Mental Health Bill [HL]

Baroness Keeley Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Baroness Keeley (Lab)]

My Lords, I am glad to take part in this debate in your Lordships’ House, after four years as a shadow Minister for Mental Health and six years on the Health Select Committee in the Commons.

In welcoming this Second Reading, I will speak about dealing with the inappropriate detention of autistic people and people with learning disabilities in mental health hospitals. Noble Lords, including those who served on the Joint Committee on the draft Mental Health Bill, understand that too many autistic people and people with learning disabilities have been detained in inappropriate facilities and for far too long. But we, as politicians and legislators, have not made the changes needed to stop this.

The Winterbourne View scandal and a series of other scandals since 2010 have shown abusive treatment meted out to autistic people and people with learning disabilities detained in inappropriate units. In 2011, following the shocking revelations made by journalists of the abuse to residents detained in Winterbourne View, which was rightly described as “torture”, the then Prime Minister pledged to close all inappropriate in-patient units by 2014. That did not happen. Since then, successive Governments have also committed to targets to reduce the number of autistic people and people with learning disabilities in in-patient settings and to prioritise housing and support in the community for those individuals. These targets have all been missed.

In 2021, the Commons Health and Social Care Select Committee, of which I was a member, completed an inquiry into this treatment. Commenting on the missed and delayed policy targets, the inquiry report suggested that “a more radical approach” was needed to unlock community provision for this group of people. Now there is a chance for reform but there are widespread concerns to raise with my noble friend the Minister that the measures in the Mental Health Bill will not be enough in themselves. While it is welcome that the Bill makes it harder to detain a person under the Mental Health Act on the grounds of autism or learning disability, there are widespread concerns, as we heard in this debate, that this could lead to people being held under alternative routes, including the Mental Capacity Act 2005 deprivation of liberty safeguards. We must guard against that happening.

In many cases, autistic people and people with learning disabilities are not being detained just because of the legal framework they are under. They get stuck for years in mental health hospitals because of the lack of support for them in the community. In too many cases, discharge planning is repeatedly delayed because those responsible see the needs involved as too complex or feel that there are no suitable care providers. I will mention two cases to illustrate this: a young autistic woman called Bethany, and Tony Hickmott.

When I first raised Bethany’s case in the Commons, she was a 17 year-old autistic woman with extreme anxiety, kept in seclusion in St Andrew’s hospital, Northamptonshire. In a cell-like room, she was fed through a hatch in a metal door. When her father Jeremy visited, he had to kneel at the hatch in the door to speak to her. Bethany was detained and held in seclusion despite an assessment that the hospital setting that she was in could not meet her needs and a recommendation that she should be moved to a community residential setting with high support.

The lack of funding for support in the community was clearly a factor. The Walsall Council officer responsible for her placement told Bethany’s father that her care had already cost the council £1.2 million. “To be frank,” the officer said to him, “Walsall could do with a breather”. Moving Bethany to a community setting would involve her local council paying £100,000 to £200,000 a year from the adult social care budget, instead of leaving the NHS to pay the much higher bill, which was £676,000 a year. It seems that Bethany was being held in isolation so that the local council responsible did not have to pay her costs, but the very high costs of her detention were then borne by NHS England.

I raised Bethany’s case numerous times in the Commons and she was at last discharged to live in the community. Fast forward seven years and her father talks about what a happy life his daughter now has, in her own property, with good support from a wonderful care team.

The outcome has not been as positive for Tony Hickmott, an autistic man with learning disabilities. In 2022, Tony had spent 21 years in a secure assessment and treatment unit and it looked as if he could finally move back to his hometown of Brighton, close to his parents Pam and Roy.

Tony had stopped meeting the criteria for being detained in a psychiatric hospital in 2013, but it was ruled that he could not be discharged from there because a suitable community placement could not be found for him. His parents applied to the Court of Protection in 2019 and, after a number of hearings, the judge ruled that Tony should be discharged from hospital to live in a specially renovated house with care from a brought-in provider.

This should have been a happy ending too, but it was not. Reports describe that Tony is now effectively barricaded into the bedroom, with the care staff in his home operating the house like a seclusion room. Tony’s parents, now in their 80s, are prohibited from taking him out into the community. He is held under the deprivation of liberty safeguards. I hope that Tony Hickmott’s care provision can be improved.

Much could have been done by Governments over the last 12 years to tackle this issue of inappropriate detention. The new Government now have the chance to change this. First, we must act to prevent new inappropriate admissions of autistic people and people with learning disabilities. Secondly, we must act to enable the discharge of the 2,000 autistic people and people with learning disabilities detained inappropriately in mental health units.

As we have heard in this debate, the average length of detention for this group is 5.4 years, with 355 people detained for more than 10 years. Mencap has estimated the cost of this care in inappropriate units for this group as £534 million a year. Detentions are often, as we have heard, far away from family and friends, with alarming reports of people from this group being overmedicalised, subject to physical restraint and shut away in isolation. All this is as traumatic for those detained as it is devastating for their families. As Mencap has said, its findings on the staggering cost of institutional care show that this is

“an appalling waste of public money on the wrong type of care”.

I hope that there is now a will to change this.

As I mentioned, there is first the issue of ensuring no new placements of autistic people and people with learning disabilities in those inappropriate mental health units. The Commons Select Committee inquiry report made recommendations on how this could be achieved.

Secondly, the issue of who is paying for care and community support must be tackled. I support the plea made by the noble Baroness, Lady Hollins, for an action plan to succeed the Building the Right Support Action Plan. The Commons Select Committee inquiry recommended that the Department of Health and Social Care should

“redesign the financial incentives … so that local authorities”

and local NHS bodies

“do not seek to ‘offload’”

the care of

“autistic people and people with learning disabilities onto the NHS or place these individuals in inpatient facilities”.

Tackling these issues of funding flows now needs strong cross-governmental action.

There are some further actions that could be taken to improve the mechanisms around this area of work. I thank the human rights lawyer Dr Oliver Lewis for his input. Currently, mental health tribunals are not considered useful in dealing with people stuck in hospital in-patient units. Tribunals dealing with cases for this group should be required to have a medical member with expertise in autism and learning disabilities. Working through the practical issues of achieving a discharge destination for people currently detained could be improved if mental health tribunals are given the power to compel a local authority or NHS body to find a discharge destination in the community or if the Court of Protection was used more to rule on discharge arrangements.

The Bill presents an opportunity to correct an oversight under Section 73 of the Care Act 2014 affecting human rights, which the noble Baroness, Lady Barker, raised earlier. I too thank Dr Lucy Series and Professor Luke Clements for information about the issues raised in the Sammut judgment. As we have heard, that is a ruling that means the Human Rights Act does not apply where mental health patients get Section 117 aftercare in private settings. There is a real concern about the broader implications of this for patients receiving continuing healthcare through private services, children in private social care, and even patients detained in private hospitals under the deprivation of liberty safeguards. This latter group could expand to include the numbers of learning disabled and autistic people who are detained in hospital under the deprivation of liberty safeguards because they are no longer eligible for detention under Section 3 of the Mental Health Act. I am sure it was Parliament’s intention to protect the human rights of vulnerable adults and children for whom the state arranges health and care services. I hope that my noble friend the Minister will agree to the suggested meeting with Lucy Series and Luke Clements to discuss that.

I hope that we can bring forward amendments as necessary to correct this oversight as well as to address the other issues I have raised.