Mental Health Bill [HL]

Baroness Browning Excerpts

Tuesday 14th January 2025 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, in moving Amendment 4, I will speak to the Schedule 1 stand part notice, which is consequent on Amendment 4. Both appear in my name. I will not speak to the other amendments in this group, although my understanding is that Amendments 5 and 38 to 41 inclusive—tabled, variously, in the names of the noble Baronesses, Lady Browning and Lady Hollins, and the noble Lord, Lord Scriven—are effectively trying to achieve the same thing but by different means. I will leave them to speak to their amendments, because I want to explain why I have structured mine in this way.

I must begin by thanking Jen Smith at the Bill office for her great patience and expert assistance to this non-lawyer in producing this and a number of other amendments. I also want to stress that I am not, unlike many people taking part in this debate, an expert in this area, but I seek to represent voices of people who have reached out to me who may not otherwise be heard in your Lordships’ Committee.

I will set out the background to Amendment 4. I had a detailed briefing from the group Liberation, a user experience group led by people who have experience of mental distress and trauma, which has the slogan “for full human rights”. It is seeking a complete end to involuntary detention in psychiatric hospitals and forced treatment for the people it represents—people given mental health diagnoses. It asked me to exclude all people from what is known as detention or sectioning.

Liberation says that involuntary detention and forced treatment are forms of disability-based discrimination, and these people should not be subject to them. This may not be the case under the European Convention on Human Rights—I acknowledge that the noble Baroness, Lady Merron, signed a statement to that effect in the Bill—but I understand that it can be argued to be the case under the UN Convention on the Rights of Persons with Disabilities. I note, however, that the Parliamentary Assembly of the Council of Europe has, in line with Articles 12 to 14 of the UN CRPD, strongly endorsed a complete end to involuntary hospitalisation and compulsory treatment and recommended the removal of Article 5.1(e) from the ECHR—the paragraph that limits right to liberty if people are judged to be “of unsound mind”. It describes it as

“not compatible with our 21st-century understanding of human rights”.

I note that the recent report on the situation in the UK from the UN Committee on the Rights of Persons with Disabilities, particularly paragraphs 79 and 80, expresses concern about the lack of government measures to end disability-based detention and that the then Conservative draft mental health Bill continued to allow involuntary detention and forced treatment. The Bill brought before us by the Labour Government still has the same kind of provisions. The argument is that the Bill as it stands remains non-compliant with the UN CRPD deinstitutionalisation guidelines and the World Health Organization publication Mental Health, Human Rights and Legislation: Guidance and Practice, in which countries are urged to replace institutions with high-quality services.

I can almost feel your Lordships’ Committee saying, “How can that be possible?” Starting from now, that looks like such a long way away. That was indeed the question that I put to Liberation, which presented me with a number of case studies from around the world. I imagine that the Minister is aware of the case of Trieste, in north-eastern Italy, which almost managed to abolish involuntary detentions. They have been replaced with wide-ranging and accessible community services, based on a whole-person approach. Its community mental health centres are open 24 hours a day, seven days a week, and they play a key role in preventing people reaching a point of crisis. This has enabled people with mental health diagnoses to remain in and be part of their local community, in line with Article 19 of the UN convention. Compulsory psychiatric treatment orders are still possible, but the numbers are very low and orders typically last seven to 10 days.

In Spain, Act 8/2021 recognises the legal capacity of all adults and stipulates that disabled people should receive the same legal treatment as non-disabled people, including those with mental health diagnoses and learning disabilities. This is still not complete equality but it is heading that way and has made further progress than we have.

Costa Rica, Peru and Colombia have all taken steps in this direction. In Peru, for example, a recent study on the impacts of crisis interventions indicates that involuntary detention rates have been significantly reduced and that, when people are detained, they typically leave hospital after a couple of days.

In Mexico, the general health law of 2022, a national civil procedure code, says that everybody has legal capacity, including people with mental health diagnoses. It enables access to supported decision-making for everybody. Mexico City, in particular, has set a real lead in delivering on this, but I acknowledge that not all of Mexico has.

Why have I tabled an amendment that would, in effect, end detention for those with autism and learning difficulties? I feel like I must apologise to the people I have spoken to, as I did not feel able to put down another amendment—this a probing amendment, by nature—as I looked at the realistic situation. The noble Baroness, Lady Tyler, in starting our debate, referred to the extreme lack of resources. I and many others have amendments later in the Bill referring to the need for it to specify the level of resources. I am sorry that I did not feel able, even in this probing stage of Committee, to table another amendment. I would like to, and I would very much welcome the Minister’s comments on how we sit in that UN framework and whether the Government have a long-term goal to reach the kind of levels that an increasing number of other countries have attained, as I have just set out in my quick survey.

But I have to look at the reality of the statistics. I have looked at the figures in the briefing from the Royal College of Psychiatrists. The number of recorded detentions in 2023-24 is 52,500. We really have to reflect on that number. Of those, we have seen a fall, to 1,880, in the level of detentions relating to learning disability and autism—that seems a step in the right direction. We are talking about disabilities. Can we really continue, a quarter of the way into the 21st century, to detain people for their disability rather than provide them with the support they need in the community? That is a question this amendment seeks to raise.

I want to reflect on the fact—we will come back to this again and again—that people are not getting the help they need, and that is leading to the state of crisis we have now. I note in Mind’s briefing that people are crying out for help and not getting it. In June 2024, very urgent referrals to crisis teams for adults were 45% higher than a year before. I should here declare my position as a vice-president of the Local Government Association and refer to the LGA briefing, which talks about the significant resource implications for councils of the Bill as it stands as presented by the Government.

There are voices here that should be heard. We should frame this in the context of the international situation of the UN Convention on the Rights of Persons with Disabilities. That is why I have tabled this amendment. I hope we can have a constructive discussion and see some real progress here today. I beg to move.

[Baroness Browning (Con)]

My Lords, I declare my interest as a vice-president of the National Autistic Society and a co-chair of the APPG on Autism, and I have responsibilities for close relatives who are on the autism spectrum.

I will speak to Amendment 5 first, and to the Mental Capacity Act, which is not the Act we are looking to change but it is my contention in this proposed clause that the Mental Capacity Act has a relationship with the Mental Health Act.

There has for some years been concern about the deprivation of liberty safeguards as defined in the Mental Capacity Act 2005. They were inserted into the Mental Health Act 2007 following the Bournewood judgment in the European court which involved an autistic man whose liberty was denied, whose carers were ignored, and who had had what I can best describe as an autistic meltdown that resulted in his incarceration for a very long time.

Although the Mental Capacity Act has much to commend it, there has been ongoing concern about the deprivation of liberty safeguards—often referred to as DoLS—and I managed to obtain a House of Lords inquiry into the Act in 2013, ably chaired by the noble and learned Lord, Lord Hardie, who is in his place today. I will quote a section of the summary of that inquiry that deals specifically with deprivation of liberty safeguards. The House concluded:

“The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned”.

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[Baroness Browning (Con)]

The noble Baroness asked me a question. Was it rhetorical? I wonder whether she could accept that autism is different. From the time that Kanner first identified autism, which is what a lot of psychiatric bases are based on—we then had Asperger and others, and the very good, more recent documentation from Lorna Wing, with whom I am sure she is familiar—autism has been different. If people doubt that, it is important to note that, apart from the Mental Health Act, the only other condition, however you label it, to have its own Act of Parliament is autism. In the Autism Act 2009, this Parliament unanimously agreed—in both Houses—that autism is different and deserved its own Act of Parliament.

[Baroness Murphy (CB)]

I would say that all mental disorders are different but that they cannot all have their own Acts of Parliament. I do not accept that autism is different. Of course, it is different in the way that it manifests—

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We strongly agree with the principle that people with a learning disability and autistic people who would no longer meet the proposed Section 3 detention criteria are instead detained under the Mental Capacity Act. We do not want this to be a loophole, back door or anything of that nature. We want the effect of the Bill to be that, wherever possible, these people are instead supported in the community when they do not have a need for hospital treatment for a psychiatric disorder.

[Baroness Browning (Con)]

The Minister will not be surprised to hear that I like what she just said. Is there no way she can put that in the Bill under a government amendment?

[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.

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[Baroness Barker (LD)]

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

[Baroness Browning (Con)]

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

[Baroness Merron (Lab)]

I am grateful for the noble Baronesses’ comments. I will come back with some examples before I sit down, because that is a very good suggestion. If I fail to do so, I will gladly provide them in writing.

Amendment 35, tabled by the noble Baroness, Lady Murphy, intends to provide a route to detain people with a learning disability and autistic people who do not have a diagnosed psychiatric disorder. Detention could be authorised only with the approval of the tribunal in “exceptional circumstances”, with power to provide guidance on what those circumstances will be in the code of practice. The amendment seeks to address the needs of those with a learning disability and autistic people, with whom I know the noble Baroness is concerned, where a considerable risk is being posed in the community, but who do not also have a diagnosed psychiatric disorder warranting detention for treatment under Part II, Section 3.

Our clear intent throughout the Bill is that people should be detained beyond Section 2 only when they have a psychiatric disorder that requires hospital treatment. It is our feeling that this amendment runs contrary to that intent. I am also grateful to the noble and learned Lord, Lord Hardie, for his comments on Amendment 35.

We also have some concerns about the scope of the “exceptional circumstances”, which would potentially result in a position no different to the current effect of the Act. It is unclear, in advance of the code of practice being developed, how broadly this might be defined. There would be considerable scope for different, divergent approaches in comparable cases, which, again, I know is not the intent of noble Lords.