Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

I briefly mention Amendments 77 and 84 in the name of the noble Baroness, Lady Berridge, which propose the use of the mental health tribunal rather than the county court. My preference would still be the use of the Court of Protection as the correct venue; we certainly cannot have both. However, I do not want to anticipate what the noble Baroness is likely to say or, indeed, what the Minister will want to say in reply.

[Baroness Berridge (Con)]

My Lords, I shall speak to Amendments 77, 82 and 84 in this group. I am grateful to the noble Lord, Lord Meston, for mentioning my amendments in advance. I am adding the other choice for His Majesty’s Government, which is the mental health tribunal, on the basis that the Court of Protection deals with the Mental Capacity Act and, obviously, at the moment, the mental health tribunal deals with claims under the Mental Health Act.

However, there are one or two points of clarification on the process on which it would be useful to hear from the Minister. As I understand it, for the county court to take an application to displace the nearest relative involves means-tested legal aid, whereas the mental health tribunal, I believe, has Legal Services Commission funding—I am talking in old money here—so it is non-means-tested. I am not aware of what the situation is with the Court of Protection. However, an important concern of people making these applications is whether their legal representation is funded. I expect they are in a situation similar to that outlined by the noble Lord, Lord Meston, when he spoke of getting one of these applications for the first time; for many people making these applications, it will be their first time not only making such an application but being in front of any kind of court or tribunal, and at a time of great distress with a relative detained under the Mental Health Act.

Given that the policy document disclosed last week references this process as the solution to certain situations, could the Minister please outline, either today or in a letter, how many county court applications there are, how long people wait for such applications and what the rate of success is? How many of those who go to the county court currently get legal aid?

Is the Minister satisfied that the county court can act swiftly enough to remove a nominated person who is a risk to the patient? An example given, I think either in the review or in the response to the White Paper, is that, if you have a coercive, controlling boyfriend of a 17 year-old girl as the nominated person, or someone who is suspected of having trafficked that young person to the UK, then time is of the essence for practitioners to have that person removed—on evidence, obviously—from having such powers as, for instance, to apply to discharge the patient from hospital.

At this stage, it might also be appropriate to ask the Minister what is meant in the policy document by the concept of “temporary” nominated persons? We had interim nominated persons in the review, but there is no concept that I have seen in the Bill of temporary nominated persons.

Finally, Amendment 82, although it may be in the wrong group, talks about parental responsibility. We have had other discussions in Committee about this, and I think it was in the review; we must make sure, at the very least, that appropriate people with parental responsibility have the relevant information. That is a baseline. Whether we go on to consultation or being able to apply to remove a nominated person, I would submit—and Amendment 82 outlines this—that they should have all the relevant information. I have exempted the person with residual parental responsibility under a special guardianship order. This reveals some of the complications of the Children Act. In this type of situation, the child has been removed to live with someone else; it is similar to a care order, in that the people with parental responsibility remain there, unless there is an adoption order. One has to be careful even about the rights to information, and who with parental responsibility receives that.

[Baroness Butler-Sloss (CB)]

My Lords, if I may, I shall start with the amendment tabled by the noble Lord, Lord Meston. I agree with almost everything that the noble Baroness, Lady Berridge, has said. I will talk first about which court it should be in. I agree entirely with what the noble Lord, Lord Meston, had said. Oddly, the county court was one of the only courts in which I did not sit, but I have never heard a circuit judge who was very keen on dealing with these particular applications.

Judges of the Family Division sit in the Court of Protection. As I would hope noble Lords would agree, they are somewhat expert in family law, and they do a great deal of mental care and medical cases. As president of the Family Division, I spent probably 50% of my time doing one sort of medical case or other, quite a lot of them mental health cases. The Court of Protection is probably the best court to deal with this. I do not feel very strongly against the mental health tribunal—I just do not think it would be quite as good. Legal aid is an issue, and I assume that it probably would not be automatic in the Court of Protection.

I turn to my Amendment 70. I entirely share what the noble Baroness, Lady Berridge, has just said. The law is that, until the age of 18, one is a child, regardless of the Gillick case, regardless of being 17 and very nearly grown up. Until a person is 18 they remain, technically, in law, a child. I am very concerned about a child of any age, living at home with parents, who has a mental health problem sufficiently serious to require attention and a nominated person, who is at odds with the parents or guardian and chooses somebody who is totally unsuitable. The noble Baroness, Lady Berridge, pointed out that this could be someone who might be trafficking, or an unsuitable boyfriend.

The one group of people not included in new Section 30B(2) in Part 1 of Schedule 2 where it says that, to discharge a nominated person,

“An order under this section may be made on the application of…”

is anybody who has parental responsibility for the child. This means that when a child who is at odds with their parents goes into hospital, when those parents know the boyfriend and that he is unsuitable, those parents have no voice whatever in saying that he is not suitable to be a nominated person. Subject to the important points that the noble Baroness, Lady Berridge, has made, it seems that there are certain cases where, in what used to be called a custody order or a special guardianship, the parental responsibility of the natural parents is limited.

I would have hoped that the Government would see that, however much they want to empower children, including children under the age of 16, they cannot take away 100% the responsibilities of parents. Under Section 2 or 3 of the Children Act, parental responsibility is defined as having rights as well as responsibilities. I am really talking about the responsibility whereby parents may really want to be able to tell someone, “Look who my daughter is going out with”, but under the Bill they have no right do so, and as far as I am concerned that is utterly wrong.

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Moved by

[Baroness Berridge]

74: Schedule 2, page 73, line 21, at end insert—
“(3) Regardless of whether a person is appointed as a nominated person, if they have parental responsibility that person must be given appropriate and relevant information about care and treatment of a relevant patient.(4) Subsection (3) does not apply to persons with residual parental responsibility for the relevant patient when the patient is subject to a special guardianship order under section 14A of the Children Act 1989.”Member’s explanatory statement
This amendment, along with another amendment in the name of Baroness Berridge, seeks to ensure that regardless of whether persons with parental responsibility are appointed as the nominated person, they should have access to the appropriate and relevant information about care and treatment of the relevant patient (unless a Special Guardianship Order has been made).

[Baroness Berridge (Con)]

My Lords, Amendment 74 properly sits alongside Amendment 82 in the previous group, so I rise to speak predominantly to Amendments 75, 78 and 79A to 81. This group seeks to ensure that the expansion of choice and autonomy for children and young people under the Bill sits consistently with the child protection law of the Children Act, which I believe the noble and learned Baroness, Lady Butler-Sloss, was involved in creating.

This is not a new issue. The independent review way back in December 2018 stated:

“There needs to be careful consideration of how the powers and rights of the NP”—


the nominated person—

“will interact with other areas of the system, including care orders, guardianship and child arrangement orders, where the overlap with parental responsibility is particularly important”.

Parental responsibility has been dealt with in a series of amendments by the noble and learned Baroness, Lady Butler-Sloss, so I will not address that. It is regrettable that over six and a half years later, we still have not sorted this matter and there is no draft code of practice for noble Lords to refer to.

However, I am grateful for the meetings the Minister has had with colleagues, and for the policy document disclosed last week, which made small steps. I hope the Minister can confirm that she has met the Minister for Children and Families and DfE officials regarding this matter, as they hold responsibility for the Children Act. I am also grateful that the Children’s Commissioner has now stated her concerns in this aspect, as well as for the excellent work of the Children and Young People’s Mental Health Coalition.

To avoid this being dry law, I will give two quick examples that illustrate the conflict remaining between the proposed reforms and the protections under the Children Act.

First, a 15 year-old child is Gillick competent but still does not quite understand why she has not had any contact with dad. However, there are days of evidence in the family court showing that dad is violent, controlling and coercive; a child arrangements order was made, giving him only what is called letterbox contact. The child appoints dad as the nominated person, and dad of course now has contact. Cannily—these people are canny—on the Thursday before a bank holiday weekend, he applies to have the child discharged. The 72 hours to bar this application pass by the locum’s staff, et cetera—we can all imagine the inquiry—and dad has now taken the child and disappeared. I leave it to the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, to outline what mum, who has parental responsibility under this Bill, knows is going on. Children and young people should of course be given choice and autonomy—my amendments do not seek to undermine either that or Gillick competency—but surely we must consider circumscribing that when the family courts have, for child protection reasons, restricted the role of adults who should normally care for and love that child or young person.

I turn to the second scenario. A 17 year-old lacks the capacity to appoint so the AMHP is making the decision to appoint the nominated person. However, the 17 year-old is under a special guardship order—maybe they ran away from the special guardian—and was picked up by the police while trying to find dad, whose address they had on them. Dad still has parental responsibility, of course, so the AMHP contacts him and appoints him as the nominated person. Again, he applies for discharge. The child tries to return to the special guardian, who has no idea that the child is about to return home, so no one is there to receive them. The child leaves in distress and harms themselves.

The AMHP can be forgiven for thinking that child special guardianship orders end at 16 years old, as I cannot find them mentioned at all in the Bill. The same scenario would apply to a child in care as paragraph 9 of Schedule 2 to the Bill is blissfully unaware that 16 and 17 year-olds can be under a care order. The AMHP, according to the Bill, is under no duty to appoint the local authority for a 16 and 17 year-old under a care order or a special guardianship order in this scenario.

The solution to the second scenario is in Amendments 79A and 80A; I am grateful that the noble Baroness, Lady Tyler, has added her name to the latter. Where any person under the age of 18 is being detained—that is about one-third of young people—the AMHP is given a list of people who must be the nominated person, not just those with parental responsibility and the local authority in relation to care orders, as in the Bill and as outlined in the policy document.

Dominic Marley, the co-chair of the AMHP Leads Network, has written to me. He says that he

“fully supports the amendment … In its current form, the Bill conflicts with other legislation affecting children, such as the Children Act 1989. The Bill fails to consider the various orders relating to parental responsibility as outlined in the Children Act 1989”.

He goes on to say:

“This is a deeply concerning omission and is likely to give rise to confusion and uncertainty in practice. We believe the amendments you have tabled will provide clarity in this regard, clarity which should be provided by primary legislation”.


My final point on this second scenario is that the Minister’s policy document states that, for under-16s who lack competence, as in this scenario, the AMHP will appoint the special guardian as the temporary nominated person. Can the Minister explain why the Bill says that the AMHP must choose the local authority if there is a care order in place, but not if there is a special guardian? I repeat the point made in the previous day in Committee: the mental health code cannot create a “must” unless it is included in the Bill or secondary legislation.

The solution to my first scenario is more difficult, and I accept that it is less likely to occur in practice. Most of the one-third of young people who are detained under the Act will lack capacity by the time they are detained but, if we want to maintain as much of a child’s or young person’s choice and autonomy when they have capacity, we must act when they have capacity. Amendments 75, 78, 80 and 81 disqualify certain people, such as the no-contact parent under a child arrangements order or the residual person with parental responsibility when a special guardianship order has been made. The amendments also mandate certain people who have to be chosen, such as special guardians.

I accept that that is a very clunky way of doing it. Another option is for His Majesty’s Government to forbid certain people rather than mandating anyone. Another option would be to give the job of disqualifying people to the family court by amending the Children Act. Therefore, the court, on making a care order, a child arrangements order, or a special guardianship order—for which it often hears evidence—would name certain people as being disqualified from acting as a nominated person.

So I hope the Minister can clarify her policy document, as it includes the child-in-care scenario where the nominated person is a parent—usually where the child resides—who has their parental responsibility limited. It states that the witness—the person involved in the process—

“would assess the appointment of such an individual as unsuitable due to the potential risks to the child and therefore prevent this”.

Is that mandatory language? If it is, why not use “must” and put it in the Bill? Are the Government actually giving the AMHP, the young person or that witness the ability to go behind the care order of the family court? If the Mental Health Act code says that the witness just has to document that, if it is “should” rather than “must”, do we really want to enable that?

The policy document then immediately says:

“We will set out in the Code of Practice considerations for the witness to make beyond those set out in legislation”—


I am not sure that makes sense—

“including how to make these judgements”.

That now seems to be truly discretionary language. I again outline the three categories from the code: “must”, “should” and “may”. Which one is this? If this is “should” then, as I say, the child can go behind the family court order as long as the witness writes down the reasons. I expect the Minister to be very clear in her response, if we are undermining the authority of the family court.

Amendment 79 is a quick clarification of whether the child or AMHP can appoint more than one person as the nominated person. Amendment 85 adds the grounds of

“not acting in the best interests”

so that the AMHP can remove the nominated person—for instance, if they discover that they have trafficked the child to the UK. That is not just for children and young people but for all patients.

I return to the risks to children and young people in both the scenarios I have outlined. These are not triggered by the AMHPs, and they will not be triggered by poor training, a lack of resources or levels of staffing—nor triggered by those who the family court said could pose a risk to the child or young person. These would be triggered by how His Majesty’s Government currently propose to change the law. In the worst-case, but sadly foreseeable, scenario where a child dies at the hands of a nominated person who had already been known to be a risk, as outlined by the family court, I expect that the Chief Coroner would need informing of your Lordships’ debate. Otherwise, professional and other staff might take all the blame. Also, would the Secretary of State for Education in fact still be able to do a serious case review of the death of that child, or would she not be conflicted? A dangerous person got access to a child because the nominated person process was a backdoor to the Children Act. So can the Minister outline whether the nominated persons part of the Act will be enforced before the consultation on the code of practice she is so often relying on?

Finally, I quote from the policy document again:

“We appreciate that there are complications inherent in the complexity of modern family structures, (e.g. separated parents) in addition to the existing system around children’s legislation (e.g. special guardianships, child arrangement orders). These are not complications which have been created by the Nominated Person policy and they exist in the context of Nearest Relative as well”.


Yes, of course the current situation is complex, but this view in the policy document is not shared by the independent review, by the response to His Majesty’s Government’s White Paper—where these concerns were also raised—or by the Joint Committee, civil society or the Children’s Commissioner. The Minister is alone in this view. I know that, in your Lordships’ House, we are not entitled to see legal advice that His Majesty’s Government obtain, but I hope the Minister can assure the Committee that Treasury counsel with specialisms in the Children Act and mental health have been asked to give an opinion.

The child protections that the Children Act has upheld for decades are so vital. I hope we will come back to this on Report, when I hope the Secretary of State for Health and Social Care and the Secretary of State for Education will lay the necessary government amendments. I beg to move.

[Baroness Tyler of Enfield (LD)]

My Lords, I will speak briefly to Amendment 80A, to which my name has been added.

I did not intervene in the first group but I share the general view expressed, which is relevant to this group of amendments, that not enough thought has been given to the interaction between the Mental Health Bill and other key legislation, particularly the Children Act 1989. That concerns me, because that is where really key and important child protection sits. That is a general concern I have.

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[Baroness Merron (Lab)]

My Lords, like the noble Earl, Lord Howe, I am most grateful to the noble Baroness, Lady Berridge, for introducing an appropriately wide range of scenarios, questions and testing. That is important for the Committee but also for our ongoing work. As the noble Baroness, Lady Tyler, said, to describe this area as complex is to use too small a word, and I think we are all wrestling with that to get it in the right place. I know that noble Lords are aware that the work is ongoing, and I thank them for their engagement and interest in this issue. As I said previously, I very much understand the need for a robust process to keep children and young people safe and ensure that only appropriate individuals can take on the role of nominated person, while giving children and young people that right to choose.

I will respond collectively to the amendments put forward in this group. As I set out earlier, we agree that in the vast majority of cases there is an expectation that a parent or whoever has parental responsibility would take on this role, and that would include consideration of special guardians and child arrangement orders. We also agree that, where parental responsibility has been removed due to care proceedings, in the vast majority of cases it is unlikely to be appropriate for such a person to take up this role. My reference to this being a complicated area—

[Baroness Berridge (Con)]

My Lords—

[Baroness Merron (Lab)]

Perhaps the noble Baroness will let me make a bit of progress.

[Baroness Berridge (Con)]

I think I need to clarify a point of law—I am looking to the noble Lord, Lord Meston. In care proceedings, is parental responsibility removed? I do not believe it is; it remains with the parents. That is very important.

[Lord Meston (CB)]

It certainly is not removed.

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[Baroness Merron (Lab)]

We need to be considering that as one of the scenarios and I would certainly be very glad to give the noble Baroness and noble Lords a more considered response to the very important point that has just been raised.

Under this policy, an approved mental health professional would terminate their appointment if the nominated person is not acting in line with the patient’s interests. I really wish to emphasise this.

For all these reasons and the responses I have given, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Berridge (Con)]

My Lords, I am grateful to noble Lords who have spoken and for the considered nature of the response and the clarification regarding the special guardianship. However, as we have outlined, other people remain having parental responsibility and it seems that under the Bill, as it is only one person, it could be that the residual person still has parental responsibility. It could just be that person under the Bill and not, in that situation, who is appointed.

I am concerned, not only by the outline at the beginning in relation to parental responsibility being removed. I just feel that there is a lack of understanding—with all due respect to the Minister’s diligence, thoroughness and engagement with colleagues—about the depth of the issue that we have here. She mentioned “would” appoint. That seems something that can be under the Mental Health Act code—“would” seems to be that as long as you document your reasons for that, you can move. It seems that from the situation I have outlined, in which the 16 or 17 year-old has been removed from the dad’s care because he has been shown to be, and proven by the family court to be, a danger, he could be appointed as the nominated person. Then we are relying on a speedy process in the county court—which we are not sure we always get legal aid for—to remove him. I am concerned by phrases such as “more flexibility for 16 and 17 year-olds”. Does that include the 16 and 17 year-olds who are under special guardianship or where there is a care order?

It seems that there is a conflict, based on what the co-leader of the AMHPs is saying, what the review has said and what the response says. We have a conflict between two pieces of legislation that we must continue to grapple with. On phrases such as “working with the DfE”, I asked specifically whether there had been a meeting with the Minister for Children and Families. The responsibility for a serious case review sits with that department. If we are to some extent right, this risk to children will manifest itself in an imperfect system. Obviously, there are professionals and clinicians, but we all know of cases that have gone wrong and ended up in inquiries.

I remain concerned by the lack of clarification on legal advice. Legally, in some ways this is fascinating—but it is not fascinating because it involves child protection. I welcome the engagement and I am sure that we will meet again in regard to this, but the severity of the risks that we are exposing, and allowing young people and AMHPs to go behind findings of fact in the family courts made under the Children Act is an incredibly serious issue. I hope that the Minister will be furnished with that kind of geeky legal advice, because for the children’s sake we need that.

However, I am grateful for the manner of her engagement and of course beg leave to withdraw the amendment.

Amendment 74 withdrawn.

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.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I entirely agree with what the noble Lord, Lord Meston, just said. The two interjections were very interesting but they do not really affect the guidance. That is crucial. The question asked by the noble Baroness, Lady Browning, as to whether you can understand it but cannot make a decision, may well affect how the person applying the guidance does so. That would be one of the issues for whoever has the uncomfortable task of making the decision.

I think the noble Baroness, Lady Tyler, is too cautious. If we go back to the Mental Capacity Act 2005, there is clear explanation and guidance in primary legislation as to how anyone who has to judge capacity is to do it. What we are talking about here—incompetence—is quite simply capacity. For some reason, which I find quite difficult, we seem to think that children under 16 have competence or do not, but over-16s have capacity or do not. It would have been far more sensible to use the same word for every person who will, in fact, be judged on whether they do or do not have capacity to make a decision of great importance, as it would be, in relation to mental health issues. I find it very odd.

However, and equally importantly, if it is in primary legislation for over-16s, why on earth would it be in guidance for under-16s? If it is good enough for over-16s, why is it not good enough for under-16s? The way the noble Lord, Lord Meston, has set this out seems admirable. It is very close to the Mental Capacity Act. I take and entirely agree with the point made by the noble Baroness, Lady Tyler, but the Government seem to have ignored children to a very large extent, although children are a very important part of this Bill. I do not blame the Minister, because she did not draft it, but she has to bring it to us. I tabled a lot of amendments about parents and people with parental responsibility because they are largely ignored; I will speak about that later. But where we are dealing with children aged under 16, it is essential that they are treated in the same way as everybody else and that has to be in the Bill—in primary legislation.

Young people have had to deal with these issues ever since Lord Denning was presiding in the Court of Appeal in Gillick, but he did not help us at that stage as to how actually to deal with it. Like the noble Lord, Lord Meston, I have also had to make decisions as to whether under-16s were giving me advice that I thought was really worthy of listening to. Children of five can give extraordinarily good explanations, though I do not expect them to give them on mental health issues. I urge the Minister: it is crucial that everyone whose capacity is a matter at issue has it treated in exactly the same way. Therefore, to put it into guidance really will not do.

I will also speak on Amendments 55 and 56. I am very concerned about children. Bear in mind, however much we treat children aged over 16 with respect and as having the capacity to make decisions, and however much we listen to them, as we should listen to all children, there are stroppy teenagers—we all know about them—who, for one reason or another, will not do what adults tell or advise them. I am very concerned, and I am not quite sure about this because I am no expert on mental health legislation, that if a 16 year-old has the right to make advance decisions and they just say, “I do not want any injections, I do not want any pills, I absolutely refuse to have any treatment”, then unless there is an ability to override them they will have capacity and cannot be ignored. One has to view advance decisions for 16 to 18 year-olds with some degree of care. I am not saying that they should not happen, but I am not happy about them being universal and without some ability for them to be overridden.

[Baroness Berridge (Con)]

My Lords, I have put my name to Amendment 147. I find myself in agreement with much that has been said. It has been a consistent recommendation to His Majesty’s Government since the independent review that there should be a statutory test of competence or capacity for those aged under 16. Of course, that means it should be in the Bill. This has been supported by the Children’s Commissioner of late and by the Children and Young People’s Mental Health Alliance.

Therefore, I was disappointed to see the code of practice solution outlined in the Minister’s policy paper that we received yesterday. As the noble and learned Baroness, Lady Butler-Sloss, outlined, in the Mental Capacity Act, which applies to over-16s, there is a functional capacity test followed by the secondary mental impairment test. I also agree with the noble Baroness, Lady Tyler, that under-16s are presumed to lack capacity, so you start from the opposite premise of the Mental Capacity Act for over-16s, who are presumed to have capacity. That puts them at an advantage: it has to be taken from them, rather than being given to under-16s.

I agree with the comments of the noble Lord, Lord Meston. Great work is being done by clinicians up and down the country to apply Gillick competence tests, but throughout my time on the Joint Committee we did not seem to know whether there was any review or assessment as to how and when it is applied in hospitals and healthcare settings up and down the country. I fail to understand the Government’s reluctance to put this test in the Bill. How is such a reluctance compatible with one of the four guiding principles—to treat the person as an individual? Perhaps the Minister could outline the reasoning for this omission.

I also want to point to the problem of relying on the code of practice made under Section 118 of the Mental Health Act. On page 13 of the code of practice, there is a very clear description of the code and its legislative function:

“Whilst the whole of the Code should be followed, please note that where ‘must’ is used, it reflects legal obligations in legislation, (including other legislation such as the Human Rights Act 1998) or case law, and must be followed. Where the Code uses the term ‘should’ then departures should be documented and recorded”.


It then refers to explanatory paragraphs and continues:

“Where the Code gives guidance using the terms ‘may’, ‘can’ or ‘could’ then the guidance in the Code is to be followed wherever possible”.


In the Minister’s policy statements, there is often the use of “will”, which, as far as I understand, is a “must”. Bearing in mind what I just read, unless something is in the Bill then even putting this test into the Bill will mean that it is only, at the very best, a “should” and can be departed from. Obviously, that applies across all of the places in which the Minister relies on the defence of, “We’re going to put it in a code”. I note that it is a code that we have not seen and will be consulted on only after the passing of the legislation.

Dealing again with the amendment, it is important to determine capacity and, as Mind has said in its excellent briefing, the question of whether a person has capacity or competence to make the relevant decision is fundamental to the operation of key rights and safeguards. To build on the point from the noble Lord, Lord Meston, as I understand it the Bill contains 13 references to competence. It deals with such important matters as the appointment of their nominated person and, if you are under the age of 16, your freedom to choose someone other than the person with parental responsibility depends on your having competence. There is also the ability to refuse medication. To deal with the point made, I think, by the noble Lord, Lord Stevens, who was concerned about leakage across, this is a very particular piece of legislation with such coercive power, as I am sure he is aware, that the case for putting the test in the Bill to open up those safeguards for young people is very important.

The Government’s response to the consultation stated:

“We are committed to ensuring that children and young people benefit from the reforms we plan to introduce”.


Will the Minister therefore explain again how the lack of a statutory test is consistent with maximising that choice and autonomy?

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise briefly having attached my name to Amendment 147, to which the noble Baroness, Lady Berridge, was just speaking so powerfully. I will not repeat anything that people far more expert legally than me have already said, but will just make a couple of small points.

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[Baroness Merron (Lab)]

I appreciate the point that the noble and learned Baroness has made. As I said, I know there are competing views about its application. I reiterate the observation that it is the current established framework, but I hear what she is saying about what she believes are the implications of that.

[Baroness Berridge (Con)]

The Minister’s own policy document says that this test should be in the code of practice. How does that not also contribute to the undermining of Gillick that the Minister refers to?

[Baroness Merron (Lab)]

Actually, my feeling about the code of practice is something that I wanted to bring up, because it has come up quite a lot. The code of practice is statutory and aimed at practitioners, and it allows nuance and so on, but Gillick is in case law and it guides us throughout. The point I am trying to make is that if it is changed in respect of this Mental Health Bill then that has implications across the wider question of competency for younger people, and that is of great concern.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I want to add to what the noble Baroness just said. Amendment 139 goes to the heart of the Bill in terms of changing the culture and the way that we treat people. The Bill will become a piece of law that is practical only if we can honestly put hand on heart and say that we will substantially increase community-based services. Without that, it will not deliver that which we all believe will be the minimum to improve people’s lives.

[Baroness Berridge (Con)]

My Lords, on the amendment outlining the definition of “serious harm”, two situations were raised with us on the Joint Committee. One was that the change in the criteria is the main tool that will help with racial inequalities; I would be grateful if the Minister could outline how she envisages that will work in practice. The second point was about the period during which such serious harm has to be exhibited. We heard numerous times about people with psychosis, many of whom—I think it was over 70%—do not realise that they are getting ill when they are presenting. How poorly do they have to get? Sometimes the intervention might need to be sooner than in the definition we understood of “serious harm”, which was slightly different from that which the independent review had, which I think was of “significant harm”. If the Minister could address those two points, that would be very helpful.

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

My Lords, I thank noble Lords for their contributions to this important debate in which a number of key issues have been raised.

Amendment 23, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, relates to new Section 125D, regarding registers of people with a learning disability and autistic people who are at risk of detention. The amendment would remove new Section 125D(5), which defines

“specified risk factors for detention”.

I heard the noble Earl, Lord Howe, refer to this as an Aunt Sally amendment—I politely have “a probing amendment” here but I hope that we are in the same area—that is intended to clarify the definition of

“specified risk factors for detention under Part 2 of this Act”.

Mental Health Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

I hope that, as we move forward, we can also tackle the problem of an overinflated sense of the mental health crisis leading to the danger of neglecting the real mental health crisis.

[Baroness Berridge (Con)]

My Lords, I support Amendments 44 and 66. The Joint Committee on which I serve recommended that community treatment orders be abolished for Part II patients. That recommendation is supported by organisations such as Mind. That is partly due to the awful racial disparity statistics—you are up to 11 times more likely to be under a CTO if you are from a black or Caribbean background—combined with a lack of evidence that CTOs reduce hospital admissions. It took a brave gulp, even as the Joint Committee, to recommend that. The independent review had not gone as far as that, but it was in the report of the Joint Committee.

I, too, like the noble Baroness, Lady Fox, recognise the powerful speech of the noble Baroness, Lady Parminter, at Second Reading. I remember that, because of the extremely tight timetable the Joint Committee was given, it did not have time to consider in detail eating disorders or personality disorders, which was regrettable.

I can see from the reasons the noble Baroness outlined that there may be a case for retaining CTOs, perhaps even just for eating disorders. To quote her words from Second Reading, a CTO

“puts a boundary around the eating disorder … that a voluntary agreement could not, in that it makes it clear what will be the result”.—[Official Report, 25/11/24; col. 555.]

The Bill outlines protocols for specific treatments, such as ECT, so it seems possible in principle to have the law apply to specific disorders.

Most reluctantly, I have not made an amendment in Committee in support of the Joint Committee’s recommendation. But the independent review stated that “action is required”. We must not lose sight of that urgency. There are significant problems with CTOs. The argument that is proffered—that they help and are the least restrictive measure for a very small number of patients—is not a good basis for retaining them, bearing in mind the enormous harm they are doing on the other side. I ask the Minister to look for another way, going forward, to help this small group, and not to ask racialised communities to, once again, pay such a high cost for such a small group of patients.

In the Joint Committee’s report, it seemed that the group of patients we were talking about were unrestricted patients under Part III of the Act. Bearing in mind that 79% of CTOs are under Part II, which is for civilian patients, can we look in detail at the evidence to find out which small group of patients we are talking about? There are particular issues, according to our report, if a restraint or restriction is being used on people when the small group of patients seems to be within the forensic context rather than under Part II.

I ask the Minister to put CTOs where they need to be, as a result of these amendments. The independent review said that they should be in the last chance saloon. We must be careful not to lose the urgency that the independent review gave to these issues. Although I support Amendment 66, tabled by my noble friends, it is the very least we can do. The restrictions outlined in Amendment 44 are about ending them after a certain period, because part of the problem is that they go on and on, rolling over for years and years. That coercive effect on certain communities seems to remain, as the path of least resistance.

[Baroness Parminter (LD)]

My Lords, I want to say a few things about a couple of the amendments. I thank noble Lords for listening and for recognising the situation. It was powerful to hear that, and I am sure that many in the eating disorder community will be delighted to hear it.

I will not repeat what I said at Second Reading, as there seems no need, but in mentioning that, I want to support the amendment tabled by the noble Baroness, Lady Browning, which picks out the focus on community care and the need for more psychiatrists. I and others have made the case for why CTOs can be valuable for people with eating disorders—and for forensic patients, I understand. The value of the CTO is that the individual is helped to engage in the community with their mental health team. It is a multidisciplinary team, but the anchor is the psychiatrist. The noble Baroness was not sure if this was the right place to put her amendment because it has wider ramifications, but it certainly has value in this debate. CTOs, which I believe should be retained, can work only if there are proper multi-disciplinary teams anchored by a psychiatrist in the community, so that those individuals can be kept out of detained settings and engaged in the community. I thank her for bringing that forward, and I support it.

With regard to Amendment 44, I do not support a maximum duration for a community treatment order, because this is about the individual and what they decide, with their multidisciplinary team. What I like about the amendment tabled by the noble Lord, Lord Scriven, is that it rightly says that we have to review community treatment orders. People’s mental health situations change, and it is important to have step points at which people know they will be reviewed. I do not support a maximum time limit but the break points, which his probing amendment talks about, are worthy of further debate and discussion. I am grateful to him for bringing that forward.

I say with regret that I do not agree so much with the support of the noble Baroness, Lady Bennett, for retaining the automatic referral to a tribunal of any CTO that is lifted. Again, that goes against my sense that CTOs are about what is right for the individual. With eating disorders, there will be cases of CTOs being lifted because the person is no longer able to engage with the community team because the eating order has gone beyond the bounds of the CTO and is compromising their health and putting them, bluntly, at risk of death. I do not see why, in those circumstances, there needs to be an automatic referral to a tribunal. Strengthening people’s rights to go to a tribunal where there is a case for that is right and proper, but, because of my view about personalised care—especially for eating disorders, but this has wider ramifications—I do not support the case for automatic referral.

I know that there are people around the Committee who understand the concerns far better than me, particularly about the high preponderance of people in the black community who are on CTOs. I understand and hear that concern. I tried to get to the bottom of the figures, like the noble Baroness, Lady Bennett, to find out how many forensic patients were on CTOs. Given that you are four times more likely to be in prison if you are a black person than a white person, I tried to work out what the figures were to get the correlation to say whether it is because there are more people in prison that CTOs are preponderantly in the black community. I could not work that out. Equally, I could not work out how many people with eating disorders were on CTOs. I got the Library to try to help me, and it said that the figures are not cut that way and do not work that way. It seems to me that there is an issue about the data that we, and the Minister, are working with to make informed decisions.

I am not sure about the exact terms and conditions of the review that has been proposed by the noble Lord, Lord Kamall, and which in a later group is proposed by the noble Baroness, Lady Tyler, but I think there is an issue about the data out there. It is not helping us, or anyone else, make CTOs work for those where they can work, are working and should work in the future, and is clearly causing a problem. We need to get to the bottom of that.

--- Later in debate ---

[Baroness Tyler of Enfield (LD)]

My Lords, I rise to speak to Amendments 102, 105 and 106 in my name. These amendments all deal with extending the provision of advocacy services to informal patients below the age of 18. When I read the other amendments in this group, I thought, “Goodness me, this is going to be a bit tricky, isn’t it?”. It felt at one point as if we were diametrically opposed, and that is not a comfortable position to be in against someone with years of expertise who is as distinguished as the noble Baroness, Lady Murphy. However, I have listened carefully to what she has to say and the nub of it is her concern about resources. On that point, I fully get it, about the workforce generally and advocates in particular. I am going to press on with my amendments none the less, because I am trying to deal with the principle as opposed to the resources.

Both the Independent Review of the Mental Health Act and the Joint Committee on the draft Bill recommended that advocacy should be extended to informal patients. Currently, only those detained under the Mental Health Act 1983 have a legal right to advocacy services. The Mental Health Bill introduces a new opt-out scheme, meaning that all detained patients will get an automatic referral to advocacy services. The Bill also extends advocacy to informal patients, but they will not be captured by the new opt-out scheme, meaning that informal patients will still be required to ask for support via an advocate. This is at the very nub of the problem with which I am concerned.

It is crucial that children and young people aged under 18 admitted to mental health in-patient care informally should have an automatic referral to advocacy services, in line with those who are detained under the Act. There may not be very large numbers—that is relevant to the resource concerns—but it is worth remembering that a higher proportion of children and young people are admitted to mental health hospitals informally. Indeed, it is estimated that around 31% of under-18s are admitted to in-patient care this way—namely, on the basis of their own or parental consent. Having access to an advocate automatically will help young informal patients understand and exercise their rights and ensure they have a say in the decisions made about their care and treatment. This could also lead to improved outcomes and prevent young people being kept in hospital for any longer than they need to be—something I am sure we all agree on.

It is worth adding that the lack of access to advocacy for informal patients has been a long-standing concern. There is a real concern that children and young people admitted informally will continue to experience problems accessing an advocate under the new system proposed as part of the Bill. It has been noted that, often, young informal patients do not understand their rights and feel an underlying threat that, if they break the rules in some way, they will be sectioned. We have to take that into account. Despite the concerns about resources, which I fully understand, access to an advocate is crucial in helping children and young people who are informal patients navigate what is a very complex system.

[Baroness Berridge (Con)]

My Lords, I will speak briefly to support the amendment tabled by the noble Baroness, Lady Tyler. The extension of advocacy services to children and young people is important, because, as she outlined, there is a disproportionate number of children who are voluntary—I think there are just under 1,000 a year—in mental health institutions.

It is also important to recognise that there are other additional rights that children have when they are detained, or when they have agreed and consented to go into hospital. They need to continue their education while they are in there. It is important to advocate for what their entitlement is while they are in hospital—I think we are all used to walking past the hospital school that is within a normal physical illness hospital—thereby enabling them to continue their education and considering what their rights are in that regard. That is obviously so important for them and their recovery, so I support the amendment from the noble Baroness, Lady Tyler.

[Lord Kamall (Con)]

My Lords, I have a few brief comments on this group of amendments. In response to Amendment 43A, tabled by the noble Baroness, Lady Barker, given that anyone subject to a CTO already receives something in writing, it should not be too difficult for the Government to accept her amendment. Assuming that they have a right to access independent mental health advocates, it seems like a very reasonable amendment.

Like the noble Baroness, Lady Tyler, I must admit that, when I read the amendments tabled by the noble Baroness, Lady Murphy, I wondered—given that the amendments from the noble Baroness, Lady Tyler, and the noble Lord, Lord Scriven, seek to extend access to independent mental health advocates—why she would want to exclude informal patients from access to those advocates. However, as she explained, and as my noble friend Lady Berridge commented on day one in Committee, we have to deal with the world as it is, not the ideal world that does not exist. As the Minister has often reminded us, this will not all happen in one big bang; the Government’s plan is for it to take over 10 years, subject to spending reviews and resources.

In fact, the noble Baroness, Lady Murphy, made what appear to be two valid points. The first is that we need to be realistic about resourcing. As the impact assessment suggests that expanding access to independent mental health advocates to informal patients will cost £81 million every year, we have to ask: is that the best use of that money, if it were available, given all the other demands on it?

On the noble Baroness’s second observation, I thought that the research cited was interesting: that extending these independent mental health advocates from one environment or cohort of patients to another does not necessarily mean that it will work.

--- Later in debate ---

[Lord Kamall (Con)]

I thank the noble Lord, Lord Scriven, for that, as I would not want to be using inaccurate information. Maybe the Minister can check with her officials, thanks to the wonderful use of technology, to ensure that we have an accurate figure by the time that she gets up to respond to our points. Whichever number is accurate for the cost of extension, it does have an impact on how noble Lords may feel if these amendments come back on Report.

The study that the noble Baroness, Lady Murphy, shared with us contained two statements which I picked up on, and which I hope the noble Baroness will correct if I am wrong. First, patients found the process was a positive experience. But, secondly, the study found no evidence that it had any impact on the outcomes of the care and treatment. That is an important point to make. Once again, what is effective, and what works? Sometimes, feeling better and being more positive is part of a treatment, and we should not dismiss that.

I do not want to sound too negative, as I thought that the North Carolina study was very positive, and the noble Baroness and I corresponded about this over the weekend. It was interesting that it found that black mental health patients benefited from having an independent mental health advocate, especially if the advocate was also black, as patients felt better supported, and more confident that they would be listened to by someone. The crucial point was that it appeared to reduce the rate of repeat detentions. This is one of the crucial issues throughout the Bill. This is one of the reasons why my noble friend Lady May asked for the Wessely review.

[Baroness Berridge (Con)]

I do not wish to interrupt my noble friend’s flow, but this is one of the key things that is evidence-based, and that does reduce detention for those communities, so it is important.

[Lord Kamall (Con)]

I am grateful to my noble friend for that intervention, because this is something that we could learn from here. Given the point that the noble Baroness, Lady Murphy, made at the beginning, would taking that lesson from the black community in North Carolina work with black communities up and down the country here? I hope it is something that the Government could look into, or respond to, as one of the ways, once we have the relevant data, to reduce the rate of detention and CTOs for people from the black community.

I end by asking the Minister that question: is she aware of whether her department has looked at—was it North Carolina or South Carolina?

Mental Health Bill [HL]

Baroness Berridge Excerpts

Tuesday 14th January 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest as an honorary fellow of the Royal College of Psychiatrists, but without any qualifications, unlike the noble Baroness, Lady Murphy. For the reasons that have already been given, I entirely agree with the whole group of amendments, which have been proposed so much better than I could do—so I do not propose to say any more.

[Baroness Berridge (Con)]

In supporting Amendment 1, I am delighted that the noble Baroness, Lady Tyler, began Committee with this focus on the impact of the Mental Health Act on racialised communities, because that is where this whole journey began, with the noble Baroness, Lady May, when she was Prime Minister, announcing it in that context—and then, of course, it became a wider reform of the whole Act.

I served on your Lordships’ Joint Committee with the other place, scrutinising the Bill. In the course of that, I became aware of the relative strengths of civil society among some of the groups. There were excellent civil society groups speaking on behalf of people with learning disabilities and autism; they were highly professional and articulate. We had one evidence session on the effect of the Mental Health Act on racialised communities, but I saw that the strength of civil society and of media coverage in that area was less—so I am sympathetic to Amendment 1, which would give a profile to one of the main issues under the legislation.

On whether the table should be in the Bill to be in the code or in the Bill sitting as primary legislation, I have sympathy for that proposition. We have learned that the code of practice merely reflects primary legislation. I am aware, of course, that the independent review came up with those four principles, and this fifth one was not part of that. I expect to hear the Minister say that it is already in the Equality Act, so we do not need to put it in the Bill—but I am persuaded of the merits of the amendment. During the whole process of an independent review, a White Paper, a response to a White Paper, a draft Bill, a Joint Committee and now the Bill before your Lordships’ Committee, it has become clear to me that many of the changes that ethnic minority communities need to see are in practice. They are in resources and training—people would not look to the Bill and see their needs as the first or an important priority in it. I would be grateful if the Minister would take seriously this consideration of putting this equity principle in the table and putting it in the Bill, full stop, and not within the code.

[Lord Kamall (Con)]

I begin by thanking all noble Lords who spoke to this first group of amendments in Committee. Before I comment, I refer noble Lords to my interests as set out in the register. I am not an honorary fellow of the Royal College of Psychiatrists, noble Lords will be relieved to know, but I should mention my previous work with a couple of think tanks—the Institute of Economic Affairs and Politeia, which have both published on health and social care issues. There is also my work at St Mary’s University, where I am a professor of politics and international relations, and which has recently applied to open a new medical school. I also sit unpaid on the advisory board of a start-up coalition, and I know that there are a number of start-up companies helping people with mental health conditions. I just wanted to cover those interests, in case anyone made any accusations.

This group addresses the principles that will guide the application of the Mental Health Act, as set out in the Wessely review. Sir Simon pointed out, rightly, that there are already guiding principles in the code of practice, but that

“there is limited awareness of these, and it seems very likely that they do not inform practice in the way they should”.

Clearly, as noble Lords said at Second Reading, the important aim of including the four principles is to improve their application and ensure the highest level of care and therapeutic benefit for patients, while ensuring that all patients are treated as individuals.

I thank the noble Baroness, Lady Tyler, for her Amendment 1. Of course, equity is at the heart of the Bill, as my noble friend Lady Berridge just said. The Wessely review was commissioned by my noble friend Lady May of Maidenhead with the intention of understanding why a disproportionate number of black people were being detained and receiving community treatment orders under the Mental Health Act. I think all noble Lords welcome the idea of including equity in principle, as long as it then feeds through into practice. That is the key here, and my question for the Minister is: would putting the principle in the Bill make a difference to practice? How do we make sure that it makes a difference to practice, rather than simply adding the words or adding the principle? One of the values in the NHS constitution is that “everyone counts”. Does this equality duty go further than that, and would it have a greater practical significance? That is one of the questions we need to dig out and probe the Government on.

The noble Baroness, Lady Tyler, makes an interesting observation with her Amendment 3. The principles were included in the Bill, as the Wessely review argued, to improve clinical practice. This is vital, because we know that the Mental Health Act is the legislation that is used to compel detention in hospital for treatment. This may very well raise awareness of the principles, but once again, how do we make sure that this is applied? We have to keep pushing this point, although I will not repeat it again, of making sure that this gets fed in to practice in the clinical setting.

I also note the amendments in this group of the noble Baroness, Lady Whitaker. I will not repeat the statistics that she read out about the impact of the lack of or inappropriate support for people with mental health issues or learning difficulties. Of course, it is not difficult to appreciate the complexities. Someone in my close family worked with speech and language therapists in his youth, and I could see the difference it made. It is almost too obvious to say, but how do you get your needs across if you cannot communicate them, or your needs are not understood by the person who is supposed to be offering treatment? As the noble Lord, Lord Patel, mentioned, this is included in the Explanatory Notes, but how do we make sure that it gets into the Bill and into practice? Obviously, it is a problem that is acknowledged by the Government, or it would not be in the Explanatory Notes, but why have the Government chosen not to go any further on this issue?

I was very struck by what the noble Baroness, Lady Murphy, said about Amendment 49 and her concerns. Will the Minister address that debate? Of course, we all want to make sure that patients feel that they are understood. We know that patients have to be supported as much as possible to make sure they get their point across and that they are understood, in order to give them adequate treatment, but I noted the concerns of the noble Baroness, Lady Murphy, even though the noble Lord, Lord Patel, intervened. Have the Government taken a view on this or does the Minister need to write to us? I look forward to her comments.

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[Baroness Merron (Lab)]

I thank noble Lords for their interventions, for which I am grateful. They give me the opportunity to say now what perhaps I should have said at the outset: I will of course reflect on all the points that are raised as we move forward. I will be honest and say that I am not sure that what I am about to say will do justice to the points that have been raised. Overall, the real concern is about making very complex legislation even more complex. We are wrestling with our attempt to update the Mental Health Act—we are not starting from scratch. That is the point I would like to like to move on to.

The noble Baroness, Lady Tyler, raised a comparative point about the Mental Capacity Act and asked why, if that could include principles, it is not possible for the Mental Health Bill to. To extend what I have just said, it is because the Mental Capacity Act was structured around principles from the outset when it was drafted and did not have to meet the challenge that we are trying to debate today. As I said, we are currently looking at amending the existing Mental Health Act, which has not been designed or structured around statutory principles. In my language, I would say that we are starting from an entirely different place.

[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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Similarly, Amendment 41 would require that the psychiatric disorder and the reasons for that alone are listed on the statement when a patient is detained and that autism and learning disability should not be listed as the reason for detention. It may be appropriate in other types of documentation associated with the patient but not on the reason for detention.

[Baroness Berridge (Con)]

I pay tribute to the work that the noble Baroness, Lady Browning, has done in relation to this matter. This is a matter that we considered in great detail in the Joint Committee. I am grateful that that gives us the opportunity to discuss in the round the legal basis on which people are detained. The independent review did not recommend what is currently in the Bill, which is the removal of learning disabilities and autism from the Act. The Joint Committee’s report quotes it saying,

“the risk of completely removing learning disabilities and autism from the Act is too high”.

The noble Baroness, Lady Browning, outlined one of the reasons for that, which is that if you remove the legal basis for detention under the Mental Health Act, then the bucket that these individuals and patients would fall into without Amendment 5 would be the Mental Capacity Act.

In the consideration by the Joint Committee, there is the other danger that—when there is no co-occurring mental health condition—you end up with people coming through the criminal justice system, instead of being detained under the Mental Health Act. That is the worst of all the evils we could be discussing here today and would be completely inappropriate.

I would be grateful if the Minister will ensure two things when we know that these are dangers: first, an increase in diagnoses of co-occurring mental health conditions to use the Mental Health Act; and, secondly, an increase in the use of the Part III criminal justice provisions. It is important that we know the exact statistics for the group with learning disabilities and autism before implementation of the Act. Then we would know whether the Act has caused an increase in diagnoses of co-occurring mental health disorders and an increase in the use of the criminal justice system.

I believe that currently 39% of people detained with learning disabilities and autism are detained under Part III of the Act. I see the noble Baroness, Lady Browning, nodding. It is important that we remember that New Zealand tried this, removing learning disabilities and autism from its mental health legislation. I cannot remember whether it had the co-occurring mental health diagnosis provision, but, only a few years later, it had to amend the law, as it had caused an increased number of learning disabilities and autism patients to come in through the criminal justice system.

What would be the position if the Bill were amended in accordance with Amendment 5? The evidence that we received in Joint Committee was that there would be no patients—that community facilities would be at a level where they could not think of anybody who would need to be detained. I wish the world were thus, but the ideal world portrayed in that way does not exist. Even with the community facilities that we all wish to exist, it seems clear to me that there would be circumstances in which there would still be a need to detain.

I recognise that, in reality, we may see that increase in diagnoses of co-occurring disorders. Physicians may reach for that to protect someone—to detain them to get them treatment. However, it was made clear to us that 28 days is a relatively short time. You can be detained for assessment, but it can take many days to get the level of distress down—I do not want or like to use the word “meltdown”—to assess the mental health of the person and whether there is a co-occurring disorder.

The Joint Committee came up with a special exceptional tribunal that would still allow the Mental Health Act to be used in that small number of cases—once community facilities are as we would like them to be—to continue detention. Why? For the reasons outlined by the noble Baroness, Lady Browning: the protections under the Mental Health Act are much greater. You have the nominated person, you can go to the Mental Health Act tribunal, and—ker-ching—you get Section 117 aftercare, which, of course, is not available under the Mental Capacity Act.

If Amendment 5 were accepted, we would have no Mental Health Act, no co-occurring diagnoses, no criminal justice system—I hope—and no Mental Capacity Act to refer to. If a clinician is in that circumstance where someone is so distressed and they do not have that diagnosis in the 28 days, where is the law? We are not talking about the practicalities here. Where is the law?

In any event, the Mental Capacity Act does not apply to under-16s. So the risk would be an increased use of what we now know as High Court DoLS. These are not DoLS under the Mental Capacity Act. They are DoLS under the inherent jurisdiction of the High Court. They are a most unsatisfactory way of restraining the liberty of under-16s.

Only two or three weeks ago, the Children’s Commissioner issued a report outlining the problem, and outlining that, already, some children with learning disabilities and autism are under a High Court DoLS. It is a matter that your Lordships’ House needs to consider. Nearly a thousand children are detained under a High Court DoLS.

Obviously, the Mental Capacity Act would have applied to 16 and 17 year-olds and adults so where does that leave those vulnerable adults? Where is there a power to detain them? The Mental Health Act and the Mental Capacity Act will both have gone. If clinicians are in that circumstance where there is no co-occurring mental health disorder, there is a vacuum which may end up being filled by the inherent jurisdiction of the High Court using vulnerable adults. We will have created another little bucket of people. I accept the criticism made by the noble Baroness, Lady Browning, about DoLS under the Mental Capacity Act. They are supposed to be replaced by protection of liberty safeguards, but those are not in force yet.

If we accept Amendment 5, are we going to create more work for the High Court with clinicians in that situation because the law will not have provided any means for them to detain? I recognise and repeat that the practicality will probably be a co-occurring mental health disorder but, as far as I understand it, that is where the law will be left if Amendment 5 is accepted.

Although the Mental Capacity Act is far from ideal, I hope the Minister can help us understand what the situation would be if we were to accept the amendment. As I say, for the under-16s it would be more cases under High Court DoLS, as far I understand it.

[Baroness Murphy (CB)]

My Lords, I have an amendment in this group but I want to speak particularly to the amendment from the noble Baroness, Lady Bennett, and to thank the noble Baroness, Lady Berridge, for her good sense. I agree with every word she has said.

I had earlier tabled amendments to Clause 3 and Schedule 1 to give effect to opposing any change in the definition of mental disorder for the meaning of the Act in the same way as Sir Simon Wessely’s committee recommended and I withdrew them in favour of a compromise amendment because I was not sure, to be honest, that I would get here at all today. I have. I am not quite sure how many more I will be able to get to but for the moment I am here so I will speak to this one.

I want to make it clear right from the start that if we had changed our legislation to be a hybrid Bill that was a fusion of a mental capacity and a mental health Bill we would not be in this pickle because we would have capacity-based legislation and therefore we could have proceeded without any of these silly criteria for what is this diagnosis and what is another. As the legislation is at the moment, I believe the move to remove autism and learning disabilities from what is a mental disorder is frankly bizarre, akin to having Parliament establish that for the purposes of legislation, the earth is flat and the sun goes round the earth. Galileo had the same problem. I want to ensure that Hansard will record that not everyone is in agreement with the notion that autism and learning disabilities are somehow separate and different from other mental disorders.

Neurodiversity, which, of course, exists, is the term used to describe statistical outliers from the norm and, of course, as for many other mental states, there can be many positive and interesting aspects of alternative ways of thinking about and responding emotionally to the world that enrich society. I understand that many people with autism and learning disabilities do just that and that is where neurodiversity has been so supported by people who want to ensure that they are recognised as individuals and citizens just as the rest of us are. But that does not change the fundamentals.

I know noble Lords know that I was a professor of psychiatry for many years at the University of London but I ought to mention at this point that I also have a special interest in mental health legislation because I was for six years vice-chair of the Mental Health Act Commission. I co-authored this now much revered code of practice for the 1983 Act. It is actually my only bestseller—if only it did not say Secretary of State on it—and I know first-hand how the Acts and codes are used. That is why I do not get involved in the principles of where this should be. The code does have statutory effect, by the way—I am sorry that the noble and learned Baroness, Lady Butler-Sloss, has left, because I can reassure her it does have statutory force. I was also UK advisor to the WHO on mental health and older people and was exposed to the developments in mental health legislation in other jurisdictions, not only in the UK, with the Scottish and Northern Ireland Acts as they were being developed, but in the Republic of Ireland when it introduced its new Act, and abroad in English-speaking legislatures.

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[Lord Scriven (LD)]

I do not think that I or anybody else who has a different opinion from the noble Baroness wants to see those people being neglected. We have a different view. The issue I have with her stance is that the evidence is that putting people with learning disabilities and autism in a psychiatric hospital—and that is where they will go if there is no provision, because that is where they go at present—is damaging. It is not the correct provision. I believe that what she is arguing for—to continue the neglect of provision by putting them somewhere—is significantly not in their best interests and causes damage.

[Baroness Berridge (Con)]

Perhaps I can clarify. I think that the noble Baroness’s amendment is to some extent based on the spirit of the Joint Committee’s report, which was about providing some kind of mechanism, after the 28 days—I am glad to see the noble Lord, Lord Bradley, nodding. There would be a specialist tribunal, and we said that it should be composed of people with experience of learning disabilities and autism, so that there was not a get-out for clinicians that they had not done the assessments properly. There would have to be grounded reasons to go beyond the 28 days and, in exceptional circumstances, you could authorise the detention, to make sure that the law covered that gap or group of people. No one wanted to see people detained for the reason that there was no community provision—that is ridiculous.

I accept that the reality is probably going to be that clinicians will find a mental disorder diagnosis to use the powers under Part II to do what is in the best interests of that person and their family at the time. But the law should also cover that situation and not force clinicians into those diagnoses—hence the need for accurate data, so that we can track what is happening when the law is enacted.

[Lord Kamall (Con)]

Once again, I am grateful to all noble Lords who spoke to this group of amendments. The purpose of today’s Committee is to probe the Government, but it is interesting that we find noble Lords probing each other—though I have learned a huge amount from these discussions. They say that discourse leads not only to liberty but to an increase in knowledge.

I add my words to those of the Minister and offer my condolences to the noble Baroness, Lady Hollins, who is not in her place today. I recall a debate in 2021 led by the noble Baroness—one of my first as Health Minister—in which she highlighted that people with learning difficulties and autism were being detained in secure settings, even when an assessment had recommended that they should live in the community. This goes back to the words of my noble friend Lady Berridge, who talked about how we can deal with the world as it is and not with the ideal world that we want to live in.

I was shocked at the time by what the noble Baroness, Lady Hollins, told the House about some of the findings from the oversight panel for the independent care (education) and treatment reviews. I bear in mind what the noble Baroness, Lady Bennett, said, when she gave some examples of other countries with much shorter detentions, but I will never forget the story that the noble Baroness, Lady Hollins, told about a Mr W, who had been detained in hospital for more than 20 years, spending most of his time in what amounted to solitary confinement. At the time of the debate, Mr W had been living in his own home for nearly three years, near his family, with his home environment and care being built around his needs. That is something that all noble Lords are trying to push for in this group of amendments. It was not only a heart-warming story but the point was made that, financially, it cost no more to support Mr W living in his own home than it did to detain him in hospital. More importantly, the noble Baroness shared the happy ending that, despite the trauma of being in the wrong environment for so many years, Mr W was, we hope, going to live happily ever after. That highlights the reasons for the amendments in this group.

I should add that I recall the noble Baroness who is now the Minister pushing the Government from these Benches on ending detention. I am sorry—I am going to be a little naughty here, but she can do it if we ever get back into government. She told the House that the average length of stay for people with a learning disability and/or autism in in-patient units was 5.4 years, saying:

“That is 5.4 years that no person will ever get back”.—[Official Report, 28/10/2021; col. GC 231.]


She asked how that could be justifiable when the cost of living in the community was the same as the cost of detention. I know that she is naturally sympathetic to ending these detentions. The detention of those with autism and learning disabilities was one of the central issues addressed by the Wessely review.

I was interested in Amendment 4, in the name of the noble Baroness, Lady Bennett, arguing the definition of “mental disorder” under the Bill. While I am sympathetic to the amendment, can the Minister confirm whether my understanding is correct that the World Health Organization defines a mental disorder as

“a clinically significant disturbance in an individual’s cognition, emotional regulation, or behaviour”,

and whether the WHO includes neurodevelopmental disorders, which includes autism? If so, are the Government sympathetic to Amendment 4 and considering bringing forward their own amendment? How would they avoid running contrary to the definition accepted by the WHO and included in the Diagnostic and Statistical Manual of Mental Disorders, particularly DSM-5? I understand the point that these things can change, as the noble Lords, Lord Stevens and Lord Scriven, have very importantly alluded to.

Amendment 5, in the name of my noble friend Lady Browning, seeks to ensure that, if a person has autism or a learning difficulty but not a mental health condition, we should not be using deprivation of liberty safeguards to replace detention under the Mental Health Act. We fully support my noble friend’s amendment and the intention behind it.

I am grateful to noble Lady, Baroness Murphy, who has tabled Amendment 35, for the time she has taken to share her experience and expertise with me and my noble friend Lord Howe. She addresses an issue that we should all be aware of with any legislation: that of unintended consequences. While most noble Lords here today would accept and support ending these detentions, for all the reasons that we have all given, and particularly after the harrowing stories that the noble Baroness, Lady Hollins, told all those years ago, how will the Government ensure that anyone with learning difficulties who could potentially pose a considerable risk in the community receive the required supervision? That is the challenge here, and it is the challenge to which my noble friend Lady Berridge referred when she reminded us that we have to talk about the world in which we live and not the ideal world that we all want.

I am very grateful to my noble friend Lady Berridge for sharing some of the deliberations of the pre-legislative Joint Committee, particularly on the issue of the High Court DoLS. Given that, and the point of the noble Lord, Lord Scriven, if we are to have alternatives, how do we prevent detention by the back door or opening a massive loophole for detention?

Amendment 39, from my noble friend Lady Browning, would ensure that detention was for needs associated with the degree of psychiatric disorder, along with Amendment 40. We are sympathetic to that, and I look forward to the Minister’s response.

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[Baroness Merron (Lab)]

I am grateful for the invitation, as always. Government amendments will be considered as we progress through Committee, but I say that as a broad point, as I know the noble Baroness understands.

The intention of the provisions in the Bill on registers and commissioning is that people with a learning disability and autistic people are not detained but supported in the right way. The proposed changes to Part II, Section 3 will be commenced only where there are strong community services in place.

[Baroness Berridge (Con)]

I am aware of how much time the Minister has given and how generous she has been in allowing interventions. If she is minded on Amendment 5, can she outline whether she is proposing that there would be the special tribunal that the Joint Committee outlined? If so, how would she then deal with these issues for under-16s in respect of DoLS and for vulnerable adults? When there is no legal basis at all, it is then left for clinicians to detain anybody after the 28 days.

[Baroness Merron (Lab)]

I became a little worried, listening to the noble Baroness, Lady Berridge, that perhaps I had been a bit too generous.

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[Lord Bradley (Lab)]

I support and have added my name to Amendment 13, tabled by the noble Baroness, Lady Tyler, around communication issues. As she rightly pointed out, this could have been linked to Amendment 2, which has already been debated at some length. I will not repeat the same arguments, but they apply to this amendment, which is why I support it.

I also very strongly support the amendment on housing tabled by the noble Baroness, Lady Barker. I am chair of NHS England’s health and justice advisory board and have worked on the development of RECONNECT, the service to support people coming out of prison back into the community, which is very much a health-based initiative. Unless their housing needs are met at that point, their treatment, their support and their care plan can fall apart very quickly. Consequently, they are very quickly back in the criminal justice system. The same comparison can be made with this amendment. I strongly support housing being at the core of all issues relating to health and social care.

[Baroness Berridge (Con)]

My Lords, I rise to support the noble and learned Baroness, Lady Butler-Sloss, on Amendment 9. I know that there are other amendments in relation to the inclusion of parents and guardians. I raise just two small points in relation to this.

When one looks at where this amendment is inserted in the list, the last of the persons currently listed who would receive the report is

“the local authority in whose area the patient is ordinarily resident”.

That potentially will not always be the local authority where there is a care order. Therefore, in those circumstances, the local authority is caught with an

“other person who has parental responsibility”.

However, that is not how this is drafted in other parts of the Bill, where an

“other person who has parental responsibilities”

means guardians et cetera. For consistency of drafting, we need to look at that.

I know that the Minister has been very generous in the time that we have had with her and her officials, but we need a consistent phraseology within the Bill because with this amendment, if there was a special guardian the report would also go to the person with what is informally known as residual parental responsibility. Normally they are informed only, for instance, of the change of name of the child or if the child is going to leave the jurisdiction. We need to look at everybody with parental responsibility and have some consistent phraseology within the Bill when we are meaning the local authority when there is a care order and parental responsibility, to include all the different circumstances in which a child may have their status changed from the ordinary situation of living at home with parents when a court order is in place.

[The Earl of Effingham (Con)]

My Lords, this group of amendments aim to strengthen provisions for care (education) and treatment reviews—CETRs, as we have heard—for individuals with autism or a learning disability. These amendments collectively aim to address gaps in the current drafting and ensure that the needs and rights of these individuals are fully considered and respected.

This reflects the dignity, respect and patient-centred care principles that strengthen the Bill. Amendments 6 and 12, in the name of the noble Baroness, Lady Barker, highlight the importance of considering housing needs during care (education) and treatment review meetings. A stable, safe and appropriate home environment is a critical determinant of mental health and well-being. Failure to address housing can undermine the effectiveness of care plans, leading to avoidable crises, as the Minister put it earlier, and setbacks that can risk damaging the long-term success of these care plans. Can the Minister please clarify how housing needs will be integrated into the CETRs under the current provisions of the Bill?

Amendments 8 to 10 and 15 to 17 focus on ensuring that the CETR process is inclusive and transparent. These amendments expand the list of those who should receive CETR reports to include the patient, their nominated person, independent mental health advocates and, where relevant, their parent or guardian. These measures should help foster trust and collaboration in the care process and create a more holistic approach to care planning by ensuring that all key individuals are kept informed. Can the Minister please confirm whether the current drafting of Clause 4 sufficiently addresses these inclusivity concerns or whether these amendments are necessary to achieve that goal?

Amendments 19 and 20 address the issue of ensuring that recommendations from CETRs are acted upon. It is not enough for reviews to generate reports and recommendations: there must be a clear and enforceable duty on integrated care boards and local authorities to act on them. Amendment 19 would strengthen this by replacing the current requirement to “have regard to” recommendations with a “duty” to carry them out; while Amendment 20 ensures that “a compelling reason” must justify any deviation from these recommendations.

These amendments reflect the frustration often experienced by patients and families when well-intentioned recommendations are not implemented. A stronger duty to implement recommendations would not only improve outcomes but restore trust in the system. Can the Minister outline how the Government intend to ensure that recommendations from CETRs are indeed implemented effectively?

Amendment 13 highlights the importance of addressing communication needs during the CETR meetings. It is highly welcome that the issue of communication and language has been addressed by so many noble Lords. Effective communication is essential for patient-centred care, ensuring that patients can meaningfully participate in that very care. Ensuring that individuals’ additional or alternative communication needs are met is not merely a courtesy, it is a necessity and a must-have. This group of amendments highlights the importance of a holistic, inclusive and accountable approach to care and treatment reviews. They seek to ensure that the needs of patients, including those related to housing, communication or support networks, are fully recognised and addressed. They also emphasise the need for timely reviews and actionable recommendations backed by clear accountability mechanisms.

His Majesty’s Official Opposition are broadly supportive of the aims of these amendments, and we look forward to the response from the Minister.

Mental Health Bill [HL]

Baroness Berridge Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Baroness Berridge (Con)]

My Lords, it was a privilege to sit on the Joint Committee to scrutinise the Bill, but it was disturbing to see for how long the legislation has been failing patients, their families and clinicians. I thank my noble friend Lady May, who is not in her place, for instituting the process and for placing a clear focus on the disproportionality faced by racialised communities. There is much to commend the Bill, such as the change in detention criteria, and statutory care and treatment plans, but it could still be improved.

The introduction of community treatment orders made a bad disproportionality situation even worse. The mental health factsheet accompanying the Bill says that black communities are seven times more likely to have a CTO than their white counterparts, although that is an improvement on the evidence to the committee, where we were told that it was up to 11 times, while Parliamentary Office of Science and Technology research states that it is up to 10 times. Whatever it is, it is too high. If CTOs are to remain, I hope the Minister will outline that proper research will be undertaken to understand what is causing that disproportionality.

While I welcome the changes to CTOs, I stand by the Joint Committee recommendation that they should be abolished for Part II patients; I stand with Mind on that. There are differing opinions on this issue now, and it would be useful to return to it in Committee. Because of disproportionality, the CTO issue is of particular importance to certain communities. However, I agree with the noble Lord, Lord Adebowale; we also heard about the informed research showing that advance choice documents are known to reduce detentions and reduce medicalisation when someone is detained. So, while I am pleased to see the advance choice document in the Bill, I ask His Majesty’s Government to consider that there should be a right to request that.

As the Bill goes through Parliament, I hope that the hard work of a smaller, often less-resourced group of activists for these communities will be appreciated. The work of the NAS and Mencap is exemplary, but sometimes those who are not able to shout the loudest are in the greatest need of our support. I am sad to notice that two of the provisions that are particularly important to racialised communities are being diluted.

One of the most important changes is that the outdated use of nearest relatives is being replaced by nominated persons who represent the patient and exercise relevant statutory functions. It is important to note the power that the nominated person has. It includes the power to order the discharge of the patient, unless of course a barring order is made. Ideally, the nominated person is chosen by the patient, but if they do not have capacity, that function is done by the approved mental health practitioner—AMHP. Those are welcome changes for most adults—I note the comments from the noble Lord, Lord Alderdice—but the Joint Committee’s report highlights that all is not clear with regard to the nominated person and children and young people.

The decision not to have a new piece of legislation is a particular problem. When the Mental Health Act 1983 was passed, it was envisaged that it would really apply only to children in the criminal justice system. To complicate matters, the Children Act 1989 was passed, with further amendments later on giving 16 and 17 year-olds the right to consent to medical treatment if they have capacity. Then came the Mental Capacity Act, which does not apply to under-16s but does if you are 17. Then Gillick competence was added to the mix. Yes, it is all rather fudgy, even before you add on the nominated person under the Act.

I will give a couple of examples. For the under-16s, under new Schedule A1, the nominated person must be the person with parental responsibility, but what of the situation of a special guardianship arrangement where the parents keep some residuary parental responsibility? Does the AMHP have to appoint the parents and the special guardian? That would set up quite a difficult arrangement for clinicians. Also, why does this schedule refer to a local authority being “willing” to act as the nominated person? Under the Children Act when there is a care order, local authorities have a duty to act when they have parental responsibility.

I turn to the 16 or 17 year-old who lacks capacity to appoint a nominated person. There is no mention at all of parents’ responsibility in paragraph 10 of that schedule, yet the young person might be living with them. So if the nominated person uses the powers of discharge, a process takes place for them to be discharged. You are relying on the mental health institution to remember that parental responsibility lasts until someone is 18 and to tell the parents that the patient is on their way home. That might not sound like a problem, but if you have got other, younger children in the household, it might be a risk to them to have that person back in the household. Also, a 16 or 17 year-old may be under a care order. Is the local authority going to be informed because it is going to be providing the accommodation? The schedule is silent on that. A common statutory mechanism is to mandate for particular circumstances like those of the under-16s but to have a presumption for other situations. So why not have some kind of presumption that a 17 year-old person with parental responsibility should be the nominated person if they are residing with them?

The previous Government accepted that after the independent review on children and young people more thought needed to be given. So will the Minister agree to have a meeting about children and young people with officials, interested Peers, and the experts in this field who are practising in this niche area of the Mental Health Act and the Children Act?

Children and young people are also in a vulnerable position if they have learning disabilities and autism and no co-occurring mental health illness. If they are in crisis and the parents need help, if there is no Mental Health Act provision, then what happens? We have heard about the use of DoLS under the Mental Capacity Act, but if you are 17 or 18 and lack capacity and are held under that, there is no Section 117 aftercare. However, if you are under 16, or 17 with capacity, you are not under the Act at all. Where does that leave you? That probably leaves you under the inherent jurisdiction of the High Court or, rarely, a care order. Only last week the Children’s Commissioner reported on around 1,000 children a year who are now under the jurisdiction of what is called a High Court DoLS order. Let us just say her report is not good news about that third provision to restrict a person’s liberty.

While the situation for those with learning disabilities and autism is currently shocking—and I marvel at the work of the noble Baroness, Lady Hollins—the Act could make a bad situation worse. This is also important to cover at the meeting that I have suggested and as High Court DoLS are a relatively new creation, it would be good to have there former members of the judiciary who have had experience of imposing those orders on children and young people.

I am disappointed not to see the recommendation from the Joint Committee of a mental health commissioner as part of the Bill. Since the Joint Committee reported, rare events have shown the danger to the public if mental health services fail. Often it is those who not medically trained but are friends and family who can see that someone is getting really unwell and needs help. Is it obvious to know where to go if you have tried the previous hospital and you have tried to use PALS? Do friends and relatives know that it is the CQC that they need to go to? The police have rightly stepped back in some respects in these situations. Not appointing a mental health commissioner is a missed opportunity as it is imperative that those people know somewhere to go to. While the Joint Committee’s report was not overt about this being a function of the mental health commissioner because it was before the events I have outlined, an emergency process such as this could well fit within their remit. It would be a one-stop shop. While there is a mental health homicide review under way, if there is the need to legislate, we could now be missing it. However, if His Majesty’s Government established a mental health commissioner whose functions could be by way of secondary legislation, the door to legislation remains open if that review suggests such measures.

Finally, I hope the Minister will inform your Lordships’ House that the Law Commission is being requested to look at whether, in England and Wales, we should be doing what the noble Lord, Lord Alderdice, recommended, and which is happening in Northern Ireland: the fusing of our mental capacity and mental health laws. This is a sticking plaster only on an area of law that badly needs a restart.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I put on record my gratitude to all Members of your Lordships’ House for contributing to what was widely agreed, I am sure, to have been an excellent debate—excellent not just because of the level of engagement but because of the detail. I really feel that spirit of wanting to improve the legislation and the support for the Bill thus far. I will endeavour to respond to as many themes as possible; I am very grateful to the noble Lord, Lord Kamall, for his sympathy, which I accept, but I regard that as a good thing. I regard it as admirable that I will not be able to answer all the questions, because that is the purpose of being here. It sets us up for Committee. It is obviously going to be a very rich Committee, and I very much look forward to it.

I hope noble Lords will understand that I look forward to following up on the many points that I will not get a chance to address in the time I have and doing a proper review of the debate today, picking up points as needed. I pay tribute to the dedication and the detailed attention to the Bill that noble Lords have already given. I am very glad to see my right honourable friend the Secretary of State gazing on. The reason I say that now is that the Secretary of State knows only too well—and not just from me—the contribution that your Lordships’ House makes and will continue to make. I for one certainly appreciate it, as I know he does.

I also thank the noble Baroness, Lady Parminter, for her bravery in sharing her and her family’s experience and anguish of eating disorder. I say the same to my noble friend who shared her experience about her sibling. It is not always easy to do that, but it really brings a lived experience of those around the person we are often thinking about, and it is so important that we do that. This debate has confirmed to me what I knew already—but it is always worth doing it again. It is the product of persistence and of a number of investigations and recommendations. It is also inspired and underwritten by the tireless campaigning that many have undertaken to improve the rights and experiences of people with mental health conditions and learning disabilities and autistic people.

It also reflects the input of those with lived experience, which was first raised as necessary in the debate by the noble Baroness, Lady May. It is about striking the right balance between getting the details of a framework of legislation right, along with the urgent need for reform, and the point that noble Lords have raised about how that is going to be done.

Attitudes and knowledge, as many noble Lords have acknowledged, have changed radically. Mental health is increasingly out of the shadows, and through the Bill we can make sure that legislation does a much better job of keeping up with a shift in societal attitudes and expectations and the development of treatment.

Regarding the role of your Lordships’ House, like the noble Baronesses, Lady May and Lady Barker, I recognise the relevance of this House. I too welcome that the Bill has started its passage through Parliament here because I believe your Lordships’ House will do the job that it is here to do, which is to improve legislation, and this debate today has certainly confirmed that.

In looking at what we are trying to achieve, I am reminded of the words of Professor Sir Simon Wessely in his foreword to the independent review’s final report, where he said that

“we want the Mental Health Act to work better for patients, the public and professionals. We hope that the result will be to reduce the use of coercion across the system, whilst giving service users more choice, more control and better care, even in the event that detention is still required. And we particularly hope that the end result will be to reduce the inequalities and discrimination that still remain”.

Almost six years after the former Prime Minister, the noble Baroness, Lady May, commissioned that independent review, the draft legislation before us speaks to those aspirations as well as delivering our manifesto commitment to modernise the 1983 Act.

On the reduction of detentions, I certainly agree with the noble Baroness, Lady Murphy, and other noble Lords that reducing detentions cannot be achieved by legislation alone. It will depend on having the right services in the community.

New models of care in the NHS are already giving over 400,000 adults greater choice and control over their care. We are also trialling new models of care through six early implementers, bringing together community crisis and in-patient functions into one neighbourhood team that will be available 24 hours a day, seven days a week, to increase access and improve continuity of care in the community. I know from the debate today that many noble Lords are looking for that sort of development and good practice.

As we know, the Bill makes a number of improvements in respect of patient experiences and care, and of the increase of choice and autonomy. It seeks to tackle racial discrimination and provide safety for public, staff and patients, and to provide better support for those with autism and learning disabilities.

I turn to some of the main themes that have been raised. I say to the noble Baroness, Lady Tyler, that we continue to be committed to engaging with those with lived experience. Part of the point of the Bill is that, where those with lived experience have not had their voices heard, I believe our continued engagement will allow that.

On racial inequalities, many have spoken passionately about this matter, including the noble Baronesses, Lady Watkins and Lady Buscombe, and the noble Lord, Lord Adebowale. The racial disparities associated with the operation of the current Act were one of the many drivers of reform, and rightly so. The changes in this Bill will give patients greater say in their treatment and encourage more collaboration and less coercion in care and treatment planning, which are all crucial to reducing inequalities. This will include increasing oversight and scrutiny of community treatment orders, where racial inequalities are at their most acute. It will also be about encouraging the uptake of advance choice documents, where those with lived experience, as I said in my opening remarks, have been very generous in their reference to their use in reducing inequalities. Legislating so that people can choose their own nominated person will also protect rights.

Inequalities in outcomes are not just a result of how the Act has been applied but also due to wider social and economic factors. We will therefore be working across government to ensure that the Bill’s provisions are effectively implemented, aiming to reduce those racial disparities in decision-making under the Act, starting with using the code of practice to make clear which actions can be taken in the application of the Act. We are also taking forward non-legislative reforms recommended by the independent review, including the Patient and Carer Race Equality Framework and also piloting culturally appropriate advocacy models to support those from minority ethnic backgrounds to understand their rights under the Mental Health Act and to give voice to their individual needs.

On the mental health commissioner, I have heard many comments, including those expressed by the noble Baronesses, Lady Murphy, Lady Barker, Lady Buscombe and Lady Berridge, and the noble Lord, Lord Bradley, and others. That is quite a group to address, but I will have a go. It is true that we have not taken forward the pre-legislative scrutiny committee’s recommendation to establish a statutory mental health commissioner. We recognise that improvements need to be made to the quality of care and the patient safety landscape. However, the concerns are that the proposed mental health commissioner’s function would be potentially largely duplicative of existing bodies and functions, and nobody wants to risk diluting accountability or causing confusion. As noble Lords will know, Dr Penny Dash has been asked by the Secretary of State to assess if the current range and combination of organisations within the healthcare regulation landscape is effective and to make recommendations of what might be needed, and I think it is important that we await her recommendations.

Learning disability and autism were raised by a number of noble Lords, in particular by the noble Baronesses, Lady Hollins, Lady Buscombe and Lady Browning, my noble friends Lady Keeley, Lady Ramsey and Lord Touhig, and the noble Lords, Lord Scriven and Lord Adebowale. This is a very important point and I recognise that we want to improve care and support for the over 2,000 people who are currently detained, as well as anybody who may need support in the future. We know from the NHS’s safe and wellbeing reviews that four in 10 people who are detained in this group have needs which could have been met in the community with appropriate support. That is why we are going to be focusing on developing community services and improving the quality of care, which will happen alongside the Bill’s reforms.

Through the Bill, we will be taking forward a package of measures for those with a learning disability and autistic people, so there will be a significant programme of work, alongside investment. I will be pleased to engage with expert stakeholders and those with lived experience, including parliamentarians, and to update your Lordships’ House as we progress.

With regard to the recommendations of the pre-legislative scrutiny committee, there is no doubt in my mind that the Bill has benefited greatly from undergoing scrutiny in 2022. It is a better Bill for that and we have tried to incorporate more of the Joint Committee’s recommendations within it. Many of those recommendations relate to the statutory code of practice and we will consider how we take these forward following Royal Assent.

On the important point of implementation, raised by many noble Lords, including the noble Lords, Lord Adebowale and Lord Bradley, the truth is that we estimate that the full implementation of these reforms will take around 10 years. The speed at which we can implement will be limited by the time that we need to expand and train the workforce. This goes to the point raised by the noble Lord, Lord Kamall, and I am grateful for his honesty in the way that he described previous work on the workforce. I thank him and his ministerial colleagues—predecessors of mine—who have worked on this.

The reality is that while some reforms can commence much sooner than others, we will need to commence powers under the new Bill in phases. Implementation will depend on what happens during the passage of the Bill and the reality of future funding settlements—to the point raised by the noble Lord, Lord Stevens—as well as other developments, such as the 10-year plan, but I can briefly give an indicative timeline.

A small number of reforms relating to the criminal justice elements of the Bill will commence within two months of Royal Assent. In the first year after Royal Assent, there will be a focus on updating the code of practice and creating the necessary secondary legislation to enable implementation. We will need a further year to train existing staff on the reforms and ensure that processes are in place. We would therefore hope to commence the first phase of significant reform in 2027, and to commence further reforms as and when there is sufficient resource in place to do so. In the spirit of honesty, the truth is that for what I would call the most burdensome reforms—for example, the increased frequency of mental health tribunals—those would not be likely to commence before 2031-32.

Alongside the passage of the Bill itself, we are looking closely at implementation in relation to learning disability and autism. Again, the exact timing of implementation of the reforms will depend on future funding. I know that noble Lords will understand that I am limited in what I can say on that, but we have already demonstrated our direction of travel by: treating and resourcing mental health seriously, including having a mental health professional in every school; introducing open-access Youth Futures hubs; recruiting 8,500 mental health workers; and having £26 million in capital investment. Indeed, there is the priority that many noble Lords, including the noble Lord, Lord Crisp, have acknowledged of bringing this Bill forward as a matter of urgency.

The noble Lord, Lord Meston, and the noble Baroness, Lady Berridge, raised the disparity of treatment between children and adults. It is true that there are a small number of reforms which do not apply to children and young people, as was also raised by the noble Baroness, Lady Watkins. It is the case that there is a difference; nevertheless, we are committed to improving children and young people’s autonomy over their care and treatment. We still believe that these reforms will go some way to achieving this. Like adults, under-18s should be supported to share their wishes and feelings by the clinician when it comes to care and treatment decisions.

On the issue of prison transfers, which was raised by the noble Baroness, Lady Watkins, and the noble Lords, Lord Scriven, Lord Bradley and Lord Adebowale, we recognise that operational improvements are needed to ensure the safe and effective implementation of the statutory 28-day limit. NHS England is indeed taking steps to address some of the barriers to timely transfer of patients. The wording in the Bill, which refers to the need to “seek to ensure” a transfer within 28 days, should be sufficiently robust to provide accountability for a breach of that time limit, while recognising that there are multiple agencies involved.

As we know, while this legislation—

[Baroness Berridge (Con)]

I hate to interrupt, given the lateness of the day and the lateness of the hour, but the point that a number of noble Lords were making in relation to children is that this Bill potentially does not sit with the principles under the Children Act. If the Government intend impliedly to repeal parts of the Children Act, then it would be good to have that clarification from the Dispatch Box.

[Baroness Merron (Lab)]

I look forward to coming to that point in Committee. The marrying up of legislation will be important, as is making progress on the Bill. That applies to the point of the noble Lord, Lord Alderdice, and others about fusion. We do not want to hold up this Bill while we make progress, but we will be mindful of the interface with other legislation.

In this Bill we are starting with the most overdue reforms to make the law fit for the 21st century. I very much look forward to working through the Bill in much greater detail in Committee. I am most grateful to all noble Lords who have not just spoken this evening but worked to get us to this point.

Support for Infants and Parents etc (Information) Bill [HL]

Baroness Berridge Excerpts

3rd reading
Friday 15th November 2024 Lords Chamber

Moved by

[Baroness Berridge]

That the Bill do now pass.

[Baroness Berridge (Con)]

My Lords, on behalf of my noble friend Lord Farmer, I pass on thanks to all noble Lords who contributed to the Bill and for the assistance of the House for making the passage of the Bill so efficient. I note that the Bill is based on the early years review from the Department for Health and Social Care, which indicates that, at such a stressful time, many parents could benefit from some form of legislation to ensure that they are aware of the help available to them from charitable and publicly funded sources. I beg to move.

[The Earl of Effingham (Con)]

My Lords, I thank all noble Lords who gave of their time and effort to make a valuable contribution to the Bill. In particular, I pay tribute to my noble friend Lord Farmer, whose efforts on the Bill, as well as on hospices, special needs schools, prison reform and many other areas, will pay dividends for future generations.

By providing parents with accessible and reliable updates on infant care, the Bill empowers families to make informed decisions, fostering stronger family units. This aligns with our principles of personal responsibility and informed choice, helping parents independently to support their child’s development. It equips parents with early-stage guidance to help address any issues at the onset, potentially reducing future reliance on public services, which will enhance efficient government spending, with early support minimising the need for costly interventions later in life.

By offering parents resources on key topics such as nutrition, health and time-tested milestones, the Bill promotes stable and forward-looking early childhood experiences. We value family stability as a cornerstone of society, and many on our Benches view this as a proactive step towards creating responsible, well-adjusted citizens.

Finally, by providing parents with essential information, the Bill aims to reduce unnecessary visits to healthcare outlets, enabling resources to be allocated to those with more urgent and complex needs. This aligns with His Majesty’s Official Opposition’s aims to relieve pressure on the NHS and optimise efforts on the long-term sustainability and success of public services.

Hospices: Funding

Baroness Berridge Excerpts

Thursday 24th October 2024 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I thank my noble friend Lord Farmer for securing this debate and the noble Lord, Lord Monks, for sharing his story so well.

How many times do noble Lords hear guests of the Palace of Westminster being told that no one can die here as it is a royal palace; people always legally die across the river at St Thomas’ Hospital. However, if you live in, or in the vicinity of, the Palace of Westminster and need end-of-life care, you are more likely than not to receive it from my local hospice, Royal Trinity Hospice in Clapham. The NHS contributes only 25% to 30% of its funding per year, but over half the people needing end-of-life care in the catchment area of south-west and central London use Royal Trinity Hospice. What is clearly an NHS service should be properly funded by the taxpayer. Whether in the vicinity of a palace or in social housing in the most deprived area of the country, there should be a national minimum standard of provision, as outlined in the excellent APPG report on hospice funding.

I also agree that ICBs should be made to look at a multiyear contractual term, as I often wonder how much charitable time, energy and money are spent bidding for money from the ICB. We know that the demographics show that there will be an increase in demand for hospice care over the coming years, so the sector should be free to plan to deliver more, not to fill in more bidding forms.

I am sure that no one would want the hospice movement to be solely government funded, as vital flexibilities and community relationships are built due to the inclusion of the charitable model of funding, raising about £1 billion a year. In fact, this is the perfect time to have this debate, as we are days away from the Budget. Although it focuses mainly on tax and spend, it is also normally the place where changes are outlined to any of the benefits for charitable giving. Legacies are a large proportion of hospice charitable funding, including around £2 million a year for Royal Trinity Hospice in Clapham. Many of these people will already be payers of inheritance tax, and if you leave 10% or more of the net value of your estate to charity, you can reduce the rate you pay from 40% to 36%.

Why are there not the same benefits for other estates that are smaller and that do not pay inheritance tax, and for whom the gift is often a greater sacrifice? If the policy is to look at income, capital and wealth on a more equal level, why is there no gift aid on small legacies? Also, why do you get more tax allowance if you are a higher-rate taxpayer and claim gift aid, but no benefit if you are a standard-rate taxpayer? I know the Minister cannot give detailed answers to those questions, but I hope she will agree with this focus: that if there is more wealth to tax, surely, we should also incentivise people further to give that wealth away.

Vaginal Mesh Implants: Compensation

Baroness Berridge Excerpts

Thursday 5th September 2024 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I too thank the noble Baroness for securing this debate and the panel for its review and tenacious follow-up of remaining recommendations, particularly recommendations 3 and 4 on financial compensation.

I am a member of your Lordships’ Select Committee on the Inquiries Act. With recent reports from statutory public inquiries on Grenfell and Covid-19, non-statutory inquiries such as this can be overlooked. While Grenfell and Covid-19 clearly needed the statutory model, it often comes with unhelpful TV images of banks of lawyers, looking like a courtroom. I do not want to pre-empt the publication of our report in the next few weeks, but it seems that both the noble Baroness and Bishop James Jones, who led the non-statutory Hillsborough review, managed to obtain the trust of victims’ groups, which is essential to that model. Along with my noble friend Lady Sugg, I too applaud those groups who were maturely able to see the advantages and merit of the non-statutory process and, I hope, found it less arduous than the courtroom-type hearings.

A number of recent inquiries—into the Post Office, Grenfell and infected blood—have led to the establishment of compensation schemes. Given the systemic failures outlined so clearly in this review and the avoidable harm caused, I would be grateful if the Minister could outline fully what distinguishes this request from those of the other schemes, if His Majesty’s Government’s position has changed since 4 July. Now that His Majesty’s Government are overseeing a number of these schemes, I hope there is co-ordination over the levels of compensation given, for instance over the costs of care in the home, so that there are comparable tariffs across the schemes. But the request for a redress agency, and the three separate schemes in advance of this, sits in a landscape of similar medical schemes—on variant CJD, vaccine damage and thalidomide, to name just a few. Why are these three schemes not just as worthy as those other medical schemes? I hope the Minister can justify this distinction.

In relation to vaginal mesh, will His Majesty’s Government not have had to consider how to justify on objective, reasonable grounds a decision that looks, prima facie, like indirect discrimination against women? I suspect that, more tellingly, the reason will be to do with the costs. As the review outlines, in other countries big pharmaceutical companies and the suppliers of devices contribute. Will the Minister undertake to meet these companies and ask them to bring a full assessment of the costs to them of litigation, both successful and unsuccessful? Could she also prepare a full assessment of the cost to the public purse of leaving this just to litigation?

By a full assessment I mean, inter alia, the legal costs and compensation paid out by NHS trusts in successful claims, the costs not recovered from the other side even in successful cases, the often unrecoverable lost time of medical staff having to attend court and prepare witness statements, and the costs of court time and of class actions being brought against the Secretary of State. Even if the HPT class action has been discontinued, what was the civil servant time, ministerial time, and Government Legal Department time involved in the case—and the cost to the public purse of debates and Questions in Parliament, including the private office time preparing the Minister and sitting in the Box? Could the companies and public purse assessments be compared to the costs of running a scheme similar to those I have outlined?

There are also non-financial costs borne by the victims and society. The awful testimonies of the debilitating effects of surgery are harrowing—I am so grateful that my loved ones have always had amazing NHS care. But perhaps there are women struggling with their disabilities who think, “If I had a bit extra to buy some help, I could get back to work, maybe just part-time”, or women who are managing their lives and thinking, “I could do some work, but now I have to take on litigation. That is really the final straw”.

The country needs as many people as possible in the workforce. Can the noble Baroness request any relevant information that the DWP holds in relation to these women? For instance, how many are in that situation? Would the noble Baroness be content for women who might be listening today to write to her to outline such situations—and, of course, add the civil servant cost of replying to that correspondence to the full assessment I outlined above?