of this Bill, this is the last chance for the next 10 to 15 years to pass legislation on this subject. We need to behave diligently, take appropriate action now and not wait to rue the day in the future.

[Baroness Merron (Lab)]

I thank the noble Lord, Lord Kamall, for tabling these amendments. They seek to amend Section 2 of the Mental Health Act, which relates to admission for assessment, and Section 3, which relates to admission for treatment, as well as Section 5(4), which relates to detention for six hours pending application admission.

I emphasise that the police do not currently have the ability to detain under Sections 2, 3 and 5 of the Act. These amendments, as the noble Lord has referred to and as we discussed earlier, would give police additional powers, where they currently do not have powers to intervene. The noble Lord will be aware, and he mentioned the fact, that we do not support extending police powers in this way, and we understand that the police do not support an extension either.

I am very happy to continue discussion with the office of the noble Baroness, Lady May, as I have done previously. I know that my noble friend Lord Davies would also welcome a discussion, which I am very happy to commit to.

The noble Lord asked for amendments on Third Reading, but such amendments are to clarify any remaining uncertainties, to improve drafting and to enable the Government to fulfil undertakings given at earlier stages of the Bill. I am sure the noble Lord will understand that amendments are therefore restricted to technical points. For all those reasons, I cannot give the agreement that he sought on an amendment at Third Reading, as it is not within scope to do so.

With regards to the ambition to reduce police attendance at mental health incidents, we recognise the pressures that police are facing, which noble Lords have highlighted, and agree that, in many cases, it is far preferable for those in mental health crisis to be responded to by health and care professionals. However, action is already under way to address this. Almost all police forces in England and Wales are implementing the “right care, right person” approach—a police-led initiative to reduce inappropriate police involvement in cases where people have health or social care needs. There has already been a 10% decrease in Section 136 detentions last year. We are taking steps to improve mental health services to avoid people reaching a crisis where police involvement may be required in the first place, which is a far more preferable position to be in. That includes through the Government’s commitment of £26 million of capital investment to open new mental health crisis centres, which are far more suitable environments for those in mental health crisis to receive care and treatment.

Therefore, extending these legal powers currently held by the police to other professionals would represent a major shift in roles and responsibilities for health and care professionals. It would place significant additional pressures on the NHS and potentially lead to staff, patient and public safety issues which mental health and urgent and emergency care leads have already raised significant concerns about. It is for all these reasons that I ask the noble Lord, Lord Kamall, to withdraw his amendment.

[Lord Reid of Cardowan (Lab)]

My Lords, just before my noble friend sits down and before the noble Lord, Lord Kamall, has to reach his crucial decision on this amendment, perhaps I may clarify something. As I understood it, my noble friend the Minister said she was more than happy to respond to the invitation or proposal from the noble Lord, Lord Kamall, and various other colleagues to discuss the issue further, but she obviously could not commit herself in advance to bringing forward an amendment. Is that the position?

17:30

[Baroness Merron (Lab)]

It is indeed. The noble Lord, Lord Kamall, was very specific about bringing an amendment forward at Third Reading, and it was to that that I explained it was not possible to commit. I thank my noble friend for allowing me to reiterate that.

[Lord Kamall (Con)]

My Lords, I am grateful to the Minister for addressing the points that were raised, and I listened carefully to what she said. I had hoped that she would be open to resolving this issue, as I know she is with my noble friend Lady May. However, once again, there is a difference of opinion. As I understand it, amendments brought forward at Third Reading do not have to be only technical amendments and I had hoped that the Minister would give an undertaking to bring back an amendment at that stage. Given that we have a disagreement of interpretation on two issues, I am afraid I think it best to test the opinion—

[Baroness Merron (Lab)]

It might be helpful for your Lordships’ House to know that to fulfil what the noble Lord says, there would be a need for collective agreement to offer a commitment to bring forward an amendment at Third Reading, which I do not have. I emphasise the point made by my noble friend on this.

[Lord Kamall (Con)]

That is entirely understandable. I know the Minister always means well in our discussions and always tries to find a solution, but, given that, it may be helpful to finding a solution if I test the opinion of the House.

17:32

Division 1

Ayes: 223

---

Conservative: 187
Crossbench: 19
Non-affiliated: 6
Democratic Unionist Party: 5
Ulster Unionist Party: 3
Plaid Cymru: 2
Labour: 1

Noes: 157

---

Labour: 144
Crossbench: 12
Non-affiliated: 1

17:43

Amendments 8 to 10

Moved by

[Lord Kamall]

8: Clause 5, page 11, line 33, after “detained” insert “by a constable or other authorised person”
Member’s explanatory statement
This amendment and others in the name of Lord Kamall seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.

9: Clause 5, page 12, line 6, at end insert “by a constable or other authorised person”
Member’s explanatory statement
This amendment and others in the name of Lord Kamall seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.

10: Clause 5, page 12, line 21, at end insert—
“(7) In section 145(1) (interpretation), at the appropriate place insert—““authorised person” means a medical practitioner, approved mental health professional, mental health nurse or doctor, or a person of description specified in regulations made by the Secretary of State, who has been trained and equipped to carry out detentions under this Act and who would not be put at unnecessary risk by carrying out those functions;””Member’s explanatory statement
This amendment and others in the name of Lord Kamall seek to introduce a new category of “authorised person” who can carry out detentions under the 1983 Act to offer better inter-agency response. The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.

Amendments 8 to 10 agreed.

Clause 6: Grounds for community treatment orders

Amendment 11

Moved by

[Lord Scriven]

11: Clause 6, page 12, line 40, at end insert—
“(2A) In section 17B (conditions) after subsection (7) insert—“(8) The responsible clinician must ensure that community treatment orders align with the code of practice as set out in section 118(2B).(9) A community treatment order shall have a maximum duration of 12 months, subject to the following provisions— (a) the responsible clinician may extend the duration of a community treatment order beyond 12 months only after— (i) consulting the patient, the patient’s nominated persons, and any relevant mental health care professional involved in the patient’s treatment or care planning;(ii) undertaking a review process to evaluate the ongoing necessity and therapeutic benefit of the community treatment order;(iii) consulting a General Medical Council registered psychiatrist regarding the conditions of the community treatment order and obtaining their written agreement that an extension is necessary and in accordance with the principles set out in section 118(2B);(b) community treatment orders with a duration of less than 12 months are not subject to the review process set out in subsection (9)(a)(ii);(c) a tribunal may recommend that the responsible clinician consider whether to extend, vary, or terminate the duration and conditions of a community treatment order.(10) Where a community treatment order is extended beyond a period of 12 months, the order shall be subject to review at intervals not exceeding six months, in accordance with the procedure set out in subsection 9(a).(11) At the conclusion of the default period or any extended period, the responsible clinician must undertake a review to assess the effectiveness of the community treatment order in aligning with the code of practice stipulated in section 118(2B).””Member’s explanatory statement
This amendment ensures that community treatment orders align with the code of practice, limits their default duration to 12 months, requires a structured review process for extensions, mandates six-monthly reviews for extended orders, and reinforces patient consultation and oversight by mental health professionals.

[Lord Scriven (LD)]

My Lords, I start this group on community treatment orders by thanking the Minister and her team of officials for dealing not just with this issue but with most issues in the Bill on a collaborative basis, which should be a blueprint for how Ministers should deal with people with different opinions to those of the Government. It is genuine thanks from these Benches.

I also thank my noble friend Lady Parminter for giving her lived experience of community treatment orders. In Committee, there was a huge divide in this House about whether they should continue rather than pragmatism on how we deal with the problem. My noble friend Lady Parminter focused our minds on that.

My amendment tries to deal with what I see as the major flaw of community treatment orders, whether or not we have a review of them, and that is their potentially indefinite nature. As for the way that these community treatment orders are implemented, whether they are effective or not, there seems to be a revolving door which some people find impossible to get out of. This has led to a number of issues about whether they have therapeutic benefit and whether the treatment is actually effective. There have also been huge issues to do with racial disparities in their use and the length of time that people are on a community treatment order.

Even if we agree Amendment 23, in the name of the noble Baroness, Lady Bennett, and Amendment 62, in the name of the noble Lord, Lord Kamall, to have a review of their effectiveness, something needs to be done now to ensure that the initial community treatment order is time-limited—I suggest 12 months—then if it is to be reviewed, it has to be reviewed by not just the consultant who is treating the individual but also by another GMC psychiatrist who has to agree in writing that there is therapeutic benefit for the community treatment order to continue. That review should take place every six months. That would not stop community treatment orders, but it gives an absolute, firm process, which needs to be in the Bill—not in the code of practice—to ensure that individuals who are on a community treatment order have certainty about the length of time and review. It would also require a second doctor’s written agreement about the therapeutic benefit of reviewing and continuing the treatment order.

I understand that the Minister will probably and quite rightly say that the Bill has moved forward and that there are certain elements which help with the review of treatment orders and the people being put on them. For example, the community doctor has to be consulted. However, there is a difference between being consulted and giving agreement. That is why my amendment talks about the agreement of a second doctor. Consultation in itself does not mean that community treatment orders cannot be indefinite, as they are in some cases. My amendment is practical and solves this problem. As my noble friend Lady Barker said, we tend to get legislation about the Mental Health Act once every 15 years, and we cannot wait another 15 years to deal with this anomaly.

I and others on these Benches would be supportive of a review of community treatment orders and of the evidence about whether they are effective in the grand sense. However, the practical pragmatism is that people will continue to be put on community treatment orders, that, even with the changes that the Government have put in the Bill, people would still be there indefinitely and that the second doctor’s opinion would not necessarily have to be taken into consideration if the order were to continue to ensure that there was therapeutic benefit.

I will not say much more, but I believe that my amendment is practical, needed and will get the correct balance both for service providers and for those who are on a community treatment order to deal with some of the unintended consequences we have found since they were introduced. It is a practical step to ensure that we get them right, if reviews take place. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Scriven, and to agree, in essence, with everything he said. Amendment 11 is truly important; it would immediately affect the well-being of some very vulnerable people in our community. Should the noble Lord decide to divide the House, the Green Party will support his amendment.

I will chiefly speak to my Amendment 23, which also relates to community treatment orders and calls for a statutory periodic review of them. I can see quite a few noble Lords in the House, so it is worth very briefly going back a little over what we discussed in Committee. The Joint Committee on the draft Bill concluded that CTOs should be abolished for people under Part II, the civil sections. For people under Part III, the Joint Committee recommended a statutory review of CTOs with a provision to abolish them unless the Government legislated to keep them.

My amendment does not go that far, but it starts from the point that the noble Lord, Lord Scriven, mentioned, citing the noble Baroness, Lady Barker: it is likely to be at least 15 years before legislative attention returns to the Mental Health Act. That is a very long time—especially for the health of people who are going through certain experiences. I stress that it is not my own initiative that brought this amendment forward; the organisation Mind encouraged me to do so. I will quote from a couple of people who Mind has spoken to about CTOs, because we have to consider what the actual lived experience is like. One person said:

“Being on a CTO is like being cornered … It is good that you are out of hospital but only a little better because it is so intrusive”.


Another person who had been on a CTO said that it can feel like:

“A tag that nobody can see but you know it’s around your mind”.


Throughout the debate on this Bill, we have considered getting rid of CTOs entirely. As the noble Lord, Lord Scriven, said, the noble Baroness, Lady Parminter, made the very powerful case that there may be circumstances and conditions where they are indeed appropriate. However, my amendment simply calls for a statutory review, so that we do not wait 15 years and then say, as we have been saying about so many aspects of what we are trying to fix now, “This has been terrible for so long. We really need to do something about this”.

I say to the noble Lord, Lord Kamall, that I am still planning to arrange the Trieste meeting; I am afraid I have not got there yet. Looking at community alternatives has to be the way forward. There are models around the world where that is achieved. If we were to have a review, as my amendment would require, then everything in proposed new subsection (3)—which looks at

“the impact … on people from different ethnic minority backgrounds”,

preventing readmissions and whether CTOs provide “therapeutic benefits”—would be considered within a reasonable period. We could affect and improve people’s treatments within a foreseeable period and not sentence them to another 15 years.

It is not my intention to divide the House. I very much hope that the Bill will continue to work on this, and that the arguments for including a statutory review will become evident as the Bill progresses. On that basis, I urge noble Lords, particularly the Minister, to consider that, and I echo the points that the noble Lord, Lord Scriven, made. My engagement between different stages of the Bill tends to be limited by the fact that I am juggling a great many Bills at the same time. However, I have heard reports of how the Minister has been engaging with noble Lords, and I hope that she and the department will bring an open mind to the idea that we should not sentence people to another 15 years of CTOs without a statutory review, because there have been so many questions and concerns about them. On that basis, I hope that we can move forward as the Bill progresses.

[Baroness Tyler of Enfield (LD)]

My Lords, I will very briefly speak in support of this very important set of amendments. As my noble friend Lord Scriven set out on Amendment 11, which I very strongly support, the case for having some conditionality around community treatment orders is overwhelming, including making them time limited and having a second doctor’s certification to confirm their therapeutic benefit. Both are very hard to argue against. They get the right balance between, as we heard in earlier stages, those who want to get rid of the orders altogether and those who feel that we need to tighten up the conditions. The other two review amendments are also very important.

Finally, we need to remind ourselves, as we did at Second Reading and in Committee, that black people are seven times more likely to be on a community treatment order than other members of the population. That is why this is so important.

[Lord Kamall (Con)]

My Lords, I thank the noble Lord, Lord Scriven, for the excellent way he introduced his Amendment 11. I fully support everything that he said.

The suitability of community treatment orders is an issue that has obviously featured heavily in the discussions on the Bill so far. I think that many of us came to the debates on the Bill, having read the Joint Committee’s pre-legislative scrutiny report, thinking that we were going to support the abolition of community treatment orders or be very sympathetic to that idea. However, two contributions gave us a reason to pause and think. One was the personal story from the noble Baroness, Lady Parminter; the other was hearing the noble Baroness, Lady Barker, say that she previously believed that they should be abolished before realising that they are entirely appropriate for a small number of situations or cases. In fact, given that one of the principles of the Bill is imposing the least amount of restriction, maybe they are the least restrictive solution for some incidents.

Having said that, very serious concerns obviously remain about the use of community treatment orders in their current form. Other noble Lords and I spoke in Committee about the overrepresentation of black males, which is what my Amendment 62 intends to address. It was a shame that the deliberations on this issue came so late at night, but I thank the Minister and her officials for their engagement. I asked three simple questions: what do we know about why black people are disproportionately detained? What do we not know? What research and work are we conducting—I know this sounds like a PhD research thesis seeking to generate the research questions so that someone can go from an MPhil to their PhD—and what is the gap in research to generate the questions for the primary research?

I was very reassured by the responses from the Minister and her officials that they take this seriously. They set out in detail the work that they are doing. In fact, the Minister put a lot of that in a letter to me. It would be unfair of me to ask her to read out precisely what is in that letter, because we would be here for quite a few hours, but can she share some of those assurances with the House? It would be very helpful for other noble Lords to understand why, given that letter, I have decided that I will not push my amendment to a vote.

As I said, the noble Lord, Lord Scriven, has struck the right balance. The amendment acknowledges that there are issues with CTOs and allows for their continued use, under restrictions. It is really important that, in every case, there is a review, and 12 months would seem an appropriate time for that review, rather than cases just being forgotten about, people being caught up in other casework or cases falling behind the filing cabinet—if there was another analogy I could use, I would. If the noble Lord, Lord Scriven, decides to divide the House, these Benches will support him.

I look forward to hearing some of the assurances the Minister gave to me and others on racial disparities. I hope also that she can address the concerns of the noble Lord, Lord Scriven.

18:00

[Baroness Merron (Lab)]

I thank the noble Lord, Lord Scriven, for tabling and speaking to Amendment 11, along with the noble Baroness, Lady Tyler. At the outset, I can say that it is already the case that community treatment orders can be renewed only under specific conditions, which aligns with the intent and direct requests of the noble Lord, Lord Scriven.

Alignment with the code and the four principles is already achieved by new Section 118(2D) of the Mental Health Act, which requires clinicians, before placing someone on a community treatment order, to have regard to the statement of principles in the code. Clause 6 ensures that a patient can be put on a community treatment order only if there is a risk of serious harm without it and a reasonable prospect of it having therapeutic benefit for the patient.

I assure your Lordships’ House that a responsible clinician cannot extend a community treatment order beyond six months, unless the conditions, including therapeutic benefit, continue to be met. A community treatment order can be extended for a further six months and then a subsequent 12 months, but only if these conditions continue to be met.

The current code of practice states that, before renewal, the responsible clinician should consult with the multidisciplinary team, the patient, the nearest relative—which in future will be the nominated person—and an advocate. I put it to the House that we are going further than the request from the noble Lord, Lord Scriven, by introducing a new requirement for the patient’s community clinician—who must be an approved clinician, overseeing the patient’s care as a community patient—to be consulted before a community treatment order is renewed beyond six months.

I have heard the concerns of the noble Lord, Lord Scriven, that the Bill requires just the second-opinion appointed doctor to be consulted, whereas the amendment requires the extension to be agreed with them. In response to that, I assure the noble Lord that, in addition, the community clinician must provide a statement that it appears to them that the community treatment order criteria continue to be satisfied.

We are increasing the frequency of automatic referrals to the tribunal to ensure that patients can come off community treatment orders when they are no longer benefiting them. The tribunal will have a power to recommend that the responsible clinician reconsiders whether a CTO condition is necessary. To elaborate further in view of the points raised, this means that, following an initial tribunal referral at six months, another referral is required after a further six months, followed by a mandatory referral 12 months after that, if the patient has not made an appeal themselves. The tribunal will have to agree the CTO criteria, including the requirement that a therapeutic benefit continues to be met. We are therefore already meeting the requests that the noble Lord, Lord Scriven, has rightly made and, in some places, going further than we have been asked to do.

I turn to Amendment 23, tabled by the noble Baroness, Lady Bennett. As I said on the similar amendment tabled by noble Lords on the Opposition Front Bench in Committee, CTOs remain a valuable intervention, albeit they need reform—as I more than acknowledge and accept. We will review these changes as part of our ongoing monitoring of the implementation and impact of the reforms. A review after two years would be premature, as it would be based on data from before any reforms were commenced. I say to the noble Baroness and your Lordships’ House that we will instead commit to review the impact our reforms have as part of our wider monitoring and evaluation of the Bill as it is implemented.

Amendment 62 is in the name of the noble Lord, Lord Kamall, and the noble Earl, Lord Howe. We are, as the noble Lord acknowledged, committed to addressing racial disparities under the Act—something I know the noble Baroness, Lady Tyler, was concerned about. I was very pleased to host a session a couple of weeks ago with leading academics, a number of officials from the department and Members of this House. We discussed in detail what is known and what further evidence is required. I give the assurance that work—as the noble Lord, Lord Kamall, has kindly acknowledged—is already under way, and we will continue to explore this issue. I am therefore happy to commit to undertake further investigation into racial inequalities under the Act.

The scope is to be developed further, but may involve synthesising findings of existing research, conducting a review of recent literature, and exploration of potential evidence gaps that require future research with experts and academics. Further research will receive sufficiently high-quality research applications and will be subject to the outcome of the spending review. I hope noble Lords will understand that we therefore prefer not to commit to a timescale in primary legislation but to allow time to develop and deliver research to ensure the best-quality evidence in this extremely important area. I hope noble Lords will not press their amendments.

[Lord Scriven (LD)]

I thank the Minister for that helpful explanation and description of community treatment orders. Despite all the words, whenever independent research is done, whether by the CQC, the Joint Committee or mental health organisations, the same answer keeps coming back. Something is fundamentally flawed, maybe not with the policy but with the implementation of CTOs. I note the Minister quoted the rule in the code of practice but, as we know, the code of practice does not necessarily have the legal status of something in the Bill. Therefore, for that reason and because there is an issue with community treatment orders, I believe that putting this in the Bill will not just change the practice but get the correct safeguards for people who are put on them. I would like to test the opinion of the House.

18:07

Division 2

Ayes: 272

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Conservative: 180
Liberal Democrat: 55
Crossbench: 22
Non-affiliated: 7
Democratic Unionist Party: 4
Green Party: 2
Labour: 1
Plaid Cymru: 1

Noes: 157

---

Labour: 148
Crossbench: 7
Non-affiliated: 1
Independent: 1

18:18

Clause 8: Appropriate medical treatment: therapeutic benefit

Amendment 12

Moved by

[Earl Howe]

12: Clause 8, page 14, line 19, at end insert—
“(iii) seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma;”

[Earl Howe (Con)]

My Lords, in moving Amendment 12, I will speak also to four other amendments in my name included in this group: Amendments 13, 15, 37 and 41.

To set the scene, there is a theme running through all the amendments in this group—not only mine—which is patient empowerment. All of us, I am sure, welcome the fact that patient empowerment is already writ large in the substance of this Bill, and as the changes that it makes are taken forward, as they will be, I am certain that they will be hugely beneficial to patients. However, as we heard in Committee, there remain features of mental health law and practice that give cause for real concern. My contention, which I am sure is shared, is that we should try to do all we can to make sure that the procedures, clinical practice and, if possible, cultures are made as good as they can possibly be in the way that this legislation is drafted.

My Amendments 12 and 13 are identical to amendments that I tabled in Committee. The point of them is to signal something important about the culture of mental health care. Many of us may take for granted that the aim and purpose of treatment in a mental health unit is to promote psychological well-being and recovery and to minimise distress, but we know that there are many patients undergoing treatment for whom distress and psychological trauma are ever-present features of in-patient care, particularly children and young people. The noble Lord, Lord Crisp, reminded us of that earlier. My Amendment 58, which we will debate in a later group, is designed to tackle this problem in a practical way.

The same applies to my Amendment 41, which brings us back to an issue that I am glad to say received strong support from noble Lords in Committee: the need to beef up the provisions in this Bill around advanced choice documents. ACDs are a great idea and I am delighted that the Government have recognised their potential for enhancing patient well-being, because that is what they will certainly do. We know from research that they have the potential to reduce compulsory detention rates appreciably, as well as reducing time spent in hospital. However, as the Bill is now expressed, patients will not be guaranteed an opportunity to create an advanced choice document, if that is their wish. All that we have in Clause 42 is a provision to allow commissioners to make information on ACDs available to people for whom they are responsible. I do not think that that is good enough.

I turn to my Amendment 15 and, in doing so, focus on an issue that has been brought to my attention by the Law Society relating to nasogastric tube feeding of patients in mental hospitals. The central concern here is that the Mental Health Act 1983 contains no specific safeguards for situations where nasogastric tube feeding of a patient is being proposed. That is because it is considered to fall under Section 63 of the Act, which does not require a second opinion appointed doctor. I suggest that this is unsatisfactory.

In January of this year alone, according to the most recent data, there were 1,975 uses of restraint to facilitate nasogastric feeding in England. Furthermore, a recent comprehensive audit of in-patient mental health units in England reported that the duration of nasogastric tube feeding under physical restraint ranged from a single feed to 312 weeks, with a mean duration of 29.1 weeks. In other words, this is an invasive procedure and the degree of invasiveness can be measured not just by the amount of force used but by the length of time for which the treatment lasts.

Professor Phil Fennell outlined the significant gaps in patient protection in the use of nasogastric tube feeding in his 2019 article, The Regulation of Tube Feeding: a Critical Analysis, and this highlighted the need for regulations.to govern the use of nasogastric tube feeding to achieve a more patient-centred approach to what is quite a drastic medical intervention. The same issue was previously raised in 2007 by the Joint Committee on Human Rights, which pointed out that forcible feeding is potentially a breach of Articles 3 and 8 of the convention, and it, too, questioned why it was not subject to regulation in the same way as ECT is under Section 58 of the Act. The response at that time was that the provisions were compliant with the ECHR.

However, this was before the decision in X v Finland, and in this case, the European Court of Human Rights found that Finland violated X’s rights under Articles 5, 8 and 13 of the convention. X was involuntarily admitted to a mental institution and forcibly medicated with nasogastric tube feeding, which the court deemed unjustified and a breach of her rights to liberty and privacy. Additionally, X lacked an effective remedy to challenge the forcible medication. However, the court did not find a violation of her right to a fair trial under Article 6.

The Law Society has put it to me that this highlights the wider need for safeguards, as patient X did not have sufficient avenues for challenging forcible nasogastric tube feeding. It strongly contends—and I agree—that the Bill represents a real opportunity for making a change to the law in a way that creates a direct safeguard for patients consistent with the safeguards applicable to electro-convulsive therapy, and that is what my amendment seeks to achieve.

Finally, I direct the House’s attention to Amendment 37. This returns us to a Committee debate we had on 22 January. The patient voice in mental health care is, I would argue, inherently weaker than it is in other fields of healthcare, and the patient experience that much more determinative of outcomes. That really matters because, as we know from evidence provided by the CQC and many patient-representative groups, the care of patients in mental health settings is frequently underresourced. It therefore carries with it a heightened degree of risk that acceptable standards of care are not always maintained.

In this amendment, which replicates the amendment I tabled in Committee, I am putting forward the idea that, if every patient discharged from a mental healthcare setting were to be given the opportunity to rate, comment on and provide constructive feedback on the treatment they had received while in hospital, the value to the system and the potential value to the patient could be very significant.

I know that the Minister does not take issue with this. Indeed, I am sure she is sympathetic to what I have said. What I must question, though, is the premise of her response to me in Committee. In that response, she sought to argue that the visits and interviews with patients carried out by the CQC fulfil a function that, in terms of transparency and empowerment of patients, is identical to the kind of debriefing that I am arguing for.

Having heard what I have heard from well-informed patient groups, I must beg to disagree. The reality of the CQC’s encounters and interviews with patients is an evidence-gathering process that is all too often skewed. Here are some of the comments from patients that have been relayed to me. “I know when we had a CQC visit, the nursing staff would steer CQC in the direction of patients who would reflect positively about the ward.” Someone else said: “A lot of the time, if you speak to the CQC, they will have staff present at the same time, so you can’t be honest”.

Patients have also expressed doubts about the effectiveness of the CQC’s monitoring process in general. I will share a couple of typical comments. “There’s been examples of where it took three to four years of the same consistent reports”—of a mental health unit—“for the CQC to eventually do something about it”. And again, “If this process”—of the CQC—“was working, young people would be having a much better experience”.

It has been put to me that one of the differences between the process adopted by the CQC and the debriefing process that my amendment proposes is that the CQC does not take an individualised approach to its monitoring. I am sure that the CQC is sincere in wanting to speak to people about their poor experience of hospital care, but, in practice, people say they have often felt dismissed when speaking about what they have experienced.

There is a wider point here as well. In the words of another patient: “De-briefing isn’t just complaining. It’s discussing and reflecting on events during admission and the patient’s experience in order to learn from it. A complaint is given and then dealt with behind the scenes, whereas a de-brief is a reflective discussion between multiple people where the young person is an active participant in discussing their own experience”. Another said: “It gives people the room to process things”.

In practice, the independent mental health advocate would take responsibility for the debriefing process. The Minister expressed concern about that and about the risk of overburdening those individuals. I appreciate that concern, but suggest that a conversation with a patient, or former patient, taking the form of a debriefing is squarely in line with the existing role of an independent mental health advocate. It would not be asking him or her to do appreciably more than they do already. As one patient put it:

“The IMHAs doing the de-briefing is already technically what they do, there just isn’t a formal name to the process … They don’t need any specific training to be able to manage the process as they already know what to do. They are there to advocate”


for them.

18:30

I genuinely believe that providing a mental health patient with the opportunity to reflect in relative tranquillity upon their recent hospital experience would not only benefit any future treatment that they may receive and help to hold institutions accountable but constitute part of the healing process for that patient. It would help them offload a burden that they carry and thus move on.

I am arguing, as much as the Bill does already, for greater patient empowerment and greater transparency around what is done to patients in our mental health hospitals. If the case that I have tried to make resonates at least to some degree with the Minister then I very much hope that she will consider it. I beg to move.

[Baroness Watkins of Tavistock (CB)]

My Lords, I will first reflect on the introduction to this group from the noble Earl, Lord Howe. I found it deeply moving. As many of your Lordships know, I am a mental health nurse. I have worked in locked units and acute units. Some of the things that he just described happened 30 years ago. What is so sad is that they are still happening now.

I will speak to the three amendments in my name, Amendments 14, 42 and 43. I thank other noble Lords who have added their names to them. These amendments have been drafted with help from the Royal College of Psychiatrists and are supported by several mental health patient and user groups and charities that work with the Mental Health All-Party Group in particular.

Amendments 14 and 42 would ensure that advance choice documents within the Mental Health Act are aligned with the existing best practice on providing such documents. Amendment 43 would ensure that clinicians and relevant bodies have a responsibility or duty to consider the information that is provided in the advance choice documents and use it to inform care and treatment orders given under the Mental Health Act. This is important. Clinicians, nurses and social workers need time to undertake the responsibility of sharing what is in those documents and trying—even if they are not always able to—to design care that reflects what people have asked for before. We continue to have a shortage of staff in mental health and very tight budgets compared with some other parts of the health service. If this is put as a duty in the Mental Health Act, it will help to resolve some of those issues.

I hope that the Minister can support the amendments, so that the rights of some of the most vulnerable patients from all ethnic groups in this country are strengthened within the documents, with the right to ensure that staff have enough time to deliver what is in the documents.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow that short but extremely powerful contribution, informed by so much professional experience. I think that the whole House would like me to acknowledge that.

My Amendment 63 is about the powers of tribunals to determine challenges against treatment decisions. In many ways the argument for this follows on from the noble Baroness, Lady Watkins, just said. Things go wrong. However much we are trying through this Bill to improve the treatment of people with serious mental illness, I am afraid that we all acknowledge that things will continue to go wrong. Again, I have tabled this amendment at the request of Mind, which feels that there should be something like this. The amendment would not create any automatic right. It says that the Secretary of State may, by regulations, make provision about appeals. It would set up the framework to make this possible.

We had extensive discussion on this in Committee. I will not rehash all of that. We are trying to create mechanisms of common justice, ways forward and possibilities. We all acknowledge that so much of what is in this Bill will not be delivered within a month, a year or even two years, but it is trying to create the frame to make that possible. This is a very strong argument for that.

The noble Baroness, Lady Watkins, powerfully made the case for Amendment 14. I added my name to it as it is so important that it should have a full slate.

I will briefly address Amendment 13, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, to which I have also added my name. All through Committee, it kept occurring to me, though I never found the place to reflect it, that the word “trauma” does not appear once in the Bill. I was really surprised about that. I thought about several debates that I have had, going back to the Domestic Abuse Act and the Schools Bill under the previous Government that never became an Act. There was a lot of discussion about the need for trauma-informed environments and trauma-informed care. There is a general sense of intention from your Lordships’ House that this is one of the things that we are thinking about, but there is nothing about it in the Bill.

Therefore, this amendment would add the words

“seeks to minimise the patient’s distress”

and promote their

“recovery from any childhood trauma”.

That is possibly a bit narrow. The Minister might take away and think about the fact that nothing in the Bill talks about the fact that so many of the patients we are talking about will have been through hideous traumas: childhood abuse, domestic abuse, war situations, torture—all kinds of circumstances. This is a chance to ensure that we put in the Bill, perhaps even more broadly than in this amendment, an awareness of the need to think about trauma. I think we are all thinking this, but let us ensure that it is written down in law.

[Baroness Hollins (CB)]

My Lords, I agree with the noble Baroness’s points about trauma.

I will speak to Amendment 53. I credit my parliamentary scholar with writing it. His experience as a practicing psychiatrist confirms my experience of many years ago, before I retired as a psychiatrist. The code of practice is too often ignored or inconsistently applied, leaving vulnerable patients without essential safeguards. A thematic review of independently chaired reviews into the use of long-term segregation, which I oversaw for the previous Government, found that around a third of providers were not reviewing long-term segregation in line with the current code’s requirements. Unfortunately, this problem extends beyond LTS and is evident across other settings, including acute care for individuals with personality disorders.

There is often a disconnect between what we assume guidance and policy achieve and the reality of front-line psychiatry. As the strategist Helmuth von Moltke said, no plan survives first contact with the enemy. In this context, no guidance survives contact with the complexities and pressures of day-to-day clinical care. That is precisely why guidance alone is not enough. Despite the requirement to have regard to the code, breaches frequently go unchallenged. Again and again, we see that statutory law, not just guidance, is needed to ensure compliance and protect patients’ rights. Also, detained patients are not in a position to take a provider to court if their treatment is not in line with the code.

That is why this amendment seeks to introduce a statutory accountability mechanism for non-compliance with the code of practice. It would establish enforceable obligations on providers, ensuring that failure to adhere to the code carried real consequences, that compliance is not optional, and that hospitals would be held accountable when failure to follow the code resulted in harm or breaches of a patient’s rights.

Legislation typically drives funding priorities. We have seen time and again that, where the law mandates action, resources follow. Section 2 of the Mental Health Act limits detention to 28 days. If this timeframe was merely guidance, would it be as strictly adhered to? Without a statutory requirement, would the same level of resource be dedicated to mental health tribunals? When the maximum detention period under Section 136 was reduced from 72 hours to 24 hours under the Policing and Crime Act 2017, we saw an immediate and dramatic change in practice across the country. If this had been guidance alone, I doubt we would have seen such swift and universal compliance.

Prior to the Mental Health Act 1983, patients could be detained indefinitely, with minimal safeguards and little external oversight. The introduction of statutory time limits and legal protections under the 1983 Act marked a turning point, contributing to the decline of long-term institutional care and supporting, importantly, the rise of community-based mental health services and rights-based community care. Without statutory backing, there is no guarantee that revisions to the code of practice will be implemented or enforced.

[Baroness Barker (LD)]

My Lords, at this stage I do not wish to detain the House for very long. I will simply reflect on the fact that, when we debate mental health legislation, we are always trying to do three things: one is to update current thinking in legislative circles on what patients want and need; the second is to try to gently confront the sometimes conservative disposition of practitioners, by pushing for progress; and the third is that we try to avoid the situation where the biggest imperative for legal change is scandal and crisis when something goes wrong.

The amendments put forward by the noble Baroness, Lady Watkins, along with others proposed by noble Lords in this group, do that. They have reflected on what has been seen over the last 10 to 15 years in the patient experience and the most progressive aspects of professional development, in particular the growing acceptance that patients can have informed insight into their condition, even if they are at times very ill.

That is why a number of practitioners—admittedly in the face of some professional resistance in other quarters—have gone down the route of advance choice documents. The key thing I will say to the Minister is this: it is always difficult in mental health practice to come across evidence which is up to the same standards that we have in physical health—namely, randomised controlled trials. However, there have been randomised controlled trials of advance choice documents in a number of different places around the world, and in the United Kingdom. They may not always have been called advance choice documents—they may have had other names—but the findings from those trials say that these are cost-effective interventions.

However, we know that there will not be widespread uptake, that attention will not be paid to what people have put in those documents, and that they will not become standard practice unless they are in law. That is why the noble Baroness, Lady Watkins, was right to come back to try to put this in the Bill.

[Baroness Merron (Lab)]

My Lords, I thank noble Lords for their contributions. I will take each amendment in turn.

The points on trauma were made extremely well and sensitively. Amendments 12 and 13 recognise the impact that childhood trauma can have on psychological well-being. This is indeed so. However, it does not apply to all patients, and that is why we do not wish to restrict decision-making by giving particular reference to this in legislation. I can point to Clause 8, which already requires decision-makers to consider the nature and degree of the disorder and all other circumstances, which could include childhood trauma. The definition of medical treatment under the Act is broad, as noble Lords have seen. Therefore, we expect it to cover interventions aimed at minimising distress and promoting psychological well-being. Additionally, NHS England’s care standards require that in-patient care be trauma informed.

18:45

Amendment 15 would apply stricter safeguards to the provision of artificial nutrition to patients detained under the Act. The noble Earl, Lord Howe, referred to nasogastric feeding and the importance of combating its use. We recognise that artificial feeding in this way is extremely serious—this was spoken to by the noble Baroness, Lady Watkins—but it can sometimes be a life-saving treatment. As ever, clinical decision-making is key. There are already regulation-making powers in the Act that can be used to place treatment under different safeguards. However, I can say today that we are committed to engaging with stakeholders on whether revisions need to be made on this front, including in relation to artificial nutrition, and I hope that will be welcomed.

With regard to Amendment 37, there are systems in place for capturing and actioning service user feedback under the patient and carer race equality framework. While some may not always work effectively, our preference is to work to improve existing mechanisms. Dr Dash is currently reviewing the healthcare quality and safety landscape, including Healthwatch England and local Healthwatch organisations, the core responsibility of which is to collect feedback from service users to promote service improvement. We look forward to Dr Dash’s recommendations, which we expect to bring forward improvements in this area.

The noble Earl, Lord Howe, referenced his view that the CQC does not take an individualised approach to monitoring and that, in practice, sadly, people could feel dismissed. Perhaps I could respond to that by saying that the CQC interviews thousands of patients as part of its monitoring of their MHA reports. I emphasise that this should be done in private, unless there is a good reason not to do so. I am sorry to hear of the feedback that the noble Earl referenced from patients who say that there have been occasions where the evidence that has been given may potentially be skewed. I can assure the noble Earl that I plan to raise this with the incoming Chief Inspector of Mental Health, Dr Chopra, when he is in post.

On this amendment, we do not feel that adding yet another mechanism, especially one that places greater burdens on independent mental health advocates, will achieve the desired intention. However, I confirm that we are committed to working with Blooming Change—I know that the noble Earl and other noble Lords have much engagement with Blooming Change—to inform our revisions to the code of practice and wider policy. We look forward to continuing to gain from its expertise.

I recognise noble Lords’ concerns around advance choice documents. However, it is felt that accepting Amendments 14, 42 and 43 would reduce the flexibility in the Bill that exists to support patient choice and autonomy.

On Amendment 41, we continue to be of the view that the right to an advance choice document is unlikely to improve their uptake. However, I have listened carefully to the concerns raised today and in Committee and we agree that the Bill could go further to help ensure the success of advance choice documents, so I am pleased to announce that we are exploring how we can strengthen and clarify the duties on health commissioners relating to advance choice documents. We intend to bring forward a legislative amendment in the Commons.

I am also pleased to commit to set out in regulations the need for clinicians to include a plan to help a patient make an advance choice document wherever appropriate, as part of their statutory care and treatment plan. We believe that this will facilitate the uptake of advance choice documents, which I know noble Lords are keen to see. More details on the intended coverage of the care and treatment plan can be found in the policy paper that I circulated before Report.

I turn to Amendment 53. The code of practice offers statutory guidance for functions under the Act, with a legally binding duty to follow it unless there are strong reasons not to do so. I know that noble Lords understand that there will be cases where departing from the code is necessary to achieve the best outcome; this is the advantage of guidance over legislation. However, such cases should be rare and strongly justified. CQC monitors the implementation of the code of practice and raises concerns through its monitoring reports and inspections. Breaches of CQC regulations due to departures from the code will affect a provider’s rating. Where a patient’s rights or safeguards are breached resulting in harm, remedial actions—including legal and disciplinary measures—are in place, regardless of whether the breach stems from departure from the code.

The noble Baroness, Lady Hollins, spoke to me earlier about ensuring compliance with the code of practice, which is a point well made. In response, I can say that the code sets out who must have regard to the code. Under current arrangements under the Health and Social Care Act 2008, registered providers must ensure that staff have appropriate training to carry out their role. Looking to the future, the department will work with NHSE, Social Work England and other partners to develop appropriate training for staff on these reforms. Once the code of practice has been updated, professionals working under the Act will be required to undergo training to maintain their competence and awareness of the Act. I emphasise that failure to have regard to the code may give rise to legal challenges, as noble Lords are aware. Courts will scrutinise reasons for departing from the code to ensure that there is sufficiently convincing justification in the circumstances that have led to this departure.

I turn finally to Amendment 63. This would significantly change the tribunal’s role, which focuses currently on reviewing detention, not treatment decisions. The previous Administration consulted on a similar recommendation from the independent review, and noble Lords may recall that serious concerns were raised. The tribunal is not designed to deal with complex treatment disputes, which need specialist input and established therapeutic relationships between the patient and clinician. However, the emphasis on therapeutic benefit in the revised detention criteria will see that the tribunal pays particular attention to the patient’s care and treatment and whether it is proving effective, as part of discharge decisions. For these reasons, I hope that noble Lords will not press their amendments.

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who have spoken so powerfully in support of the amendments in this group. I also thank the Minister for her full reply. In the interests of time, I will not cover all the issues at length; however, I am grateful to the Minister for her welcome assurances on my Amendment 41. It is excellent news that the Government will be taking forward my plea to strengthen the provisions around advance choice documents when the Bill reaches the other place.

On nasogastric feeding, I was glad to hear that discussions would be taken forward with the professions in the mental health sector. I hope that the Law Society’s concerns will be taken into account in those discussions.

Finally, I must express some disappointment at the Minister’s reply about the idea of a debriefing process for patients after leaving hospital. We cannot be sure that the work of Dr Dash will deliver progress in this area, and I still feel that the case I tried to put is strong. I will reflect on what the Minister said, but I reserve the right to test the opinion of the House when Amendment 37 is reached. For now, I beg leave to withdraw Amendment 12.

Amendment 12 withdrawn.

Amendment 13 not moved.

Clause 11: Making treatment decisions

Amendment 14

Tabled by

[Baroness Watkins of Tavistock]

14: Clause 11, page 17, leave out line 39 and insert “statements set out in an advance choice document).”
Member's explanatory statement
This amendment seeks to align the Mental Health Act with the existing best practice on providing advance choice documents.

[Baroness Watkins of Tavistock (CB)]

Amendment 14 is not moved, but I express my thanks to the Minister for her work on advance choice documents.

Amendment 14 not moved.

Clause 15: Electro-convulsive therapy etc

Amendment 15 not moved.

Clause 18: Urgent electro-convulsive therapy etc

Amendment 16

Moved by

[Baroness Blake of Leeds]

16: Clause 18, page 24, line 31, leave out from beginning to end of line 2 on page 25 and insert—
“(2) The treatment may be given to a patient who has capacity to consent to the treatment only if—(a) the patient has consented to it, or(b) the patient has not consented but a certificate has been given by a second opinion appointed doctor under subsection (4).(3) The treatment may be given to a patient who lacks capacity to consent to the treatment only if—(a) the giving of the treatment would not conflict with any of the following—(i) a valid and applicable advance decision, or(ii) a decision of a donee or deputy or the Court of Protection, or (b) the giving of the treatment would conflict with such a decision but a certificate has been given by a second opinion appointed doctor under subsection (5).”Member's explanatory statement
This amendment clarifies that the requirement for a certificate by a second opinion appointed doctor does not apply to urgent electro-convulsive therapy if: (1) the patient consents, or (2) the patient lacks capacity but the treatment does not conflict with an advance decision etc.

[Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)]

My Lords, I will move Amendment 16 and speak to all the amendments in this group in the name of my noble friend the Minister. I speak first to Amendments 17, 18, 19, 21, 36, 39, 45, 64, 65, 66 and 67, which follow recommendations made by the Delegated Powers and Regulatory Reform Committee and the amendments tabled by the noble Lord, Lord Scriven, in Committee.

Amendments 17, 18, 19, 21, 36, 39 and 45 remove the Henry VIII power from the Bill that allowed the Government to set out in regulations the exceptional circumstances where a second opinion appointed doctor’s certificate is not necessary to administer urgent and compulsory electroconvulsive therapy, and instead sets out these limited circumstances in the Bill. These situations arise when the regulator determines that there are exceptional circumstances delaying the appointment of a second opinion doctor and the treating clinician deems urgent electroconvulsive therapy necessary to save the patient’s life. In recognition of the seriousness of the situation, the new process will also ensure that these exceptional cases are monitored and reported on by the regulator.

Amendments 64, 65, 66 and 67 ensure that, where regulations are made under the power to make consequential provision to amend or repeal primary legislation set out in Clause 52, they will be subject to the affirmative scrutiny procedure. Amendment 65 extends this to Clause 53, which confers equivalent power on Welsh Ministers in areas of devolved competence.

I turn back to Amendment 16, which addresses concerns from stakeholders that the Bill was not explicit on whether urgent electroconvulsive therapy is permitted when the person is consenting or lacks capacity but treatment is not in conflict with a decision to refuse it—as is currently the case under the Act. This amendment makes clear that treatment in these scenarios is still permitted, addressing any possible risk of misinter-pretation.

On Amendments 20 and 22, the Bill as introduced expressly permits remote assessment by the second opinion doctor’s service only for urgent compulsory electroconvulsive therapy. These amendments clarify that remote interview and examination are permitted for all second opinions provided by people appointed by the regulator. Remote interview and examination may be used only when deemed appropriate. If not, these functions must be conducted in person. Specific guidance will be provided in the code of practice.

Turning to Amendment 26, approved mental health professionals have raised concerns that the requirement for the nominated person to sign an appointment instrument in the presence of a health or care professional “witness” could result in delays to having a nominated person in place, which could undermine the safeguard and place geographical restrictions on who could take the role. This could mean, for example, that patients who are placed in out-of-area hospitals have greater delays in appointing a nominated person.

19:00

Amendment 26 therefore removes the requirement for the nominated person to sign the instrument in the presence of the witness while maintaining the safeguards of the witnessing process. The witness must sign a statement confirming that they have no reason to believe

“the nominated person lacks capacity or competence … that any fraud or undue pressure has”

occurred,

“or that the person is unsuitable”.

They are expected to meet with the nominated person to ascertain this. In most cases, this is expected to be done in person, but the amendment allows for the signature to be done remotely if appropriate.

Further guidance will be provided in the code of practice and, as my noble friend the Minister announced, we are committed to establishing an expert task force to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated persons appointment process for children and young people. This would include the witness process. For these reasons, I hope noble Lords will feel able to support these amendments.

[Lord Scriven (LD)]

My Lords, I thank the noble Baroness for detailing very clearly the Government’s amendments. I also thank the Minister, who I see in her place, for, again, a very collaborative approach and for, on this occasion, implementing exactly not just what was in my previous amendment, so ably moved by my noble friend Lady Tyler, but what came from the Delegated Powers and Regulatory Reform Committee.

On the use of ECT, the powers in the government amendments before the House mean that the balance is absolutely correct on not having the second doctor’s signature and consent, as well as on the need to save life and the use of ECT. I thank the Government sincerely for not just listening but acting on the concerns that were around.

[Earl Howe (Con)]

My Lords, the House will be grateful to the Minister for these government amendments, which, as the noble Baroness made clear, cover two principal policy issues. Accordingly, I have two sets of queries.

On the changes for the rules for authorising electroconvulsive therapy, I am sure it is not the Government’s intention in any way to water down the safeguards surrounding the administering of ECT. However, in relation to Amendments 16 and 17, taken together, can the Minister reassure me? The Bill, as modified by the proposed amendments, will posit that there could be circumstances in which a patient who has the capacity to consent to ECT but who has not consented to it could nevertheless find their refusal to treatment overridden by the decision of a single treating clinician. Even in a situation where the judgment of the clinician was that ECT was necessary to save the patient’s life, it seems to me a significant change from the current rule whereby the decision of a second opinion appointed doctor is required in all cases where it is proposed to administer ECT to a non-consenting patient who has the capacity to consent.

Amendment 17 makes it clear that the regulatory authority—the CQC, in other words—may give permission for ECT to be administered only on the say-so of a single doctor where a SOAD is not available and “exceptional circumstances” apply. I will not ask the Minister to define what “exceptional circumstances” might consist of, but it is to be assumed that a primary example of such circumstances might be when time was of the essence and no SOAD could be located soon enough to avoid exacerbating the risk of harm or death.

So my questions are, firstly, has this proposed change been prompted by a general awareness across the mental health sector that the availability of SOADs can frequently prove a problem in circumstances where urgent decisions are needed? In other words, to put it bluntly, are we being asked to change the law because of habitual shortcomings in NHS communication arrangements? I would be concerned if that were the case.

Secondly, what guidance, if any, will the CQC formulate for itself to ensure that, when its decision is sought to temporarily waive the requirement for a SOAD, it will not do so just on the basis of a SOAD being unavailable? Will it also commit itself to a standard procedure whereby it will seek at least some background detail from the treating clinician of the case before him or her, such as the reasons why they consider that administering ECT to that particular patient carries particular urgency? In other words, can we be reassured that the treating clinician’s opinion will be subject to at least a modicum of testing and cross-questioning before the CQC issues the go-ahead for ECT to be administered? I hope so, because anything short of that could turn into a tick-box exercise.

The other government amendment on which I would appreciate further clarity is Amendment 26, which

“changes the process for appointing a nominated person”.

One of the changes proposed is that the various statements and signatures required for appointing the nominated person no longer have to be contained in the same instrument. The other is that the nominated person’s signature no longer has to be witnessed. I was grateful for the Minister’s explanation, but it implies that the written instrument that appoints the nominated person and is signed by the patient in the presence of a witness can be executed without the nominated person themselves being in the room, or indeed anywhere near. At the moment, the Bill says:

“The instrument appointing the nominated person must … contain a statement, signed by the nominated person in the presence of”


the same person who witnesses the signature of the patient.

I previously assumed that the reason for that provision was the responsibility that the Bill places on the witness—quite a serious responsibility—to ensure, as far as possible, that the nominated person, whoever they are, is a fit and proper person to act in that capacity. It would appear now, with this amendment, that there is no need for the witness even to clap eyes on the individual who is nominated. How can that be right? Without at least meeting the nominated person, how can any self-respecting witness certify, hand on heart, that, in the words of the Bill, they have

“no reason to think that the nominated person lacks capacity or competence to act as a nominated person,”

or that they have

“no reason to think that the nominated person is unsuitable to act as a nominated person”.

Are they simply meant to take the patient’s word for it?

This alteration in the wording raises all sorts of question marks in my mind, given the concerns expressed by noble Lords in Committee about misplaced loyalty towards a particular individual, a naivety on the part of a child or young person, or even some degree of psychological manipulation of a young person—for example, someone who makes it their business to set a child against their own parents.

In Committee, the Minister herself emphasised the need for the law to prevent exploitation and manipulation. While I did not at the time think that her response was completely reassuring, I saw it at least as an acknowledgement that the role of the witness could not be fulfilled properly without some sort of contact with the nominated person. Was I right or wrong on that? It would be helpful if the Minister could explain how my misgivings in this area, about the way in which the nominated person procedure comes to be implemented in practice, might be allayed.

[Baroness Blake of Leeds (Lab)]

My Lords, I thank the noble Lord, Lord Scriven, for his comments and express my thanks also for the many contributions made by noble Lords around the House.

The noble Earl, Lord Howe, asked some searching questions. I think the main thrust of his comments was to look for reassurance that due diligence will be gone into in all of the areas that he raises. I am not sure that I can answer every line in detail, but I want to reassure him in particular about the nominated person question, which I know has caused him enormous concern.

In addition to what I have said, I emphasise that there is no intention at all to water down the safeguard, and that Amendment 26 will make sure that patients get access to a nominated person quicker, along with all the rights and powers that entails, meaning that safeguards provided by the role will not be delayed. That is the crucial point that we have to factor in as to why these amendments are deemed necessary. As he quite rightly says, this is particularly important for patients and those who may be subject to out-of-area placements.

The change that we are bringing in is that the nominated person’s signature does not need to be witnessed in person. None of the safeguarding checks is changed in any way by this. In answer to the noble Lord’s concern, we would expect that, in the majority of cases, the witness will still meet the nominated person face to face. In exceptional circumstances, where this is not possible, we believe that it is better to be able to appoint a nominated person, subject to all the appropriate safeguarding checks, than to have to wait until a person can have their signature witnessed.

A second opinion doctor is not currently required for urgent and compulsory electroconvulsive therapy; this is new under the Bill. I need to emphasise this point. What the amendment does is sets out the exceptional circumstances where a second opinion appointed doctor—sorry, it is a bit of a mouthful—is not required. I hope that gives some clarification.

We have to make sure that these are all taken in the round. I reassure the noble Earl, Lord Howe, and noble Lords across the Chamber, that many of these are regarded to be due to exceptional circumstances, where time is of the essence.

As to whether some of these provisions are based on failure, it is from learned experience and bringing together everyone who has a view to make sure that everything we bring forward is in the best interests of the patient. That is the crucial thing. This is where the detailed work will be done under the code of practice, bringing together all the different parties in a measured way. It will take a few months to do this. That is critical, so that we can all be reassured that the processes are brought into play.

I can understand the concern about making sure that communication is there in situations of stress, but I believe that these amendments are designed to address this issue, with, as I have said, the patient’s interest absolutely in the forefront. There will be opportunities as the code of practice is put together for us to make sure that our endeavours are followed, bringing the best opinion together with the best interest of the patients.

Amendment 16 agreed.

Amendments 17 to 21

Moved by

[Baroness Blake of Leeds]

17: Clause 18, page 26, line 4, at end insert—
“62ZAA Life-saving section 62ZA treatment: modified procedure in exceptional circumstances(1) Where—(a) a request is made to the regulatory authority under section 56B for the appointment of a second opinion doctor to perform the function of giving a certificate under section 62ZA in relation to any treatment, and(b) the regulatory authority determines that there are exceptional circumstances which mean that there will be a delay in appointing a second opinion doctor,a function of a second opinion appointed doctor under section 62ZA in relation to the giving of a certificate containing a statement under subsection (4)(c)(i) or (5)(c)(i) of that section may be performed, instead, by the approved clinician in charge of that treatment.(2) But no treatment may be given in reliance on a certificate given by the approved clinician by virtue of subsection (1) once the second opinion doctor has been appointed under section 56B.(3) Each time a patient is given treatment in reliance on a certificate given by the approved clinician by virtue of subsection (1), the managers of the hospital or registered establishment in which the treatment is given must notify the regulatory authority of that treatment as soon as reasonably practicable.(4) The regulatory authority’s annual report under section 120D must include—(a) a statement of how many times the regulatory authority has made a determination under subsection (1)(b) in the period to which the report relates and a summary of the reasons why any determinations have been made, and(b) a statement of how many times during that period treatment has been given in reliance on a certificate issued by virtue of subsection (1).”Member’s explanatory statement
Where exceptional circumstances mean that a second opinion appointed doctor is not available to authorise life-saving electro-convulsive therapy, this amendment would allow the approved clinician to do so. The amendment replaces the regulation-making power currently in new section 62ZB(1).

18: Clause 18, page 26, line 6, leave out from beginning to end of line 10
Member’s explanatory statement
This is consequential on my amendment to clause 18, page 26, line 4.

19: Clause 18, page 26, line 17, leave out “or by virtue of regulations under subsection (1)”
Member’s explanatory statement
This is consequential on my amendment to clause 18, page 26, line 4.

20: Clause 18, page 26, line 32, leave out subsection (7)
Member’s explanatory statement
This amendment leaves out text that is replaced by my new clause inserted after clause 18.

21: Clause 18, page 27, line 15, leave out subsection (8)
Member’s explanatory statement
This is consequential on my amendment to clause 18, page 26, line 4.

Amendments 17 to 21 agreed.

Amendment 22

Moved by

[Baroness Blake of Leeds]

22: After Clause 18, insert the following new Clause—
“Remote assessment for treatment(1) Section 119 (practitioners approved for Part 4 and section 118) is amended as follows.(2) In subsection (2)(a), for the first “and” substitute “or”.(3) After subsection (2) insert—“(2A) A person authorised by subsection (2) to carry out an interview or examination may, to the extent that they consider appropriate, carry it out—(a) by live audio link, or(b) by live video link.”(4) In subsection (3), before the definition of “regulated establishment” insert—““live audio link” , in relation to the carrying out of an interview or examination, means a live telephone link or other arrangement which enables the patient and the person carrying out the interview or examination to hear one another;“live video link” , in relation to the carrying out of an interview or examination, means a live television link or other arrangement which enables the patient and the person carrying out the interview or examination to see and hear one another;”.” Member’s explanatory statement
This new clause would enable remote assessments to be carried out by certain people for the purpose of non-urgent electro-convulsive therapy and certain other treatments. It also replaces clause 18(7) which makes equivalent provision for urgent treatment.

Amendment 22 agreed.

Amendment 23 not moved.

19:15

Schedule 2: Nominated persons

Amendment 24

Moved by

[Baroness Berridge]

24: Schedule 2, page 72, line 24, leave out “county court” and insert “Mental Health Act tribunal”

[Baroness Berridge (Con)]

My Lords, I will be brief, bearing in mind the time. I have tabled these amendments again on Report, regarding the appropriate tribunal to hear the nominated person’s claims. I am very appreciative of the information given earlier to the noble and learned Baroness, Lady Butler-Sloss, that parents would be able to go to the tribunal. I am also very grateful for the letter that the Minister wrote to me.

The only point on which I wish to have clarification is that there is a difference between the Mental Health Act tribunal and the county court in relation to funding. A parent who goes to the county court will be subject to means testing for Legal Services Commission funding. That is not the case for the Mental Health Act tribunal. So, bearing in mind the importance of the county court to parents, will the Minister outline whether there are any proposals to enable parents to access Legal Services Commission funding?

[Lord Meston (CB)]

I am grateful to the noble Baroness for bringing this point up again. I mentioned it in Committee. The reference to the county court, currently in Schedule 2 to the Bill, is the only place in this jurisdiction where the county court is given anything to do. It seems to me now to be an anomaly and an anachronism. It is simply carrying forward the use of the county court from the 1959 Act and the 1983 Act, which provided for that court to deal with applications to displace nearest relatives.

I do not believe that, if the mental health legislation was now being started afresh, it would refer to the county courts. The county court is, in any event, now greatly overburdened, but that is not the only reason to replace it. A mental health tribunal, or indeed the Court of Protection, would be better equipped to deal with these cases, having specialist expertise and judiciary.

[Baroness Butler-Sloss (CB)]

My Lords, I support this amendment and, in particular, what the noble Lord, Lord Meston, has said. He has considerable experience of the county court, which I do not have, excepting when I used to appear before it.

What concerns me is that, if a case is sent to the county court, to a judge who is not a family judge, there will be considerable difficulties for that judge. I support the idea that it should be either the mental health tribunal or—as I would prefer, and as the noble Lord, Lord Meston, has suggested—the Court of Protection. The judges of the Court of Protection are judges of the High Court, Family Division, of which I was president. That would be the right court. If it is said by the Government that they are not prepared to move on this issue, and I suspect they might not be, could they at least put in the court code of practice that, if it is sent to the county court, it will be dealt with by a family judge in the county court? The county court sits also as a family court. That would at least ameliorate the situation.

[Earl Howe (Con)]

My Lords, I will speak briefly to the amendments in this group tabled by my noble friend Lady Berridge, supported by the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, whose last suggestion I hope will be listened to by the Minister.

I must commend my noble friend for her tenacity with this issue. As she has outlined, there is a significant concern that the use of the county courts to decide on matters pertaining to the termination of nominated persons is not the most appropriate process. I do hope that the Minister will give my noble friend words to her comfort.

[Baroness Merron (Lab)]

My Lords, I thank the noble Baroness, Lady Berridge, for her Amendments 24, 28 and 35. They would mean that the mental health tribunal, rather than the county court, handled the termination of appointment of the nominated person. The county court already has a role in displacing the nearest relative. It has the expertise, procedural tools and legal framework to handle sensitive disputes involving external parties, such as conflicts of interest or allegations of abuse. The First-tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales are focused on reviewing detention under the Mental Health Act. This would add an additional burden on the tribunal, risking undermining its core function and delaying detention reviews.

The noble Baroness, Lady Berridge, raised the issue of legal aid. County court mental health cases are largely limited to applications for the displacement of a nearest relative. Legal aid is currently available to a person seeking the displacement of the nearest relative, except where the person bringing that application is doing so in a professional capacity and to the nearest relative themselves. That would also apply for the nominated person, which will replace the nearest relative.

Legal representation is available where the applicant meets the means test, unless they are under 18, and the relevant merits criteria. If there are any further points of clarification, I will be pleased to make them to any noble Lords who have raised points today, including the noble Baroness.

As we do not feel that the mental health tribunal is the right place for what I was referring to before I went on to legal aid, I ask the noble Baroness to withdraw the amendment.

[Baroness Butler-Sloss (CB)]

Does the Minister know which judge deals with these issues in the county court? The point that I made as a possibility was that it should be one of the family judges. She will know that circuit judges do both family and civil, but generally there is a designated family judge and a designated civil judge. I am just hoping something can be said so that it gets at least to a judge like the noble Lord, Lord Meston, who would understand what was going on.

[Baroness Merron (Lab)]

The noble Lord, Lord Meston, does indeed know what is going on—I agree. I cannot answer the noble and learned Baroness’s question directly, but I would be pleased to look into that point in order to do so. Maybe the noble Lord could help me.

[Lord Meston (CB)]

Perhaps I can relieve the Minister. I can tell her who has to deal with it: it is whoever is available at the time, and these applications tend to come in really quite urgently.

[Baroness Merron (Lab)]

I am most grateful to the noble Lord.

[Baroness Berridge (Con)]

I am grateful for the Minister’s comments, the reassurance she has given and the details she will provide me with, so I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendment 25 not moved.

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, I must inform the House that if Amendment 26 is agreed to, I will not be able to call Amendment 27 by reason of pre-emption.

Amendment 26

Moved by

[Baroness Merron]

26: Schedule 2, page 74, line 27, leave out from “writing” to end of line 19 on page 75 and insert “signed by the patient in the presence of a health or care professional or independent mental health advocate (“the witness”),
(c) the nominated person has signed a statement that they—(i) meet the age requirement (see paragraph 2(2)), and(ii) agree to act as the nominated person, and(d) the witness has signed a statement that—(i) the instrument appointing the nominated person was signed by the patient in the presence of the witness,(ii) the witness has no reason to think that the patient lacks capacity or competence to make the appointment,(iii) the witness has no reason to think that the nominated person lacks capacity or competence to act as a nominated person,(iv) the witness has no reason to think that any fraud or undue pressure has been used to induce the patient to make the appointment, and(v) the witness has no reason to think that the nominated person is unsuitable to act as a nominated person.”Member’s explanatory statement
This changes the process for appointing a nominated person. It removes the requirement for the nominated person’s signature to be witnessed and the various statements and signatures no longer have to be contained in the same instrument.

Amendment 26 agreed.

Amendments 27 and 28 not moved.

Amendments 29 to 32

Moved by

[Baroness Merron]

29: Schedule 2, page 77, line 27, leave out “16” and insert “18”
Member’s explanatory statement
This and my amendments to paragraph 10 of new Schedule 1A ensure that where a nominated person is appointed for a patient who is aged 16 or 17 and for whom a local authority has parental responsibility, the local authority is appointed as the nominated person.

30: Schedule 2, page 78, line 5, leave out “under 16” and insert “16 or 17”
Member’s explanatory statement
See the explanatory statement for my amendment to Schedule 2, page 77, line 27.

31: Schedule 2, page 78, line 6, leave out sub-paragraph (2) and insert—
“(2) If a local authority has parental responsibility for the relevant patient, the approved mental health professional must appoint that local authority.(2A) If no local authority has parental responsibility for the relevant patient but the relevant patient has a competent deputy who is willing to act as the nominated person, the approved mental health professional must appoint the deputy.”Member’s explanatory statement
See the explanatory statement for my amendment to Schedule 2, page 77, line 27.

32: Schedule 2, page 78, line 14, leave out “other case,” and insert “case in which sub-paragraphs (2) and (3) do not identify who is to be appointed”
Member’s explanatory statement
See the explanatory statement for my amendment to Schedule 2, page 77, line 27.

Amendments 29 to 32 agreed.

Amendment 33

Moved by

[Baroness Merron]

33: Schedule 2, page 78, line 23, at end insert—
“10A “(1) This paragraph applies where an approved mental health professional is deciding who to appoint as a nominated person for a relevant patient who is aged under 16.(2) If a local authority has parental responsibility for the relevant patient, the approved mental health professional must appoint that local authority.(3) If no local authority has parental responsibility for the relevant patient but there are one or more other persons who have parental responsibility and who are willing to act as the nominated person, the approved mental health professional must appoint one of them.(4) In any case in which sub-paragraphs (2) and (3) do not identify who is to be appointed, the approved mental health professional must, in deciding who to appoint, take into account the relevant patient’s past and present wishes and feelings so far as reasonably ascertainable.”Member’s explanatory statement
This largely replicates the effect of existing paragraph 10 of new Schedule 1A but ensures that where a nominated person is appointed for a patient who is aged under 16 and for whom a local authority has parental responsibility, the local authority is appointed as the nominated person.

Amendment 34 (to Amendment 33)

Moved by

[Baroness Berridge]

34: Leave out sub-paragraph (3) and insert—
“(3) Where sub-paragraph (2) does not apply, the approved mental health professional must appoint as a nominated person— (a) a guardian who has been appointed for the relevant patient,(b) a person who is named in a child arrangements order, as defined by section 8 of the Children Act 1989, as a person with whom the relevant patient is to live, or(c) a person who has parental responsibility for the relevant patient.(3A) In this paragraph “guardian” includes a special guardian within the meaning of the Children Act 1989 but does not include a guardian under section 7 of that Act.(3B) Where there is more than one person identified as a potential nominated person in sub-paragraph (3)(a), (b) or (c) then the approved mental health professional must in deciding who to appoint—(a) take into account the relevant patient’s past and present wishes and feelings so far as reasonably ascertainable, or(b) where it has not been possible to ascertain the relevant patient’s past and present wishes, preference must be given to the eldest person.”

[Baroness Berridge (Con)]

My Lords, I have listened carefully to the Minister’s reasoning, but I am sure it will not be a surprise to her that there is now a matter of disagreement, so I wish to test the opinion of the House.

19:24

Division 3

Ayes: 218

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Conservative: 145
Liberal Democrat: 50
Crossbench: 11
Democratic Unionist Party: 5
Non-affiliated: 4
Ulster Unionist Party: 1
Labour: 1
Plaid Cymru: 1

Noes: 143

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Labour: 138
Non-affiliated: 2
Crossbench: 2
Independent: 1

Amendment 33, as amended, agreed.

19:35

Amendment 35 not moved.

Clause 30: References to tribunal

Amendment 36

Moved by

[Baroness Merron]

36: Clause 30, page 42, line 1, leave out “50” and insert “36”
Member’s explanatory statement
This is consequential on my amendment to leave out clause 50.

Amendment 36 agreed.

Amendment 37

Moved by

[Earl Howe]

37: After Clause 33, insert the following new Clause—
“Ascertaining and learning from patients’ experiences of hospital treatmentAfter section 23 of the Mental Health Act 1983 (discharge of patients) insert—“23A Ascertaining and learning from patients’ experiences of hospital treatment(1) A patient who has been detained under this Part of this Act must, within 30 days of their discharge, be offered a consultation with an independent mental health advocate to review their experiences of hospital treatment.(2) A report from any consultation undertaken pursuant to subsection (1) shall be produced by the independent mental health advocate in partnership with the patient.(3) The report referred to in subsection (2) shall be provided to the managers of the hospital within 14 days of its completion.(4) The managers of the hospital shall publish each year a report setting out what they have learned from patients’ experiences at the hospital, and the actions they have taken.””Member’s explanatory statement
This amendment would mandate the de-briefing of mental health patients after they have left hospital.

[Earl Howe (Con)]

My Lords, I listened carefully to the Minister’s reply to the proposal that I made to give mental health patients an automatic opportunity to avail of a debriefing process after leaving hospital, in the interests of patient empowerment and greater transparency for the system generally. I am afraid that I nevertheless wish to test the opinion of the House.

19:36

Division 4

Ayes: 209

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Conservative: 137
Liberal Democrat: 50
Crossbench: 11
Democratic Unionist Party: 4
Non-affiliated: 3
Ulster Unionist Party: 2
Labour: 1
Plaid Cymru: 1

Noes: 143

---

Labour: 138
Non-affiliated: 2
Crossbench: 2
Independent: 1

19:47

Consideration on Report adjourned until not before 8.28 pm.