Mental Health Bill [HL]

Baroness Merron 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.

[Baroness Browning (Con)]

On that last point about adults, I realise this is a more difficult area, but we have debated in this House reports from the charity Mind about adults, and young adults at that, who, when they have been admitted not just to mental health hospitals but to general hospitals and have had difficulty communicating —I go back to autism, but it might not be uniquely autism—hospital staff have said, “They are over 18, so we’re not listening to you, mum”, while standing by the bedside asking why a person is not eating, when there is probably a very good reason why not. We have recorded deaths of young adults because the parents of people over 18 have not been listened to. It is a mantra that I have heard many times, in many situations: “They’re over 18, it’s up to them”, when, in fact, quite clearly, their lives could be saved, or their health improved, if hospital staff had listened to mum or dad at the bedside. That is on the record and we have debated it in the past, so I wonder how the Minister thinks we can resolve it as far as mental health patients are concerned.

[Baroness Merron (Lab)]

The noble Baroness is right to raise that point. This is the difference between legislation and practice, and we have to bridge that gap. We are very alive to the point she makes, but the important point about this amendment is that we are trying to include all those whom the patient wants to be involved, not just restricting it to parents. I take the point she has made and will, of course, ensure that we attend to that. I would say that that is, as I say, more a case of how things are implemented.

On Amendment 62, in the name of the noble Baroness, Lady Tyler, and the noble Lord, Lord Scriven, it is important that the transition of a young person to adult services is planned and managed with the utmost care by the clinical team. This is reflected in existing care standards and guidelines, which set out what should be met, what relevant teams should meet and how to provide specific support where a young person’s care is being transferred to adult services. This should take place six months prior to the patient turning 18 years of age. On reviewing the patient’s statutory care and treatment plan when they reach adulthood, in Clause 20, subsection (5)(d) of new Section 130ZA already sets out that that plan must be reviewed following any change in circumstances or conditions. We think that turning 18 and transitioning from children and young people’s services to adult is a significant change and absolutely requires review of the plan. We will make this explicit in the code of practice.

Finally, I turn to Amendment 64. I thank my noble friend Lady Keeley for sharing the reality of how this manifests itself by sharing with us individual circumstances. I also thank the noble Lord, Lord Young, whose work on young carers is well known and respected. We support the intention to ensure that children are properly safeguarded. If a person is known to services, immediate safeguarding needs to form part of the planning by approved mental health professionals on behalf of the local authority and others involved in the Mental Health Act assessment before bringing a person into hospital. If a person is not known to known to services, the professionals should work with the relevant agencies to make sure the necessary steps are taken. The statutory guidance Working Together to Safeguard Children sets out how all practitioners working with children and families need to understand their role in this regard.

[Baroness Keeley (Lab)]

I just want to reflect that the noble Lord, Lord Young, said in his speech that young carers services almost never receive any referrals from adult mental health services, despite the provision that already exists and has done for a number of years in codes of practice. This is a difficult thing—I tried to bring in legislation for that in the other place on a number of occasions. I just thought that was worth pointing out.

[Baroness Merron (Lab)]

I thank my noble friend for pointing that out. On the points raised about protections for young carers, the code highlights that children who are caring for parents with severe mental illness are entitled to request a young carer’s needs assessment under the Children Act. It goes on to cover the information that young carers should be offered to help navigate such a challenging time.

Returning to the guidance about which I was speaking, as has been identified, it already outlines the responsibility of multiagency safeguarding partners. Protecting children at risk of abuse and stopping vulnerable children falling through the cracks is very much at the heart of the Children’s Wellbeing and Schools Bill, which was introduced to Parliament last month.

[Baroness Watkins of Tavistock (CB)]

I thank the Minister. I want to raise the issue that so many children and adolescents are placed for care out of their area, which makes the subsequent treatment plan hard to manage. Can the Minister at least look at whether the code of conduct needs strengthening on that issue? For example, it could include a recommendation that a local team visits the person in the hospital before they are discharged. Of course, I would like to see more beds closer to home, but we have to face the reality.

[Baroness Merron (Lab)]

I appreciate that point, and I certainly would be happy to have a look at that.

--- Later in debate ---

[Lord Kamall (Con)]

My Lords, during the debates on this Bill—and throughout my time in this place—I have learned that there are specific topics about which other noble Lords are passionate. For example, the noble Baroness, Lady Hollins, who is not in her place for sad reasons, is passionate about many issues; but, in the context of this Bill, she has long championed issues around the detention of those with autism and learning disabilities, as has my noble friend Lady Browning. My noble friend Lady Berridge is very passionate about children and young people and about tackling racial discrimination, and the noble Lord, Lord Davies, is very passionate about the link between finance and mental health. Many noble Lords are passionate about specific issues. For me, Amendment 138, in my name and that of my noble friend Lord Howe, goes to the heart of an issue in which I very strongly believe, based on my own experiences of racism while growing up in Britain.

Before I go into that, I will touch on the amendments from by the noble Baroness, Lady Whitaker. In one of my first work experiences—in Chase Farm Hospital many years ago—I got to know and speak to a young patient from the Traveller community. He told me about the problems that the Traveller community had in getting access to medical care, and how members of the community were always treated with suspicion and not in the same way. So I am very sympathetic to those amendments.

To get back to my own experience, the Britain of recent years, which my children grew up in, is much less racist than the Britain that I grew up in the 1970s and 1980s, when it was common to be called offensive names or to be chased by skinheads, sometimes actually with weapons and knives. But my experience was a lot better than the racism that my father faced when he came here in the 1950s. There are horrendous stories that he told my siblings and me when I was younger. I believe that we can be proud of that progress, as a country and a society.

When I was a Member of the European Parliament, I used to chat to the taxi drivers in Belgium and France. I would tell them that I was from London, and not all of them but many of them would say how lucky I was, since they had a friend or relative in London and they thought that London was incredibly diverse and tolerant compared with where they lived. That was very touching to hear—but I have to admit that that is my experience, and some will have had different experiences. Even my experience does not mean that the battle against racism and racial disparities is over. As many noble Lords, including the noble Lord, Lord Davies, the right reverend Prelate and my noble friend Lady Berridge, have rightly said, we have to be vigilant on this.

As the noble Baroness, Lady Tyler, said, one reason for the review and this Bill is because my noble friend Lady May commissioned the Wessely review due to the disproportionate number of black people being issued with community treatment orders or being detained; noble Lords have referred to this. We have known about that issue for a long time. Although politicians in the other place and many noble Lords here have raised the issue many times over many years, we do not really seem to have grasped the issue or to be on top of it. When I ask colleagues and medical experts about the disparity, I get a variety of answers. In the absence of any widely distributed and comprehensive study, the vacuum is filled by anecdotes or assumptions, sometimes racial stereotypes. One of the most common responses I have heard is that it is complex or multifaceted.

I remember when I did not initially get into the local grammar school, despite having the best grades in the class—better than some of the white pupils who got into the school; it also happened the previous year, in the year above me, when one of my friends who was black, an Afro-Caribbean, topped his class and did not get into the local grammar school—and my mother challenged the decision and asked for the reason, she was told “It’s complicated”. Fortunately, she persisted, and I got my place thanks to the help of my local Member of Parliament, who later became the late Lord Graham of Edmonton, may he rest in peace.

So when I hear the response, “It’s complicated”, I hope noble Lords will understand that I am simply not satisfied with that answer. It is just not good enough any more. The purpose of my amendment is to probe the Government to understand what they know and what research they are aware of, so we can understand the reasons for these racial disparities and put in place measures to tackle them. If it is complicated, can the Government or NHS list the various reasons and say what they are going to do about it? As noble Lord after noble Lord has said, we need the data.

The noble Baroness, Lady Barker, who is not in her place, reminded noble Lords that many of the answers from the Minister sound similar to the responses from 20 years ago. That is not a political point. I suspect that the answers given by the Minister, who is well liked and respected, would not be very different from the answers prepared by officials for any Health Minister of any party. Some of the answers are probably very similar to answers that I gave when I was a Minister. That is not to disrespect the diligent civil servants in the department, who work really hard, but we need answers to the following questions.

What studies are the Government, DHSC and NHS aware of? What do we understand from the various studies? What secondary data do we have, and what are the known unknowns? What do we know that we need to know more about? Has there been any attempt from that secondary data to generate the questions for the primary research so that, once and for all, we can understand why a disproportionate number of black people are subject to community treatment orders and to being detained? Do the Government, DHSC or the NHS, if they have the data, know how to use it to reduce those disparities? If so, when will they begin to reduce these disparities?

I was very pleased to hear a reference to some of the pilot schemes. Perhaps the Minister can refer to some of those schemes, and maybe that would be helpful. But I have to say that if the answers that we receive to these questions, either tonight or when the Minster writes to noble Lords between now and Report, are not adequate, I suspect that noble Lords will have to send the Minister back to the department to kick the tyres and get a better answer. It is as simple as that; otherwise, I am afraid that we will return to this issue on Report. If it comes to that, I hope that we will not see a Government urging noble Lords from the governing party to vote against an amendment that would seek to tackle these huge racial disparities in a methodical way and with an evidence-led approach. I look forward to the Minister’s response.

[Baroness Merron (Lab)]

I thank noble Lords for the points they have made. I shall start with those from my noble friend Lady Whitaker regarding Amendments 63, 101, 107, 113, 116 and 124 and immediately address the point about the limited available data on Roma communities.

I absolutely acknowledge that the data on Gypsy, Roma and Traveller communities is indeed very limited. I emphasise that I say this not as an excuse; it is just what I have discovered. This is largely due to lower numbers, but we are working with NHSE to improve ethnicity reporting for all patients. More broadly, the Office for National Statistics is working with a range of government departments to undertake research into the barriers and enablers for this community in accessing a range of public services, including mental health services. Findings are expected later this year. I know my noble friend has been very active in pursuing this point and I am grateful to her for doing that. I hope that will be a generally helpful response.

I add to all noble Lords that I absolutely agree that information, communication and support should be provided in a culturally appropriate manner. However, we do not believe that the amendments would achieve that aim, nor are they necessary. The duty to take cultural differences into account in how services are delivered is already enshrined in the Equality Act 2010. These existing duties are the legal basis for ensuring that services are culturally appropriate. That said, we absolutely acknowledge that, in practice, many services still fall short, but that is the position that we find ourselves having to tackle. This is where we need to strengthen guidance. The patient and carer race equality framework is already in place to strengthen the application of these principles, and we will strengthen guidance in the code to ensure that duties under the Equality Act are embedded in practice. We therefore believe that these amendments would not have any additional benefit above what is already in place and what is planned.

On Amendment 65, tabled by the noble Baroness, Lady Tyler, we recognise that there are very significant disparities in the use of community treatment orders between different groups. This data is published as part of the annual Mental Health Act statistics. As the noble Baroness said, in 2023-24 it certainly was the case that patients from black and black British ethnic groups were around seven times more likely to be placed under a CTO than those from white groups. I add that patients from all minority ethnic groups are more likely to be subject to the use of a community treatment order than patients who are white. These disparities are explored in the impact assessment.

The noble Lord, Lord Kamall, drew on his personal experience, for which I thank him. I am sorry that he has to bring that personal experience here, but of course it is the case that the battle against racism and racial disparities is far from over—I completely agree. I am sure he will have noted the commitments made by this Government to tackle racism and racial inequalities, particularly in the NHS and social care.

The reality is—many noble Lords have spoken about this—that we are in a position where we have less data on outcomes and patient experience of being subject to community treatment orders. Officials are now working with NHS England and system partners to understand what additional data it would be wise and helpful to collect. We will cover CTOs in the planned independent evaluation of the reforms but, as ever, I have to share, in honesty, that it will take time to gather new data. A review after 12 months would be premature, not least because it would mean it was based on data from before any reforms commenced. I do not feel that that would be helpful. I assure noble Lords that, rather than committing in legislation to a review at a fixed date, we are committed to keeping existing and additional future data under review.

[Lord Scriven (LD)]

I think one of the reasons why people are asking for an open and transparent review—and, in some cases, one that reports back to Parliament—is that this is about not only the data but accountability for carrying out actions and implementation. That is the bit that is missing. Everything I have heard from the Minister on this subject so far—maybe she is coming on to say something else—suggests that without accountability, and overview and transparency of that accountability, the guidance is not going to work. Believe me, as somebody who used to work in the service: if you know that the Government were looking at this and that it was going to Parliament, it sends a powerful message for action to be taken in each individual unit. That is what is required, and I do not see that coming from the Minister’s answers. Can she tell me where that accountability streak will be, and how we, in this House and the other House, can put pressure on if the guidance is not being followed, based on the process she has outlined?

[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.

[Lord Scriven (LD)]

I am grateful to the noble Baroness for giving way and sorry for interrupting her flow again. The point about having a staging report after two years is to get ahead and upstream of what is happening rather than retrospectively being able to do stuff after it has gone on. Two years in management terms to be able to determine trends of intended or unintended consequences and then put different things in place is really important. I believe that this amendment, with a report back to Parliament, would send a very strong signal and allow the Government, the department and NHS England to pick up trends, even if it was not the total picture, which would determine different policies and practices and potential changes in the code as well as management action. I think that is what lies behind the noble Lord’s amendment.

[Lord Kamall (Con)]

I am sorry to interrupt at this time. I note that the noble Baroness thinks that 12 months is too short, and many noble Lords can perhaps see the point that two years is too short. Does the department have any idea of what a reasonable timeframe is? There has to be some accountability, as the noble Lord, Lord Scriven, said. We could accept the warm words and the intentions of the Minister here tonight, but what happens if nothing changes? Where is the accountability? Can the Minister think about asking the department whether there is a reasonable timeframe for some meaningful research? I have supervised academic theses over time. You can have the one-year and then you go on to the three-year for PhD, and sometimes that is quite comprehensive data. There might be a meta study that could be done of lots of existing studies. First, what is a reasonable time? The noble Baroness does not have to answer now; it can be in writing. Secondly, if we let this go, how do we make sure there is accountability? How do we come back to this in three years or four years or five years? I look forward to the answer.

[Baroness Merron (Lab)]

I was about to say that I do understand the need for pace, but I know that noble Lords understand the need to get this right and I know they are not suggesting that we should get it wrong. I will certainly be glad to look at the points that have been raised. I assure noble Lords that I do not want this to be warm words and I understand what noble Lords are seeking. I want to ensure that it is right and that the pace is right. I will look at the points raised because—although I do not think anyone is accusing me of this—it is the exact opposite of avoiding accountability and transparency; it is just about dealing about what is in the amendments.

The noble Lord, Lord Kamall, asked me a number of very pertinent questions and to do justice to them I will write to him. In conclusion, I hope that noble Lords—

[The Lord Bishop of Manchester]

Before the noble Baroness sits down, could I tease out from her a few words about the religious literacy point that myself and the noble Baroness, Lady Berridge, raised earlier? While we have rightly focused much on race and ethnicity this evening, which is important, I find that sometimes people take a pride in being religiously illiterate and in not paying attention to somebody’s faith in a way that they would probably not take a pride, as a professional, in not attending to somebody’s ethnic background. Does the Minister have a little word to say about that?

[Baroness Merron (Lab)]

I suspect that the right reverend Prelate knows where I would be coming from on this. He and the noble Baroness, Lady Berridge, are quite right that consideration of one’s religion and religious practices and not making assumptions about them are absolutely crucial.

[Baroness Whitaker (Lab)]

I thank my noble friend for her understanding of the crucial meaning of the data shortage and for her very helpful account of further work. The problem with relying on Gypsy, Roma and Traveller being covered by equality legislation guidance is that, unless they are specifically named as what they are, lots of people have no idea that they are there, that they are subject to an appalling level of discrimination and that they need a targeted response, directed—as it would be with a faith community or other community—at the reason they are so discriminated against.

But, on the whole, I am glad that the Minister has got the point about so many things and I sense that she has sensed the depth of feeling raised in this very short debate. I will thank very briefly everyone who joined in. The noble Baroness, Lady Bennett of Manor Castle, quite rightly pointed to the range of cultures that are potentially alienated by not being understood at all, as well as the need for data. I was very grateful for the support of the right reverend Prelate the Bishop of Manchester, because what he says is based on his real experience. I am very glad that my noble friend Lord Davies went on about the centrality of this issue; it is not a marginal add-on, it is part of our society. Of course, the plea of the noble Lord, Lord Kamall, for more research and proper data is really essential. I enjoyed his note of hope and I hope very much that we will be able to continue it and increase the progress. I had better withdraw my amendment for the time being, but we may need to return to this.