Mental Health Bill [HL]

Report stage
Monday 31st March 2025 Lords Chamber

Report (1st Day) (Continued)

20:28

Clause 36: Transfers of prisoners and others to hospital: time limits

Amendment 38

Moved by

[Lord Bradley]

38: Clause 36, page 49, line 25, at end insert—
“(d) a specified accountable person or body is appointed, who will be responsible for ensuring that the provisions within this subsection are completed within the specified time limit.”Member’s explanatory statement
This amendment seeks to ensure that there is an accountable person, who will ensure that transfer to hospital takes place within 28 days.

[Lord Bradley (Lab)]

My Lords, I declare my interests as listed in the register.

In Committee, I moved an amendment that would require a specified accountable person to be appointed by the relevant referring body to ensure that the specified 28-day transfer period is met. This proposal was based on the fact that many agencies are involved in arranging prison transfers. From my experiences in helping to develop services across health and justice, I believe there could be significant merit in creating a single role: a dedicated official whose primary function would be to ensure efficient transfers, with the ability and power to liaise and intervene with the various agencies at the most senior level where necessary.

As I said in that debate, the amendment would clarify and enhance accountability and transparency, and

“support the desire expressed in the impact assessment”

of the Bill to increase

“‘accountability for all agencies involved in the transfer process to meet’ … the deadline”.

It is important to note again that this is supported by

“Sir Simon Wessely’s independent review, which stated that it would help … ‘unblock the institutional barriers and … give … the teeth it needs to push the transfer through’”.—[Official Report, 27/1/25; col. 61.]

At the conclusion to that debate, first, the noble Lord, Lord Kamall, from the Opposition Front Bench, commented that my amendment

“again, speaks to the point of implementation”

of provisions in the Bill, and said that this

“could be a sensible way of holding providers to account and working with them to address the shortcomings in patient transfers”.—[Official Report, 27/1/25; col. 66.]

Secondly, and most importantly, the Minister, my noble friend Lord Timpson, helpfully reminded the House that the previous Government had run a public consultation seeking views on the effective way to establish this role, but no consensus was reached. Further, a cross-agency working group was established to scope out the role, and that work

“continues between health and justice partners”

on this issue. He suggested that a non-statutory approach

“will ensure that the interests of patients are considered while providing the flexibility required, given the complexity of the process”.—[Official Report, 27/1/25; cols. 67-68.]

Very helpfully again, the Minister offered to meet to discuss this further and for that to be undertaken before Report. I am very pleased that such discussions have taken place, and thank not only the Minister but the excellent officials in both the Ministry of Justice and NHS England for their very constructive engagement with me.

I still strongly believe that we need effective oversight of the transfer process, hence I tabled Amendment 38, which proposes that either an accountable person “or body”—a slight extension to my original amendment—is established for the purpose and, of course, to ensure accountability and transparency to Parliament on this matter. I hope the Minister will now support this proposition. I look forward to his response at the end of this short debate and will listen carefully to it. I beg to move.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, in Committee, a number of us stressed the importance of those sections of the Bill relating to its application for prisoners suffering mental disorder. I continue to push to ensure that the parts of the Bill that relate to the responsibilities of the MoJ in relation to the Department of Health and Social Care are not neglected once the Act becomes law.

In Committee, I focused on calling for a government review of the impact of the Bill on prisoners, but, from listening to the thoughtful response from the noble Lord, Lord Timpson, I saw that this could become yet another bureaucratic report. I therefore commend Amendment 38 from the noble Lord, Lord Bradley, as an elegant way of ensuring that the crucial provision of a transfer to hospital within 28 days is more than an “if only” paper aspiration.

My Amendment 40, which I am delighted is supported by the noble Baroness, Lady Bennett of Manor Castle, is also a practical proposal. It is designed to tackle problems that directly pertain to the Bill, broadly because, regardless of this legislation, the reality is that there will continue to be large numbers of prisoners suffering mental disorders who are incarcerated within the prison estate rather than in secure hospitals. The question then is what happens to their mental health care when they are released. If this aspect is neglected, these ex-prisoners could well become increasingly unwell and deteriorate, and therefore be in need of future detention.

It would be a real mistake to neglect any policy or practice associated with this Bill that fails to address the need for bespoke, ongoing support in the community, in which ex-prisoners’ mental health is not allowed to fall further, creating new risks to both them and the public. This is a real risk. Estimates from a 2023 report from the Centre for Mental Health, based on a survey of 75% of prisons and young offenders’ institutions in England, found that one in seven prisoners receive mental health support while in custody—the figure is one in four among women. However, continuity of that care collapses after release. Research led by the University of Manchester recently found that, of 53 prisoners who had been in touch with in-house services due to severe and enduring mental health conditions, only four were in touch with community health services six months after release.

It is perhaps understandable why this happens. When leaving prison, both the authorities and prisoners may focus on practical challenges, such as lack of housing and how to earn money and a living, and therefore mental health support can and does slip down the priority list. It is also the case that leaving prison can present a shock to the system, and that affects this. Prisoners will be leaving a structured environment, focused on routine, and, in many instances, returning to more disorganised and chaotic conditions. Freedom may mean an arbitrary end to an effective course of treatment, someone having waited perhaps months or even years to access services, such as therapy or specialised groups, in which they have started to open up about traumatic experiences—all in-prison services. Suddenly, on release, there is an abrupt end to such support. Targeted interventions, prescribing regimes and the access to medication inside are no longer guaranteed on the outside.

I understand that ensuring continuity of care can be incredibly difficult. People leaving prison often have multiple and complex needs, and can be wary of accessing care in the community because of a lack of trust in state institutions that means that they are less likely to proactively seek out help. Ex-prisoners report that they fear that disclosing mental health challenges to, for example, probation staff will draw attention to their vulnerabilities. Then there is the dread of recall—an especially acute fear for IPP prisoners: a fear of being sent back to prison if they appear too ill to cope, or a dread of that other detention mechanism, sectioning.

All that this amendment seeks is to ensure a smooth handover between prisoners and community services. Without such ministerial reassurance, I fear that this will undermine core parts of the Bill unless it is taken into account. The stock reply to such concerns is that prison mental health services send on information to prisoners’ GPs, but in the real world this is often nonsense. Prisoners often do not have a fixed address on release, so they are discharged with just a medical letter. Prison nurses explain that they do not know where their patient will be released to, beyond a hostel somewhere, making it impossible to connect that person to even primary care. Prison-led medical staff complain that often they are not informed of the impending release until very shortly beforehand—sometimes a week or days—and this is especially acute in relation to the present early release scheme. There is not enough time to set up appropriate community provision, to communicate with services or even to conduct proper assessments of individual patients before their release. Clinical needs are therefore deprioritised, and prisoners fall through the net of statutory services.

What is needed, and what this amendment envisages, is that a relevant detention authority is responsible for discharge packages which will, for example, register prisoners with GP services in the precise area a person is discharged to, and liaise with relevant third-party organisations and community provision to make arrangements. Prisons and health authorities would work together to prevent deteriorating mental health and the potential for behaviour on the outside that would mean yet more contact with the criminal justice system for the ex-prisoner and, possibly, emergency intervention and detention.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I support Amendment 40, tabled by the noble Baroness, Lady Fox, and have added my name to it—probably not a combination that you will see very often. This amendment, as the noble Baroness set out with practical, clear evidence, makes such a lot of sense that I had to back it.

My particular interest when it comes to prison policy is women in prison. More and more shocking figures are emerging all the time about what is happening in our women’s prisons. A third of women in prison are now self-harming, which is a 29% increase in the last quarter, and 82% of women in prison report mental health problems. As the noble Baroness said, one in four women in prison are receiving help from mental health services. That is not to say that there are not enormous issues around male jails as well—the figure for male jails is one in seven—but I want to take a moment to paint a picture.

Six in 10 female prisoners are serving sentences of less than six months. Their life is torn apart and they are put into prison, where maybe they start to get help from the mental health services. Here are some other figures: seven in 10 women in prison report being victims of domestic violence; 53% report that they were victims of child abuse. We have a huge and often acute need for mental health services here, yet, as the noble Baroness set out, these women are thrown out, virtually on to the street, and the chances of continuing care and support being there are utterly unrealistic.

I suspect the Minister will say that the Government are trying to improve the situation. I respect and understand that. None the less, this is a practical, sensible measure that it would be common sense for the Government to take on board.

[Baroness Tyler of Enfield (LD)]

My Lords, briefly, I want to make a couple of contributions to the debate. In so doing, I reflect on that fact that we have not spent much time talking about the criminal justice side of this Bill. I wonder why that is.

On the amendment tabled by the noble Lord, Lord Bradley, it makes eminent sense to ensure that there is an accountable person or body responsible for ensuring that transfers to hospital occur within 28 days. I have a simple view of the world: if you want to make sure that some things get done, you need to ensure that someone is in charge and that that person is held to account. As the Minister knows, I am quite keen on responsible people, particularly in relation to this Bill, to ensure that things get done—hence, I support the amendment.

I was very interested in the arguments put forward by the noble Baroness, Lady Fox, for her amendment, focusing on ensuring that prisoners treated for a mental disorder have access to continued mental health treatment once they are back in the community. That is such common sense and such an obvious thing to do, if we are to stop repeat admissions and detentions and the whole thing becoming a revolving door. We all know that it is not easy in the community at the best of times to get access to the treatment that you need, particularly mental health treatment. It is particularly difficult for people who have recently been released from detention. Further, we all know the episodic nature of many mental health conditions, so this amendment is just good common sense.

[Lord Davies of Brixton (Lab)]

I want to express my support for the amendment from my noble friend Lord Bradley, because in Committee I had a parallel amendment that dealt with a similar issue. I very much agree with what the noble Baroness, Lady Tyler of Enfield, said about locating specific responsibility for getting people through the system. In this area, time is absolutely of the essence to avoid crises and worsening mental health states. So I strongly support the thought behind my noble friend’s amendment, and I hope the Minister can help us by showing that the problem is understood and that the Government see it as a priority to resolve the problems that undoubtedly occur at present.

[Lord Kamall (Con)]

My Lords, I will speak briefly to Amendments 38 and 40. One of the things about being a politician is that when you say things, you cannot hide. When the noble Lord, Lord Bradley, told me he was about to quote me in his contribution, I thought, “Oh no, what have I said now?”, so I am grateful to him for warning me and not being too harsh on me. As other noble Lords have said, this is an eminently sensible amendment, and I hope we will get a positive response from the Minister.

20:45

I turn to the amendment in the names of that dynamic duo, the noble Baronesses, Lady Fox and Lady Bennett of Manor Castle. It is an important issue. We know that when you speak to charities that help current offenders and ex-offenders, they say that one of the issues behind reoffending is the support you get when you leave prison, not just for mental health issues but generally. You are left with not very much money. Where do you find housing? How do you reintegrate back into the community? Other noble Lords have talked about that shock already.

This amendment is sensible. It seems to me that we cannot have a scenario where a person is treated for mental health conditions while they are serving a custodial sentence, but once released they are simply left without any help. Given the variety of conditions that those in prison may have, we cannot have a cliff edge of support that could cause harm to that individual and perhaps lead to them causing harm to others in the community.

There is something of a parallel here with Amendment 37 tabled by my noble friend Lord Howe and, indeed, the amendments we tabled towards the end in Committee. These amendments are all about ensuring proper continuity of care, and that is the important thing. It is not just a bit of care here and a bit of care there; we have to make sure we have a proper continuity of care. I think the Minister used the word “pathway” previously, if I have been doing my homework and remembering what she said.

It is really important that we have this pathway between being detained and treated under the Mental Health Act and then moving into community services, to ensure that treatment for that individual is effectively continued for as long as they need it. As all speakers have said, we cannot ignore the experience and treatment of prisoners in this process. I look forward to the comments from the Minister.

[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

I am grateful to my noble friend Lord Bradley for bringing this discussion before the House today and his commitment to improving outcomes for patients since the publication in 2009 of the Bradley Report, which highlighted the need to ensure that transfers between prison and secure hospital take place in a timely manner. I also thank him for his kind words about my superb team in the Ministry of Justice.

The Government are committed to addressing the unnecessary delays that some patients experience, which can cause significant distress to these individuals, their families and those charged with their care. Transparency and accountability, as the noble Lord, Lord Davies of Brixton, and the noble Baroness, Lady Tyler, expressed clearly, are essential to the successful implementation of this reform and to reducing delays more broadly. I thank my noble friend Lord Bradley for the constructive conversations with my officials since Committee to ensure we get this oversight mechanism right.

I am pleased to share that this Government have recently established a health and justice strategic advisory group, which will bring together key partners with responsibility for the various parts of the transfer process. This group will be chaired by a national clinical director, who will report regularly to Ministers and be responsible for agreeing a joint work plan to support implementation of the statutory time limit, identifying solutions to common barriers to timely transfers and holding partners to account. I am confident that this group will provide effective oversight by bringing together operational leaders across health and justice with the levers necessary to effect change, while inviting challenge from critical friends such as the Care Quality Commission and His Majesty’s Inspectorate of Prisons to ensure external scrutiny. I will continue to work closely with my noble friend Lady Merron to ensure that the long-term future of the strategic advisory group remains a priority.

As my noble friend announced earlier, the Government have committed to providing an annual report to Parliament on the implementation of the Mental Health Act reforms. Through this reporting mechanism, I will update Parliament on the implementation of the statutory time limit and on the strategic advisory group, and provide data on transfer timelines when available for publication. I hope this reassures my noble friend of this Government’s commitment to improving timely access to treatment. I urge him to withdraw his amendment.

Amendment 40 tabled by the noble Baroness, Lady Fox, and supported by the noble Baroness, Lady Bennett of Manor Castle, would ensure that prisoners released into the community who have previously been treated for a mental disorder can continue to receive access to treatment in the community. Section 117 of the Mental Health Act already places a duty on health and social care services to provide aftercare to patients under specific criminal justice sections of the Act who are released from hospital into prison or into the community. These services aim to reduce the risk of a deterioration of the patient’s mental condition and, accordingly, the risk of them requiring admission to hospital again for treatment.

The noble Baroness, Lady Bennett, is right that our women’s prisons have many women who are mentally unwell. That is why we have set up the Women’s Justice Board—to reduce the number of women in prison and to help divert many women away from custody in the first place.

The noble Baroness, Lady Fox, will be pleased to know that, in addition to the Section 117 aftercare that is available to those detained under the Mental Health Act, all prisoners who have engaged in any form of treatment while in prison—regardless of whether they have been detained under the Mental Health Act —have access to services in the community when they are released.

To strengthen the links between substance misuse and health services in prisons and in the community, and to support access to treatment, we have recruited 57 health and justice partnership co-ordinators and managers across all probation regions in England and Wales. NHS England’s RECONNECT, a care after custody service, supports prison leavers with vulnerabilities including mental health needs to engage with the right health services in the community through referrals and peer support. The noble Lord, Lord Kamall, is right: through-the-gate continuity is crucial. The successful pathway is how we reduce reoffending and help people who are unwell.

I hope this reassures the noble Baroness that there is already sufficient provision in the Act to ensure that prisoners who have previously been treated for a mental disorder can continue to receive access to treatment in the community. I urge her not to move the amendment.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I do not doubt in any way that prisoners can access that community care; the problem is that they are not accessing it. The assurances about new schemes are positive, but the idea was to make this more than just an abstract wish list and make sure that something practical happens. If that is what the new scheme—although it does not exist yet—will do, that is reassuring, but it is certainly not what is happening now.

[Lord Timpson (Lab)]

The noble Baroness has visited many prisons, as I have, and knows how complex they can often be. One of the main points of the Bill is to make sure that our partners—because we often work with third sector organisations—make sure that it is a priority that people who are leaving prison and are unwell get the continuing care that they need.

[Lord Bradley (Lab)]

My Lords, I am very grateful to the Minister for that positive response. I believe it is a major step forward in ensuring that the time limit of 28 days for the transfer of prisoners to an appropriate health setting is adhered to. I believe that the new strategic body that the Minister recommended will also have a significant part to play in increasing transparency and accountability as we go forward.

I am pleased that, in the general debate, the Minister mentioned the RECONNECT service, which is being rolled out across the country as we speak. It will have a significant impact on the continuity of care that has so rightly been identified tonight. With the assurance the Minister has given to the House, I beg leave to withdraw my amendment.

Amendment 38 withdrawn.

Amendment 39

Moved by

[Baroness Merron]

39: Clause 36, page 52, line 4, leave out subsection (5) and insert—
“(5) In section 143 (general provisions as to regulations, orders and rules)—(a) for subsection (2) substitute—“(2) The following are subject to annulment in pursuance of a resolution of either House of Parliament—(a) any Order in Council under this Act;(b) any order made by the Secretary of State under section 54A or 68A(7);(c) any statutory instrument containing regulations made by the Secretary of State under this Act, other than regulations made under section 48B(3);(d) any statutory instrument containing rules made under this Act.”;(b) after subsection (3) insert—“(3ZA) A statutory instrument containing regulations under section 48B(3) (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””Member's explanatory statement
This is consequential on my amendment to clause 18, page 26, line 6.

Amendment 39 agreed.

Amendment 40 not moved.

Clause 43: Advance choice documents

Amendments 41 to 43 not moved.

Amendment 44

Moved by

[Lord Kamall]

44: After Clause 47, insert the following new Clause—
“Removal of patients by authorised persons (1) The Mental Health Act 1983 is amended as follows.(2) In section 135 (warrant to search for and remove patients)—(a) in subsection (1), after “constable”, insert “or authorised person”;(b) in subsection (1A), after “constable”, insert “or authorised person”;(c) in closing words of subsection (2), after “constable”, insert “or authorised person”;(d) in subsection (3ZA)(a)(ii), after “constable”, insert “or authorised person”;(e) in subsection (7)(b), after “constable”, insert “or authorised person”. (3) In section 136 (removal etc of mentally disordered persons without a warrant)—(a) in subsection (1), after each instance of “constable”, insert “or authorised person”;(b) in subsection (1A), after “constable”, insert “or authorised person”;(c) in subsection (1B), after “constable”, insert “or authorised person”;(d) in subsection (2A)(a)(ii), after “constable”, insert “or 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.

Amendment 44 agreed.

Clause 50: Procedure for certain regulations made by virtue of sections 18 and 36

Amendment 45

Moved by

[Baroness Merron]

45: Leave out Clause 50
Member's explanatory statement
The material in this clause is, so far as it needs to be retained, inserted into clause 36 (see my amendment to that clause).

Amendment 45 agreed.

Amendment 46

Moved by

[Baroness Merron]

46: After Clause 51, insert the following new Clause—
“Review of duty to notify incidents(1) The Secretary of State must carry out a review into—(a) whether regulation 18 of the Care Quality Commission (Registration) Regulations 2009 (S.I.2009/3112) (duty to notify incidents) ought to be extended to require a notification to be given in any other cases in which a person under the age of 18 is admitted to a hospital or registered establishment for medical treatment for, or assessment in relation to, mental disorder, and(b) whether the time period mentioned in regulation 18(2)(h) of those Regulations remains appropriate.(2) The Secretary of State must prepare and publish a report setting out the conclusions of the review.(3) The Secretary of State must lay a copy of the report before Parliament.(4) The report must be laid and published before the end of the period of 2 years beginning with the day on which this Act is passed. (5) In this section the following expressions have the meaning given by section 145 of the Mental Health Act 1983—“hospital” ;“medical treatment” ;“mental disorder” ;“registered establishment” .”Member's explanatory statement
This requires the Secretary of State to carry out a review into the circumstances in which incidents involving mental health patients under the age of 18 ought to be notified to the Care Quality Commission.

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

My Lords, having heard the concerns of noble Lords in Committee around the placement of children and young people, we want to go further than when we started. It is a statutory requirement for CQC to be notified when a person under 18 is placed in an adult psychiatric unit for longer than 48 hours. CQC takes action to assess risk and ensure the child is being safeguarded. Government Amendment 46 will now require the Secretary of State to review whether current notification requirements should be extended to other incidents and whether the 48-hour time period remains appropriate. A report on the findings of this review must be laid before Parliament within two years.

I am also pleased to announce today that NHS England will use existing powers under the NHS Act 2006 to require ICBs to provide information, first, on accommodation or facilities for patients under the age of 18 and, secondly, on any incidents where a person under the age of 18 is placed in a setting that is clinically appropriate but is outside of the natural clinical flow or not in a specialised children and young people’s mental health ward. Those requirements will be set out in the new service specification and made clear in the revised code of practice. Collecting this information is crucial to enable NHS England to monitor and minimise risk and make the case for changes in local capacity to meet population needs.

Finally, I am pleased to announce that we will lay regulations under existing powers to require ICBs to provide information that CQC reasonably requests and to publish an action statement where directed to do so by CQC. This will strengthen CQC oversight of how it monitors the application of the Act in local areas, such as the duty on ICBs under Section 140 to notify local authorities specifying hospitals where arrangements are in place for the provision of accommodation and facilities for children and young people. I hope that noble Lords will feel able to support this amendment. I beg to move.

[Baroness Browning (Con)]

My Lords, I just want to clarify something, as the Minister has referred quite a lot to NHS England and its role going into the future. My understanding is that there is a sea change due at NHS England. How can we be sure that some of these roles, which are very important to this Act, will still be there and that they will be the people who will be responsible?

[Baroness Merron (Lab)]

I will answer the question at the end for simplicity; I do have an answer for the noble Baroness.

21:00

[Lord Meston (CB)]

My Lords, in those circumstances, if I may, I shall now speak to Amendment 51, which is also in this group. This is the same amendment that I put forward in Committee to provide a statutory basis for determining the competence of a child under 16 to make decisions for the purposes of this Bill and the Mental Health Act 1983. I should emphasise that it is concerned not with the consequences of such decisions but with the determination of competence for the purposes of those decisions.

I will not repeat at any length the arguments from Committee but remind the House that this amendment was prompted by the report of the Joint Committee on the draft Bill, which referred to the complexity of the law in this area concerning those under 18 years of age and referred to the absence of consistent criteria to establish capacity or competence. Sixteen and17 year-olds are subject to the Mental Capacity Act and have the benefit of a statutory presumption of capacity applicable to adults. Children under 16 covered by this Bill do not have the benefit of that presumption and the existing Mental Capacity Act does not apply to them.

The competence or otherwise of those under 16 to make decisions is considered by reference to the principles decided judicially by the House of Lords in the case of Gillick, to which the Minister referred when rejecting my amendment. However, Gillick did not actually set out any test for assessment of competence or any method for such assessment. It simply provided that a child under 16 could consent to medical treatment if considered by professionals to have the maturity and intelligence to understand what is involved. There was no indication of how the broad notions of maturity and intelligence were to be assessed.

This has left professionals, legal and medical, with what has been called inherent uncertainty. The Bill will create a range of situations in which professionals will have to assess a child’s competence, but it is silent as to how that is to be done. In rejecting this amendment, the Minister suggested that it could cause confusion if it was seen to be a different test to that established by Gillick.

The more that I and others have thought about that and analysed the argument, the harder it has been to accept it. First, as I have said, Gillick does not establish any methodical test. The House of Lords in that case did not have to set out how competence was to be assessed. Secondly, this amendment does not conflict with or undermine Gillick. On the contrary, it is intended to build upon it and to provide a workable approach to problematic assessments which professionals sometimes have to undertake.

The amendment provides a clear, structured test for determination of a child’s competence to fill the gap in the Bill and to address the uncertainty to which the Joint Committee referred. I therefore suggest that, rather than create uncertainty or confusion, as was suggested by the Government, it will actually reduce or remove it, and it will provide a clear statement of parliamentary intention as to relevant considerations to be brought to bear.

The Minister has been kind enough to write to me recently, explaining further the Government’s reasons for not supporting my amendment. She stated concern that it could have unintended consequences. However, unintended consequences are by their nature unknown, unforeseeable and may never happen. I have therefore found it difficult to understand the Government’s concerns, particularly as my amendment is expressly limited, referring only to decisions under this Bill and under the existing statute.

The Government also suggested that it might have the effect of restricting the ability of children to exercise choice and autonomy. I have to say I do not understand how that could be suggested. On the contrary, I think it would facilitate the exercise of choice and ensure respect for Article 12 rights, which are expressly referred to in the amendment. The exact terms of Article 12 of the UN convention require that a child who is capable of forming his or her own views is assured of the right to express those views freely, and that those views are given due weight according to age and maturity. In short, I do not see the problems suggested by the Government, and accordingly I commend this amendment.

[Baroness Butler-Sloss (CB)]

My Lords, I agree with all three amendments that we are considering at this moment, but in particular I support Amendment 51 and agree respectfully with every word that the noble Lord, Lord Meston, said. He has set it out extremely carefully and clearly.

Despite meeting the most helpful Minister to discuss this and other matters in the Bill, I absolutely cannot understand why the Government do not realise that the absence of any information to help medical professionals looking at a 14 or 15 year-old who has mental health issues, which are why they are in hospital, but who appears otherwise to be very bright, is an issue. How on earth are they to judge whether that child has the degree of competence necessary for the professionals to listen carefully to what the child has to say? If you are over 16, you are included in the Mental Capacity Act 2005, but under-16s have not been included.

I emphasise the point made by the noble Lord, Lord Meston, that Gillick is very long-winded. It would be unreasonable for any medical professional looking at a child of 13, 14 or 15 to settle down and read the judgments of the then House of Lords to find out that they say that Gillick should be applied but absolutely do not say how.

This is why we have this amendment. The Government might decide that they are not prepared to accept it. I did not see the letter that the Minister sent to the noble Lord, Lord Meston, but I cannot understand why there is any confusion. I cannot understand why a form of advice to mental health professionals on dealing with under-16 year-olds in mental health conditions might be applied in any other circumstance in any other litigation. It does not apply.

I have spoken not only to the Minister but to the very helpful team who surround her, and I have been completely unable to understand what on earth they are really worried about. I would be—and I would like the Government to be—much more worried about anyone over 16. There is primary legislation telling anyone how to judge that someone over 16 has the ability to make decisions, but there is nothing to tell anybody about someone under 16.

In my view, there will be a serious lacuna in the law that is very unhelpful, particularly to mental health professionals. What on earth are they going to do with a child who, as I say, is bright and cheerful despite what his or her mental health problems are? How on earth are they going to approach judging whether that child has the sort of competence that over-16s have?

I find it difficult that what is contained in this excellent proposed new clause by the noble Lord, Lord Meston, is seen as somehow confusing or that it will be used in the wrong circumstances, or anything like that. If Amendment 51 is not going to be accepted, what on earth is the help that the Minister expects to give to mental health professionals dealing with under-16s?

[Baroness Bennett of Manor Castle (GP)]

My Lords, I say humbly and briefly, following that expert explanation of Amendment 51 from the noble Lord, Lord Meston, and its powerful reinforcement by the noble and learned Baroness, Lady Butler-Sloss, that I attached my name to this amendment simply because I thought it was such an important one, following our debate in Committee. I felt that it should have a full slate of signatures from as broadly around the House as possible. I do not claim any particular expertise here, but my intention to do this was strengthened by the joint briefing from the Law Society, Mind and the Children and Young People’s Mental Health Coalition. It is quite notable and I am sure many noble Lords will have received it. That briefing is explicitly on Amendment 51, which just shows the level of concern on this issue among NGOs.

It is worth saying—it is kind of stating the obvious—that, as the briefing notes:

“We consider that the test should be on the face of the Bill, not in a Code of Practice as the Government suggests. This is because the courts have made clear that codes of practice should reflect the law and cannot create law”.


That sets out clearly to me, as a legal lay person, where we are. As the joint briefing then says,

“a clear and consistent approach to assessing a child’s competence can only be achieved by including a test in the Bill. The Code is not the right place”.

[Baroness Tyler of Enfield (LD)]

My Lords, I will also say briefly that I too added my name to Amendment 51 in the name of the noble Lord, Lord Meston. In Committee, I pondered this issue long and hard. At one stage, I thought that perhaps more consultation was required, but having listened to the arguments and heard from people in the sector, which was very helpful, along with the briefings we have received, I am now firmly of the view that this is a real gap in the current Bill.

We have this opportunity and, as has been said two or three times so far today, we do not get such an opportunity very often. It might be once every 10 or 15 years that we get the opportunity to look at mental health legislation such as this. I have therefore come strongly to the view that we need to make the most of this opportunity so that there is a proper test for decision-making for under-16s—a sort of competence test—within the Bill.

In coming to that view, I have taken two or three things into consideration. One is that it would apply only when the Bill requires that a child’s competence is to be considered. Then, very importantly I thought, the amendment is concerned only with the question of a child’s ability to decide, not what happens once that has been determined. Finally, this excellent amendment explicitly limits this test to decision-making under the Bill and the previous Mental Health Act 1983. In short, it applies only to children who fall within the scope of this legislation, so it is tightly drawn. The noble and learned Baroness, Lady Butler-Sloss, set out so powerfully the need for this and the case for it, in a way that I could not possibly do. I just wanted to explain how my thinking had evolved since our discussions in Committee.

Briefly, while I am on my feet, I was always very supportive of the amendment put forward by the noble Earl, Lord Howe, for strengthening safeguards for children admitted to adult wards and out-of-area placements. This is a really important issue and I shall be interested to hear what he has to say on the subject. I was also interested to hear the Minister talk about the amendment that she has put forward in relation to this, so I hope that progress is being made in this important area. I will be interested to hear what the noble Earl’s reaction is to that.

[Earl Howe (Con)]

My Lords, I join other noble Lords in expressing my full support for Amendment 51 in the name of the noble Lord, Lord Meston. A very compelling case was put by forward by him and the noble and learned Baroness, Lady Butler-Sloss.

I also thank the Minister very warmly for her Amendment 46 and her helpful explanation of what it is likely to entail regarding the process that will flow from it. It is reassuring to know that our Committee debates on age-appropriate treatment for children and young people have been seriously considered by the Minister. I put on record my appreciation of the advanced notice she gave me of her intention to meet noble Lords’ concerns in this constructive way. I hope, nevertheless, that she will not mind me posing a number of questions prompted by the government amendment and my Amendment 58, which has been grouped with it.

21:15

The Mental Health Act states that hospital environments should be suitable to the age of the patient. The mental health code of practice states clearly that admissions of children to adult wards are permitted only under exceptional circumstances. Yet, as I indicated in Committee with the aid of some stark and very troubling examples, we still have a very considerable problem in this whole area of mental health practice.

The essence of my amendment is to say that we need to strengthen the safeguards against inappropriate placements. The independent review of the Mental Health Act agreed with that. It recommended that, when a child or young person is placed on an adult ward, the CQC should be informed within 24 hours; at the moment it is 48 hours. It also said that the reason for the placement and its duration should both be recorded. Correspondingly, the Joint Committee on the Draft Mental Health Bill recommended a tightening up of duties placed on hospital managers.

It was welcome to hear from the Minister that the Government intend to review the Mental Health Act code of practice, as well as the service specifications for children’s and young people’s mental health care. What I was hoping for, however, was that the Bill itself might now be amended to contain, unequivocally, some of the strengths and safeguards that I referred to.

My amendment is rather lengthy, but its key provisions can be summarised quite briefly. First, there should be much stricter and more explicit duties for hospital managers. Whenever a child is admitted to an adult ward, there should be a laid down process obliging the manager to record the fact of the admission, the justification for it, what the hospital is going to do to look after the child safely, and what they propose regarding transferring the child to a more appropriate setting. If a child continues to be accommodated in an adult ward for an extended period, the director of children’s services in the appropriate local authority should be notified. In Wales, it would be the director of social services.

I also suggest this procedure should apply when a child is placed out of area and is held for an extended period. In other words, the whole issue around children in mental health hospitals runs wider. It is not just the CQC that should be under the spotlight. It should also be the local authority, which has the job of ensuring that children’s well-being is protected.

Welcome as the government amendment is, it does not go nearly far enough. As well as the pledge to review procedures related to the CQC, I wish it contained, ideally, some indication that the Government recognise the need to review duties placed on hospital managers. In addition to the issue of children being admitted to adult wards, I also wish there were mention of children placed out of area.

Can the Minister reassure me that, in parallel with the review that the amendment is heralding, there will be a concerted effort to look at these other dimensions of the issue, whether that involves updating the mental health code of practice, the training of staff or, perhaps more fundamentally—recalling our debate on the first group today—what needs to be done in many more areas of the country to provide in-patient or outreach mental health services that are suitable for children and young people? It is the absence of such facilities in the first instance that gives rise to the problems that we are now discussing. I look forward to hearing what the Minister has to say.

[Baroness Browning (Con)]

My Lords, very briefly, I added my name to this amendment, but I of course support the amendment from the noble Lord, Lord Meston—it is urgent to have an answer to that when the Bill proceeds.

I support all that my noble friend on the Front Bench said about children in adult wards, but I particularly focus on his request for attention to out-of-area placements. We know, from many of the cases that, sadly, we have had to debate in this House, that, when people are detained unduly—almost as though they are placed somewhere and the keys are thrown away—it is all too often because they are well away from their home base and from convenient visiting by relatives, and, as my noble friend said, often far away local authorities that might have had some sort of overview of them previously.

This is very difficult. We know that local authorities are stretched financially, and, presumably, keeping an eye on what is happening to somebody who has gone well out of their area has a clear cost implication. None the less, we are talking about children. Therefore, I support my noble friend and I hope the Minister will find a way forward to support these children.

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords across the House for their contributions during the debate on this group, the last of the evening. I am glad that both Front Benches welcome government Amendment 46, albeit I heard the noble Earl, Lord Howe, say that he had hoped that we would go further. I am glad that the other commitments made at the start of the debate were welcomed.

Amendment 58 was tabled by the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall. We agree with the intention of this amendment but do not believe that placing more limitations and prescriptions in legislation is the best vehicle to reduce the placement of children in certain settings.

In Committee, I set out existing measures to address and monitor this issue. The latest data from the CQC’s Monitoring the Mental Health Act in 2023/24 report shows that it was notified of 120 instances where a person under the age of 18 was admitted to an adult ward, which was a 38% decrease compared to 2022-23. I committed to set out guidance in the revised code on the process to determine whether a placement is in a child’s best interests, and to ensure that safeguards are in place. NHSE will also do this in the new service specification—I will return to this point for the noble Baroness, Lady Browning. I hope that the additional commitments we have made in this debate show that the Government take this matter seriously and that we are committed to continuing to work on and address this issue.

To the point that the noble Baroness, Lady Browning, made about NHSE, I assure her that, as we work to bring the two organisations together—NHSE and DHSC—we will ensure that we continue to evaluate impacts of all kinds and that the functions currently undertaken by NHSE will continue along with that change. It will take some two years for the full process, including legislation, to take effect. However, admin changes are happening more immediately. The main thing of which I want to assure the noble Baroness is that the change into the future will not affect the commitments that we have given; they will continue, and without duplication.

Before I turn to Amendment 51, I will go back to the noble Earl, Lord Howe, who asked whether we would undertake a concerted effort to look at other directions of the issue, such as training and suitable in-patient or outreach mental health services. In response, I can say that, subject to securing further investment, NHS England is developing a new model for specialised children and young people’s mental health services, which will be supported by a new service specification and quality standards. The priority for these services is to transform and expand community services to make sure that there are local accessible community alternatives and to reduce the need for admission and dependency on in-patient beds, as well as reducing the length of stay and keeping young people closer to home. I hope that the noble Earl will appreciate that we are in the same place on this and that it is a matter of actually putting it into action.

I return to Amendment 51, which was tabled by the noble Lord, Lord Meston, and spoken to the noble and learned Baroness, Lady Butler-Sloss, and other noble Lords. We believe that the Mental Health Act is not the appropriate legislative vehicle to set out a statutory test for competence for under-16s, and nor would it be appropriate to seek to establish a test in a single setting. We are not satisfied that the possible implications for mental health in other settings where Gillick is applied have yet been fully explored.

The principle of Gillick competence is established in case law, as noble Lords will be aware, not statute. Any statutory test should reflect existing case law and would not necessarily override the application of Gillick outside the Act. The design of the test is partly aligned with the tests set out in the Mental Capacity Act. There is no consensus in the courts, as noble Lords will be aware, on whether it is appropriate to apply these tests to test competence in children under 16.

The noble Lord, Lord Meston, raised the question of unintended consequences, to which I am able to respond. The creation of any test that does not consider the interaction with existing case law could inadvertently limit the ability of children detained under the Act to exercise choice and autonomy under their care and treatment. Those are the concerns about unintended consequences.

We are also greatly concerned that, in seeking to provide clarity on assessing competence in mental health settings, two different tests could be created. This is likely to cause further confusion and a risk of legal challenge for decision-makers in mental health settings, potentially in any setting where Gillick is applied. This could have unintended consequences—I use that phrase again—for the ability of children to exercise choice and autonomy, as I have already mentioned, which I hear is counter to the noble Lord’s intention.

The noble Lord will understand that we cannot comment on or prevent how, as I say, courts will interpret the test or whether there will be further calls for similar tests. The courts may even go as far as to apply this test in other settings. That is what we mean when we say the introduction of a test for decisions under the Act will or may cause confusion and uncertainty in other settings. We do not think the consequences of this have been given proper consideration, nor can this risk be appropriately mitigated. We will consult on the statutory guidance for assessing competence in mental health settings, as I have mentioned, in the revised code of practice. I hope that will meet the intention to provide further clarity.

The noble and learned Baroness, Lady Butler-Sloss, asked what additional support would be provided to clinicians in engaging with children and young people, as we are rejecting this amendment. The Mental Health Act code of practice already provides guidance on establishing competence in under-16s. As I have said, we will consult on the guidance in the revised code of practice. I also re-emphasise that we feel it is better to focus on improving the practical application of Gillick rather than create or risk further confusion.

I hear that there are differences of opinion. While I am sure that what I say will not completely satisfy noble Lords who have raised concerns, I hope it gives a sense of where we have got to and the reasons. I therefore hope that these reasons will convince noble Lords not to press their amendments.

Amendment 46 agreed.

Consideration on Report adjourned.