Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, having just heard the noble Baroness, Lady Murphy, I shall be extremely cautious about what I look at on the internet. I want to say just two or three words. I have experience from my own family and from my friends of two sets of drugs—anti-depressants and Ritalin—and they really should be used a great deal more cautiously.

[Baroness Barker (LD)]

My Lords, now is not the time to have the extensive debate that the noble Baroness, Lady Murphy, has opened up. I said right at the outset that we are talking about legislation that comes into play when a person is going to be detained because they are very ill and at risk of harming themselves or somebody else. But I would say to the noble Baroness that the Wessely review looked at this issue at considerable length, and I was among the Peers who listened to Sir Simon Wessely when he came to present his findings. One thing that has stuck with me is the person who gave evidence to his review who said: “I was very ill. I had to have treatment. Why did it have to feel so awful?”—I am using parliamentary language there. Does the noble Baroness accept that mental health legislation debates such as this might be limited, but they do an important thing in sometimes challenging the prevailing orthodoxy among the professions, and they are an occasion where the experience of patients, which have built up over many years, gets a chance to change practice? That is why we should look at all the amendments in this group, and in particular those of the noble Earl, Lord Howe.

[Baroness Murphy (CB)]

I agree with everything that the noble Baroness, Lady Barker, has said. She is absolutely right that professions should be challenged, and that is partly what legislation can do, particularly in debates such as this. But we are losing the very important amendments from the noble Earl, Lord Howe, about young people and what we can do to improve circumstances through the Bill, and I want not to lose them, because they are very important.

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Stressing that I am not a legal expert, I was really attracted by the way in which this amendment is drafted, particularly subsection (3), which rightly puts an onus on professionals to make sure that they explain this in ways that are accessible to the child. We all know that medical and legal terminology may not be accessible to adults, let alone children, but the suggestion of simple language, visual aids or other means is a real direction to professionals to say that they have to facilitate, by any practical means possible, the chance for that child to have agency. That should be at the core of the Bill, particularly for the children who were drawn to our attention on the other group, who are some of the most vulnerable people in our society and who face potentially being locked up against their will. We have to give them as much voice as possible, which is what this amendment would do.

[Baroness Barker (LD)]

My Lords, I make two specific points in response to what the noble and learned Baroness, Lady Butler-Sloss, said. The amendments refer to Section 24 of the Mental Capacity Act, but if one goes on to Section 25 of that Act, there are a number of conditions that have to be fulfilled in order for a record of an advanced decision to be deemed valid. I think it is worth pointing out subsection (5) to noble Lords, which states:

“An advance decision is not applicable to life-sustaining treatment unless … (a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and (b) the decision and statement comply with subsection (6).


Subsection (6) states that it must be,

“in writing … it is signed by P or by another person in P's presence and by P's direction … the signature is made or acknowledged by P in the presence of a witness, and … the witness signs it, or acknowledges”

it to be true.

I am trying to convey to the noble and learned Baroness that these are very formal procedures. They are not taken lightly. That applies to somebody who is 18 and one day, and I think it should be applied to somebody who is younger than that with as much seriousness.

Noble Lords and others have referred to these decisions as advance decisions to refuse treatment. Advance decisions can also be for treatment. People can say in an advance decision, “I know that when I am in an episode of illness, I may be saying that I do not want medication. At this moment in time, when I have capacity, I wish it to be put down in writing that if I do that, you are to ignore it”.

I would like us to have a fuller appreciation of what it is we are talking about, although I do not detract from any of the considerations that people want to bring in about young people.

[Earl Howe (Con)]

My Lords, I venture to say that all the amendments in this group approach similar issues in not dissimilar ways. The most compelling point that perhaps should be underlined in relation to them all is that implied by the amendments in the name of the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston: that there is no earthly reason why the law should prohibit a young person with sufficient decision-making competence recording a valid expression of their wishes and preferences around their own mental health care, and the logical consequence of that is the need for a competence test, or a capacity test for child patients.

My Amendment 56 seeks to address an issue allied to those addressed by the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston. As it stands, the Bill does not permit a 16 or 17 year-old to make a valid advance decision about their mental health care. An advance decision has the same effect in practice as a capacity decision to refuse a particular treatment. It is important to understand that under the Mental Health Act, making an advance decision does not give someone an unfettered right to refuse that treatment. Treatment can still be administered notwithstanding the advance decision, albeit only if certain strict conditions are met. Nevertheless, an advance decision made by an adult patient carries a huge amount of weight, and placed within or alongside an advance choice document, which enables a patient to outline their treatment preferences, it does a great deal to ensure that the patient is placed genuinely in the driving seat when it comes to their mental health care and treatment.

Under the terms of the Bill, young persons aged 16 and 17 will be able to execute an advance choice document, but what they cannot do is to make an advance decision to sit alongside it. That means that an advance choice document that purports to include an advance decision made by an under 18 year-old is likely to carry a good deal less weight than such a document executed by an adult. My amendment invites the Government to put this right.

An associated but distinct issue arises in relation to children under the age of 16. I will not repeat the excellent arguments for a competency test put forward by the noble Lord, Lord Meston, and the noble Baroness, Lady Tyler, but I agree entirely with what they have said. The point that resonates most with me in the context of a Bill that places great emphasis on patient empowerment is that in the absence of a statutory competence test to determine a child’s decision-making ability, it will, in practice, be impossible for someone under 16 to execute an advance choice document and then expect professionals to take due notice of it.

Amendment 147, tabled by the noble Lord, Lord Meston, seems to me to be as good as it gets in articulating the key requirements necessary to establish decision-making competence in a child. My only hesitation about his amendment is that it invites us to place the terms of a competency test in the Bill without further ado. For a measure of this significance, I tend to feel that any final formula for a competence test merits a prior consultation exercise, and then encapsulation in regulations approved by Parliament. I fully agree with my noble friend Lady Berridge that relying on a code of practice in this context would be wholly unsatisfactory. For what it is worth, I suspect that a consultation would be likely to throw up some further considerations that would need to be factored in to the formula. That aside, I very much hope that the Minister will be receptive to the arguments she has heard. If we can deliver this added empowerment to children and, as regards advance decisions, to 16 and 17 year-olds, the prize will be very great, and I hope she agrees that the challenge is one we must address.

Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

Debate on Amendment 57 resumed.

[Baroness Barker (LD)]

My Lords, I will speak briefly to Amendment 60A. At this time of night, I do not intend to make a very long or detailed speech; I simply wish to make two points. Previous speakers, such as the noble Lord, Lord Davies of Brixton, talked about factors that should be included in care and treatment plans and often are not, for a variety of reasons. But they are crucially and directly important to the health and well-being of an individual.

I wish to talk about the inclusion of housing, for two reasons. First, housing is a source of anguish and mental strain, full stop. It does not matter whether people have mental health problems, but if they have and they find themselves in an acute hospital, either detained or as a voluntary patient, I am sure that, when they come back, there will be a very high incidence of them losing their tenancy and then being unable to find suitable accommodation, particularly if they are young.

Members of your Lordships’ House have already spoken about the fact that there are very few treatment centres dotted around the country for young people with eating disorders—here in the Bill we are talking about England. That therefore means that young people are having to go very long distances for treatment, which can have a significant disruptive effect on their living circumstances.

The other reason I thought it was worthwhile to table this amendment and have the debate was that the other day, we had a wider debate about care and treatment plans. The one question many of us were trying to ascertain the answer to was: who is responsible for them? Who is responsible for drawing them up and implementing them? Crucially, who is responsible if they are not implemented and there is a consequence to that for an individual? If we cannot focus our minds on that now, given what has been going on in the country, we never will. The only thing I could take away from our discussion the other day was that nobody is responsible for it at all; nobody is going to carry the can.

When we are talking about people who have been in acute care, very little attention is paid to their housing needs, because that is not the duty of that service provider, whose focus is on acute care. We know that local authorities are already required to provide aftercare and advice to individuals, but advice in the face of a bailiff turfing you out of your house is frankly of limited use. So, I would like the Minister to please consider this amendment and give assurances that, when we ever get to the bottom of who is responsible for these care and treatment plans, this is on the list of things for which they can be held accountable.

Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Lord Scriven (LD)]

This group of amendments has to do with learning disabilities and autism, and the implementation of the Government’s recommendations, particularly on the change in detention criteria. My Amendment 33 is probing; I shall come to its details shortly. The Committee needs to look into this subject, because many times before in government policy we have seen a good aim and good intentions of moving care into the community, but all too often the facilities have not been there, and people have ended up in crisis.

I tabled Amendment 33 to probe the Government’s staged approach to ensure that community facilities are in place before the change in detention happens, and to understand their timing. On page 72 of the impact assessment, the suggestion is that the change will not happen until the community facilities are in place. That is good, but that could be five, 10 or 15 years away, so the Committee needs to understand the Government’s approach to timing.

Amendment 34, tabled by my noble friend Lady Barker, and the amendment tabled by the noble Earl, Lord Howe, cover mandatory training for medical staff and others associated with looking after people with learning disabilities and autism, to detect the signs, so that people are not missed and put into detention.

My Amendment 33 would create an obligation for the Government to lay a costed plan for sufficient services before Parliament within four months of the passage of the Bill. The four-month period is important, because we really need to understand the Government’s intentions on timing. The change in detention criteria for autistic people and people with learning disabilities is a vital change in the Bill, to ensure that people are not inappropriately detained but are supported in the community instead.

As I have said, success depends on there being sufficient services in each area across the country to meet the needs of autistic people and people with learning disabilities. Based on the impact assessment, we know that the Government do not plan to enact those, so it is important that when the Minister replies, she lets the Committee know exactly what the timing is and what the Government’s assumed plans are.

In the equality impact assessment, there are dates for both funding and implementation, which seem to be at the same time. As a former NHS manager, I can say that people cannot start a service involving such a change and receive the funding in the same year. There has to be upfront funding to enable people to plan the services over time. Otherwise, the services are not there, and staff run round trying to get services when people are in distress. It is important to understand that.

Additionally, as the NHS long-term plan target to reduce the number of detentions of autistic people and people with learning disabilities has been missed, there are no active targets to get people out of hospitals. My amendment tries to put in targets to hold the Government and the services to account on ensuring that people are not inappropriately detained.

It is important to have a comprehensive action plan, which is what my amendment seeks to do, and to find out exactly how the Government intend to build and fund those community services moving forward. Additionally, this must include new targets to reduce the number of detentions of autistic people and people with learning disabilities. The timelines for building this support will also be crucial if the Government are to meet the expected 2026-27 commencement date for the new detention criteria for autistic people and people with learning disabilities.

I hope that the Minister will fully brief the Committee so we can make an informed decision about not just the thinking of the Government but the detailed implementation around community services with the change of criteria. I look forward to hearing noble Lords speak to their amendments on the provision of training and the appropriateness of medical practitioners’ expert knowledge of learning disabilities and autism. I beg to move.

[Baroness Barker (LD)]

My Lords, I shall speak to my Amendment 34. As I do so, I extend my condolences to the noble Baroness, Lady Hollins. We miss her very much today. She was extremely helpful to me only a few days ago when we were discussing the subject of this amendment, so I hope I do her a lot of justice with this.

We have heard time and time again that people with learning disabilities and autism find themselves on the wrong end of diagnoses made by practitioners with the best of intent, quite often when people are at points of severe distress, that are inappropriate because the people making them have not perhaps had the degree of experience and knowledge of working with people with learning disabilities and autism as they would otherwise have done.

We started to discuss last week that, while there are mental disorders for which detention in the sorts of facilities that we fund in acute hospitals in the NHS is right and appropriate, there are also some people for whom detention in those circumstances is absolutely not; it is an aggravating factor. Therefore, in my amendment I am seeking to address that issue: not just the competence of the people making decisions about detention and treatment but also the confidence with which they, as professionals, can approach the jobs that they are increasingly being required to do. Knowledge and understanding of learning disability and autism is expanding all the time. We now have a greater number of adults than ever before who, at stages in later life, are being diagnosed as being autistic, and I am quite sure that quite a number of those people have been subject to misdiagnosis.

The particular thing that I want to focus on is training for people who are responsible for detention and high levels of treatment. Noble Lords will be aware of the tragic case of Oliver McGowan, a young man with learning disabilities who was inappropriately treated and died. There has been an amazing campaign by his mother to ensure that that does not happen to other people by making sure that anybody who is involved in the provision of mental health services has undergone appropriate training and understands learning disabilities and autism.

My understanding from Oliver’s mother is that there are three tiers of training. Tier 1 is a level of training which is required for all people who work generally with people with learning disabilities and autism. They need to have this general level of awareness. Tier 2 is for health and social care staff and others with responsibility for providing care and support for a person or people with learning disabilities or autistic people but who would seek support from others in a complex management and decision-making process. They would be part of a team referring up to others. Tier 3 is specialist training for professionals who have a high degree of autonomy and are able to provide care in very complex situations, which might include people with learning disabilities and autism.

The training appears to be sequential. You have to have completed tier 1 training in order to go on to tier 2 and then tier 3. Tier 1 is an e-training module which takes about half a day. As far as I understand it, about 1.5 million people have done that. That is a good thing: we are getting to a greater basic understanding of learning disability and autism by many people across the NHS going about doing their jobs. Tier 2 is a one-day intensive training programme, and that has not gone so well. There have been problems with its implementation, and it is not clear how many people have undergone that training. There are also some quite considerable questions about the quality and scope of that training.

Tier 3 is not part of the Oliver McGowan programme, although it is the most relevant to this Bill. As of December 2024, the Department of Health website makes absolutely no mention of tier 3 training at all. Can the Minister tell us where the development of that training is up to, and who is responsible for ensuring that the content of it is suitable? Is it sufficiently developed for people who are having to make very difficult decisions, particularly around detention of people who are quite often in a state of disturbance at the point at which that decision is taken? If we do not follow up on this tier 3 training, then we are going to carry on in the situation where we are now, where we know that people are being wrongly diagnosed by people who, perhaps, should not be expected entirely to understand them because their professional training up to this point has largely not included such people.

The noble Baroness, Lady Murphy, and I bow to her superior knowledge, very much made the case to us last week that we are talking about different types of mental disorders and very different specialisms across the mental health services. I am therefore asking that anybody who is in a position of making the decision to detain—and let us remember that people are making decisions to detain not just under the mental health legislation but also, at times, under the mental capacity legislation—should be appropriately trained. That is why I put down my amendment which, I admit, is not perfect, but I hope that the Minister might take some of my point and my intent and that we might take this forward together.

[Baroness Browning (Con)]

My Lords, I shall speak to my Amendment 42A in this group, which follows on from the two previous amendments from the noble Lord, Lord Scriven, and the noble Baroness, Lady Barker, particularly the details that the noble Baroness has gone into about the need for training and expertise for people who are dealing across the piece with those with autism and learning disability and, importantly, when those clinicians take the decision to admit somebody. As we know, one of the problems that is facing us and why it is so important that these issues have come forward in this particular Bill is because there have been so many inappropriate admissions where people have been detained for so long that it has become a scandal.

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The noble Baroness, Lady Barker, raised a specific point about specialist training, asking where the development of training was up to and who is responsible for ensuring its content. Providers are responsible for ensuring that staff receive sufficient training that is appropriate to their role, and that may well mean additional training beyond the Oliver McGowan mandatory training on learning disability and autism. As we know, additional training may come from a diverse range of sources, including, for example, training on child intellectual disability psychiatry or overmedication. NHS England is rolling out a national autism trainer programme in mental health services, and it commissioned the Royal College of Psychiatrists to deliver the national autism training programme for psychiatrists. That will reduce diagnostic overshadowing and it is intended it will play a significant role in preventing unnecessary admissions for autistic people to mental health hospitals and improve appropriate care for those with autism—I share concern about this important matter.

[Baroness Barker (LD)]

This is a key point for a lot of the amendments that noble Lords have asked about. Can the Minister write to all noble Lords with more detail of the training programme—its content, the timetable, who is going to be responsible for making sure that it is implemented and reviewed? Will she specifically deal, in that letter, with my question about whether tier 3 training is included?

[Baroness Merron (Lab)]

I would be very pleased to write to noble Lords, as the noble Baroness suggests.

Amendment 42A, in the name of the noble Baroness, Lady Browning, which the noble Lord, Lord Kakkar, also spoke to, relates to appropriate expertise in learning disability and autism for medical practitioners with responsibility for recommending admission for treatment. We strongly agree with the principle of this amendment. The current code of practice sets out that, where a patient is known to belong to a group for which particular expertise is desirable, at least one of the professionals involved in their assessment should have expertise in working with people from that group wherever possible. The code also makes clear that consideration should be given to any disability the person has in order that the assessment has regard to that in the way that it is carried out.

The noble Baroness, Lady Browning, asked further about how the Bill will make sure that professionals have the right skills and expertise. This whole area rightly comes up repeatedly when we debate.

I accept that it is crucial that those with a learning disability and autistic people are dealt with sensitively and professionally. It is crucial that clinicians are able to make distinctions between a learning disability or autism and any co-occurring mental health disorder—that point was made powerfully. It is a matter for clinical judgment to determine whether a person with a learning disability or an autistic person meets the criteria for detention under Part II, Section 3 due to a co-occurring psychiatric disorder. To assist clinicians in decision-making, we will update the code of practice to provide the guidance that will be necessary, and I hope that that will make a major change.

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I make two pleas. First, can we think about an app that could be part of the solution to this? Secondly, can we know more about whether this national partnership agreement is making progress? Both pleas require no change to the legislation.

[Baroness Barker (LD)]

My Lords, in speaking to my Amendment 49A, I thank the noble Baroness, Lady May, for her amendments. Those of us on the joint scrutiny committee spent a lot of time focusing on the fact that, in truth, a lot of what happens to people who are having mental health crises depends entirely on where they are, who is there and who somebody passing in the street and tries to help them thinks is the right person to call at a moment of emergency.

We are all in agreement that the police have for too long been the default answer to a problem but are not the right answer to a problem. The police know they are not the right answer to a problem—I say that as somebody who has lots of police officers in my family. A lot of people having a mental health crisis will end up in A&E just because the lights are on and that is where people go. We are still dealing with one of the problems the Wessely review touched upon, and that is lack of timely access to an accurate diagnosis.

My amendment, which I admit was suggested by practitioners in the field, tries to deal with the fact that we do not have an abundance of consultant psychiatrists who are there at the drop of a hat to make assessments. The amendment probes whether we might help things by opening up the eligibility to make diagnoses under Section 12 to people who are health professionals but not necessarily medical practitioners. Back in 2006-07, we had the massive argument about bringing in approved mental health professionals. That was a big battle and there was a lot of rearguard action on the part of consultant psychiatrists, who saw it as a downgrading. Approved mental health practitioners are now very much part of our mental health services and they are a good part of our mental health services.

The amendment is trying to open up the making of assessments, simply in order to speed up access to appropriate services. We all understand, and are talking about, the fact that, although we can see the effects of waiting lists and so on on physical health services, waiting lists and the lack of access to appropriate treatment in mental health services are much more hidden. People end up in limbo unless and until there is some kind of outrage, or, to go back to the noble Baroness’s point, until they do something sufficiently serious.

We ought to be freeing up the capacity of consultant psychiatrists in particular, because not only is demand growing but there are also particular areas of specialist demand—young people with eating disorders, for example. I frequently hear of worried parents being told that their children are not sufficiently ill to get treatment. They are not alone; there are other people in that same situation. My modest amendment is an attempt to open up and make better use of the skills we have within the NHS workforce.

[Lord Davies of Brixton (Lab)]

This is the first time I have spoken in Committee on the Bill, so I declare my interest as a member of the advisory panel of the Money and Mental Health Policy Institute. I shall speak to my Amendment 158, which, as the noble Baroness, Lady May of Maidenhead, said, covers essentially the same ground as hers, and they both aim at the same endpoint. Her elegant and compelling speech has left me in the position of just having to emphasise issues; the case made was compelling, and I hope the Committee will agree. In particular, I hope the Minister will be able to make some sort of positive response.

This proposal does not flow specifically from the independent review, but it is in the spirit of what was in that review. The background to the changing nature of mental health services is the significant material increase in the demand for mental health services over the past few years, and the growing number of people on the mental health waiting list or seeking community support.

This unmet need has consequences, which are felt by front-line medical staff. My amendment seeks to address that by giving additional powers to paramedics and appropriate mental health professionals. It would extend the reach of Section 136 of the Act, currently confined to constables—or police officers, as I say in my amendment. As previous speakers have said, that needs to be shared more widely.

The unfortunate reality of the current situation is that those detained under Section 136 get suboptimal care; we just do not have the resources available for them. There is inadequate provision of suites for Section 136 detention, and there are simply not enough clinicians. We all applaud and support the practice of “right care, right person”, but we must acknowledge that that only increases the demands on the service.

The result of all this is that, as we have heard, police officers are taken away from front-line policing duties for many hours. That is bad for everyone involved—for the police officers, for the health service, and particularly for the patients. At the same time, the skills of non-medical health service staff have increased. They are now moving towards the sort of training that equips them to handle such situations. Obviously, giving staff extra powers will not resolve the situation, but we can learn from experience abroad, especially in Australia and New Zealand, where a range of health service staff have a practice called emergency care orders, with the intention of providing greater dignity, removing the sense of criminalisation, and providing appropriate care.

As my noble friend the Minister said, what we are looking for is beneficial interventions at the earliest possible stage. A key element in achieving that aim is extending the powers under Section 136 to wider professions. That is not to say that there is no role for police officers—there will always be occasions when their intervention is required—but saying that the single source of entry to services of someone suffering an acute mental health problem is through the intervention of the police is just wrong.

There have always been concerns when the powers of medical staff are extended, but this will be an issue of training, guidance and codes of practice—clearly, those will have to be provided—so that the additional powers can be used effectively.

To conclude, I emphasise the point that the noble Baroness, Lady May, made in opening the debate. We have moved beyond the point when the powers in Section 136 were essentially about public order—which is, quite rightly, a role for the police. We must ensure that now, commitments under Section 136 are the first stage of a process of medical treatment, in which the unfortunate individual suffering an acute problem with their mental health must be considered first. This is not about public order; it is about appropriate healthcare, where a range of health service professionals can exercise their trained judgment to the benefit of the patient.

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I turn to the point raised by the noble Baroness, Lady Buscombe, about digitalisation and the possible solutions. I was grateful to her for already having raised this in our previous engagement. As the noble Baroness referred to, we are keen to ensure, and will ensure, that the digital version of the advance choice document will be available at the point of need. We are currently working with NHS England to identify what investment is needed and how this may be possible. We can draw on the example led by the South London and Maudsley NHS Foundation Trust, King’s College London and Bipolar UK. Our aim is to ensure, through a digital format, that people can express their wishes and feelings using a range of means, in a way that best suits them. This is, of course, a very strong aspect of that. With that, I hope that the noble Baroness will feel able—

[Baroness Barker (LD)]

I thank the Minister for her characteristically full and attentive response. I understand why she is not too enamoured by my amendment, and I do not intend to push that much further. However, having listened to her response to the noble Baroness, Lady May, I cannot help but arrive at the conclusion that, while we are quite content, because we all agree, to see police officers being taken away, we are not going to change anybody else’s roles or responsibilities to plug what will be an inevitable gap. I return to something I have said today and previously: this will be the only mental health legislation for 20 years. If we let this go through, in the certain knowledge that we are creating a big gap which will not be filled by existing roles or the deployment of people within the NHS, we are being quite negligent. We are consigning a lot of people to finding themselves without appropriate support at moments of distress, and that goes for staff who happen to be around at the same time.

The noble Baroness, Lady May, is a fan of Geoffrey Boycott. I hope that she goes in to bat again and does not give up. There is an enormous gap here and we have just made it worse.

[Baroness Merron (Lab)]

I appreciate the contribution of the noble Baroness. None of us, including the Government, wishes to create a gap, either intentionally or unintentionally. I should have said in my remarks that the noble Earl, Lord Howe, asked whether I would meet the noble Baroness, Lady May, should she so wish. The answer is yes. I was glad to do so previously with the Secretary of State; it was extremely helpful.

I assure the noble Baroness, Lady Barker, that there is no intention to create a gap, and we would be happy to elaborate further. She is absolutely right to say that we should be cautious and that it would not be good legislation to do that. The challenge is whether the amendments before us are the answer. I hope that this is a helpful comment.

Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Barker (LD)]

Would the Minister reflect on this? CTOs were brought in under the 2007 Act. The then Labour Government went shopping around the world for various different models of CTOs and cherry-picked bits and pieces out of the ones that they liked to come up with the model that they did. CTOs were brought before the House, and we were assured that they would be used sparingly and we would not run into all the problems that people then foresaw about them being used disproportionately against some minoritised communities.

This is the first opportunity we have had to go back to CTOs. In the 20 years since, absolutely nothing has changed in practice. Twenty years on, there is no indication—even though there must be ample evidence, not just in this country but around the world—about how they work in practice and the fact that they have not worked in the way they were meant to when they were introduced. Does the Minister understand why those of us who have been here so often before are reluctant to accept the argument that is trotted out time after time, that Governments need to be flexible and make change, when within 20 years there has been no change in the face of overwhelming evidence that the law is not working in the way that was intended?

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Moved by

[Baroness Barker]

43A: Clause 6, page 12, line 34, at end insert—
“(c) after subsection (6) insert—“(6A) Any person subject to a community treatment order must be informed orally and in writing at the time of the making of the order of their right to an independent mental health advocate under section 130A of this Act.””Member’s explanatory statement
The amendment would ensure that people who are to be subject to a CTO would receive information about their right to advocacy.

[Baroness Barker (LD)]

My Lords, I do not want to bore people who were not present 20 years ago when we were discussing the introduction of this measure, but the main focus of our discussion was that CTOs would be a means of enabling people with serious and enduring conditions, such as schizophrenia, to be compelled to take medication in the community. That was as a matter of public safety and protection for those people. Twenty years on, we are talking about people with eating disorders: it is completely different.

The noble Baroness, Lady Browning, is right: the evidence base behind the discussion is woefully lacking. What we do not know—we do not have the evidence for it—is what change has come about on the part of clinicians. It was sold to us that we were going to stop people being held inappropriately in acute services where they did not need to be and where there was not going to be any therapeutic benefit for them. We have never, to the best of my knowledge, seen that there has been change, nor, indeed, that there has been a flow of resources that has enabled those patients who have been on CTOs to leave acute hospitals and not go back. Unless and until we get that evidence base, frankly, we can all come up with our theories about what are the causal factors, but they are nothing more than our own prejudices and theories.

That said, my amendment on CTOs comes from real-life, front-line experience. As the noble Lord, Lord Kamall, read out from the briefing, there are people whose experience of being on CTOs has been so bad that they want to see an end to them; they do not want to see other people being subjected to them, and I have a degree of sympathy with that. Having said that, I accept that there are some people for whom they work.

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[Baroness Barker (LD)]

My Lords, I thank the Minister very much. I will not delay the Committee for very long, particularly given the time of night and that people are screaming to go home. However, there are two or three important points that we need to make. First, on community treatment orders, let us remember that it is compulsory treatment in the community. It happens in people’s own homes or wherever they live, but it is compulsory treatment. We are in danger of forgetting that. Secondly, the Minister said that the intention was to ensure that all detained patients have access to an advocate. Advocacy services are in the acute hospitals. They are not out in the community, yet the treatment which is happening in the community is compulsory treatment.

Both of those two points flag up something that a lot of us mentioned at Second Reading. We have taken the 1983 Act and patched it up, and bolted things on and taken things off so many times that we are now at the point of squeezing stuff in and shoving it around, and we no longer have a basic legal framework which is fit for purpose. We are not talking about building seamless community and acute services which people pass through, get better and come out; we are now in Heath Robinson territory. That is why we are in danger of missing some tricks.

The organisations that came up with my amendment are made up of the people who work, day in and day out, to try to build a proper service, as opposed to episodes of care. They are saying that people who are subject to compulsory treatment are not getting advocacy because of the way that the services are set up. I hope that the Minister might take that on board, but at this stage and time of night, I beg leave to withdraw my amendment.

Amendment 43A withdrawn.

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.

Mental Health Bill [HL]

Baroness Barker Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Baroness Barker (LD)]

My Lords, I declare an interest as a member of an advisory panel for Rethink Mental Illness.

The House of Lords is an institution that is frequently criticised. Those of us who are often called on—not least by schoolchildren—to defend it often find ourselves having to give examples of work it has done which would not have been done by anybody else. As a veteran of the pre-legislative and post-legislative scrutiny of the Mental Capacity Act, the pre-legislative scrutiny of the Mental Health Act 2007 and all the various bits of subsequent legislation, I think that we have arrived at the point with this piece of legislation where we can make a defensible case for the unique contribution of this place to legislative progress. As the noble Baroness, Lady Merron, was generous enough to say in her introduction, there are a lot of us in this place who have got form on this. Specifically, there are an awful lot of us who have detailed knowledge of all those bits of legislation and of the workings of the 1983 Act.

If the noble Baroness will not mind me saying, we come to these pieces of work in two minds. It is great to have the opportunity to go back, look at what we did in the past and rectify some of the mistakes. However, it is always also deeply frustrating because, in truth, here we are again putting another patch on the 1983 legislation. We will never get the mental health system that we so badly and desperately need until we do more than that.

Having said that, along with other noble Lords, I congratulate Sir Simon Wessely and his team, and specifically the working groups that worked with him. If any noble Lord who has been inundated with briefings from all the interested parties, as we all have been, is ever in doubt about a subject, they should go back to the report of the working groups to understand how people have arrived at their conclusions and what we should perhaps strive for. I say that as the person who sat here night after night during the passage of the 2007 legislation, arguing for an advance choice document against a lot of entrenched opposition, not least from practitioners. It is really important that we use the privilege of our position—I mean that: privilege—to work away at this legislation as we did with that so that, perhaps uniquely, we can make some progress.

Those of us on these Benches will support anything that makes clinicians have to be more accountable and transparent in their work. We can have any legislation we like but, until such time as we call decision-makers to account, we are not going to get anywhere on behalf of people who are detained. They may be detained for their own good. They may be detained for the safety of others, but they are none the less detained. Their opportunities to challenge the decisions made are quite rare. As ever in this House, in the end, when we are coming to a decision, we always have a duty to defend human rights. Human rights legislation exists to defend the people that nobody in society likes. Quite often, that means the people subject to this legislation.

On the issue of principles against the Bill, having gone through the Mental Capacity Act, and having then subsequently reviewed it and its implementation, with serried ranks of professionals coming in to tell us that they just ignored the principles which had been in that Bill since the beginning, I am not overjoyed that they are going to be stuck into a code of conduct. This will surprise the noble Baroness, Lady Merron, not a lot. I do not honestly think it will make any difference at all. They are very good principles but, unless and until they are in the Bill and practitioners believe that their decisions will be judged against them, they will be useless.

Lots of other people can speak about learning disabilities far better than I can. I want to say just two things. First, the noble Earl, Lord Howe, talked about training professionals in relation to young people. Increasingly, people are diagnosed with learning difficulties, and particularly autism, as older adults. We should listen to what the noble Baroness, Lady Hollins, has been telling us for years and require all mental health practitioners to have training in the diagnosis of learning disabilities and autism. That is the one thing that would make a swift and tangible difference in this area.

Secondly, the alignment—or non-alignment—of the Mental Capacity Act and the Mental Health Act has been problematic. We have known about that for more than 20 years. To everybody who knows about it, I simply say “Bournewood gap”. To those who do not, I say that the two pieces of legislation are built on completely different bases. Two people, sitting side by side, can be treated according to one or the other depending on who is in the room at the time. If you get banged up under one, you have quite a lot of rights; if you get banged up under another, you do not. I understand why Sir Simon and his team thought that it would be too long and too difficult a job to sort this out. It was much better that we carried on to do some of the more urgent things in this Bill, but we have to go back and do it. Other jurisdictions are going down that path.

The one thing that the noble Baroness and the Government have to do is give a commitment that they will monitor that and, upon the passage of this Bill, put in place a system of funded research about the change to bring in what is known as fusion legislation. If we do not, we will just consign a load of people to being wrongfully treated, so I hope that she will do that.

In a similar vein, Dr Lucy Series and Luke Clements, who are academics and practitioners who have worked on this for a long time, sent us a briefing that explains in characteristic detail the deficiencies that arise under Section 73 of the Care Act 2014. It means that people who are being treated in private settings, even though their treatment was commissioned by the NHS, are not being properly protected by the Human Rights Act. They have written a very short but effective paper for us, and I simply ask the noble Baroness to commit to a meeting of interested Peers—there are a number of us—with Dr Series and Luke Clements, so that we can deal with that. Can we stop treating people differently just because of the person or organisation that happens to be providing their care?

On CTOs, we are not allowed to wear T-shirts in here but, if we were, I would be sorely tempted to wear one that reads, “Told you so”, because we did. In 2006-07, we sat here night after night saying, “You are telling us that this is not going to be used very often or used disproportionately against some people. That is not true, is it?” It really was not. Because of that and the racial disparities, I and others were for a long time of the view that CTOs really should go because they were enabling bad practice by practitioners. What changed my mind was listening to patients and their families, because there are a small group of people for whom CTOs work, are the least restrictive option and are beneficial. We should therefore keep them. I am reluctant to admit that, but we really have to change all the processes around them to make sure that practitioners are sticking to the intention.

Advance choice documents are another “I told you so”. I am so pleased that they have done what enlightened practitioners said they would back in 2005-06; they have improved care for people. I am indebted to the noble Baroness, Lady Finlay, for telling the joint scrutiny committee about the work that was done in the field of palliative care to make sure that advance choice documents are electronic, and therefore more widely available, and to minimise excuses on the part of practitioners: “Well, I didn’t know about it”. A team from King’s has been looking at that. I hope that, during our discussions, we can go into that in greater depth. I do not quite know how that will work, but it is important.

On prisons and police stations, we were very lucky in the joint scrutiny committee because one of our members was an A&E doctor so we talked about this quite a lot. The truth is that people will still turn up in A&E because the lights are on. That is where people in distress will go. There will also be people who, faced with somebody who is having an episode, still call the police, because they are frightened and do not know what to do. During the passage of the Bill, I hope that the Minister will explain how £26 million will deal with what is quite a big problem and that we look at the transition to the police stepping back to leave everybody else to deal with people who, at the point they meet them, are very ill and disturbed and who need help.

Finally, some of us argued strongly for a mental health commissioner. That was not because we wanted another commissioner—we have lots of commissioners for things already—but because we were trying to deal with a key issue. We do not have a system of mental health care or joined-up services. We have episodes of care, some of which are very good at the time but do not work together as a system. After the hours that we have sat in this place and looked at the various different bits of legislation in great detail, we do not understand why we lock up more people, year on year, and what the best use is of the resources available—they are not infinite—not only to deal with people who are experiencing real crises and trauma but to ensure that we use the best of what we have to put as much as we can into services that are also preventative.

It is a great privilege to be in this House. It is an enormous relief that we can do our work in great detail and largely away from the pressure of headlines, which I know people in the other place always feel whenever there is a failure. It may well be that, during the passage of the Bill, something in the media changes the national mood on this, but our job, privilege and responsibility is to think of the people who are in the worst possible place under this legislation and to do the best possible job that we can for them to make sure that we get the best out of this legislation.

HIV Care: Access

Baroness Barker Excerpts

Wednesday 11th September 2024 Lords Chamber

[Baroness Merron (Lab)]

I can confirm to my noble friend that we are, and say how grateful we are to a number of charities, including the Terrence Higgins Trust and the Elton John AIDS Foundation. As she says, there have been pilots for emergency department HIV opt-out testing since 2018. A pilot that began in April has expanded that to 47 additional sites, and we will be looking closely at the impact of that.

[Baroness Barker (LD)]

My Lords, if that pilot in the 47 areas shows, as it did in London with the Elton John work, that such testing finds people who not only do not know their status but are lost to care, will that form a basis of the national plan the Government are working on? Will there be a particular emphasis on extending services to people in rural areas, who do not have the access to clinics that people in metropolitan areas do?

[Baroness Merron (Lab)]

Yes, and I thank the noble Baroness for making those points, which I certainly agree with. The challenge for us now is to reduce the number of people who live with undiagnosed HIV, but also to reduce the number not seeking care and treatment. For the first time, the latter has exceeded the former, which suggests that we have a challenge we must focus on in the new plan, and we will do so.

NHS Continuing Healthcare

Baroness Barker Excerpts

Monday 2nd September 2024 Lords Chamber

[Baroness Merron (Lab)]

I thank my noble friend for that observation and certainly agree that, in all these areas, it is very important that people understand what might be available and how they might best apply. As I said to the noble Lord, Lord Crisp, the assessment is potentially a gateway to other NHS funding. I feel quite strongly that that needs to be clarified, so that people know what they are going into. I will take my noble friend’s comments on board and discuss this within the department.

[Baroness Barker (LD)]

My Lords, this issue has been a football between health and social care for many decades. We have never sorted out whose responsibility it is to do assessments and to make sure that those who are assessed know about the local services to which they can apply. How will the Government sort out that fundamental part of the problem?

[Baroness Merron (Lab)]

As the noble Baroness is aware, the responsibility for this lies with integrated care boards and a framework applies to both adults and children and to young people. It is for NHS England to ensure that the framework is properly applied. Certainly, the framework for children and young people has not been revisited since 2016 and we need to look at whether it is doing the job it is intended to do, because we want people to be getting the care they need. Each case is unique and complex and, as a person-centred service, that brings its own complexities. We should therefore ensure that the frameworks are applied correctly and get to the right people at the right time.