Mental Health Bill [HL]

Baroness Murphy Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

Moved by

[Baroness Murphy]

96: Clause 34, page 47, line 13, leave out subsection (2)
Member’s explanatory statement
The purpose of the amendment is to query the necessity of expanding on “appropriate medical treatment”.

[Baroness Murphy (CB)]

My Lords, noble Lords will be pleased to know that this is a very small, probing amendment, on a matter that was brought to my notice by some forensic psychiatrists. One of their responsibilities is to train young psychiatrists in the use of the Mental Health Act as it relates to patients who have been engaged in criminal proceedings. In this group of amendments, we are talking about transfers between hospitals and prisons and the use of Sections 47 and 48.

Amendment 96 concerns Section 47 removals from prisons to hospitals. The original Act was very straightforward, stating that

“the said person is suffering from mental disorder; and that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and that appropriate medical treatment is available for him”.

The new version expands the clause by stating that

“treatment can be given for the relevant disorder from which the person is suffering”.

This is repeated in Clause 34(3).

My immediate thought on reading this was, “What else can an appropriate treatment be except one for the relevant disorder from which the patient is suffering?” Also, why is it necessary to expand this clause at all, on the basis that we should be as straightforward as we possibly can, particularly with people who are using this on a day-to-day basis? If the patient is suffering from another disorder, or the patient is not suffering, how could the treatment possibly be “appropriate”?

I understand from the Explanatory Notes, and from what Ben Coffman, special adviser to the Minister, told me about what the Bill team is trying to achieve, that Sections 47 and 48 are generally interpreted to mean that hospital managers are not formally required to provide evidence that a hospital place is available. If an order is made, the hospital specified is under a duty to admit the patient.

However, there was an immigration case, R (ASK) v SSHD, in which the Court of Appeal ruled that, because specialised provision is required for restricted patients, a physical hospital place must be identified for the detention criteria to be met. This did not reflect the government position at the time, which was that “available treatment” should be interpreted to be the same for all Part II and Part III patients. Therefore, the Government are now changing the wording of this to ensure that a physical hospital bed does not need to be identified. This is how “available” treatment is currently interpreted for the detention criteria across the rest of the Act.

With these few words, therefore, Clause 34 aims to correct the divergence in the detention criteria, as opposed to creating one. Well, I must say that I still do not understand why these few words change the detention criteria. They just add more complexity to the wording. I do not understand why they have the effect that the Explanatory Note says they do. I am asking for greater guidance, because I just do not get it. I wrote to my colleagues saying, “This is the answer I’ve got, so maybe this doesn’t need to be asked”. I got a single line back, saying “What?” They simply did not understand the response. So I am asking again.

Those are all my questions on Sections 47 and 48, relating to Clause 34. There are other amendments in this group to which I will say something, in the interests of not having to bob up again. The noble Lord, Lord Stevens, has two important amendments on the reciprocal nature of transfers between prison and hospital. If what is good for the goose is good for the gander, and if we are going to make it a lot easier to transfer people from prison to hospital, which I very much hope we will, we must be able to transfer people back in the other direction.

I know that this was an issue very close to the heard of the noble Baroness, Lady Watkins, who is not able to be in her place today. She has run wards where that very frustrating situation arises where you have somebody desperate to come into the ward from a prison who has been identified by the consultant, but no space can be made available because somebody is blocking that place. I will therefore be giving my support to the noble Lord, Lord Stevens, on those amendments. I beg to move.

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[Baroness Murphy (CB)]

My Lords, it is my great pleasure to respond to the Minister. I will keep it brief. I have been using this Act for 40 years since 1983, and I assure the noble Lord, Lord Timpson, that this is the only clause which is interpreted, before the amendment, as somebody can apply for transfer and you have to find a bed. It is only the very new immigration Act that has led to this extraordinary transfer of information that has enabled somebody to put in these extra words, but they do not relate in any way to the immigration Act on which the amendment is based; in other words, it seems to me that we should just stick with what we have. I was trying to say that in as easy a way as I possibly could. It just seems to me that it is making it complex at a time when we need to be simple. There is a lot to learn in this Bill. There is a lot to be done. Nevertheless, if the Minister would like to give me a “teach-in”, I shall be delighted. I beg leave to withdraw the amendment.

Amendment 96 withdrawn.

Mental Health Bill [HL]

Baroness Murphy Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Lord Scriven (LD)]

My Lords, I shall speak to Amendments 54A and 54B in my name, which are on a very narrow part of the treatment plan for individuals. Before I do that, let me say that I support the amendments in this group, particularly the general thrust of what been said; that is, that the automatic medical model must no longer be the default position and a much more social model must be added on to the medical model so that they complement each other.

Having said that, I listened very carefully to the noble Baroness, Lady Fox, but found it very difficult to understand what was required. She argued against the use of medication but then argued against quite a lot of the non-medicated issues. Her intervention was a bit confusing in terms of understanding what the importance was.

My amendments are predominantly about Clause 18, which is about the use of ECT. The clause allows for the emergency use of ECT based on a second medical opinion. The element I wish to speak to is the very wide Henry VIII power that the Government wish to give themselves in regulations to do away with the second medical opinion in an emergency. The Bill says:

“The appropriate national authority may by regulations amend this Act to provide for circumstances in which functions of a second opinion appointed doctor in relation to treatment falling within section 62ZA(1) may or must be carried out instead by the approved clinician in charge of the treatment in question”.


New Section 62ZB(3) then says:

“Regulations under this section may make … (a) provision subject to specified exceptions; (b) different provision for different cases; (c) transitional, consequential, incidental or supplemental provision”.


That is quite a wide Henry VIII power.

To prove that I really am Billy No-Mates and do not get out often on a cold night, I read the wonderful 10th report of this Session from the Delegated Powers and Regulatory Reform Committee, which makes exactly the same points but in more eloquent language. This is a very wide Henry VIII power, and the committee does not really understand why the Government are seeking—even though it is through the affirmative procedure—such wide powers in such broad language.

The committee said that it would expect the power to be drafted with significant limitations and a framework for when it could be used. My amendment seeks to do exactly that. It would not prevent the clinician in change from using ECT in an emergency case without referring to a second practitioner in certain circumstances, but the regulations would be within a framework laid out in Amendment 54B, that

“the treatment is immediately necessary to save the patient’s life … obtaining a second opinion would cause a delay that places the patient at a significant and imminent risk of death or serious physical harm, and … the treatment is reversible”.

The regulations would have to be written so that

“Any amendment made under subsection (1) must specify the exceptional nature of the circumstances in which the second opinion may be dispensed with”.


A report to Parliament on subsection (1) dispensations would also have to be made.

I believe, from reading the wise words of the Delegated Powers and Regulatory Reform Committee in its report, that it is important that the regulations have a framework, so that the Minister still has flexibility but is constrained by what is in the Bill. That is why I have spoken to this amendment.

[Baroness Murphy (CB)]

My Lords, I feel I must poke my nose in on these of amendments, even though I do not have an amendment. I support the noble Earl, Lord Howe, and his various amendments. I particularly like the amendment that would require children and their families to be asked the month after how it all went.

We are hearing described the appalling nature of many mental health services. It is not just children’s services. Although they may be a very good example, as many of them are not fit for purpose, we would get the same complaints and the same appalling state of affairs if we went around other mental health services across the country. It is heartbreaking. I truly believe that services have deteriorated since I practised in hospitals. People, including my former colleagues who are still practising, say that services are completely disorganised and not fit for purpose. We have known for 50 years that the social model of care was an appropriate model, and that you need psychological and social psychotherapeutic interventions, as well as any drugs that might be helpful. They are not going on because there is no availability anywhere.

We have known since at least the 1960s that patients with schizophrenia, for example, can benefit by being taught, one-to-one, about how to interact with people when they are recovering from an episode. That never happens, because we do not employ teachers in the NHS—we just do not do it. We do not employ the right sort of people and we do not have the right sort of facilities. When people are employed, there are so few of them that it is simply impossible to do what is necessary. I am not defending this, because there are some very good units—I am sure that there are some very good children’s and young people’s units—but they are not the norm anymore, and that is a very sad state of affairs.

Sadly, legislation through mental health Bills will not, unfortunately, solve the problem. What we are talking about is not only a fundamental change of culture and getting on with all the things that we know should be done; there needs to be investment and a totally different approach to mental health. All the things that we know should be done cannot be delivered by mental health legislation alone. I say that because we are trying to shove too much into the Bill and hoping for the best, but I do not think that it will work.

Later in the debate on these amendments, noble Lords moved away from talking about people who were very unwell and who need in-patient care to talking about this vast mass of people who are diagnosed with conditions where they cannot work. That is a whole new ball game. I agree with almost every word that the noble Baroness, Lady Fox, said, because there is no doubt that there is a massive overdiagnosis of things that are called “mental disorder”, when they are in fact distress and need a different sort of approach.

A young friend of mine—a gentleman who is now in his final years training as a maxillofacial surgeon—had a period of great distress because of family circumstances. He sat down on his own one evening and went to a website, “Diagnose yourself”. He rang me and said, “I’ve been diagnosed as having ADHD”. I cannot imagine anybody who is less likely to have ADHD than this young man, who is the most socially competent young man I know. This morning, my husband and I had a go on the website together—he did one test and I did another—and we both came up with the same result: “You probably have ADHD”. Well, maybe I am, folks, but I am not going to go on the Ritalin yet. There are a lot of websites that are utter rubbish and encourage people to pay money to see psychotherapists and other counsellors to see what the matter is with them, so that other people can put money in their pockets for doing not much.

That is the different end of the spectrum. When we are thinking about these things, we have to think about what the patient has. Is it something that can be diagnosed—heaven knows that colleagues here were very keen that we should have a diagnosis—or something at the other end of the spectrum? With the Mental Health Bill, we are talking about when you can detain people, take away their rights and say, “We are detaining you”, to treat them, and protect them from wrong treatment, bad doctoring and bad staff. That is what the Mental Health Act is for.

But I am afraid that it is not to do with any of this other stuff. We have to think through what really has to be in the Bill to protect the patients and the staff and what cannot go in there because it is not relevant to these issues.

[Baroness Fox of Buckley (Non-Afl)]

I want to ask the noble Baroness a question. I agree that this Mental Health Bill should be confined to and is about the people who are very poorly and could be in danger of being detained—I understand that. However, all the time when we have these discussions, we are talking about a problem with a lack of resources. In the noble Baroness’s experience, is the broader mental health crisis taking away resources and focus, not in this Bill but in society, from giving that acute mental health care the resources that it needs—because it is being spread far too thinly across ever greater numbers?

[Baroness Murphy (CB)]

Yes, I would say that indeed it was. That year when they gave an extra £400,000 to spreading psychotherapy around was the same time when we were having incredible crises in acute hospital services, and I thought that it was not justified. But the mental health crisis that we have in this country is the same one that they were complaining about in 1860, 1870 and 1880; every generation believes that it is worse off than the generation before, but there is not much evidence that it is.

[Baroness Butler-Sloss (CB)]

My Lords, having just heard the noble Baroness, Lady Murphy, I shall be extremely cautious about what I look at on the internet. I want to say just two or three words. I have experience from my own family and from my friends of two sets of drugs—anti-depressants and Ritalin—and they really should be used a great deal more cautiously.

[Baroness Barker (LD)]

My Lords, now is not the time to have the extensive debate that the noble Baroness, Lady Murphy, has opened up. I said right at the outset that we are talking about legislation that comes into play when a person is going to be detained because they are very ill and at risk of harming themselves or somebody else. But I would say to the noble Baroness that the Wessely review looked at this issue at considerable length, and I was among the Peers who listened to Sir Simon Wessely when he came to present his findings. One thing that has stuck with me is the person who gave evidence to his review who said: “I was very ill. I had to have treatment. Why did it have to feel so awful?”—I am using parliamentary language there. Does the noble Baroness accept that mental health legislation debates such as this might be limited, but they do an important thing in sometimes challenging the prevailing orthodoxy among the professions, and they are an occasion where the experience of patients, which have built up over many years, gets a chance to change practice? That is why we should look at all the amendments in this group, and in particular those of the noble Earl, Lord Howe.

[Baroness Murphy (CB)]

I agree with everything that the noble Baroness, Lady Barker, has said. She is absolutely right that professions should be challenged, and that is partly what legislation can do, particularly in debates such as this. But we are losing the very important amendments from the noble Earl, Lord Howe, about young people and what we can do to improve circumstances through the Bill, and I want not to lose them, because they are very important.

[Lord Stevens of Birmingham (CB)]

Very briefly on the question that the noble Baroness, Lady Fox, raised, the notion of supply-induced demand is a well-known phenomenon across health services. However, I have to say to her that I think that we are a long way off that being the problem that is principally confronting children and young people’s mental health services. We have a massive gap between the need for effective therapies for children and young people and their availability.

When the process of trying to expand children and young people’s mental health services kicked off several years ago, the goal was that we would get to a situation where one in three children and young people with a diagnosable mental health condition would get some form of specialist mental health support. That number has now been exceeded. I was just looking at the stats published last week and, although I do not see the most up-to-date number for it, I would be surprised if more than one in two are currently getting specialist mental health support for a diagnosable mental health disorder, not just distress. So, we are a long way off confronting this problem of supply-induced demand, whatever broader cultural or therapeutic labelling questions that she rightly points to may be in the ether. Fundamentally, we are going to need more services to benefit the children and young people who need them, not pretend that this is somehow all vapourware, imaginary or a cultural deformity, unlike our predecessors in the Victorian era.

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.

Mental Health Bill [HL]

Baroness Murphy Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

This amendment is flagging up the fact that we have a treatment regime which is based in acute hospitals and the connection to community services is one that exists perhaps on paper rather than in reality. My amendment is an attempt to begin to patch this up to some extent, so that instead of becoming a one-off episode, which it often can be, it is part of an ongoing pathway of treatment. I beg to move.

[Baroness Murphy (CB)]

I will speak to Amendment 100 in this group, and there are four or five consequential amendments which I have added. Noble Lords will therefore be pleased to know that the group is a lot smaller than it looks.

The purpose of this amendment is, on the face of it, to remove informal patients from qualifying for help from independent mental health advocates, on the basis that, given the resources required, to expand the services for detained patients to all in-patients is impractical, as in the impact assessment done by the Government. There will be some who assume from this amendment that I do not like IMHAs, but nothing could be further from the truth.

On the face of it, one cannot criticise what appears to be an extension of services and automatic referral to IMHA services, for both detained and informal patients. Local authorities, under direction from Schedule 3, will be obliged to provide the service and will need to extend it significantly. There are currently 50,000 new detained patients eligible for the service every year, but this would double to 100,000 people when informal patients are included. The impact assessment for cost to local authorities calculated that these new services will be an extra £571 million over a 20-year period—that is over half a billion pounds, or £81 million or so every year.

One might assume, therefore, that some serious evaluative research had demonstrated what a boon advocates are, as we all hope so, and that patients valued them and that they made a big difference to their outcomes. However, there is just one small UK study, by Karen Newbigging and her colleagues, which, on quality of services, suggested that where they were accessible— and they were not really very accessible in all the places studied—patients found the process was a positive experience, although they had no impact on outcomes of care and treatment. The advocates concentrated on explaining people’s rights but did not advocate more creatively to change decisions on care, which the authors rightly suggested could be an important role.

It is generally thought that, where IMHAs are from the same ethnic community as the patient, this is one step that could be taken to make the service more friendly for black and other ethnic-minority patients. There is better evidence in the States, where it has been demonstrated that independent advocates are central to the success of advance choice documents; patients do not create advance choice documents without a facilitator. A study in North Carolina showed that providing a facilitator in the form of an independent advocate increased the number of people making a psychiatric advance directive from 3% to 60%. Since we hope that these will be increasingly helpful to patients, I can understand why we think it is very important that detained patients should have them.

However, I would suggest that it is a bit of a leap to go for a massive expansion without much more evidence on how best to use these trained advocates and on who benefits the most. In September 2023, there were 28,600 vacancies—19% of the total workforce—in mental health services, including 1,700 medical and 13,300 nursing vacancies. In spite of training more staff, there is ample evidence that the current challenges posed by in-patient environments mean that many services rely on agency and bank staff simply to keep the ward open. The King’s Fund survey of approved mental health professionals found that, to meet the requirements of a 24-hour service, there would need to be a 30% increase in the number of full-time equivalent staff, in addition to accounting for the vacancy rates of over 11%.

Yet here we are proposing that the local authority should spend a huge amount of money on independent mental health advocates, when it does not have a satisfactory number of psychiatric social workers and cannot fulfil its obligations to provide decent social care for older people or protect vulnerable children from harm. If any noble Lords were reviewing their own local authority spending, do we seriously think that expanding IMHA services to informal patients would be high on the agenda? I think probably not, although I believe they will be helpful, especially for patients matched to someone of the same ethnic background. I would like to see more consistent evidence about how best to recruit and train them and develop their skills because it is crucial, if we do fund them, that we get the basics right, so that when they do get appointed, they are doing the right things for the right people. Otherwise, we should be extremely cautious in expanding these services.

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[Lord Scriven (LD)]

I just wonder where this £81 million per annum comes from. I think that there is a total cost of £99 million over the period, but I am not sure where the £81 million comes from.

[Baroness Murphy (CB)]

It is taken directly from the Government’s impact assessment on the Bill to local authorities, with these particular resources for IMHAs.

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[Lord Kamall (Con)]

I am grateful to my noble friend for that intervention, because this is something that we could learn from here. Given the point that the noble Baroness, Lady Murphy, made at the beginning, would taking that lesson from the black community in North Carolina work with black communities up and down the country here? I hope it is something that the Government could look into, or respond to, as one of the ways, once we have the relevant data, to reduce the rate of detention and CTOs for people from the black community.

I end by asking the Minister that question: is she aware of whether her department has looked at—was it North Carolina or South Carolina?

[Baroness Murphy (CB)]

North Carolina.

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[Baroness Merron (Lab)]

I have had that confirmed.

I will first address Amendment 43A, tabled by the noble Baroness, Lady Barker. Patients on CTOs already have the right to independent mental health advocate services. Community treatment order patients will be informed of their right to an independent mental health advocate when they are under Section 3, as part of the opt-out approach for all detained patients, as a patient cannot be placed on a CTO without having been detained first in hospital. They will be aware of this right. In addition, the revised code of practice provides opportunities for further guidance on how to improve the uptake of services for CTO patients, and we will consult on this.

Amendment 102, in the name of the noble Baroness, Lady Tyler, was also spoken to by the noble Baroness, Lady Berridge. We appreciate that advocacy plays a vital role in supporting choice and the person as an individual, and that under-18s are a vulnerable group who would benefit from independent mental health advocate representation. I am pleased to say that the Bill already extends the right to an independent mental health advocate to informal patients, and this includes children and young people. It places a new duty on hospital managers to inform them of this right. As we seek to revise the code of practice, we plan to provide further clarity on how to meet the needs of children and young people, including through this increased access to advocacy, so the point is well made.

I thank the noble Baroness, Lady Murphy, for bringing Amendments 100, 103, 104, 108, 109, 110 and 111 before the Committee today, which were also spoken to by the noble Lord, Lord Kamall. Currently, independent mental health advocacy support is available only to detained patients. We want to extend this support to all in-patients, as we believe it is important for all patients to understand their rights and legal status, not just those who are detained under the Mental Health Act. This is in line with the approach already taken in Wales, where both detained and informal patients are eligible.

The noble Baroness, Lady Murphy, and the noble Lord, Lord Kamall, raised points about expanding advocacy and the use of resources. The figures suggested by the noble Baroness, Lady Murphy, overstate the costs that are set out in the impact assessment. Table 7 in the impact assessment shows that the estimated annual cost of informal advocacy would be between £6 million and £7 million a year. I hope that clarifies things for noble Lords.

[Baroness Murphy (CB)]

I apologise. Obviously, I was looking at another figure from a different bit of the impact assessment.

[Lord Scriven (LD)]

I think the noble Baroness, Lady Murphy, added up all the years and got to the final cost, and then described it as an annual cost. I think it was a genuine mistake.

Mental Health Bill [HL]

Baroness Murphy Excerpts

Tuesday 14th January 2025 Lords Chamber

So the need for identifying a deficit in communication, in various areas, and the need for therapists to address this issue are obviously important. The Bill goes some of the way, certainly in the Explanatory Notes, but I agree with the noble Lord, Lord Bradley, that it needs to go further. I hope the Minister will be receptive to that idea, either in the Bill or certainly in the code of practice.

[Baroness Murphy (CB)]

My Lords, I shall speak to Amendment 49 on this issue. I do not disagree with anything that has been said about the vital need for communication and to ensure that the patient understands what is happening and has access to specialist help. But I particularly want to comment on the proposal that speech and language therapists should become responsible clinicians.

The role of responsible clinician under the Mental Health Act is really quite onerous. Of the 50,000 or so clinicians who take on the role and are appointed the responsible clinician when somebody is detained, the vast majority are consultant doctors. Fewer than 100—0.002%—have been psychologists or nurses. The appetite for taking on this role is low and, of all the members of the team who could take it on, it would be appropriate only in a very small minority of cases for it to be speech and language therapists. I do not want to rule them out because I know how valuable these people are, but we must see that, in practice, this will probably not fly very far. It is important that we concentrate on how we get proper communications, but this particular amendment would probably not find favour. I do not think that profession is yet trained to the full extent of what would be required for that role. Although I hope that it will be one day, this Bill is maybe too early for it.

[Lord Patel (CB)]

My Lords, with the greatest respect to the noble Baroness, I did not suggest—and I did not hear any other noble Lord suggest—for a minute that language and speech therapists would become clinicians in their own respect. I said that they would be part of a team that would help to establish appropriate communication. As doctors, we are not the best people for that—so I do not see how the amendment cannot fly, when there is a need for such people.

[Baroness Murphy (CB)]

I entirely agree with the noble Lord. However, the reality is that the responsible clinician, as mentioned in Amendment 49 to Clause 10, has a wide range of roles. It is very onerous and specific, so this is not likely to be a good idea for a speech and language therapist. I agree with the rest of what everybody has said.

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest as an honorary fellow of the Royal College of Psychiatrists, but without any qualifications, unlike the noble Baroness, Lady Murphy. For the reasons that have already been given, I entirely agree with the whole group of amendments, which have been proposed so much better than I could do—so I do not propose to say any more.

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[Baroness Murphy (CB)]

Can I just add to what the noble Lord, Lord Kamall, just said? I have never before sat through a Committee where the Minister has been restricted in going beyond any advisory time. She should say what she darn well likes. She may have to respond to an awful lot of complicated spots in this; there is no reason at all why she should not carry on, in my view—and that of everyone else in the Committee, I think.

[Baroness Merron (Lab)]

I am extremely grateful to the noble Baroness for helping me out there.

I referred to my invitation to the royal college. Given this commitment to pursue these changes, that will be subject to agreement with the royal college. I hope that will be of assistance to noble Lords.

I turn now to Amendment 52 in the name of my noble friend Lady Whitaker, supported by the noble Lord, Lord Patel, and my noble friend Lord Bradley. It seeks to ensure that clinicians consider a patient’s communication needs and make reasonable adjustments as part of the new clinical checklist; this requires clinicians to consider a number of matters when deciding on a patient’s treatment, with the aim of making treatment more patient-centred.

We share the goals of this amendment. However, the checklist already requires the clinician to take steps to assist and encourage the patient to participate as fully as possible in the decision-making process. We consider assistance to include making reasonable adjustments to account for a patient’s communication needs, which is something that noble Lords have rightly raised as being of concern. We very much intend to make this clear in the code of practice, which will already provide specific guidance on the need to make reasonable adjustments under the Equality Act. For example, the clinician should provide information in an accessible form, perhaps by involving an interpreter, a signer or someone who can communicate via the person’s preferred communication method.

My noble friend Lady Whitaker has also tabled Amendment 60, supported by the noble Lord, Lord Patel, and my noble friend Lord Bradley. It seeks to ensure that the new statutory care and treatment plan introduced by the Bill covers

“information about a patient’s communication disability, difficulty, or difference”,

and how these might be identified and supported. The Bill makes it clear that a statutory care and treatment plan is a plan made in accordance with regulations, so we intend to set out in regulations that a patient’s plan must include, among other things, information that is important for the treating clinical team to be made aware of during the patient’s detention. This is to encourage the treating clinician, as noble Lords have spoken about, to consider the individual needs of patients—including communication needs—so that the appropriate reasonable adjustments can be made. A record of how their needs will be supported should be evident throughout their plan, which should, as far as possible, be developed in consultation with the patient and others, such as their family members.

Regarding the identification of any communication needs, as already set out in the Mental Health Act code of practice under the Equality Act, mental health professionals should already be identifying and making any reasonable adjustments to account for a person’s communication needs. Where applicable, a patient’s care (education) and treatment review may also identify and make recommendations about a patient’s communication needs. We intend to set out in regulations that these recommendations must be attached to the patient’s statutory care and treatment plan, so that they can inform planning and delivery of care. I hope that this will reassure noble Lords that the patient’s statutory care and treatment plan should cover any communication needs and how they will be met, but in reflecting on this debate I will ensure that the actions we are proposing take account of this.

Amendments 112 and 114, tabled by my noble friend Lady Whitaker, would require managers of hospitals or registered establishments to provide information in an accessible format when discharging duties under Clauses 39 and 41 to give information on complaints to detained and conditionally discharged patients. I agree that it is important that all patients can access information about their detention, including the complaints process, and in a format that is accessible to them. However, the clauses are already drafted with the overriding obligation that the patient is helped in whatever manner is practical to understand the information being given to them. Therefore, it is unnecessary to add the words in the amendment proposed by my noble friend. Additionally, hospital managers have an existing duty under the Equality Act to make reasonable adjustments based on disability, which is the legal basis for ensuring that information for patients is accessible.

I reiterate that I understand that communication needs will not always be related to the letter of the Equality Act. There is already guidance in the mental health code of practice on how a patient’s communication needs should be considered when providing information on complaints. When we come to revise the code, we will engage with stakeholders to explore whether further guidance on the complaints process, including how information on complaints should be provided, is required.

Amendment 118 in the name of my noble friend, supported by my noble friend Lord Bradley and the noble Lords, Lord Patel and Lord Bourne, seeks to ensure that the advance choice document template is available in a format that the service user can understand. We strongly agree with the principles of this amendment and are committed to mitigating any barriers that people may face to creating an advance choice document or making their wishes and feelings known in advance. Where a person wishes to make an advance choice document, our intention is that they are given a standard template to complete, alongside supporting guidance and, where the individual wishes to receive it, the support of mental health practitioners. The template should prompt the individual to think about the sort of things they may wish to consider and decide in advance of becoming unwell. We will work to develop these resources.

We also plan to set out in guidance to health commissioners that these resources and the support provided by mental health practitioners must be delivered in a way that is accessible to individuals and that responds to their needs. That will be in line with the Equality Act and the public sector equality duty. Of course, if a person wishes to create a record of their wishes and feelings in another format that is easier, they absolutely may do so. We have purposefully made it that individuals do not need to complete a prescribed form in order for their advance wishes and feelings to be considered at a later stage. I agree with the need and hope that this will provide maximum accessibility and increase patient voice and autonomy.

Finally, Amendments 119 and 126, tabled by my noble friend Lady Whitaker and supported by my noble friend Lord Bradley and the noble Lord, Lord Patel, seek to ensure that the support provided to people to create an advance choice document is responsive to the needs of people with a

“communication disability, difficulty or difference”.

I agree that is important. To achieve this, it is important that support and information around advance choice documents respond to people’s needs individually, so that no one is unfairly disadvantaged. That includes communication needs.

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[Baroness Berridge (Con)]

I pay tribute to the work that the noble Baroness, Lady Browning, has done in relation to this matter. This is a matter that we considered in great detail in the Joint Committee. I am grateful that that gives us the opportunity to discuss in the round the legal basis on which people are detained. The independent review did not recommend what is currently in the Bill, which is the removal of learning disabilities and autism from the Act. The Joint Committee’s report quotes it saying,

“the risk of completely removing learning disabilities and autism from the Act is too high”.

The noble Baroness, Lady Browning, outlined one of the reasons for that, which is that if you remove the legal basis for detention under the Mental Health Act, then the bucket that these individuals and patients would fall into without Amendment 5 would be the Mental Capacity Act.

In the consideration by the Joint Committee, there is the other danger that—when there is no co-occurring mental health condition—you end up with people coming through the criminal justice system, instead of being detained under the Mental Health Act. That is the worst of all the evils we could be discussing here today and would be completely inappropriate.

I would be grateful if the Minister will ensure two things when we know that these are dangers: first, an increase in diagnoses of co-occurring mental health conditions to use the Mental Health Act; and, secondly, an increase in the use of the Part III criminal justice provisions. It is important that we know the exact statistics for the group with learning disabilities and autism before implementation of the Act. Then we would know whether the Act has caused an increase in diagnoses of co-occurring mental health disorders and an increase in the use of the criminal justice system.

I believe that currently 39% of people detained with learning disabilities and autism are detained under Part III of the Act. I see the noble Baroness, Lady Browning, nodding. It is important that we remember that New Zealand tried this, removing learning disabilities and autism from its mental health legislation. I cannot remember whether it had the co-occurring mental health diagnosis provision, but, only a few years later, it had to amend the law, as it had caused an increased number of learning disabilities and autism patients to come in through the criminal justice system.

What would be the position if the Bill were amended in accordance with Amendment 5? The evidence that we received in Joint Committee was that there would be no patients—that community facilities would be at a level where they could not think of anybody who would need to be detained. I wish the world were thus, but the ideal world portrayed in that way does not exist. Even with the community facilities that we all wish to exist, it seems clear to me that there would be circumstances in which there would still be a need to detain.

I recognise that, in reality, we may see that increase in diagnoses of co-occurring disorders. Physicians may reach for that to protect someone—to detain them to get them treatment. However, it was made clear to us that 28 days is a relatively short time. You can be detained for assessment, but it can take many days to get the level of distress down—I do not want or like to use the word “meltdown”—to assess the mental health of the person and whether there is a co-occurring disorder.

The Joint Committee came up with a special exceptional tribunal that would still allow the Mental Health Act to be used in that small number of cases—once community facilities are as we would like them to be—to continue detention. Why? For the reasons outlined by the noble Baroness, Lady Browning: the protections under the Mental Health Act are much greater. You have the nominated person, you can go to the Mental Health Act tribunal, and—ker-ching—you get Section 117 aftercare, which, of course, is not available under the Mental Capacity Act.

If Amendment 5 were accepted, we would have no Mental Health Act, no co-occurring diagnoses, no criminal justice system—I hope—and no Mental Capacity Act to refer to. If a clinician is in that circumstance where someone is so distressed and they do not have that diagnosis in the 28 days, where is the law? We are not talking about the practicalities here. Where is the law?

In any event, the Mental Capacity Act does not apply to under-16s. So the risk would be an increased use of what we now know as High Court DoLS. These are not DoLS under the Mental Capacity Act. They are DoLS under the inherent jurisdiction of the High Court. They are a most unsatisfactory way of restraining the liberty of under-16s.

Only two or three weeks ago, the Children’s Commissioner issued a report outlining the problem, and outlining that, already, some children with learning disabilities and autism are under a High Court DoLS. It is a matter that your Lordships’ House needs to consider. Nearly a thousand children are detained under a High Court DoLS.

Obviously, the Mental Capacity Act would have applied to 16 and 17 year-olds and adults so where does that leave those vulnerable adults? Where is there a power to detain them? The Mental Health Act and the Mental Capacity Act will both have gone. If clinicians are in that circumstance where there is no co-occurring mental health disorder, there is a vacuum which may end up being filled by the inherent jurisdiction of the High Court using vulnerable adults. We will have created another little bucket of people. I accept the criticism made by the noble Baroness, Lady Browning, about DoLS under the Mental Capacity Act. They are supposed to be replaced by protection of liberty safeguards, but those are not in force yet.

If we accept Amendment 5, are we going to create more work for the High Court with clinicians in that situation because the law will not have provided any means for them to detain? I recognise and repeat that the practicality will probably be a co-occurring mental health disorder but, as far as I understand it, that is where the law will be left if Amendment 5 is accepted.

Although the Mental Capacity Act is far from ideal, I hope the Minister can help us understand what the situation would be if we were to accept the amendment. As I say, for the under-16s it would be more cases under High Court DoLS, as far I understand it.

[Baroness Murphy (CB)]

My Lords, I have an amendment in this group but I want to speak particularly to the amendment from the noble Baroness, Lady Bennett, and to thank the noble Baroness, Lady Berridge, for her good sense. I agree with every word she has said.

I had earlier tabled amendments to Clause 3 and Schedule 1 to give effect to opposing any change in the definition of mental disorder for the meaning of the Act in the same way as Sir Simon Wessely’s committee recommended and I withdrew them in favour of a compromise amendment because I was not sure, to be honest, that I would get here at all today. I have. I am not quite sure how many more I will be able to get to but for the moment I am here so I will speak to this one.

I want to make it clear right from the start that if we had changed our legislation to be a hybrid Bill that was a fusion of a mental capacity and a mental health Bill we would not be in this pickle because we would have capacity-based legislation and therefore we could have proceeded without any of these silly criteria for what is this diagnosis and what is another. As the legislation is at the moment, I believe the move to remove autism and learning disabilities from what is a mental disorder is frankly bizarre, akin to having Parliament establish that for the purposes of legislation, the earth is flat and the sun goes round the earth. Galileo had the same problem. I want to ensure that Hansard will record that not everyone is in agreement with the notion that autism and learning disabilities are somehow separate and different from other mental disorders.

Neurodiversity, which, of course, exists, is the term used to describe statistical outliers from the norm and, of course, as for many other mental states, there can be many positive and interesting aspects of alternative ways of thinking about and responding emotionally to the world that enrich society. I understand that many people with autism and learning disabilities do just that and that is where neurodiversity has been so supported by people who want to ensure that they are recognised as individuals and citizens just as the rest of us are. But that does not change the fundamentals.

I know noble Lords know that I was a professor of psychiatry for many years at the University of London but I ought to mention at this point that I also have a special interest in mental health legislation because I was for six years vice-chair of the Mental Health Act Commission. I co-authored this now much revered code of practice for the 1983 Act. It is actually my only bestseller—if only it did not say Secretary of State on it—and I know first-hand how the Acts and codes are used. That is why I do not get involved in the principles of where this should be. The code does have statutory effect, by the way—I am sorry that the noble and learned Baroness, Lady Butler-Sloss, has left, because I can reassure her it does have statutory force. I was also UK advisor to the WHO on mental health and older people and was exposed to the developments in mental health legislation in other jurisdictions, not only in the UK, with the Scottish and Northern Ireland Acts as they were being developed, but in the Republic of Ireland when it introduced its new Act, and abroad in English-speaking legislatures.

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[Baroness Browning (Con)]

The noble Baroness asked me a question. Was it rhetorical? I wonder whether she could accept that autism is different. From the time that Kanner first identified autism, which is what a lot of psychiatric bases are based on—we then had Asperger and others, and the very good, more recent documentation from Lorna Wing, with whom I am sure she is familiar—autism has been different. If people doubt that, it is important to note that, apart from the Mental Health Act, the only other condition, however you label it, to have its own Act of Parliament is autism. In the Autism Act 2009, this Parliament unanimously agreed—in both Houses—that autism is different and deserved its own Act of Parliament.

[Baroness Murphy (CB)]

I would say that all mental disorders are different but that they cannot all have their own Acts of Parliament. I do not accept that autism is different. Of course, it is different in the way that it manifests—

[Lord Stevens of Birmingham (CB)]

I will make a slightly cheeky intervention, if I may, on the noble Baroness. I am not weighing into the debate that is taking place but simply make this point. Does she accept that the fact that a condition is listed in the DSM or the ICD is not itself definitive? Until 1973, homosexuality was listed as a psychiatric condition in the DSM and until 1990 it was, I believe, included as a psychiatric diagnosis in the ICD. Therefore, that is not the strongest evidential basis for her claims.

[Baroness Murphy (CB)]

I agree with the noble Lord, but the reality is that we use DSM-3 and ICD-11 in the international classification of disorders. If we in Britain are to go outside that, for reasons of our own, then we had better have some pretty good ideas why that should be. I am not so sure that we have them.

The Wessely review rejected the notion because, as the noble Baroness, Lady Berridge, said, it carried serious risks that individuals would be extruded and neglected, the opposite of what is intended. Similar anxieties were expressed in the development and creation of other Acts—I am sorry that I am going to go on longer than the advisory—so as not to exclude anybody from this group, because we want mental disorder to be an inclusive thing and not to exclude whole groups of people. Their protections are gone if we exclude them.

I accept that almost all the developments for autism and learning disabilities in the Bill are very positive. They will really improve the way that people think about autism and will have an extremely beneficial effect on trying to develop services and improve training, but there is no evidence that changing the criteria under the Act will do anything to improve it. Getting money into services and service design is what we need and not a change in the legislation for criteria. As the Royal College of Psychiatrists’ group of specialists in learning disabilities have pointed out, the vast majority of them do not want this change in legislation. We should think very carefully before we submit people to something when we do not know what will be unleashed as a result.

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I accept that there is a gap, but I do not believe it is best filled by detaining people or assuming that detention is the first step. I look forward to the Minister exploring with the Committee exactly what the Government’s intention will be if this provision in the Bill is enacted and what provision will be put in place to ensure that there is not a backdoor and that people with learning disabilities and autism who are clearly at the end of the 28 days would have appropriate provision for their needs to be met. It is absolutely vital to understand this in Committee to determine exactly how we go forward without detention being the automatic assumption of what is required when this gap needs to be filled.

[Baroness Murphy (CB)]

What does the noble Lord think will happen to the people in the gap?

[Lord Scriven (LD)]

As I said, the noble Baroness, Lady Bennett, pointed out what happens internationally, in Trieste in Italy, for example, and I therefore suggest that good international comparisons and practice could be enacted in legislation to ensure that the needs of as many people as possible are met in the community, rather than them being held in detention because the provision is not there. That is exactly what will happen unless this gap is dealt with by looking at what is required rather than looking at the gap and continuing detention.

[Lord Hardie (CB)]

My Lords, I apologise that I did not speak at Second Reading, but I have been listening to this interesting debate and it seems to me that Clause 5 is introducing the concept of detention in extreme cases, where there is a risk of serious harm to the health or safety of the patient or another person unless the patient is detained. That is the reason for the detention: to protect the patient from serious harm to himself or herself, or to protect others from serious harm.

As I read the amendment from the noble Baroness, Lady Browning, it simply seeks to suggest, or to put on the statute book, that someone suffering from autism or a learning disability would not satisfy the test in Clause 5. But the amendment permits the admission to hospital of someone with a learning disability for the purpose of assessing whether he or she has a mental disorder. I am not sure that this amendment by the noble Baroness, Lady Browning, would result in people slipping through the net.

[Baroness Murphy (CB)]

I wrote the amendment in a terrible hurry as a compromise amendment when I could not table the amendment that I really wished to table, which was seeking to get back to having clarity about the diagnostic criteria. I apologise if that was not the provision that the noble Lord wanted in the Bill—I am not sure that I want it very much either. I do not have any great devotion to the proposed new clause; it was just a way of trying to address this leaving of the gap. We used to do that, by the way. After the 1983 Act, noble Lords will remember that we dropped alcohol addictions and drug misuse from the Act, saying that we could not detain people for those reasons alone. What happened was that there was total neglect for the next 20 years until voluntary organisations and local authorities got moving and said, “This won’t do—we must do something”.

Noble Lords should remember that that is what happens. If you leave somebody out of protective legislation, they will not be included; they will be neglected and they will end up in prison. That is what Sir Simon Wessely thought and it is what the noble Baroness, Lady Berridge, has been talking about. I can guarantee that nobody will be interested in autistic meltdowns if there is no way in which to intervene to save a family from having that person with them, seven days a week and 24 hours a day, during the period of this terrible disturbance.

Community services are great. I urge noble Lords to visit Trieste, as it has brilliant services in a tiny area; it is one of the very few in Italy, and it continues to work very well. It is cited all over the world, and that is very good. But this is Britain, with 80 million people and massively underfunded services, and it ain’t going to happen. I want to know what will happen to those people noble Lords would like to see neglected until such time as the Government produce some alternative provision.

[Lord Scriven (LD)]

I do not think that I or anybody else who has a different opinion from the noble Baroness wants to see those people being neglected. We have a different view. The issue I have with her stance is that the evidence is that putting people with learning disabilities and autism in a psychiatric hospital—and that is where they will go if there is no provision, because that is where they go at present—is damaging. It is not the correct provision. I believe that what she is arguing for—to continue the neglect of provision by putting them somewhere—is significantly not in their best interests and causes damage.

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[Baroness Barker (LD)]

I have not spoken in this debate so far, but I have listened intently to everything that everybody has said, including the noble Baroness, Lady Murphy. Members of the Select Committee will remember—they could not forget—the evidence given to us by particular witnesses who have autism and have been through the trauma of being detained. They made to us, unforgettably, the point that there are some people with autism and learning disabilities for whom detention is an aggravating factor.

I happen not to agree completely with the noble Baroness, Lady Bennett, that there should be an end to all detention, although I have some sympathy with her arguments. I believe there are people for whom detention is necessary—both for them and for the safety of others—but they should be held in mental health facilities and not the criminal justice system.

I listened intently to the noble Baroness, Lady Murphy. I understand that it may be absolutely correct to define people with autism and learning disabilities as having a disorder, but we have moved on over 20 or 30 years to understanding that their manifestations and treatment are different from those of other mental health conditions. There is therefore a problem in having the diagnosis and treatment carried out by the same people. I hoped that she would explain, but she did not, why keeping people within the definition would improve their care.

[Baroness Murphy (CB)]

Does the noble Baroness accept that, in talking about treatment, we are talking about care, education and training in social circumstances? Treatment is not about medication, which may be totally inappropriate, but about looking at the individual’s developmental needs as a whole, which include a whole raft of things. I agree that it is not just about psychiatrists or psychologists; it can be about teachers, people with a special understanding of speech and language, and so on. I would never deny that you have to encompass the whole thing—I would promote it.

[Baroness Barker (LD)]

I am sure that the noble Baroness would. Does she accept that for some people, particularly those with autism and learning disabilities, being held in conditions that are noisy, filled with light and full of people they do not know—in which they are made to feel completely powerless and do not know what will happen to them next—will be a contributory factor to their illness? I make that point to the noble Baroness, Lady Merron. She talks about choice, but what increased protections are there in this Bill for people with autism or learning disabilities who find themselves in detention, which is an aggravating factor causing them to be wrongly diagnosed?

Mental Health Bill [HL]

Baroness Murphy Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Baroness Murphy (CB)]

My Lords, this is a long-overdue Bill, as many have said, and I hope it will progress through the House as quickly as possible. Quite why it has taken six years for Sir Simon Wessely’s report to be acted on, I am not sure, but I am particularly pleased that we have got advance directives in, even if in a slightly watered-down form.

However, there are some rather troubling changes that have been squeezed in recently for reasons that are difficult to understand, and I shall want to explore those in Committee. There are differences between the criteria for Parts 2 and 3 of the Bill, for example, which is bizarre, and I am scared that the changes in relation to learning difficulties and autism, in spite of all the good intentions, will be extremely difficult to implement. Throughout the Bill, there is an assumption that if you change the legislation, it happens, but we know very well that it does not—it takes years to implement—so I am concerned about that overall. Having said that, I will remain on the theme that the noble Baroness, Lady Barker, picked up. We will leave the rest until Committee, where we are going to have very detailed debates.

It is now 20 years since I came into this House with the certainty of the optimistic new girl that we would see a new mental health Bill that addressed the deeply flawed legislation that we had been living with since 1959, but I am pretty sure now that I shall leave the House having seen no fundamental change. I am ashamed that in England and Wales we are falling so far behind many other countries, when we used to be in the advance in devising mental health law that was fit for purpose. Scotland is 20 years ahead, as is Northern Ireland.

I was told back in 2017 by Simon Wessely and others that it would take 10 years to develop a unified mental health and capacity Bill. If we had started then, we would be almost there by now. We tinkered with the 1959 Act in order to produce the1983 Act. We added a new Mental Capacity Act in 2005 that cut across mental health legislation. Then we added the ludicrously undeliverable deprivation of liberty safeguards and added tiers of bureaucracy to an already overburdened system, all reducing the time for clinical and social care professionals to spend with patients as they had to spend more time filling in forms. The new Bill makes no attempt to address the complicated relationship between the 1983 and 2005 Acts or how they are meant to be used for individuals, and this is particularly difficult for patients with learning disability and mental disorders and also older people with dementia where people are tossing up which Bill is going to be used. It is clinically ridiculous.

I would have liked to see a Bill that addressed all mental health and capacity issues, putting capacity for decision-making at its heart, consistent with the United Nations Convention on the Rights of Persons with Disabilities, which we currently contravene and have done since its implementation by the UN in 2008. The human rights implications of the current Bill are profound. It does not address the fundamental rights of thousands of mentally ill people, primarily because of the absence of having decision-making capacity at its heart. We accept that patients with physical disorders can make decisions that may be seriously detrimental to their health or safety. In contrast to this, in mental health law capacity plays little or no role in decisions to initiate psychiatric treatment against a patient’s wishes. The criteria for the involuntary treatment of mental disorders fails to respect the autonomy of the patients. The key considerations are the presence of a mental disorder and risks to the patient’s health or safety. For persons with physical disorders, their personal values are given dominion. Those with mental disorders are not accorded this privilege in this Bill, even though we make such a meal of it in the Mental Capacity Act 2005. There is an underlying assumption that mental disorder necessarily entails an inability to make sound or rational judgments, but even among the most ill patients—those admitted to acute psychiatric wards—40% to 60% retain capacity.

People with mental disorders are unusual in being liable to detention, usually in hospital, because they are assessed as presenting a risk of harm to others before they have actually committed an offence. This constitutes a form of preventive detention that is selective. We spent some time in this Chamber a couple of weeks ago debating indeterminate sentences for people in prison thought to pose a continuing risk in the community. There was widespread agreement here that it was an iniquitous thing. And yet mental health law allows the detention of those with mental disorder on the basis of risk alone. How can that be justified? There is no evidence that risk is easier to assess in those with mental disorder or that violence is more predictable in this group, and it is an expression of the prejudicial stereotype that people with mental disorder are intrinsically dangerous, contrary to research evidence.

This does not mean that people’s dangerousness is unimportant. If it is reliably linked to an individual’s mental disorder, then, if the person lacks capacity, involuntary treatment may be justified, but if the patient has capacity, protection of the public becomes the sole interest. I do not deny there are problems with a capacity-based regime. Many people think you have to fudge the decision, but I would say it was because they do not understand the fundamental ways to assess capacity and the full influences on it.

One of the aims of this Bill is to reduce sections. The number of new sections, as we know, has rocketed again. Last year, there were over 52,000 sections, a further 5,000 or so placed on a community treatment order, and 140,00 people on mental capacity deprivation of liberty safeguards. If the aim of the new Act is to reduce detentions, I cannot see how. The discharge rate from tribunals has reduced from 25% in the mid-1980s to about 6% today. How is it going to happen exactly under this legislation?

I do not see how the overrepresentation of black people in the detained population is to be addressed by this Bill. We need a completely different new way of assessing people and allowing people to get access to services that are sensitive to their needs, providing something that they want to access. I cannot think that there is anything new in this Bill which reflects new thinking that is going on about how you encourage people to access services when they first begin to feel ill.

The Bill has nothing to say about restraint and seclusion. It does not address the hundreds of people in the prison system and their non-consensual treatment except to speed up those that are suitable for transfer. The majority of the mentally unwell will never even be considered for transfer, but they have terrible problems which impact on the prison system tremendously.

Finally, it is now 14 years since the Mental Health Act Commission was abolished and replaced first with the mental health commissioner and now by the totally inadequate low-profile CQC, which has no legally qualified members and no mental health representation at executive board level. Whereas the former chair and vice-chair of the commission had direct access to the Secretary of State for Health, as I am sure the noble Baroness, Lady Bottomley, will remember—she got tired of seeing us, I should think—mental health does not now appear to have the same direct influence. Perhaps it is not surprising that mental health appears only on the government agenda when there is some crisis that has been brewing for years or, as now, after meandering for years through our scrutiny and committee systems.

I have had my say. I am not going to raise this issue again. I felt I had to say it once. I will throw myself into Committee with enthusiasm and hope we can get this Bill through, but I do hope that one day we will get the mental health and capacity legislation that we really need.