Mental Health Bill [HL]

Debate between Baroness Merron and Baroness Browning

Report stage
Monday 31st March 2025 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, having heard the concerns of noble Lords in Committee around the placement of children and young people, we want to go further than when we started. It is a statutory requirement for CQC to be notified when a person under 18 is placed in an adult psychiatric unit for longer than 48 hours. CQC takes action to assess risk and ensure the child is being safeguarded. Government Amendment 46 will now require the Secretary of State to review whether current notification requirements should be extended to other incidents and whether the 48-hour time period remains appropriate. A report on the findings of this review must be laid before Parliament within two years.

I am also pleased to announce today that NHS England will use existing powers under the NHS Act 2006 to require ICBs to provide information, first, on accommodation or facilities for patients under the age of 18 and, secondly, on any incidents where a person under the age of 18 is placed in a setting that is clinically appropriate but is outside of the natural clinical flow or not in a specialised children and young people’s mental health ward. Those requirements will be set out in the new service specification and made clear in the revised code of practice. Collecting this information is crucial to enable NHS England to monitor and minimise risk and make the case for changes in local capacity to meet population needs.

Finally, I am pleased to announce that we will lay regulations under existing powers to require ICBs to provide information that CQC reasonably requests and to publish an action statement where directed to do so by CQC. This will strengthen CQC oversight of how it monitors the application of the Act in local areas, such as the duty on ICBs under Section 140 to notify local authorities specifying hospitals where arrangements are in place for the provision of accommodation and facilities for children and young people. I hope that noble Lords will feel able to support this amendment. I beg to move.

[Baroness Browning (Con)]

My Lords, I just want to clarify something, as the Minister has referred quite a lot to NHS England and its role going into the future. My understanding is that there is a sea change due at NHS England. How can we be sure that some of these roles, which are very important to this Act, will still be there and that they will be the people who will be responsible?

--- Later in debate ---

[Baroness Browning (Con)]

My Lords, very briefly, I added my name to this amendment, but I of course support the amendment from the noble Lord, Lord Meston—it is urgent to have an answer to that when the Bill proceeds.

I support all that my noble friend on the Front Bench said about children in adult wards, but I particularly focus on his request for attention to out-of-area placements. We know, from many of the cases that, sadly, we have had to debate in this House, that, when people are detained unduly—almost as though they are placed somewhere and the keys are thrown away—it is all too often because they are well away from their home base and from convenient visiting by relatives, and, as my noble friend said, often far away local authorities that might have had some sort of overview of them previously.

This is very difficult. We know that local authorities are stretched financially, and, presumably, keeping an eye on what is happening to somebody who has gone well out of their area has a clear cost implication. None the less, we are talking about children. Therefore, I support my noble friend and I hope the Minister will find a way forward to support these children.

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords across the House for their contributions during the debate on this group, the last of the evening. I am glad that both Front Benches welcome government Amendment 46, albeit I heard the noble Earl, Lord Howe, say that he had hoped that we would go further. I am glad that the other commitments made at the start of the debate were welcomed.

Amendment 58 was tabled by the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall. We agree with the intention of this amendment but do not believe that placing more limitations and prescriptions in legislation is the best vehicle to reduce the placement of children in certain settings.

In Committee, I set out existing measures to address and monitor this issue. The latest data from the CQC’s Monitoring the Mental Health Act in 2023/24 report shows that it was notified of 120 instances where a person under the age of 18 was admitted to an adult ward, which was a 38% decrease compared to 2022-23. I committed to set out guidance in the revised code on the process to determine whether a placement is in a child’s best interests, and to ensure that safeguards are in place. NHSE will also do this in the new service specification—I will return to this point for the noble Baroness, Lady Browning. I hope that the additional commitments we have made in this debate show that the Government take this matter seriously and that we are committed to continuing to work on and address this issue.

To the point that the noble Baroness, Lady Browning, made about NHSE, I assure her that, as we work to bring the two organisations together—NHSE and DHSC—we will ensure that we continue to evaluate impacts of all kinds and that the functions currently undertaken by NHSE will continue along with that change. It will take some two years for the full process, including legislation, to take effect. However, admin changes are happening more immediately. The main thing of which I want to assure the noble Baroness is that the change into the future will not affect the commitments that we have given; they will continue, and without duplication.

Before I turn to Amendment 51, I will go back to the noble Earl, Lord Howe, who asked whether we would undertake a concerted effort to look at other directions of the issue, such as training and suitable in-patient or outreach mental health services. In response, I can say that, subject to securing further investment, NHS England is developing a new model for specialised children and young people’s mental health services, which will be supported by a new service specification and quality standards. The priority for these services is to transform and expand community services to make sure that there are local accessible community alternatives and to reduce the need for admission and dependency on in-patient beds, as well as reducing the length of stay and keeping young people closer to home. I hope that the noble Earl will appreciate that we are in the same place on this and that it is a matter of actually putting it into action.

I return to Amendment 51, which was tabled by the noble Lord, Lord Meston, and spoken to the noble and learned Baroness, Lady Butler-Sloss, and other noble Lords. We believe that the Mental Health Act is not the appropriate legislative vehicle to set out a statutory test for competence for under-16s, and nor would it be appropriate to seek to establish a test in a single setting. We are not satisfied that the possible implications for mental health in other settings where Gillick is applied have yet been fully explored.

The principle of Gillick competence is established in case law, as noble Lords will be aware, not statute. Any statutory test should reflect existing case law and would not necessarily override the application of Gillick outside the Act. The design of the test is partly aligned with the tests set out in the Mental Capacity Act. There is no consensus in the courts, as noble Lords will be aware, on whether it is appropriate to apply these tests to test competence in children under 16.

The noble Lord, Lord Meston, raised the question of unintended consequences, to which I am able to respond. The creation of any test that does not consider the interaction with existing case law could inadvertently limit the ability of children detained under the Act to exercise choice and autonomy under their care and treatment. Those are the concerns about unintended consequences.

We are also greatly concerned that, in seeking to provide clarity on assessing competence in mental health settings, two different tests could be created. This is likely to cause further confusion and a risk of legal challenge for decision-makers in mental health settings, potentially in any setting where Gillick is applied. This could have unintended consequences—I use that phrase again—for the ability of children to exercise choice and autonomy, as I have already mentioned, which I hear is counter to the noble Lord’s intention.

The noble Lord will understand that we cannot comment on or prevent how, as I say, courts will interpret the test or whether there will be further calls for similar tests. The courts may even go as far as to apply this test in other settings. That is what we mean when we say the introduction of a test for decisions under the Act will or may cause confusion and uncertainty in other settings. We do not think the consequences of this have been given proper consideration, nor can this risk be appropriately mitigated. We will consult on the statutory guidance for assessing competence in mental health settings, as I have mentioned, in the revised code of practice. I hope that will meet the intention to provide further clarity.

The noble and learned Baroness, Lady Butler-Sloss, asked what additional support would be provided to clinicians in engaging with children and young people, as we are rejecting this amendment. The Mental Health Act code of practice already provides guidance on establishing competence in under-16s. As I have said, we will consult on the guidance in the revised code of practice. I also re-emphasise that we feel it is better to focus on improving the practical application of Gillick rather than create or risk further confusion.

I hear that there are differences of opinion. While I am sure that what I say will not completely satisfy noble Lords who have raised concerns, I hope it gives a sense of where we have got to and the reasons. I therefore hope that these reasons will convince noble Lords not to press their amendments.

Mental Health Bill [HL]

Debate between Baroness Merron and Baroness Browning

Report stage
Monday 31st March 2025 Lords Chamber

[Baroness Merron (Lab)]

I have heard from noble Lords that they are concerned with having transparency, holding the Government to account and being updated on the situation. I absolutely agree with all those points, which is why I am pleased to make that commitment. Parliament has a number of routes available to it to hold the Government to account. I have just outlined the manner in which we will be transparent and the way the Government will be held to account by having to do that. As always, parliamentarians have the ability to scrutinise in many ways.

[Baroness Browning (Con)]

My Lords, we have heard a lot of very salient and not just helpful but wise words in the debate on this group of amendments. I thank the Minister for standing at the Dispatch Box and making commitments that are now on the record with this Bill. When people ask what Parliament’s intention was, she has left us in no doubt on some important points, particularly on my amendment concerning the need to monitor the use of the Mental Capacity Act in respect of autistic people and people with learning disabilities. I am grateful that she has done that and for a similar commitment I think I heard her make around some of the concerns that the noble Baroness, Lady Hollins, had.

Finally, the Minister has not given us exact dates as to when implementation will take place. We imagine it may be staged—not all in one go—but before the end of this year, the committee upstairs will report on the post-legislative scrutiny of the Autism Act. That will cover a wide range of issues, particularly services to people with autism. I hope that, perhaps in her deliberations on this Bill, when she sees that report—I cannot predict what the outcome of that will be—she will take those into account as well. For certain, services provided under the Autism Act, if they are provided in a timely way, will reduce the number of services that will be needed under the Mental Health Act. It is not rocket science; it is pretty basic that if you provide those services, that downward spiral in mental health is reduced. With that, I beg leave to withdraw my amendment.

Valdo Calocane: NHS England Report

Debate between Baroness Merron and Baroness Browning

Thursday 6th February 2025 Lords Chamber

[Baroness Browning (Con)]

The Minister will know from the Mental Health Bill discussions that there is quite a strong feeling about the abolition of community treatment orders, which were introduced into the 1983 Act by the 2007 amendments. I had reservations about them when I sat on that Bill in another place. I continue to have reservations about them, and this case is indicative of the difficulties and dangers of trying to administer strong medications to people in the community.

[Baroness Merron (Lab)]

I am grateful to the noble Baroness and for all her contributions to the Mental Health Bill. Perhaps I could use this opportunity to say, in answer to her question but also to a previous question, that improving patient rights is not in conflict with public safety. That is something that I know we are very mindful of about the Bill. As the noble Baroness is well aware, and as we have debated many times in this Chamber, there is a case, when to protect people from themselves and to protect the public, action must be taken, and that should not be shied away from.

Mental Health Bill [HL]

Debate between Baroness Merron and Baroness Browning

Committee stage
Monday 27th January 2025 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am most grateful to the noble Baroness, Lady Browning, for tabling Amendment 128 and for her contribution, along with that of the noble Earl, Lord Howe.

On the proposals in Amendment 128, I can tell your Lordships that, under the current tribunal procedure rules, the tribunal can direct responsible authorities, which could be a local authority or an NHS body, to provide evidence. The practice directions that apply in mental health cases place a requirement on the responsible authority to provide reports and records relating to the patient’s detention treatment and any after-care plans. The tribunal can use these reports to decide whether the detention criteria are being met. Therefore, it appears that the tribunal has extensive powers to require responsible authorities to provide the information to support its decision on whether to discharge a patient. I hope that the noble Baroness will be satisfied with this response and will withdraw her amendment.

[Baroness Browning (Con)]

My Lords, I am grateful to my noble friend for his support from the Front Bench and to the Minister for her reply. Although it was very reassuring, could I ask her to clarify something? Has the level of information leading to a proper discharge plan under the existing powers of tribunals been set in primary legislation, which is what I am asking for under this Bill, or is it in secondary legislation or guidance?

[Baroness Merron (Lab)]

I am happy to confirm that to the noble Baroness. The important thing for me is that we make sure that, as always, we can move with best practice and keep up with what is needed. With that in mind, I will confirm that later to the noble Baroness to ensure that I am correctly answering her detailed question.

[Baroness Browning (Con)]

I am grateful to the Minister, as always. She is always helpful with these difficult points. I will just flag up that if the tribunal power to get that information in order to encourage more discharges is not in statute, then perhaps we will return to it at a later date. I beg leave to withdraw the amendment.

Mental Health Bill [HL]

Debate between Baroness Merron and Baroness Browning

Committee stage
Monday 27th January 2025 Lords Chamber

[Baroness Browning (Con)]

Reflecting on what the Minister has just said, would that close the Bournewood gap, which we tried to close in earlier legislation, where a professional carer cared for an autistic man who was not able to articulate for himself, but was overruled by the clinician? I am just trying to get my head round what she has just said because that was the Bournewood gap and, as the Minister will know, it ended up in the European Court before it was resolved.

[Baroness Merron (Lab)]

We need to be considering that as one of the scenarios and I would certainly be very glad to give the noble Baroness and noble Lords a more considered response to the very important point that has just been raised.

Under this policy, an approved mental health professional would terminate their appointment if the nominated person is not acting in line with the patient’s interests. I really wish to emphasise this.

For all these reasons and the responses I have given, I hope that the noble Baroness will feel able to withdraw her amendment.

Mental Health Bill [HL]

Debate between Baroness Merron and Baroness Browning

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[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.

Mental Health Bill [HL]

Debate between Baroness Merron and Baroness Browning

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Merron (Lab)]

Indeed the noble Baroness did try, and I have therefore taken its intention at face value.

The Bill removes the requirement for an automatic referral following the revocation of a CTO. This was a recommendation of the independent review which found that, in practice, the automatic referral was an ineffective safeguard, as often the patient is back in the community or back in hospital as a Section 3 patient before the tribunal has had the opportunity to review their case. Therefore, the current process creates a burden on tribunals but does not protect the patient. The Bill improves other safeguards for patients on a CTO, including increased access to tribunals. For these reasons, I hope that the noble Baroness feels able to withdraw her amendment.

[Baroness Browning (Con)]

My Lords, I am grateful to everybody who has contributed on this group of amendments. Everybody has bought something different to the table. There have been some good things. I think we are all grateful to the noble Baroness, Lady Parminter, who led us at Second Reading to have a better understanding of how CTOs can help with eating disorders. I just think back to 2006 and the pre-legislative scrutiny committee of the previous amendment of the 1983 Act. I think there are three of us in the Chamber tonight who were part of that pre-legislative scrutiny. I think that the noble Baronesses, Lady Murphy and Lady Barker, and I were members and I recall the debate on community treatment orders at that time, 20 years ago, when we had quite a lot of strong reservations about how they would work in practice.

Despite some of the good things we heard tonight on this group, I still sense that reservation. I think that if what we had before us was 20 years of lived experience—practical examples of where CTOs have been good, where they have been bad, where they needed to be amended and where they have been amended—we would feel a lot more confident. Too many parts of this jigsaw still seem to be missing to make what I feel is a substantial change to the 1983 Act 20 years later and know that we have got it right. I always think that when we are in doubt about legislation, there is that old, hackneyed thing: “Suppose this was something in a court. What would they say about this? What was Parliament’s intention at the time?” Can I actually define Parliament’s intention at the time? I am not sure that I can define it in as much detail as I would like, in order to feel we are doing the right thing as far as this legislation is concerned.

I thank the Minister. She has, as always, been as helpful and courteous as she can be with this very difficult issue, but I do not quite feel that we have got there yet. I beg leave to withdraw the amendment.

Mental Health Bill [HL]

Debate between Baroness Merron and Baroness Browning

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Merron (Lab)]

I would be very pleased to write to noble Lords, as the noble Baroness suggests.

Amendment 42A, in the name of the noble Baroness, Lady Browning, which the noble Lord, Lord Kakkar, also spoke to, relates to appropriate expertise in learning disability and autism for medical practitioners with responsibility for recommending admission for treatment. We strongly agree with the principle of this amendment. The current code of practice sets out that, where a patient is known to belong to a group for which particular expertise is desirable, at least one of the professionals involved in their assessment should have expertise in working with people from that group wherever possible. The code also makes clear that consideration should be given to any disability the person has in order that the assessment has regard to that in the way that it is carried out.

The noble Baroness, Lady Browning, asked further about how the Bill will make sure that professionals have the right skills and expertise. This whole area rightly comes up repeatedly when we debate.

I accept that it is crucial that those with a learning disability and autistic people are dealt with sensitively and professionally. It is crucial that clinicians are able to make distinctions between a learning disability or autism and any co-occurring mental health disorder—that point was made powerfully. It is a matter for clinical judgment to determine whether a person with a learning disability or an autistic person meets the criteria for detention under Part II, Section 3 due to a co-occurring psychiatric disorder. To assist clinicians in decision-making, we will update the code of practice to provide the guidance that will be necessary, and I hope that that will make a major change.

[Baroness Browning (Con)]

I am grateful to the Minister and very encouraged by her response. I want to flag up something else that I raised. Occasionally, at some point of crisis for undiagnosed adults, the question is asked: could this be autism? At that point, we need people who have a very good working knowledge for them to raise that question, because it can make a world of difference if they are right. It is not just about somebody who presents with a diagnosis; it is about those who are undiagnosed. I do not know the quantity, but my gut feeling is that there are quite a lot of adults out there who are still undiagnosed. I do not know how the Minister will accommodate that situation.

[Baroness Merron (Lab)]

The noble Baroness makes a good point. Indeed, not everybody has a diagnosis. I suggest that, when we look at provisions, we should make clear—through the appropriate means and not in primary legislation—how the practice should take account of the point that she made very well. I will be extremely mindful of that.

We believe that the code of practice is the most appropriate place to articulate the type of experience that might be required in this area, through a non-exhaustive list of practical examples, which would avoid the need to define in primary legislation exactly what constitutes sufficient experience. The reason for that is to allow flexibility on the particular needs and circumstances of the individual. As we update the code of practice, we will engage with expert stakeholders to improve practice and to reflect the new Act. The code will be laid before Parliament before its final publication. I thank the noble Baroness, Lady Murphy, for her comments in this area.

The number of long-term detentions was rightly raised by my noble friend Lord Beamish and the noble Baronesses, Lady Murphy and Lady Browning. The number of people with a learning disability and autistic people in mental health hospitals is indeed unacceptable. Too many people are still being detained who could be supported in their communities with the right provision. Work is under way to address this. For example, NHS England has allocated £124 million of transformation funding for services, which includes funding to reduce reliance on mental health in-patient settings. Noble Lords can be reassured that I will take a particular personal interest in this area.

Mental Health Bill [HL]

Debate between Baroness Merron and Baroness Browning

Committee stage
Tuesday 14th January 2025 Lords Chamber

[Baroness Browning (Con)]

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

[Baroness Merron (Lab)]

I am grateful for the invitation, as always. Government amendments will be considered as we progress through Committee, but I say that as a broad point, as I know the noble Baroness understands.

The intention of the provisions in the Bill on registers and commissioning is that people with a learning disability and autistic people are not detained but supported in the right way. The proposed changes to Part II, Section 3 will be commenced only where there are strong community services in place.

--- Later in debate ---

[Baroness Barker (LD)]

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

[Baroness Browning (Con)]

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

[Baroness Merron (Lab)]

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

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

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

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