Mental Health Bill [HL]

Baroness Hollins Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Lord Stevens of Birmingham (CB)]

My Lords, building on many of the important points we have just heard, I will speak to Amendments 163 and 164 in my name. I thank the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger, and the noble Lord, Lord Kamall, for their support for these two modest proposals, which are parsimoniously drafted but nevertheless potentially impactful if adopted.

The first amendment quite simply says that we will do away with “mañana, mañana” when it comes to implementing this Bill, which we have all spent so much time on and which the patients and advocates are so keen to see adopted, by putting a five-year backstop from the date on which the Bill becomes an Act through to commencement. Commencement of all its provisions must happen no later than five years after the Bill receives Royal Assent. The logic for that is that we all believe that, on balance, by the time the Bill has worked its way through Parliament, it ought to be an injection of improvement for mental health services, so why would we want to delay?

Of course, part of the answer is that there are some rate limiters, which are described elsewhere, including in the impact assessment. If we go through the impact assessment and say, “All right, what are the specific things that it suggests won’t be possible or won’t have got going until year 6 after Royal Assent?”, we will find it is a relatively modest number. For those who want to take a look, it is in table 1 of the impact assessment, at page 17. There are some changes to the second opinion doctor, to the CTOs, to the CTPs and so on, but both the pound note impact and the extra staffing at year 6 and beyond are incredibly modest compared with the overall size of mental health spending that we will incur. The incremental costs beyond year 5 are somewhere between £15 million and £25 million, on a budget that runs to billions. I believe that, in the real world, if we strain every sinew, it will be possible to get this thing done within five years.

There is another reason for thinking that it is useful to have a statutory backstop to implementation in the Act itself: the unfortunate tendency that we have seen in various other pieces of legislation that, when push comes to shove, the decision is made just to kick the can down the road a little further. I think it is fair to say that both principal parties have criticised the other for doing so with legislation that has passed. I think we had some measures in the health Act that the noble Lord, Lord Kamall, steered through on obesity and junk food. They never quite saw the light of day, despite Parliament deciding that they would be a good thing. The then Government were criticised for that. Likewise, we put the time in to create the Higher Education (Freedom of Speech) Act. I think the Opposition criticised the Government for delays in implementing it, despite the fact that Parliament had passed it. Of course, the cause célèbre is social care reform, where we have been happily kicking down the track legislation that has seen dither and delay for over two decades. That should not be the fate of this legislation. Therefore, this simple amendment would put in a backstop to save us from ourselves. Parliament is sovereign. If we want to get the job done, there is no reason to think that we cannot make these changes in less than the time it took this country to fight and win World War II. That is the rationale for Amendment 163.

Amendment 164 simply says that, during the intervening period while this Act is being implemented, it would be unreasonable to shrink the size of the slice of the pie going on mental health services, for all the reasons that we have heard throughout Committee. To make sure that there can be no argy-bargy on how the drafting is laid out, we have lifted the wording exactly from the health Act as it currently is on the statute book around the proportion incurred by NHS England and ICBs that, taken together, relates to mental health. It says that it

“must not fall as a share of their expenditure (taken together) on all health services”,

with a little kicker: to stop the Department of Health and Social Care marking its own homework, the National Audit Office will do a review after each year and provide a report that we can all scrutinise.

Here are some reasons why the Government should not object to this. First, it does not tie their hands on the overall sum of funding allocated to the National Health Service. That is a decision for the Executive and negotiated each year; nothing here would constrain the ability of the Government to increase or cut expenditure on the National Health Service. Nor would it constrain the ability of each integrated care board to make a judgment on its own priorities. It simply says that, in the round—taking the 42 ICBs and NHS England together—it would be unreasonable to think that the share of health service spending on mental health will go down at a time when there is an incredible gap between need and treatment, and when we are trying to implement this legislation.

Fortunately, just before Christmas the Secretary of State, Wes Streeting, signalled his support for the mental health investment standard. This is the opportunity to provide legislative cover for that very welcome announcement. It is possible that the current Secretary of State will not be the Secretary of State for the totality of this Parliament—nobody has a crystal ball. Looking out five years beyond Royal Assent, it is also possible that year 5 will be the first year of a new Parliament. So it is entirely reasonable for Parliament to support the Secretary of State’s intent by legislating in the way set out in Amendment 164, not least because there are some concerning signals from around the NHS that, for the first time since the mental health investment standard was introduced, it is possible that the share of funding on mental health will go down, not up, when taken in the round. We have not yet seen the figures, but perhaps the Minister can confirm whether that is correct. In any event, that simply serves to underline the acute importance of this safety net provision to ensure that the financial firepower is there to get this Act done.

[Baroness Hollins (CB)]

My Lords, I apologise for my absence from earlier debates in Committee. I will speak very briefly in support of these amendments. My noble friend said that we need to save ourselves from ourselves. Actually, we need to raise aspirations to change the culture of believing that it cannot be done and thinking that it will cost too much to take a more preventive approach, to care properly for people in the community and to achieve parity for mental health outcomes. These amendments are really important to try to achieve that, so I support them.

[Baroness Neuberger (CB)]

My Lords, I will speak very briefly in support of Amendments 163 and 164, to which I have added my name, and particularly about the length of time, the five years.

We first started talking about the reforms to the mental health legislation eight years ago, when we set up the review of the legislation under Sir Simon Wessely, and I was the vice-chair. It reported in 2018—seven years ago—and it was not even a very radical rethink of our mental health legislation. Yes, it will make a lot of difference to a lot of people—service users are very keen for this to come about, and they certainly do not want to wait longer than five years to see all the measures come into force—but this is relatively gentle stuff. At some stage we will need a much more radical rethink of our mental health legislation. Five years is quite a long time, so I rather hope the Minister can give us some comfort by saying that most of it will be done in two years, or perhaps three years at the outside.

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[Baroness Hollins (CB)]

In adding my support to these amendments, I welcome particularly the contribution from the noble Baroness, Lady Ramsey.

This debate has emphasised why the pathway of care, from the community through to any kind of hospital admission and discharge, must be considered as a whole. It is not okay to separate bits off. That is why the amendments are so important: unless we put provision in place to make sure that, when admission is necessary, it is timely and to a place which has the skills to provide the therapeutic care that people require, detention and admission will in fact be longer and costlier. We cannot contemplate making legislation that does not take account of the whole patient pathway.

[Lord Stevens of Birmingham (CB)]

I have been inspired by the previous two contributions. I will briefly pick up a point that the noble Baroness, Lady Tyler, made about Amendment 134 on the availability of community services, particularly psychiatrists. I think the Minister referred to the longer training times for psychiatrists and other mental health professionals as one of the rate-limiting factors that would affect the speed with which the measures in the Bill could be implemented.

I have a request for the Minister. It is quite hard to tease out from the impact assessment what the Government think the incremental requirements for psychiatrists will be, year by year, over the implementation period. In fact, slightly perversely, they use mixed currency: the Minister responded, rightly, to Amendment 163 by saying, I think, that there was a requirement for 400 additional psychiatrists for the second opinion service; but when you look at the table in the impact assessment, it turns out that that is a headcount number driven by a number that is not a whole-time equivalent. However, for all the rest of the workforce, a whole-time equivalent number appears to be shown.

It would be good to nail down what the incremental requirement will be for psychiatrists, year by year and on a whole-time equivalent basis, so that between now and Report, colleagues can consider what the ramifications of that might be for a backstop on implementation. If that incremental requirement could be juxtaposed with what the Government think the organic increase will be in the number of psychiatrists over that period anyway, driven by the already published NHS workforce plan, that would be supremely helpful.

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[Baroness Barker (LD)]

My Lords, I will try to draw together some of the strands that we have been discussing in this debate. When the Minister responds, please will she share with the Committee the department’s and the Government’s thoughts on workforce planning and the modelling they use for the prediction of demand?

As I listened to my noble friend Lady Parminter eloquently introduce her amendment, it brought to mind friends of mine. They have been in the position where their child was diagnosed with a very severe eating disorder, but they were told, “You are not sufficiently ill for anything to happen”. From that stage, nothing happened. If it were a physical illness, there would be some kind of process—although maybe not a care pathway. I am sorry, but I am one of those people who is very cynical about the use of the phrase “care pathway”; it is very overused throughout the whole of health, and particularly in mental health. People are diagnosed and then are just left, until they become so ill that they are in crisis and it is impossible to ignore them. We have seen the trends in the number of young people with eating disorders, which my noble friend Lady Parminter mentioned. What is the department doing to forecast the demand for specialists of that nature in future?

I want also to return to some of the conversations and debates that were sparked by the noble Lord, Lord Davies of Brixton. We know that the police are going to withdraw from being the first responders when people are in crisis. What modelling are the Government doing in terms of the community provision that is needed to deal with those people—who will still be in crisis? They are not going to stop having crises; in fact, they are probably more likely to show up in in hospitals than ever before, because that is where people go in the middle of the night when they have a crisis.

This is the sort of argument that the noble Baroness, Lady Tyler of Enfield, was trying to get to in her discussion of having a mental health commissioner. Who will be the person who is in a position to take the Government to task for their planning and preparation for demands on the health service in the future? That is the kind of thing that we are trying to get to, and which all of us, in various different ways, have been trying to get to all afternoon.

[Baroness Hollins (CB)]

Can I just say that I did not talk about a “care pathway”? Perhaps I should have said the “patient journey”, but I was talking about the patient pathway—the actual experience of the person—which is not separated in their life.

[Lord Kamall (Con)]

My Lords, I will be brief on this one. I thank the noble Baroness, Lady Tyler, for this amendment and thank all noble Lords, who made very valid points.

Clearly, this is another sensible proposal, highlighting as it does the importance of making sure that the ICBs commission sufficient mental health services in the community to meet the demand for them. As the noble Baroness, Lady Barker, said, where will people go in the middle of the night? I know that we will come back to some of these issues when we discuss the group on mental well-being but I thought it was important that those points were raised now.

The Committee may remember that this was the subject of Amendment 139 in the name of my noble friend Lord Howe, who spoke to it on the second day in Committee. The main difference between those amendments is, I think, that the noble Baroness, Lady Tyler, wishes to get ICBs focused on this very important task as soon as the Bill becomes law—and I agree with her intention on that. My only fear around the wording as it is currently drafted—I recognise that it is a probing amendment—is that

“insofar as is reasonably practical”

may provide an excuse, or, as we say, the proverbial long grass into which this duty could be conveniently kicked. I look forward to the Minister’s response.

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[Earl Howe (Con)]

My Lords, I beg to move Amendment 146 standing in my name and that of my noble friend Lord Kamall. On the previous group of amendments, I cited the experience of a child held on an adult mental health ward being subject to restraint, where undue force was applied by the staff involved, causing unnecessary pain and distress to the patient.

In fact, the incidence of restraint being used on children being treated in mental health settings—and, indeed, general hospitals—is alarmingly high. This fact was recognised in the Mental Health Units (Use of Force) Act 2018, which came into effect in 2022. However, despite the provisions of that Act, not only has there been no drop in the number of restrictive interventions that children are subject to but there has been an increase.

In 2023-24, a total of 84,626 restrictive interventions were carried out on children, which is a 51% increase on the year before. That is the highest number of restrictive interventions recorded since figures were made available in 2019, despite what appears to be a drop in the number children being treated in mental health units. It is not only that restraint is being applied in these cases; all too often, because there is a physical struggle involved in the process of restraining someone, that patient ends up with an injury.

What lies at the root of this? Blooming Change believes that restraint amounting to abuse is entrenched in the system. Unfortunately, that rather depressing view was borne out last August by the Independent newspaper, which reported that children in a mental health in-patient unit in Coventry were captured on CCTV

“being dragged across the floor”

by the staff. There surely has to be something here about the need for staff in all mental health settings to receive training in the different techniques for de-escalating a crisis, with physical restraint being regarded as a last resort.

In fact, with the two very welcome principles set out in Clause 1, “least restriction” and “therapeutic benefit”, the training of staff in appropriate techniques of control will, one hopes, become an even more important priority than before. I hope the Minister can let me have some reassurance on this very troubling set of issues. I beg to move.

[Baroness Hollins (CB)]

My Lords, I declare my interest and my experience as a retired psychiatrist, working for the majority of my career with people with learning disabilities and autistic people.

In 2019, the then Secretary of State for Health asked me to oversee an important review of the use of another restrictive intervention, long-term segregation, known as LTS, for people with learning disabilities and autistic people. The Government published the oversight panel’s report of that review simultaneously with their quite positive response to its recommendations in November 2023.

Amendments 155 and 156 in this group address critical issues highlighted in the report about the use of LTS and the measures needed to eliminate its use for people detained under mental health legislation. The amendments aim to improve oversight and accountability in its use, while pointing to the urgent need for appropriate community services to prevent delayed discharges. The proposed changes are not merely administrative; they are a necessary response to urgent human rights questions raised by the use of LTS, and indeed these other restrictive interventions covered by the noble Earl, Lord Howe, whose amendment I support.

The report, aptly titled My Heart Breaks, found that the mental and physical health of children and young people and adults detained in long-term segregation deteriorates as a direct consequence of enforced isolation. In medicine, we call this iatrogenic harm, and it is unacceptable. LTS is often used in association with other restrictive practices. There is substantial research evidence pointing to the harms of such enforced social isolation, including in conditions of solitary confinement. Nor does it have therapeutic benefit. Oversight panel members considered that LTS should actually be renamed “solitary confinement” to avoid the normalisation of the practice in healthcare settings. Currently, rather less clear terminology is used, perhaps to disguise what is really happening in practice.

It is interesting to note that not all psychiatric hospitals have rooms in which to detain people. The type of accommodation used is sometimes totally unacceptable, with people being detained in rooms with no natural light, with a mattress on the floor and no toilet facilities.

Amendment 155 would require notification of LTS to the CQC within 72 hours of its commencement. It would require that the CQC must initiate an investigation if LTS was used for more than 15 days within any 30-day period, and if it were used for a person under the age of 18, or for a disabled person whose condition would be exacerbated by its use—for example, an already psychologically traumatised person who would be further traumatised by the sensory and social deprivation caused by its use, which is probably most people.

The amendment would require that the code of practice introduced minimum standards for LTS, including access to natural light, outdoor space and meaningful human contact. As I am sure most noble Lords would agree, these are basic necessities for dignity and well-being. Psychiatric hospitals still using LTS would be required to appoint a responsible officer to review and report on its use to the CQC. They would also be required to comply with recommendations from independent care (education) and treatment reviews, known as ICETRs, as they relate to LTS.

Amendment 156 seeks to ensure that therapeutic alternatives to LTS have been properly considered by requiring independently chaired reviews for any person detained in LTS. Since the end of the Department of Health’s programme of ICETRs in 2023, which reviewed 191 cases between 2020 and 2023, the CQC was commissioned to restart the programme. The new programme includes that the independent chairs must follow up to see whether the recommendations have been implemented, but funding has been committed only to the end of this current year, while LTS continues. These reviews must be kept in place until the use of LTS comes to an end, or for as long as it is in existence, so the amendment would require ICETRs to be continued, and it outlines the role, responsibilities and authority of the independent reviewer. I hope the Minister will be able to assure the Committee that the continuation of these independent reviews will be funded.

By limiting the duration of LTS, mandating independent oversight and requiring therapeutic alternatives, we could protect people’s rights and lay the groundwork for effective rehabilitation and reintegration back into their communities. Meeting minimum standards and reclassifying such segregation as “solitary confinement” would rightly underscore its appalling and often inhumane nature. I know many clinicians dislike that term because it is equated with punishment, but it describes the conditions that we sometimes saw.

The excuse is often given that LTS is the last resort for a person, but in fact it is usually the first resort and the first response, because no appropriate care and support have been provided. I have seen systemic failures that are leaving individuals in restrictive settings due to insufficient community-based support. While commissioners and clinicians often act with good intentions, they lack the co-ordination, resources and expertise needed to deliver the care that is needed to keep people safe.

The amendments simply aim to ensure therapeutic care close to home. They require that, by monitoring the continuing use of LTS and understanding the barriers to eliminating its use, the CQC would be able to identify the themes, trends and changes that are taking place over time in the use of this restrictive intervention. I urge the Minister to support the amendments.

[Baroness Ramsey of Wall Heath (Lab)]

My Lords, I support Amendments 155 and 156, to which I have added my name. If they were approved, the Care Quality Commission would be required to ensure independent reviews of the suitability of continued segregation, with a particular focus on the potential for community support to be preferable. The amendments would also increase transparency and set minimum standards, both of which I am sure noble Lords will wish to support.

When I chaired, from 2017 to 2020, NHS England’s transforming care steering group for children and young people with learning disabilities, autism or mental health problems and challenging behaviour, I heard heartbreaking testimony from parents whose teenage and young adult children were segregated for weeks and months on end, as referred to by the noble Baroness, Lady Hollins. For example, I visited a non-NHS provider outside London that had kept one young adult woman—whose story appeared in social media at the time, noble Lords may remember—in segregation, in a room with no window and no natural light, and passed food to her through a hatch. She was completely alone.

As I and other noble Lords have already argued, investment in the right type of community support is the only humane way forward. To ensure that proper use is made of this investment, we should send out a clear message that we expect community services to be used wherever possible, rather than segregation. The way to do this is for the Care Quality Commission to oversee a process of independent review in any case of segregation of a young person under 18, anyone with learning disabilities or autism, or anyone whose segregation exceeds 15 days.

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For these reasons, I hope the noble Lords will feel able not to press their amendments.

[Baroness Hollins (CB)]

There seemed to be an assumption that long-term segregation would continue and that perhaps ICETRs are not effective, but one thing that emerges from an independently chaired review is some learning about the barriers in place and the reasons why LTS is being used, rather than more therapeutic options. That is the reason for this kind of oversight being necessary. It is not necessarily that the ICETR itself will lead to recommendations being implemented; in my report, we found that the recommendations were not being followed—they were made and then not followed through. There needs to be much more effort to try to learn from what is happening and begin to change the culture of LTS as an okay response to somebody’s distress.

[Baroness Merron (Lab)]

I understand that point, and the noble Baroness makes it very well. I simply refer her to the points that I made about needing to look at evidence, the outcomes and the value of those reviews, and whether that is the right approach for everyone. I take on board her point, but my comments probably tell the Committee that we feel that there is more work to be done in this area.