Mental Health Bill [HL]

Baroness Murphy Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

The CQC links that to rising detentions under the Act, because they can lead to a “greater likelihood” of people displaying behaviours that meet the threshold for detention under the Act. That is despite the fact that they may not have any form of mental disorder. Can the Minister say whether mental illness arising from drug misuse is likely to play any part in the decisions that the Secretary of State will make around what might constitute a specified risk factor that increases the risk of detention under Part II? I beg to move.

[Baroness Murphy (CB)]

My Lords, as the noble Earl, Lord Howe, has mentioned, we will be talking about risk factors in the next group but one, and I will not go into the statistics and predictions at this point.

As has been pointed out, Clause 4 implies that specific risk factors for detention under Part II are readily identifiable and assessed, but as we will see, predicting episodes of violent behaviour or self-harm is peculiarly difficult to do. The clause suggests that it is not clinicians who will be doing these risk assessments but that the Secretary of State will somehow have some expertise from ICBs in how to do this. Apart from the rather obvious wisdom that the best predictor of future behaviour is past behaviour, I am not sure how these regulations can be drawn up.

I am anxious about the common prejudices around, for example, black patients of African Caribbean descent living in London, who have a higher risk of being detained under Part II than white patients, or Asians of an Indian subcontinent background. Who will draw up this list to say which of these items is going to lead to the risk of detention under Part II?

There have always been opportunities for the Secretary of State to intervene in the detention of patients under Part III of the Act, and some Secretaries of State have been more risk averse than others. I suspect that under this clause we will find some Secretaries of State taking a more hard-line view about who should and should not be detained. That gives cause for enormous anxiety, so I would like to know how the Government intend to devise these regulations to document specific risk factors.

[Baroness Tyler of Enfield (LD)]

My Lords, this is an important set of amendments, and, as the noble Earl, Lord Howe, said, they are central to decisions about whether to detain people under the Act.

I agree that the definition of “serious harm” is important, and it would be helpful to hear from the Minister what the Government are thinking there, how it will be applied, and how any thresholds will be established.

I endorse what the noble Earl had to say about children and young people, what a huge decision it is to detain someone under 18 in hospital against their will, and how hard we need to work to avoid that, whenever that is safe for themselves and other people.

Finally, and very much linked to that, I strongly support Amendment 139 on the availability of community-based services, which we have already talked about and which we will turn to in subsequent groupings. It is a very good amendment, particularly the provision which states:

“The Secretary of State must publish a report to assess whether there should be more community-based services for community patients in order to prevent”—


I see this as a key preventive measure—

“detention under the Mental Health Act 1983”.

My one point is that the amendment talks about publishing that within two years of the day on which this Act is passed. I personally think that in an ideal world we might see a report a bit earlier than that. However, as I say, Amendment 139 certainly has my full support.

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[Lord Beamish (Lab)]

My Lords, I will speak to Amendment 33 in the name of the noble Lord, Lord Scriven. If this Bill is a success, we shall, I hope, see fewer people with autism and learning difficulties detained under the Mental Health Act. However, the noble Lord’s amendment goes to the heart of the problem of resources. The current system is broken. It is a market system, which ends up with a lot of people finding themselves detained in facilities far from home, and getting out of that system can be very difficult.

The collection of data will be important: first, to find out how many people are being detained. Having spent 23 years in the other place and having been a passionate advocate for mental health, I always found that data is one thing that is never really kept. It is kept between the Department of Health and various other healthcare providers. Getting that visibility for the numbers we are talking about will be very important.

We need to be honest that, in the entire mental health debate, people with autism and learning disabilities have been overlooked. To get this right, having proper community-based facilities will be very important, but it will be expensive. The market model we have at the moment means that lots of private companies provide care at very high cost, and commissioners tend to have to commission only from certain providers. This leads to a shortage of supply and prices going up. The Minister needs to spell this out.

I understand what the noble Lord said in moving the amendment, but it is important to have visibility of not only the numbers but where the community facilities are going to be. New Clause 125FA(2)(b) in the amendment says the Secretary of State should ensure that community services are available to meet demand after 28 days. If you speak to any commissioner at the moment, they will tell you that that is completely unrealistic. I accept that it was put in the amendment for debate, but that is an aim we should be trying to get to in supporting people in the community. I have seen sad cases of people being stuck in the system. With the best will in the world, and I think there is cross-party support for this, we should not have people with learning disabilities and autism stuck in the system for as long as they are, with no way of getting out. I accept that the Bill aims to give a voice to those individuals, but without the resources to match, they will still go round the merry-go-round of different funders.

Another important issue that we need to highlight is the lack of support staff in the community for dealing with people with learning difficulties and autism. That is not seen as a priority at college. We need to put more emphasis on making it an attractive career and on the fact that it is vitally needed and will make a real difference to the individuals concerned. Training is important, but so is getting people into the service in the first place. I accept that the noble Lord is not going to press the amendment, but it goes to the heart of most of the matters in the Bill. We are deluding ourselves if we think the good and well-intentioned things in the Bill will be delivered without the resources to do so; they will not. The one without the other will lead to people still being detained when, in a modern society like ours, they really should not be.

[Baroness Murphy (CB)]

My Lords, I give my strong support to the noble Lord, Lord Scriven, asking for a road map, which I think is the political phrase we use now, to get to where we want to be. I remind him that, back when the then Government came in in 1987, we had a documented timetable for closing the learning disabilities hospitals but that never happened; it went too slowly. So, we have left people stranded in various independent sector and NHS facilities, partly, to be honest, because the Department of Health took its eye off the ball as to what was happening to people in long-stay care and just stopped looking. So I agree that we need some kind of timetable; otherwise, the Bill becomes simple aspirations, as we have already said.

Unfortunately, it is not just autism and learning disabilities that require special training. In a lot of areas of mental disorder, people get inadequate training in subspecialties when they are studying the general psychiatric stuff. Psychiatric nurses do not get enough, either. I agree that there are issues here that require a special target, but at the moment they do not get it, so I support that as well.

On the experience of the noble Baroness, Lady Browning, of course it is true that there are an awful lot of bad psychiatrists around. There are bad physicians and bad surgeons—not the noble Lord, Lord Kakkar, before he punches me on the chin. We should not say “bad”; I would say “not the best”. A friend of mine was visited by a community psychiatrist in old age psychiatry about a month ago. I asked his partner how it went, and he said, “Well, he was in and out in 15 minutes. He’d got 10 assessments he was going to do in people’s homes around south Norfolk in that time”. That was a totally inadequate amount of time to get a history from relatives, to get an understanding of what was going on in the home situation and to understand the problems this person was experiencing. I was shocked, but I was told not to be because it happens all the time that there is an inadequate length of time for people’s assessment.

It is hardly surprising that diagnoses are wrong and that people end up with the wrong prescriptions. It is deeply regrettable, but this will happen for as long as community services are underresourced. As we have heard from all around the Chamber, you can put as much in place as you like, but if it is underfunded, has the wrong facilities or is too far away from where people live, it just will not happen. We need a road map, and we need to know when these facilities will be made available, because the rest of it cannot happen until they are.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak to my Amendment 152. We have already had a rich debate, concentrated on certain areas. This amendment deals with a somewhat different area, which is why I wanted to include it at the end. We have talked quite a bit about training and research and the link between the two. The noble Lord, Lord Scriven, said in introducing this group that it was all about autism and learning difficulties, but this amendment also covers mental health, for the interests of clarity.

This is a probing amendment, but there is an argument for doing what it calls for, which is having a report to Parliament, two years after the Bill is passed and then every three years thereafter, about the provision for and progress in research, and the transfer of research findings, in mental health and autism and learning difficulties. This would enable Parliament to keep a check on how much resource is being put into this area and, crucially, how much knowledge is transferred into practice. It would also be a really useful tool for informing Parliament about what is an extremely fast-changing area.

It is worth noting that mental health and disabilities are areas in which research is not just redefining our understanding but often entirely demolishing old models and forcing a restart from the basics. We are also seeing a change in approach, in which I am very pleased to say that there is an increased focus on ensuring that experts by experience can guide and have input into research directions in a way that certainly was not true in the 20th century.

I note, for example, an interesting study from the University of Stirling last year, which spoke to people in Scotland—though I have no doubt this applies more broadly. It looked at how research in autism currently tends to be directed towards biological studies and a search for treatments and cures, but autistic people said that they would prefer a focus on a good quality of life, and that they should have a real say in the research directions. They were concerned that continuing even now are ableism, objectification, and other othering approaches in research directions. I spoke on the previous day in Committee about the failure to apply the social model of disability to learning difficulties and autism. That is very much the case. I hope that that will change, which would change what we should be researching and how we should be training people.

Moving to perhaps more comfortable ground for many people, I note that there is a replication crisis across many areas of research. That is particularly true in the mental health space, where, unsurprisingly, there has been a recent dawning that conducting a great deal of research on US college students does not necessarily produce findings that can be replicated all around the world in all sorts of different research conditions. For example, with Alzheimer’s disease, are amyloid plaques a cause, a symptom or simply correlated? I have no idea, and I doubt that anyone can say, with their hand on their heart, that they know either. This an area in which the continuous failure of medical trials has shown our lack of knowledge.

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Moved by

[Baroness Murphy]

37A: Clause 5, page 11, leave out lines 14 to 16 and insert—
(b) there is a risk of serious harm to the health or safety of the patient or of another person;”Member's explanatory statement
This amendment and others in the name of Baroness Murphy remove from the criteria any mention of “likelihood” or “may be caused” and replace them with wording that allows a clinician to evaluate risk in the individual case and give evidence more straightforwardly and comprehensively without making predictions for individuals about risk.

[Baroness Murphy (CB)]

My Lords, in this group, we return to the issue of serious harm and risk. Clause 5, on the grounds for detention, implies that the risk factors for detention under Part 2 are identifiable and that risks are readily assessed. A number of clauses in the Bill are all about the same thing, which is why there are so many amendments in this group. They imply, again, that risks are quantifiable and predictable—if only.

Academic research has often stressed how difficult it is to predict episodes of violent behaviour in individuals, because they are rare. Risk assessments given as likelihoods are of limited use when the base rate for violence in a population, particularly serious violence, is low. The same is true, by the way, for suicide and suicidal thoughts.

It has been calculated, using the average of all the current tests and rating scales that have been carefully assessed in research studies, that if 5% of the patient population were in a high-risk category, the tests would correctly identify eight in 100 people who would go on to commit acts of violence, but misidentify as violent another 92 people. In fact, less than 1% of community patients will commit serious violence over the period of a year, which means the tests would correctly identify only three patients out of 100.

Homicides occur at a rate of one in 10,000 patients suffering from a psychosis per annum, which makes prediction more or less impossible. A number of factors are statistically associated with later violence at a group level. Even the most effective predictive combinations of variables constructed by statisticians perform poorly, except at group level. So making statements about individual risk based on the use of these tools is complex, and some would say unsafe and unethical.

Structured risk-assessment systems can be useful in routine clinical practice; indeed, most people use them in day-to-day team thinking about what these risks are. When employed by staff properly trained in their use, they are useful pointers. They perform better than unaided clinical judgment in predicting future violence, but again, at a group level. On an individual level, these checklists need to be part of a detailed understanding of a patient’s mental state, life circumstances and thinking, which is a major contributor to the prevention of harm. This is best achieved, as always, by well-trained professionals operating in a well-resourced environment where staff know well the patient’s history, response to treatment and life circumstances.

The wording of the Bill encourages pseudo exact probabilities and predictions of individual behaviour, which are not possible. This exerts pressure on psychiatrists, particularly at tribunals, to make predictions that may be seriously wrong. Unreasonable expectations of what can be predicted lead to defensive practice—to detaining people where it is not justified by the unreliable evidence. There are several places in the Bill where the impression is given that risks are reliable and predictable, but it is not so. As I say, the same problem arises with suicide and suicidal behaviours.

I ask the Government to look at whether the wording of these clauses is reasonable, given the evidence, and to substitute these certainties with something more flexible, indicating that a more rounded, holistic and comprehensive assessment is necessary. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise to speak to Amendments 86 and 67, in my name, in this group. I put them in that order as Amendment 86 more naturally follows on from—

[Baroness Bennett of Manor Castle (GP)]

Apologies.

[Baroness Murphy (CB)]

I am awfully sorry, but I should have mentioned that I also have almost all the other amendments in this group. They cover the same question—it is just about the wording of these two phrases. Amendment 45, along with one other, is not mine, but most of the amendments are covered by those brief words.

[Baroness Tyler of Enfield (LD)]

My Lords, I think that I am speaking in the right group. Amendments 45 and 48 are in my name, and although they are in this group, they are of a rather different nature. They are about the framework and definition of “appropriate medical treatment”.

I will briefly outline the overall context and why I thought it important to bring these two amendments forward. I am particularly concerned that many in-patients in mental health hospitals, particularly autistic people and people with a learning difficulty, continue to face detention in hospital settings which can provide little or no therapeutic benefit. The environment of these hospital settings can be incredibly overstimulating and distressing. We continue to hear stories of restrictive practices, including physical, mechanical and even chemical constraint, as well as the use of solitary confinement.

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With that response, I hope that the noble Baronesses will not press their amendments.

[Baroness Murphy (CB)]

I thank the Minister for her response. I have to say that psychiatrists remain worried about this and the possibility that they will be expected to make decisions on risks which they are simply not capable of doing. But I would not want there to be a feeling around that we want to discourage people from taking action much earlier than they sometimes currently do, because, in my view, they often leave it too late before they admit somebody—we have seen a number of such cases recently. I reserve the right, perhaps, to come back with some alternative ideas, but I beg leave to withdraw my amendment.

Amendment 37A withdrawn.