Mental Health Bill [HL]

Baroness Buscombe Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Watkins of Tavistock (CB)]

My Lords, as an ex-community mental health nurse, I wish in particular to support Amendment 139. I am convinced that we need appropriate ratios of such staff to deliver preventive services in the community as well as ongoing support. We need to remember that the NHS rests in the future on preventing rather than treating, and this is an important amendment that acknowledges that.

[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.

--- Later in debate ---

[Baroness May of Maidenhead (Con)]

My Lords, the amendments in this group standing in my name, Amendments 37B, 38C, 42C, 42F and 128B, are all intended to widen the definition of those who can attend a mental health incident and act to detain an individual in a variety of circumstances.

It is a pleasure to speak after a number of noble Lords who have a considerable wealth of experience on the issues in this Bill. I can claim no such breadth of experience, but the amendments I have tabled speak to one issue, which I have dealt with in the past: that of who can attend a mental health incident and particularly the attendance of the police at such incidents.

Back in 2010, it became clear to me, as I spoke to more and more police officers in my role as Home Secretary, that there was one issue that was at the forefront of their mind, and it was the problem they had in dealing with people at the point of mental health crisis. Their concern was understandable: they had no training in mental health, they were not professionals in this area, yet they were being called out to situations. They were being expected to determine whether someone was at the point of crisis or not, and what should happen to that individual; more often than not that meant taking that individual to a police cell as a place of safety. For the police officer, there was concern that they were being asked to deal with something for which they had no training or knowledge.

Of course, the police presence was often not good for the individual concerned. Inevitably, it meant they were not being given the healthcare support they needed at that point in time; but more than that, the very essence of a police presence—somebody in the uniform coming to deal with them—could actually exacerbate their mental health situation, and a police cell is not designed to improve somebody’s mental health. Finally, for the police force, of course, it meant that it was taking up resource which could have been used elsewhere, and which was, in many cases, inappropriate; often if somebody was in a police cell as a place of safety it meant that an officer had to sit outside the cell to ensure that they did not harm themselves.

The issue of the use of a police cell as a place of safety is dealt with in other parts of the Bill, but they do not deal with this wider question of the police resource that is being used. Even if the police are lucky enough to get somebody to a hospital, they still could have to have an officer in A&E sitting with the individual to make sure they do not harm themselves or cause harm to others. Indeed, the Metropolitan Police, in its evidence to the Joint Committee on the draft Bill, cited a case study where a patient was required to be guarded by the police in A&E to prevent them becoming a high-risk missing person, and eight Metropolitan Police officers had to attend that individual for over 29 hours. Police officers were worried about the job they were doing, the individual concerned was not being treated or dealt with in the way that was appropriate for their mental health needs, and police resource was used unnecessarily.

Over the years, I and others have tried to address this situation, initially with some success. But what often happens in government, as noble Lords and the Minister will find over time, is that an initial success is turned back because over time people revert to the previous behaviour or mode of operation. That is what we have seen in this case, and it came, of course, to the point where the Commissioner of the Metropolitan Police said that the force would not give an ultimatum and would not turn up to these mental health incidents.

As drafted, the Bill has the capacity to at least maintain, if not exacerbate, this problem, but the Government could accept amendments or amend it in a way that would improve the situation. I should say that, of course, if there is an immediate risk to life or serious injury, the police will always have a role to play; but they are clear that they want to see mental health repositioned as a health matter and not seen through the lens of crime and policing-related risk. This is the position that the National Police Chiefs’ Council took in its letter on the Bill to the current Secretary of State for Health, which said:

“The current position of the law arguably views mental health through the lens of crime and policing related risk, which raises a number of issues including disproportionality in the criminal justice system, discrimination, adverse outcomes for people suffering with poor mental health as well as increasing stigma attached to mental health”.


That concern that the focus and statutory footing of the police as the primary responder to incidents of mental health should be removed from the Bill is what has led to my amendments—it is what they are intended to deliver.

I see similarities between my amendments and Amendment 158 in the name of the noble Lord, Lord Davies of Brixton. If I may be so bold, I think we are both trying to achieve a situation where the expected response to someone in mental health crisis is not limited to police; in other words, “right care, right person”. My amendments are intended to widen the description of those who can attend mental health incidents beyond a constable, but they specify that a police officer—the holder of the position of constable under the Crown—can respond if there is a genuine need for a police presence.

Recognising that we do not want to see healthcare professionals put at risk, the amendments specify that the authorised person attending an individual should have been

“trained and equipped to carry out detentions”

and by carrying out that function should

“not be put at unnecessary risk”.

It is worth noting, perhaps at this point, that the College of Policing’s mental health snapshot 2019 found that almost 95% of calls that police attend that are flagged as a mental health response do not require a police response.

I referred to the reasons behind my amendments in relation to the police, but there is support among healthcare professionals for such changes. In the joint Home Office and Department of Health review of Section 135 and Section 136 powers, 68% of respondents to the survey, alongside the review, agreed that all or part of Section 135 and Section 136 powers should be extended so that healthcare professionals could use them provided they were not putting themselves at risk. Paramedics particularly supported the change, with 93.3% of paramedics agreeing and 61.1% strongly agreeing.

Beyond the interests of the police and healthcare professionals, of course, we must also remember the interests of the individual at that point of mental health crisis. They deserve the right response, the right care, the right person—and I do not believe that that is always a police officer. This Bill should reflect that and enable a wider range of authorised persons to attend mental health incidents. I beg to move.

[Baroness Buscombe (Con)]

My Lords, this is an area where I feel I have the possibility of a solution or part of a solution, while supporting very much what my noble friend has put forward in her amendment. My solution comes from knowledge that we have gained from the world of palliative care. It is a subject matter that we covered in detail on the joint scrutiny committee, because the whole issue of the police turning up to such an incident where somebody is absolutely in crisis can, in many instances, lead only to an increase in the fear and extraordinary pain that that person is feeling when they are in crisis. It is not the fault of the police; it is just the situation that they find themselves in.

Mental Health Bill [HL]

Baroness Buscombe Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, it gives me enormous pleasure to speak in this debate. For me, this legislation is above politics: it is a real opportunity for constructive opposition. I welcomed the call in July from the Secretary of State for Health, Wes Streeting MP, asking whether I would support the Bill and assist in its progress. Yes, there are some aspects of the Bill on which we on these Benches will wish to press the Government. However, our view is that it is overdue and critical for so many people who have felt misunderstood and suffered serious neglect for too long.

I feel lucky to have chaired the Joint Committee on the Draft Mental Health Bill. Everyone on the Committee apart from me had professional and practical expertise and experience and/or powerful personal experience and knowledge through friends and families. We received evidence from more than 50 organisations and many people who were service users, to whom we remain eternally grateful. We had many hours of strong debate and always managed to find a way through. Results sometimes involved compromise but were also consensual. I thank each and every member for their invaluable contributions, together with our advisers and the brilliant Alex Ruck Keene KC for his extraordinary drafting skills. I also thank the clerks and officials who worked skilfully against a very strict timetable.

I pay tribute to all our medical staff who work in this complex and, in many ways, challenging field of medicine. My sincere admiration for them, and the difficult choices and decisions that they must make, knows no bounds.

A key point for me—I speak as a lawyer—is that so much that directly affects the well-being of patients must be improved, not necessarily by legislation, which can hamper positive change, but through a step change in culture in order to genuinely value every individual and improve their life through choice, dignity, support and advocacy. The Bill seeks to address that, although it lacks a key tool: the use of technology and the drive for data, which I urge the Minister to consider.

The process of amending the current Act speaks volumes. Would that we could have torn up all the current Acts and started again with a fused approach to treating mental health, but we were persuaded that that would just take too long. It has taken too many years to get this far, and now change is urgent.

I have time to touch upon just a few of the many aspects of the Bill. It is right that the Government have agreed—here I say to the noble Baroness, Lady Barker, that we have good news—to embed in primary legislation what I call the Wessely principles: choice and autonomy, least restriction, therapeutic benefit, and the person as an individual. Each principle should be tested against the implementation of current proposals, future reform and change to ensure that patients as individuals remain the heart of the matter.

Least restraint is a key reason for reform, although in practice it is a difficult balance to strike. As the Wessely inquiry report makes clear, as a society we now benefit from a greater understanding of mental health. However, at the same time society has become much more risk-averse. Much of our debate centred around the need to address all avenues of least restraint, particularly given the current inequalities of outcomes, against the risk of unintended consequences for the protection of society and the therapeutic benefit of the patient.

To apply the principles, we need the data to track every patient and their outcomes. I remain appalled at the lack of information and communication across the NHS, which has a negative impact upon so many lives. Each time a person is moved, they are registered as a new patient. How much does that contribute to flawed data and poor outcomes? I urge the Minister to look at that.

A key missing element is technology, as I have said, and I do not mean some clunky, one-size-fits-all NHS-wide system. In short, we need to swiftly develop a national dataset to allow for real-time monitoring and accountability, evaluating variation and inequalities, understanding medium- and long-term trends and informing future policy decisions.

For choice, dignity and autonomy, we recommended a statutory right for patients who have been detained under the Mental Health Act to request an advance choice document to be drawn up and recorded in a way that is accessible digitally. There is no mention of digital in the Bill. Instead, it introduces duties on integrated care boards, NHS England and local health boards in Wales to make arrangements so that people at risk of detention are informed of their ability to make an ACD, a written statement, and be supported to make one.

Our report referenced the potential for creating ACDs via an app, similar in some ways to one already working for end-of-life palliative care, to support all patients. Simply put, it is a no-brainer and transformative, easily accessed by anyone, either on a mobile phone or even on a patient’s clothes, so that when that person is in crisis there is an instant critical guide to who that person is. That would greatly assist the police, if they are in attendance, and those in A&E. I am hopeful that this approach and other smart, cost-efficient moves will be in the code of practice.

The implementation of reform requires constant oversight. We recommended the appointment of an independent mental health commissioner with overarching responsibility to ensure consistency of delivery of the Government’s priorities for patients across England and Wales. This is not about the Government losing control; on the contrary, it is about an overarching small body with the ability to focus upon consistency across the whole sector, ideally using digitised national data to track and monitor the implementation of the reforms over a period of years, working with the associated NHS bodies to promote better outcomes. I ask the Minister: who else will do that?

Furthermore, we must address unacceptable racial disparities and inequalities, particularly among black men, who, as we have heard from my noble friend Lord Howe, are three and a half times more likely to be detained under the Mental Health Act and seven times more likely to be placed on a CTO. But how is that data collected and verified? Indeed, the facts could be worse. Our report was clear that better outcomes would be achieved and inequalities reduced if each health organisation introduced culturally appropriate advocacy and appointed a responsible person to collect relevant data and publish and oversee policies to address these inequalities. A mental health commissioner could ensure that that was done.

Mental health services currently operate in a static world. What happens when someone has a crisis far away from their local authority? We heard on a visit to SLaM in Lambeth that patients sometimes travel miles to Lambeth when on a downward spiral to receive, in their view, better treatment there than within their local authority. That is another reason to have accurate data.

Another critical area is children and young people. Issues highlighted in our report, including the role and profile of nominated persons, detention in adult wards and conflict with the Children Act, must be clarified and assurances given to families and their young. Investing in and building the right community support and action plan for people with learning disabilities and autism no longer detained under Section 3 is critical, as is monitoring the outcomes for those with learning disabilities and autism who may be at risk of being detained under the Mental Capacity Act or through the criminal justice system instead. This is an area where our committee had a strong debate, concerned about unintended consequences that might impact on the patient and/or society at large if the right protections, including safe spaces, were not in place. Are the Government content that they have achieved the right balance?

I feel I must record—because I want to be helpful to the Government—that our committee had one opportunity to put some of the crucial questions to, and test the opinions of, around 18 officials from the DHSC and the MoJ who had worked on the Bill for four years. That meeting was cut very short because one official said she had to collect her child from school, so all 18 walked out. That must not be allowed to happen again.

Priorities must be set for the implementation of the many proposals, and there needs to be a significant increase in capacity right across mental health services, all of which requires enormous investment. I wish the Government, particularly the noble Baroness, Lady Merron, well.