Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I add my support for Amendment 58, tabled by the noble Baroness, Lady Watkins, and to which I have added my name. Briefly, given the time, the care and treatment plan is a major plank, a pivotal safeguard of the Bill. The safeguard is not open to voluntary patients. As the noble Baroness outlined, we want to encourage many young people to voluntarily enter a hospital to get the treatment that they need. A 2021 UCL research project found that only 23.6% of young people were detained involuntarily. The large cohort would be those who have consented by parental consent and those who voluntarily entered the treatment. As such a high proportion of the under-18 population are entering voluntarily, it is imperative that they also have a care and treatment plan.

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

My Lords, I thank noble Lords for the pertinent points that they have made.

I will start with Amendments 57 and 58. There is no doubt that all patients who are in a mental health hospital for care and treatment should have a care plan, whether or not they have been detained under the Act. This is already set out in guidance for commissioners and in the NHS England service specification and care standards for children’s and young people’s services. In line with the independent review’s findings and recommendations, care and treatment plans for involuntary or detained patients are statutory. This is because such patients are subject to restrictions and compulsory orders, including compulsory treatment, which places them in a uniquely vulnerable position.

Rather than bringing voluntary patients into the scope of this clause, we feel it is more appropriate to use the Mental Health Act’s code of practice to embed high standards of care planning for all patients—voluntary and involuntary. Specifically with regard to children and young people, any provisions that are relevant to voluntary patients are already met by existing specialist care planning standards and the NHS England national service specification for children’s and young people’s services, which providers are contractually obliged to follow. NHS England is already in the process of strengthening that current service specification.

Regarding points raised by the noble Lord, Lord Kamall, and my noble friend Lord Davies on the contents of the care and treatment plan and patient discharge plan, as my noble friend Lord Davies kindly set out for me, which I appreciate, the Government have consulted on the required contents of the care and treatment plan, as originally proposed by the independent review. The expected contents of the plan are described in the delegated powers memorandum, which has been published online. I understand the points that my noble friend made; we will return to them regarding what we intend to include in the patient discharge plan.

I turn to Amendment 59, tabled by my noble friend Lord Davies and supported by the noble Baronesses, Lady Tyler and Lady Neuberger. The plan needs to include details of interventions aimed at minimising financial harm to the patient where this is relevant to their mental health recovery. My noble friend asked for my agreement on this point. I hope that he will take that in this way. We intend to set out in regulations, rather than in primary legislation, what that plan must include. We will consider personal financial matters that are relevant to a number of the elements that we intend to require in regulations, such as the services that a patient might need post discharge. My noble friend’s point, and that of the noble Baronesses, is very well made and is taken on board.

Turning to Amendment 60A, tabled by the noble Baroness, Lady Barker, I confirm that the Bill sets out who is responsible for the statutory plan. For in-patients, this is the clinician who is responsible overall for the patient’s case. The quality of plans for detained patients is monitored by the CQC. Any housing, accommodation or wider social care needs that are relevant to the patient’s mental health recovery are already captured within the scope of the statutory care and treatment plan. We intend to require in regulations about the content of the plan that a discharge plan is a required element of the overall care and treatment plan—which noble Lords rightly have pressed the need for. Existing statutory guidance on discharge sets out that a discharge plan should cover how a patient’s housing needs will be met when they return to the community. Currently, where a mental health in-patient may benefit from support with housing issues, NHS England guidance sets out that this should be offered, making links with relevant local services as part of early and effective discharge planning.

Where a person is receiving housing benefit or their housing is paid for via universal credit, there are provisions already in place that allow them to be temporarily absent from their property for a limited duration. We know that the vast majority of people entering hospital will return home before the time limit expires, therefore avoiding a negative impact on their living situation.

We intend to use the code of practice to clearly set out expectations on mental health staff around care planning, including consideration of accommodation and housing needs, and also to highlight existing provisions that protect a person’s living arrangements while they are in hospital.

On Amendment 61, tabled by the noble and learned Baroness, Lady Butler-Sloss, we of course recognise the importance of involving parents, guardians and those with parental responsibility in decisions around care and treatment. We have already provided for this in the clause by stating

“any … person who cares for the relevant patient or is interested in the relevant patient’s welfare”.

The clause seeks to include also carers and other family. As I said last week, this is consistent with existing established terminology used in the Mental Capacity Act and the Care Act.

The amendment would also make this a requirement for all patients, not just children and young people. We do not think it is appropriate here to give an automatic right to parents to be involved in an adult patient’s care. However, we have made provisions to ensure that anyone named by an adult patient, including parents, are consulted where the patient wishes them to be.

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[Lord Davies of Brixton (Lab)]

I know the hour is late, but I want to note the irony that the issues covered by these amendments are central to the whole process of why we have arrived at this Bill. In a sense it is unfortunate that, because of the hour, there are so few of us present. I want to stress that we cannot assume it is job done. It is really important to keep this whole area under review, whether we do it precisely in the terms of the amendments before us or not. I urge my noble friend the Minister to give an assurance that this issue will not be left for another 17 years before we decide that we have got it right, and that the workings of the Bill in this central area will be kept under close and continued review.

[Baroness Berridge (Con)]

My Lords, I will speak briefly in support Amendment 133. I know the hour is late. As I asked the Minister, why is it that issues relating to this focus, which was the focus of the Bill, seem always to end up at the end of our debates? I am not sure why, but they are some of the most important issues. I reflected at Second Reading and earlier in Committee on the Joint Committee’s work and our concern about the strength of civil society and media focus on this issue. Although what we saw seemed expert, we then saw a comparison with what I would call Premier League—which was learning disabilities and autism in terms of that focus.

I turn to new Section 120H, which the noble Baroness, Lady Tyler, mentioned, and the statistics I cited before. The right reverend Prelate mentioned the importance of data. It is very concerning that, when we talk about the data on under-18s, we are not quite clear about what is going on in relation to it. The data on under-18s that I mentioned has three subgroups: those who are detained, those who are in the cohort because their parents have consented and those who have consented themselves. It is imperative that we know exactly which subgroup is which in the under-18s group—which, thankfully, is a small group of about 1,000.

Even in the data I cited from the UCL study, of the 23.6% of under-18s that were detained, three times as many black young people were detained as their counterparts. That issue is starting early. What is happening even at that early stage—the disproportionate number detained under the Act—was also reflected in the data on the lack of parents consenting to children going into hospital for the treatment that they need.

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[Baroness Merron (Lab)]

I understand the point the noble Lord makes. However, it does not lead me to accept the amendments. I understand the intent and I am sure noble Lords realise how sympathetic I am to it, but I repeat the point I made earlier: if one looks at what the amendment actually does, it will not serve that purpose. I take the point about transparency and accountability, and I hope the noble Lord has heard many times that that is very much the mode of direction. Perhaps it will be of some assistance to say that the PCREF will improve data collection on racial disparities over the coming year, and the CQC has existing duties to monitor and report on inequalities under the Act. We will continue to monitor racial disparities in the use of CTOs. That situation will be ongoing. If it is not doing the job that it is meant to do, we will not be complacent and will seek to act.

We agree there is a need to improve organisational leadership—

[Baroness Berridge (Con)]

Just before the Minister talks about that point, I understand her concern about the 12-month time limit, because it would be before the reforms are introduced. However, is she satisfied that there will be a robust baseline before the reforms are introduced so that we know what we are measuring against? Otherwise, in a few years’ time, we could be asking whether the reforms have worked, but we would not know because we did not have the baseline data. That is the starting point.

[Baroness Merron (Lab)]

The noble Baroness is quite right: one has to be able to compare, and that baseline will be in place. You could collect all the data you like, but it has to be meaningful. Her point is well made.

There is a need to improve organisational leadership to improve data collection and change culture across the mental health system. Again, this is exactly what the PCREF is designed to do and something we want to embed further through the revised code of practice.

The creation of a responsible person was an additional recommendation from the pre-legislative scrutiny committee, and it is one we have considered in some detail. However, ultimately, we think that the role is not necessary, because it would duplicate existing roles and duties. There are already duties on providers of mental health services to identify and address inequalities relating to protected characteristics under the Equality Act 2010 and specifically the public sector equality duty. CQC already has a duty under the Mental Health Act to monitor as health services exercise their powers and discharge their duties when patients are detained in hospital or are subject to CTOs or guardianship. It publishes an annual report, Monitoring the Mental Health Act, which includes detailed commentary on inequalities. The PCREF is now part of the NHS standard contract. It has created new contractual obligations on providers to ensure that they have a framework in place to record and address racial inequality in mental health systems and to look at training and other policies to address racial disparities. Ultimately, we do not think that a responsible person is necessary to achieve all the aims, which are understood, set out in the amendment.

Finally, I want to turn to Amendment 138 tabled by the noble Lord, Lord Kamall, and supported by the noble Earl, Lord Howe. We recognise, as I have said, that there are significant inequalities in the use of detention under the Mental Health Act and of CTOs between different minority-ethnic groups, and in particular the overrepresentation of black men. We monitor those inequalities through routinely published data and are improving this data through the PCREF. The CQC, as I have mentioned, reports on inequalities in its annual report under existing duties, but we agree that we lack robust evidence on what drives those inequalities, and that has been a matter of considerable debate in your Lordships’ House. We need to conduct research into this, and we are exploring with experts, including academic researchers, the best way to tackle it.

I am concerned that two years is not enough time to scope and commission the report, collect and analyse new data, and form meaningful recommendations. Additionally, we hope that through improved decision-making under the reforms we will see a reduction in the number and proportion of black men who are subject to the Act and a reduction in racial disparities more generally. It is a major driver of why we introduced the Mental Health Bill. A report after two years feels premature, because it would be likely to be based in reality on data from before the reforms were commenced.