Mental Health Bill [HL]

Debate between Baroness Murphy and Baroness Tyler of Enfield

Committee stage
Monday 20th January 2025 Lords Chamber

[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.

--- Later in debate ---

[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.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Murphy and Baroness Tyler of Enfield

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I shall speak to Commons Amendment 1C, which was agreed in lieu of Amendment 1B, which I moved in this House before the Recess. I start by thanking the Minister and the Bill team for the discussions it was possible to have in the latter stages of the Bill, which helped get us to a position that we now feel, particularly in relation to the definition, is pragmatic and one that we can live with.

First, I welcome the Government’s decision to drop what has been termed the “exclusionary definition” proposed earlier. It had a whole raft of problems but I have no intention of going into them again now. It is important to acknowledge that the Government took on board the views expressed by Peers and others in the wider sector on that definition. The outcome of those discussions—that there should be no statutory definition in the Bill—is a sensible and pragmatic compromise after a rather long and tortuous journey. Those of us involved in putting forward different definitions had all received legal advice, which said that our definitions were fully compliant with Article 5 and so on. However, we were never going to resolve that; they just came from different lawyers with different opinions. We had to find a way forward and we did. The fact that we will now be using the code of practice to set out—clearly, I hope—where deprivation of liberty is and is not occurring and that it can reflect existing and evolving case law is important.

I took the opportunity to listen to the debate on the Commons amendments in the other place on 2 April and found it very illuminating. I was particularly pleased to hear the Minister for Health and Social Care, Caroline Dinenage, say:

“We will set out the meaning of a deprivation of liberty in a positive”—


I emphasise “positive”—

“framing and in a way that is clearer for people and practitioners”.

That was the very nub of my concerns when I put forward my definition: it was not clear; it was all framed in a negative way; and it was very difficult for the families affected and, indeed, for some practitioners to understand. This is a real step forward.

We are now to have a code of practice and a definition set out there. I was also pleased to hear the Minister say, when asked about the timescale for producing the code of practice, that it,

“is being worked on as we speak … Once we are all content that the code of practice is robust and fully covers everything that we want it to it will then be presented to both Houses of Parliament”.—[Official Report, Commons, 2/4/19; cols. 964-5.]

That is very positive. However, can the Minister update us on the timing for the code of practice? When will this House see the guidance? It is absolutely critical that what it says in the guidance—what we have been talking about—does not mean that we have kicked the can down the road in terms of some of the problems associated with the definition. When I see what is in the code of the practice and the guidance contained in it, my acid test will still be whether it is easy for the lay person—I include myself as a lay person here—to understand, not full of double negatives or pages and pages of rather confusing case studies. I would be grateful if the Minister could update us on the timing of that.

Secondly, I was extremely pleased to hear that the definition will be considered and reviewed regularly—and kept up to date, as I have said, with evolving case law—and that there will be a report of that review laid before Parliament within three years of the measures coming into force. That will be another opportunity for this House to scrutinise how it is working in practice. I am very grateful to the Government for listening to my representations on the need for a review and for a report to come before both Houses.

Could the Minister give some commitment that, when the review is published—and this House has had a commitment to look at that review—the code of practice will be regularly updated? A review is important; our having an opportunity to scrutinise it is important; but most important of all is that the code of practice be regularly updated. I contend that some of the problems this whole Bill is designed to address, such as the backlog of deprivation of liberties cases, were in part caused by the fact that the code of practice was not amended as circumstances changed and as more and more cases such as Cheshire West were brought into the scope of the Bill.

I would very much welcome assurances from the Minister on those two points, and thank her for being as helpful as she has been. I thank colleagues on all Benches, because I feel that we have worked very collegiately and co-operatively. I hope and feel that that has helped improve the Bill.

[Baroness Murphy (CB)]

My Lords, I do not really share the enthusiasm or optimism of the noble Baroness, Lady Tyler, although I often shared her views on what needed to be done at earlier stages. We are all rather tired of this Bill and I see nothing to be gained from hindering its passage, but I cannot let it pass without expressing my profound misgivings. We—the Members of this House—have failed to do what we were supposed to do. Our task was to make the deprivation of liberty safeguards—now the “liberty protection safeguards”—more practical, more focused on those at risk, more cost-effective and safer, and we have allowed the Bill to disintegrate into a sprawling, all-encompassing bit of a nightmare. The procedures may be simpler—we have cut out one layer of bureaucracy—but we have allowed these provisions to be extended even further than Cheshire West, even pursuing people in their own homes in a way which I do not think many families will appreciate.

The one thing everyone, including the JCHR, was hoping we would do was to introduce a realistic definition of a deprivation of liberty. In the end, we in this House just copped out. We could not agree; we got into a mess; the lawyers could not agree either; so we have just said, “No, let us put it all in a code of practice”. As many noble Lords will know, I wrote some of the early codes of practice for the Mental Health Acts, and I know that codes of practice suffer from mission creep—they get more and more stuff in which is quite difficult for people outside in practice who will implement it, and do not get updated very regularly because it is difficult to do so. Indeed, if there is no clause in statute, which most codes are fixed around—and there will not be, of course, as is intended—it will have to be arranged around Article 5. That will leave a situation in which the lawyers will have a field day, and in which we will still be waiting for case law to give us some guidance.

Meanwhile, the numbers are going up. My latest count was 140,000—I think the official number a couple of months ago was 125,000. There will be a lot more soon. About a third—it may be even more than that—will be waiting for over a year, and 75% of them are elderly people with dementia, who will probably die before they get their rights looked at. Will it make any difference to them? Generally, it will not make one whit of difference. If we had done our job properly, the numbers would have gone down, and there is a chance that those at greatest risk—for example, people with severe dementia who are kept in locked units, who never see the light of day, and people with severe disabilities in residential care—would have been seen sooner and would have had their care plans addressed in respect of their freedoms.

Meanwhile, these last three years have seen an industry grow up around the implementation of DoLS. It is now called DoLS by everybody out there—I am not sure that most people know what that means. A costly public service has developed which has a life of its own, and which, as we have seen, takes money directly out of care budgets. When Staffordshire quite sensibly tried to call a halt and said, “Hang on a minute, let’s go for the worst cases: those most at risk, those with the most profound disabilities or where there is a disagreement”, somebody complained, and they were told in no uncertain terms by the Local Government Ombudsman to get on with it and to get back to doing everybody. So the waiting list grew yet again. Of course, many other county councils and metropolitan councils were making similar decisions, but they have all had to go back to compiling the waiting list, which grows and grows.

The other people who will love the Bill are the lawyers. Just imagine how you will be able to debate the nuances of Article 5 meanings when the code of practice fails to live up to expectations.

This Bill should be a lesson to us all. It is legislation which arose from a Supreme Court judgment—an impeccable theoretical case, made without any thought to the practicalities that would affect 2 million people. The Law Commission was as tied up in knots as everyone else and could not see a way through. My goodness, it worked long and hard on it in an admirable way, but it could not get beyond the problems of having to satisfy Cheshire West and the Supreme Court’s judgment. This House’s inability to grasp the Bill will not provide any more than a hit-and-run assessment of one patient’s disabilities and whether they are deprived of their liberty. It will not provide any more care for people, and it will be a bit of a disaster.

I have been as guilty as everyone here because I was not here for Report, when perhaps I should have been here to say this more clearly—I am sure that my colleagues quite often feel cross with me when I am not here, and I apologise for that. However, I am not blaming the Ministers either, who have, unfortunately, changed during the passage of the Bill, which has taken a lot longer than it should have done. They have struggled as best they can with a complex, technical Bill; nor am I blaming the team at the Department of Health, because Sharon Egan and her team have been squashed between the lawyers, the DoLS industry, the obvious need to make things viable and less depleting of care budgets, and the impossibility of satisfying everyone.

The only flexibility left—because we will pass the Bill—is that before the Bill is commenced, the Government should pause and do a few more sums; otherwise, we shall be back here in another three years, looking at how we can make this legislation more viable. Many more millions of hours of care staff time will have been wasted in failing to improve the care of mentally incapacitated people. Their rights need protecting, but this Bill will not do it.