Mental Health Bill [HL]

Baroness Butler-Sloss Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Baroness Browning (Con)]

My Lords, I support the noble Baroness, Lady Parminter, on the particular point that she raises about eating disorders in her amendment and on a more general point.

In an earlier debate, I tried to make the case that people being diagnosed with autism by clinicians should be seen by clinicians who specialise in autism. I was reminded of this very much when the Minister, responding to an earlier amendment this afternoon, talked about parity of esteem in the health service between the physical health support provided and that for mental health. In the world of physical health, if you were to see an orthopaedic consultant, you would not necessarily see the same consultant, depending on the condition that you had. The same applies today with cardiology, whereby cardiologists now have more specialisms within that and you would therefore see the appropriate person. As raised by the noble Baroness, Lady Parminter, the facilities that go along with such specialised treatment and assessment are very important.

I put it to the Minister, prompted by the noble Baroness, Lady Parminter, and by the Minister’s own words, that it really is about time that, with regard to mental health as a generic term, whatever the condition, we stop—as they did even within my lifetime—locking people up in some old Victorian institution where they all get the same treatment, facilities and so on. Today, with our increased knowledge of mental health and of medication for mental health, and with the increased number of specialisms that we are now aware of, particularly around eating disorders, it is really about time, if there is truly to be parity of esteem, that mental health is treated as physical health is treated, and that the specialisms that occur and the specialists there to work within those specialisms are given weight within legislation so that facilities and specialists can be provided—because we know that they are not.

At the heart of the Bill before us is the fact that we are taking autism and learning disabilities out of the Mental Health Act 1983, in which they were all treated the same—lumped in together and treated by the same clinicians, whether they had a specialism in that area or not. This is a real opportunity for the Minister and the Government to make sure that there is true parity of esteem and that conditions such as eating disorders are respected and treated in the way in which they should be.

[Baroness Butler-Sloss (CB)]

My Lords, I remember a specific case of a friend’s 17 year-old daughter who was suffering from an eating disorder. She had to go into hospital, where she was not treated at all well; she was criticised for not eating—the very thing she had gone into hospital to get help for. She did not for quite some time get any specialised help on how to deal with her eating disorder. This amendment would deal with that issue.

[Lord Kamall (Con)]

My Lords, I thank the noble Baroness, Lady Parminter, for moving this amendment. Unlike in the last group of amendments, where there was limited support, we fully support her on this one. We know that the noble Baroness has tirelessly campaigned for better support for those with eating disorders. At Second Reading, she shared the experience of living with such disorders, and we all became much more familiar with some of the concerns. I also agree with my noble friend Lady Browning that it is about time we stopped treating all people with mental ill-health the same; we know that we have to look at it in far more granular detail.

The amendment speaks to the problems around the adequacy of provision of care for patients suffering with eating disorders. As the noble Baroness said, Section 140 of the Mental Health Act provides for reception of patients in cases of special emergency and the provision of accommodation and facilities suitable for under-18s, but it applies only to hospitals. I agree that there is a reasonable case to extend this to specialist eating disorder units. With that in mind, I hope the Minister will be receptive to this amendment.

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[Baroness Tyler of Enfield (LD)]

My Lords, I rise very briefly to add my support to Amendments 143 and 144, in the name of the noble Earl, Lord Howe. I added my name to these amendments. I am also very sympathetic to the other amendments in this group, both Amendment 142 and the two amendments that the noble Baroness, Lady Berridge, has just spoken to.

The noble Earl, Lord Howe, introduced these amendments in an incredibly compelling, moving and, indeed, comprehensive way. In a way, I do not feel that there is very much for me to add. I did have to think quite hard—there was part of me that wanted an outright prohibition, but I recognise the state of the mental health services we have at the moment. Unfortunately, there are times—hopefully, in only a few desperate cases, as the noble Earl said, and for a very short time—when these measures have to be taken. As undesirable as I think it is, we need to recognise the world in which we live.

I would also like to underline—because most of the debate so far has been about children in adult wards, which is clearly hugely undesirable—the importance of considering children placed out of area. That is, so often, when there is no suitable or available bed. It goes back to the issues raised by my noble friend Lady Parminter about eating disorder beds. It is hugely detrimental for children and young people to be placed out of area, away from their support networks—their family and friends who they so desperately need as part of their recovery at a time of real crisis—so I want to underline the importance of that, as well as the importance of real transparency and rigour when a child is, very unfortunately, placed in an adult ward, hopefully for a very short period of time.

[Baroness Butler-Sloss (CB)]

My Lords, I come to this totally uneducated, so what I have heard this afternoon I have found very shocking. I agree with what has been said already, and I was particularly shocked by the comments from the noble Earl, Lord Howe. I would like to underline what the noble Baroness, Lady Berridge, has said about the fact that these are children. They may be 17 and a half but, under the Children Act 1989, they remain children and, across all legislation dealing with children, “best interests” comes in.

From what I have heard, it sounds as though adult wards do not understand that these are genuinely children and have to be treated separately but, much more importantly, that their best interests are not necessarily, or almost certainly not, the same as those of adults. I wonder whether it should not be permeating all establishments, private and public, that, if they have to take into an adult setting those under 18, they have to deal with them in a special way. I remain horrified by what was said and I hope that the Minister, who is a particularly sympathetic person, will pick this up and take it across the board.

[Lord Berkeley of Knighton (CB)]

My Lords, I am only marginally less shocked than the noble and learned Baroness. The reason for that is that I regularly visited a friend in an adult ward, suffering, funnily enough, from eating disorders, among other things. So I support Amendment 144 most strongly. What shocked me was that, over several years, there were two children I saw. They were witnessing not only acts of violence but sexual acts too that were quite clear—I will not go into the details, but it was completely inappropriate for a child to be witnessing this.

The final point I want to make hinges on what we have also heard: that there is only so much we can do. Of course, the reason for that, and it is another reason why these experiences are seared into my mind, is the state of funding for mental health. No one can turn that switch on immediately, but the root problem here is that this is a sector that is somehow pushed to the side. Therein lies a fundamental reason why we have to take a completely different attitude to mental health, and I am sure that the Minister feels quite strongly about that herself.

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[Baroness Barker (LD)]

My Lords, it is usual in your Lordships’ House for the people with their names on the amendment to speak first; noble Lords will understand why I stood back, given the previous two speeches. I understand how the noble Lord, Lord Pannick, felt, having the noble and learned Baroness, Lady Hale, in his corner. I do not want to repeat anything that the noble Baroness, Lady Keeley, has said, because she summed it up extremely well.

We are very lucky; we get to talk to lawyers of calibre and fame. But I want to stand up for the solicitors, lawyers and independent mental health professionals who, day in and day out, go and see the people who are in real distress or are forgotten about, who nobody else is terribly interested in. They make it their business to make sure they are treated like human beings, wherever they are. I simply take the occasion to say this, because right now, we have to take every opportunity we have to defend the Human Rights Act and the application of universal human rights. It is no good having human rights that you pick and choose and apply to the people you like. It is why I picked the noble Earl, Lord Howe, up on his previous amendment.

We are very bad at explaining the importance of the Human Rights Act to people in the community; it is fair game for every newspaper hack or whoever wants to take a go at it, but it is about making sure that vulnerable people are treated as full human beings in our society. Therefore, I hope that even if we have not managed to fashion the exact perfect amendment, the noble Baroness will agree that this deserves to be in the legislation.

[Baroness Butler-Sloss (CB)]

My Lords, I came in today particularly to support Amendment 149, as others, including the noble Lord, Lord Pannick, have clearly done. What we are asking for is either for the loophole to be closed or for clarification. I share with the noble Baroness, Lady Keeley, the view that the judges produced a somewhat narrow definition of the situation. I agree with everything that has been said, and I do not want to repeat it, but with a narrow interpretation by the courts and with some lawyers here in Parliament and others who have put things so beautifully, Parliament can put right what is happening. That is what I am here to support: Parliament putting right what at the moment is not clear, is a loophole and needs to be put right.

[Earl Howe (Con)]

My Lords, I should like first to speak to Amendment 160BC standing in my name. Although it may not look like it, this is a probing amendment. I have tabled it because I have been made aware of concerns that there is a serious lack of clarity around one aspect of the Mental Health Act 1983 that would greatly benefit from a clarifying statement from the Minister.

Let us imagine a patient who is detained in a mental health hospital under the Act and who requires urgent treatment in another NHS setting, such as a general hospital. The treatment, let us further imagine, is kidney dialysis—that is just a random example. Unfortunately, in this case, the patient is deemed to lack decision-making capacity for his own health and well-being, and the doctors therefore agree that if he is transferred to the other hospital, he will need to be restrained during the time that he is receiving the treatment, because if he is not, there is a likelihood that the treatment will not be deliverable.

The question then arises: in that particular situation, does the Mental Health Act 1983 allow for the patient to be deprived of his liberty in a setting other than a mental health hospital in order for necessary life-saving treatment to be administered? I am aware that there are contrary opinions among lawyers and clinicians as to the answer to that question. Some believe that, in that example, it would be necessary for the managers of the mental health hospital to apply to the court for a deprivation of liberty order under the Mental Capacity Act, which the court could grant under its inherent jurisdiction. I understand that this is standard procedure in a number of mental health hospitals. By contrast, other experts are clear that Section 17(3) of the Act already provides authority to place the mental health patient into the custody of the managers of the acute hospital and that there is therefore no need to apply for a DoL order under the Mental Capacity Act in order to achieve this.

Section 17(3) of the Mental Health Act says:

“Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital”.


Those words appear to confirm the opinion that I have just set out—that the responsible clinician can authorise “leave of absence” in another hospital, with the patient being kept in custody so long as this is seen to be in the patient’s best interests.

Unfortunately, it also appears that there is more than one way of interpreting Section 17(3). There are those who maintain that what one might call the carte-blanche interpretation is too broad a reading of Section 17(3), which they insist needs to be read with Section 63 of the Act. Section 63 says:

“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment”.


Taken together, those two sections say that the Mental Health Act authorises treatment only for mental disorders and physical disorders that are part and parcel of the treatment for the mental disorder; in other words, for treatment of physical disorders that are not directly connected to the mental disorder, a court would need to make the appropriate order under the Mental Capacity Act. Who is right? I should be very grateful if the Minister would use this opportunity to bring some clarity to bear on this area of the law, around which there appears to be a veil of fog. Whatever the answer, will she ask NHS England to examine the guidance contained in the relevant part of the code of practice to ensure that it is as clear as possible about what the current law permits?

Finally, I shall comment briefly on Amendment 149, which the noble Baroness, Lady Keeley, has tabled jointly with the noble Baroness, Lady Barker. I fully support this amendment. At the same time, I regret that it appears to be necessary, and I say that with some personal feeling. The issue addressed by this amendment is precisely the same as the one which in 2014, as a Health Minister, I endeavoured to close down by means of a government amendment to the Care Bill, which now forms Section 73 of that Act.