Mental Health Bill [HL]

Baroness Barker Excerpts

Tuesday 14th January 2025 Lords Chamber

[Baroness Berridge (Con)]

I hate to interrupt the Minister’s flow, but we are going to come back to the code of practice again and again. Can she outline whether we will get to see a draft of that code? If the argument from the Government is that it needs to be in the code and not on the statute, it would be very helpful to see a draft code of practice before Report, at the very latest.

[Baroness Barker (LD)]

Those of us who were here in 2006 listened to the Minister’s predecessor at the Dispatch Box making pretty much the same speech that she has made now, and nothing has changed in the meantime. We are trying to do what we can to make sure that we do not have the same situation for the next 20 years.

I take the point that the Mental Health Act 1983 was not built on principles. Does the Minister accept that it is time that we moved forward to a situation where both the Mental Health Bill and the Mental Capacity Act are built on principles, including that the people who are subject to them have rights to dignity and so on, as we have seen set out in different places, and that if they are not treated in that way they have the right to take people to court?

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[Baroness Merron (Lab)]

My Lords, I am most grateful to noble Lords across the Committee for their contributions. I will start by referring to the points raised by the noble Lord, Lord Scriven. A range of views has been expressed today on the matter of detention. The noble Lord asked what provision will be in place to ensure that we are not using some kind of backdoor, and that is a very good general question for us to hold in our heads. It is a very important matter, given the very poor outcomes we have seen for those with a learning disability and for autistic people under the current Act. I know this is something that has really exercised noble Lords—rightly so, in my view.

The noble Lord, Lord Kamall, is quite right to remind me of comments I made from that Dispatch Box, which I still stand by. I have concerns, as I know he does too. The proposals here are intended to address the matter of improving outcomes. The debate today has been extremely helpful and will allow me to reflect on where we need to go in respect of these. I am also grateful for the range of wider topics raised in this group—for example, on the importance of the community sector—and I look forward to moving on to these when we come to subsequent groups later today.

Let me first address Amendment 4 and the notice to oppose Schedule 1, tabled by the noble Baroness, Lady Bennett of Manor Castle. Currently, a person with a learning disability can be detained for treatment under Part II, Section 3 of the Mental Health Act when their learning disability

“is associated with abnormally aggressive or seriously irresponsible conduct”.

I heard what the noble Baronesses, Lady Browning and Lady Berridge, said. The noble Baroness, Lady Browning, used the word “meltdown”, and she has spoken to me about this before. I know that not all noble Lords like that word, which is why I put it in quotes, but the point is well made and the noble Baroness has explained to me about understanding a person’s conduct. It is also the case that an autistic person can be detained under Section 3 on the basis of mental disorder.

While the independent review found examples where use of the Act can deliver therapeutic benefit, it also found that hospital detention—a number of noble Lords spoke about this—can be detrimental for people with a learning disability and autistic people, due to exposure to environments or experiences that are completely insensitive to what I would call reasonable adjustments. This obviously causes stress and leads to behaviour considered to be challenging. We have heard that it is too often the case that people with a learning disability and autistic people are being inappropriately detained due to a crisis—which may be a better word in this instance—that has arisen due to a lack of community support, rather than for treatment of a mental health condition. That is unacceptable and the point has been extremely well made, both in the Chamber today and on earlier occasions.

The Government are committed to ensuring that hospital detention happens only when an individual has a mental disorder that warrants hospital treatment that has a reasonable prospect of providing a therapeutic benefit. It should not be some form of punishment. Schedule 1 and Clause 3 will change how the Act applies to people with a learning disability and autistic people by introducing new definitions for “psychiatric disorder”, “learning disability” and “autism” in the Act, and making amendments using those definitions throughout the Act. These amendments remove, for the purposes of Part II of the Act, learning disability and autism from the scope of conditions for which a person can be detained for compulsory treatment under Section 3. I hope that will be of reassurance to the noble Lord, Lord Kamall, and other noble Lords.

The noble Baroness, Lady Bennett, argued that the Bill is non-compliant with the UN Convention on the Rights of Persons with Disabilities. The measures in the Bill give patients greater choice, enhanced rights and support, and seek to ensure—I know that noble Lords want to probe this—that everyone is treated with dignity and respect throughout their treatment, and that the treatment is appropriate to the situation. It is the view of the Government that the Bill is compatible with the convention. Detention under the Act is not based merely on the existence of disability: that is something I really want to emphasise. Detention is risk-based. Detention and other compulsory measures are permitted only where they are justified by the risk posed by a person’s mental disorder and, through the Bill, I hope that we are very much strengthening the criteria for detention. We will come back to this later in Committee.

Amendment 4, tabled by the noble Baroness, would leave out Clause 3 and put in a new definition of mental disorder to remove learning disability and autism from the scope of the Mental Health Act entirely. This would mean that a person could not be dealt with under any section of the Act on the grounds of learning disability or autism alone. We very much recognise the arguments for removing these conditions from the scope of the Act, but there could be unintended consequences in the removal of critical safeguards. I know that the noble Baroness does not wish to cause that effect.

For example, the Bill retains the ability to detain people under Part II, Section 2, for a maximum of 28 days, for the purpose of assessment. That can be necessary both for the safety of the individual and the public, and for a clinician to understand fully whether a treatable mental health condition is the cause of the behaviour. I suggest that this is particularly important when considering conditions associated with high rates of co-occurring mental health conditions. Without these powers, there is a risk that the mental health needs of these groups of people are not identified or met appropriately, leading to further health inequalities for this group of people. I know that is not something that noble Lords would wish.

[Baroness Barker (LD)]

I have not spoken in this debate so far, but I have listened intently to everything that everybody has said, including the noble Baroness, Lady Murphy. Members of the Select Committee will remember—they could not forget—the evidence given to us by particular witnesses who have autism and have been through the trauma of being detained. They made to us, unforgettably, the point that there are some people with autism and learning disabilities for whom detention is an aggravating factor.

I happen not to agree completely with the noble Baroness, Lady Bennett, that there should be an end to all detention, although I have some sympathy with her arguments. I believe there are people for whom detention is necessary—both for them and for the safety of others—but they should be held in mental health facilities and not the criminal justice system.

I listened intently to the noble Baroness, Lady Murphy. I understand that it may be absolutely correct to define people with autism and learning disabilities as having a disorder, but we have moved on over 20 or 30 years to understanding that their manifestations and treatment are different from those of other mental health conditions. There is therefore a problem in having the diagnosis and treatment carried out by the same people. I hoped that she would explain, but she did not, why keeping people within the definition would improve their care.

[Baroness Murphy (CB)]

Does the noble Baroness accept that, in talking about treatment, we are talking about care, education and training in social circumstances? Treatment is not about medication, which may be totally inappropriate, but about looking at the individual’s developmental needs as a whole, which include a whole raft of things. I agree that it is not just about psychiatrists or psychologists; it can be about teachers, people with a special understanding of speech and language, and so on. I would never deny that you have to encompass the whole thing—I would promote it.

[Baroness Barker (LD)]

I am sure that the noble Baroness would. Does she accept that for some people, particularly those with autism and learning disabilities, being held in conditions that are noisy, filled with light and full of people they do not know—in which they are made to feel completely powerless and do not know what will happen to them next—will be a contributory factor to their illness? I make that point to the noble Baroness, Lady Merron. She talks about choice, but what increased protections are there in this Bill for people with autism or learning disabilities who find themselves in detention, which is an aggravating factor causing them to be wrongly diagnosed?

[Baroness Merron (Lab)]

I will be pleased to come back to that point. I think agreement broke out for a moment, which I would share, on the fact that detention takes many forms. It is about getting the right form and being sensitive to the needs of the individual, which is what the Bill is all about. I am grateful for those comments.

To pick up my point about the expert consultation that has taken place, a decision was taken to retain the ability to divert people who are autistic or have a learning disability, who have committed a crime, from prison to hospital under Part III of the Act. Without this safeguard, the only alternative to detention in hospital is detention in prison. Noble Lords have referred in this group to how, often, this would be inappropriate in meeting those people’s needs and would exacerbate and manifest distress. On balance, we believe it is right to retain the ability to divert such patients to hospital, where they are much more likely to access the right kind of support and care that they need.

The noble Baroness, Lady Bennett, raised concern about resourcing implications for local authorities. I refer her to the impact assessment, which sets out anticipated costs, including a breakdown of costs for councils. I assure her that we will do further work with MHCLG to assess any new burdens on local authorities created by the Bill. We are very alive to that situation.

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[Baroness Merron (Lab)]

I am sure that I have not been generous enough. I cannot give a commitment to government amendments on any of these areas. As noble Lords will be aware, that is the purpose of the kind of debate that we are having in Committee. However, we will certainly return to these matters.

The Mental Capacity Act protects people subject to arrangements that may amount to a deprivation of liberty in hospitals, care homes and other settings, by allowing a deprivation of liberty only when it is necessary and proportionate. There are instances when it is important that the Mental Capacity Act can be used to protect and to safeguard people where appropriate, and we do not want to lose that aspect.

The concern about the amendment is that it might have the effect of undermining decision-making, or of denying a specified group of people the right to protections under the Mental Capacity Act—although I know that this is not intended. I will give an example. Where a person lacks capacity but does not have a psychiatric disorder that requires treatment, there may be elements of that person’s care plan and arrangements that require deprivation of liberty safeguards to ensure that they can access the community safely and maintain a safe home environment. Similarly, certain specialist community placements are also registered hospitals, so the proposed amendment could unintentionally—I stress “unintentionally”—remove such provision as a viable community-based option, where the individual lacks capacity but would benefit from this placement as an alternative to in-patient care.

The noble Baroness, Lady Berridge, rightly made some comments about the statistics for LDA detention rates. I assure your Lordships that the data and statistics being referred to are absolutely key. They are collected and published, and they will continue to be monitored. If there are any matters where the noble Baroness or other noble Lords feel that we should go further, I would be very pleased to receive their comments.

On the point raised by the noble Baroness, Lady Berridge, about the use of High Court deprivation of liberty safeguards for children, I will refer to the action of the previous Government, which I hope will be seen as very helpful. In 2023, a task and finish group was established called “Improving cross-sector support for children in complex situations with multiple needs”. It was made up of a number of central government departments, operational local agencies and representative bodies, the NHSE and the Youth Custody Service to represent the voice of children and young people, as well as the Children’s Commissioner. This group has been developing a cross-sector response to help ensure that there is suitable provision in place for children and young people with complex needs who are at risk of being deprived of their liberty. To that point, I will take a particular interest in the task and finish group and its work, and we may come back to it.

[Baroness Barker (LD)]

I thank the Minister for giving way again. Listening to the noble Baroness, Lady Browning, set out and explain her amendments, it seems to me that they require the people making the decisions about whether to detain somebody to be clearer about which law they are using to decide to detain at a particular point for a particular person. As I understand it, they are not excluding or preventing the use of either bit of legislation for an individual; they seek just to have greater clarity about which legislation is being used and why, and therefore what protections the person will have. The Minister said that, if these amendments go through, some people will, somehow, be excluded from the correct treatment. Is there a particular group of patients or conditions that are at risk if the amendments tabled by the noble Baroness, Lady Browning, are implemented? Can the Minister give us some examples? Otherwise, I fail to see the logic of what she is saying, given the explanation that the noble Baroness, Lady Browning, gave the Committee.

[Baroness Browning (Con)]

I agree. The amendment seeks to strengthen and to clarify, rather than to make changes that would be completely different to what is intended in the Mental Capacity Act.

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Moved by

[Baroness Barker]

6: Clause 4, page 4, line 41, at end insert—
“(iv) housing”Member’s explanatory statement
This amendment ensures that housing needs are considered as part of care, education and treatment review meetings.

[Baroness Barker (LD)]

My Lords, since this is the first time during our proceedings that I propose something, I declare an interest as a member of an advisory panel for Rethink Mental Illness in an unpaid capacity.

I apologise if I risk sounding like a broken record; it is just that I have been here discussing these issues so many times in the past, as indeed have many other Members of your Lordships’ House. I will not apologise for taking a long-term view of things or for saying that there have been areas of change and areas of progress. But I also do not apologise for explaining to your Lordships the amount of effort and discussion that it has taken to bring about change and movement, not least against some of the entrenched views of the professions, which over the years have put up quite a deal of resistance to change.

It is also our job to look at the proposals that have come forward from patients’ groups and say that some of them are valid and some of them are not. We are in a unique and very privileged position in this House where we get to take a long-term and wide perspective, and we should use it wisely.

I say that because we have debated care and treatment plans time and again. Mental health institutions up and down the country are littered with files of care and treatment plans, many of which have sat on shelves and never been implemented. With this legislation, we are moving to the position we need to get to where everybody who is subject to mental health treatment has a care and treatment plan, the decision-making behind that plan is open to scrutiny, and the people responsible for delivering it are held accountable.

I cannot imagine what it must be like to sit day after day in a place where I know I am supposed to be given treatment that will enable me to get better and get out, and to receive nothing. I imagine the temptation to sit there and think about that all day long is in itself is a gravely depressing factor. That is the sort of thing that we have listened to over the years from people—particularly young people—who have been subject to mental health treatment and care plans and never had them delivered, so how pleased we are to have moved forward to this point. I am also very pleased that Members are trying to take this opportunity to beef these plans up, in particular the accountability around the delivery or failure to deliver them.

I want to include housing in the Bill. You do not have to have a mental health condition to be severely worried about housing these days. Any young person in this country can have real concern about availability of housing, tenure and all the rest of it. If you have a mental health condition and are likely to be detained for an indefinite period, and therefore very likely to lose your tenancy or whatever, that must be a huge aggravating factor.

One reason why I was prompted to table this amendment was because I was on the pre-legislative scrutiny committee for the then Bill back in 2006. Somewhere there is an unwritten law that, when mental health legislation is coming up, Members of this place will be sent to the South London and Maudsley. There is no way out; you have to go. But it is always good to go to SLaM to talk to the staff, who are immensely generous with their time. You cannot go on one of those visits and walk out unchanged from the experience.

I remember, in particular, a bunch of your Lordships going to talk to one of the best teams that I have seen in practice. Back in those days they were called an assertive outreach team; I do not know what they are called these days. They were absolutely brilliant, dedicated individuals. Their job was to work with people out in the community, to know them all and to predict the problems that would arise. One thing I remember them telling us was that they would frequently go to the local authority or to landlords when they had somebody whose particular crisis was that they had got into arrears. They would head it off by negotiating and de-escalating the situation so that the person did not get turfed out and therefore end up in acute care.

Similarly, we know that discharge is a lottery for anybody who goes into any acute hospital for any reason at all. Discharge from the NHS is one of those things that when it goes brilliantly, it goes brilliantly. When it does not, it is an absolute and utter disaster, and the person at the centre of it has absolutely no control over it at all—even less, I would suggest, when they are being discharged from mental health treatment.

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[Baroness Merron (Lab)]

Yes, I understand the intention, but I refer back, perhaps usefully, to the point I made earlier that review meetings would take place at least once in a 12-month period; it is not a maximum—I think I have got it the right way round. It will be at least once in a 12-month period; it is not that it can be only once in a 12-month period. That is, as I said, in line with the maximum timeframe in NHS England’s policy and guidance.

Amendment 13 tabled by the noble Baroness, Lady Tyler, relates to care and treatment reviews. The amendment seeks to ensure that a patient’s review makes recommendations about ensuring communication needs are met where there are additional or alternative communication needs. That is something we discussed very constructively in the first group and it was referred to by the noble Earl, Lord Effingham. We believe that current drafting already provides for that in the Bill.

As set out in the clause, those meetings are to review any needs of the patient for social care or medical treatment and can make recommendations about whether and how those needs can be met. This should include recommendations about the patient’s communication needs, which may be important in ensuring that their treatment is effective and to support their discharge from hospital. As set out in the clause, a number of named persons and bodies are to have regard to the recommendations of the review. That will give them the appropriate legal weight to ensure that they are considered and that there must be clear reasons if they are not taken forward.

The Bill also introduces statutory care and treatment plans for all patients detained under the Act, excluding those under short-term sections. We plan to set out the required contents of the statutory care and treatment plan in regulations. It is our intention that this includes information about communication needs to enable the treating clinician to consider the protected characteristics and individual needs of the patient, which speaks to the point I made in the first group to my noble friend Lady Whitaker, and to make reasonable adjustments. Regulations will also require that the report from a patient’s care (education) and treatment review is attached to the care and treatment plan so that recommendations are included as part of this.

Finally, I turn to Amendments 19 and 20, tabled and supported by the noble Lord, Lord Scriven, and the noble Baronesses, Lady Hollins and Lady Bennett. These amendments seek to ensure that there is a duty on integrated care boards and local authorities to carry out recommendations from a patient’s CTR, or CETR if the patient is a child or young person, unless there is a compelling reason provided for why a recommendation cannot be carried out. I thank the noble Baroness, Lady Watkins, and the noble Lord, Lord Stevens, for their differing but nevertheless significant contributions.

These review recommendations should be given the appropriate legal weight to ensure that they are given serious consideration. We have decided to include these provisions in the Bill to put the existing NHS England policy on a statutory footing.

The duty to “have regard” is a well-established duty that clinicians, ICBs and other public bodies are used to applying and it already exists within the Act. The noble Earl, Lord Effingham, asked how the Government will ensure that these recommendations are implemented effectively. I hope that my comments will assist the noble Earl. Where effective care and treatment is the central aim, we would expect careful consideration of all recommendations. Where those bodies decide not to accept a relevant recommendation, we would expect them to have very good reasons for making that decision. It is an appropriate duty in this context because we do not intend to place an absolute duty on a body to follow recommendations in every case—that would be incompatible with understanding the individual needs and requirements of the person concerned.

The legislation must not impose unreasonable duties on relevant bodies that they cannot fulfil or where it would be inappropriate for them to do so; for example, if a recommendation was made that was outside of their purview. The Bill already requires that certain named persons or bodies carefully consider the recommendations and give them appropriate weight.

In view of all those comments, I thank noble Lords and ask that they do not press their amendments.

[Baroness Barker (LD)]

My Lords, I thank everybody who has taken part in the debate on this group of amendments. We were, in essence, trying to get answers to the following questions. Who is responsible for drawing up the care plans and for reviewing the care (education) and treatment reviews? Who is responsible for ensuring that what is in those plans is compliant with the law? Who is responsible for making sure that it actually happens? Who is responsible for finding out whether it has not happened? Who carries the can if it has not happened?

At various points in the Minister’s answer, I was quite hopeful, then, towards the end, we went down the slope quite badly, because it turns out that, apparently, duties will not be put on people, and that is highly regrettable. The Minister does not need to explain to the Committee the difference between a statutory code of practice and a statutory instrument; the issue my noble friend was trying to get to is the extent to which Members of this House will see that these plans reflect what was intended in the law and what scope they will have to call it out if they do not.

I am pleased that it will be a statutory code of practice. That is one step up from nothing—it is not great, but it is better. I am also glad that the Minister said that care and treatment plans will be put in regulations. Will those regulations be done under the affirmative or the negative procedure? That is quite important. In light of all our discussions, we in this House should have the chance to examine that at considerable length and, if it is not right, to have a second go at it.

It is always salutary to sit and listen to the noble and learned Baroness, Lady Butler-Sloss, on the subject on which she is quite rightly famous, not just in the House but outside it. I listened to her strong statement. She will know from other discussions that we have had on the wider subject of health that I have said many times, and I believe it to be true, that we have a health and social care system that is openly predicated on people’s families doing much of the work, and that is never more so than when it comes to discharge. She will have heard me bang on about this before, but I have a considerable degree of concern about what happens to people who do not have families or children. We have never done research on hospital discharge, but I suspect that, if people do not have a relative standing by the bed saying, “No. You are not discharging this person because they are not fit to go home”, they end up being discharged far too early, and I suspect they then go back into hospital as acute admissions a result of that.

That said, I understand what the noble and learned Baroness says about the involvement of parents. However, in 10% of cases, the parent is not the right person. We have heard that in evidence before, which she may recall, where young people who have been subject to mental health treatment have talked about problems within their families. Similarly, people under the Mental Capacity Act have sometimes been the subject of overbearing, overprotective parenting that they have found to be detrimental to them. I am not being anti-parent or asking that parents be excluded. Nobody knows better than the noble and learned Baroness that families are complex, and, as the Minister said, we must make sure that there is the scope to do the right thing for a child.

[Baroness Butler-Sloss (CB)]

The noble Baroness, Lady Barker, is absolutely right. Any amendment I might put forward in future would have to allow for that, as there must be some parents who would not be suitable.

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[Baroness Barker (LD)]

It is getting late, and people wish to have their dinner because they been here a long time. I think we have had a partial response from the Minister. I believe that care and treatment plans and reviewing them are sufficiently important that some of us will want to go away to see whether, on issues that we may not have got technically right, we can come back, perhaps in discussion with the Minister, to satisfy ourselves.

[Baroness Merron (Lab)]

When I review all of the debates, particularly where there are areas where we need further discussion or information, I will be glad to pursue that. I give that assurance to the Committee.

[Baroness Barker (LD)]

I thank the Minister and welcome that. I beg leave to withdraw the amendment.

Amendment 6 withdrawn.