Mental Health Bill [HL]

Baroness Tyler of Enfield Excerpts

Tuesday 14th January 2025 Lords Chamber

Moved by

[Baroness Tyler of Enfield]

1: Clause 1, page 1, line 11, at end insert—

“Equity

addressing inequalities in treatment, particularly racial inequalities, outcomes, and related provisions regarding protected characteristics”

Member’s explanatory statement
The purpose of this amendment is to include a fifth guiding principle to ensure that there is equity in treatment and outcomes addressing inequalities related to protected characteristics, particularly racial inequalities, in the operation of the Code of Practice and the Mental Health Act 1983 more generally.

[Baroness Tyler of Enfield (LD)]

My Lords, in moving Amendment 1 standing in my name, I will also speak to Amendment 3 in my name. There are other important amendments in the name of the noble Baroness, Lady Whitaker, in this group.

Before I turn to my two amendments, I would like to make one general point. On these Benches we very much welcome this long-overdue Bill and will work with others to strengthen it further. The 1983 Act, which we are amending, is more than 40 years old and no longer reflects current understanding, attitudes or best practice in relation to severe mental illness or learning disability and autism. We need to ensure that the final law is truly fit to serve people’s needs for years to come, and our proposed amendments reflect a comprehensive effort to strengthen mental health services by promoting equity, tackling racial disparity, supporting the well-being of children and young people and ensuring that adequate resources are in place to deliver the Bill’s provisions.

A brief look back at the history shows that significant changes to mental health legislation happen on average every 15 to 20 years. That is understandable because it takes time for legislative reforms to take shape and be implemented. This Bill is likely to be the legislation that impacts on the health and well-being of people with mental health conditions for the next two decades. During our debate, we will be raising issues. It may not be possible to deal with them all in the legislation but they are important to mental health services overall, so I hope the Government will view them as part of a wider package of reform, be they issues around resources in the community or the interface between this Bill and the Mental Capacity Act. It is all part of our wider scrutiny, and I hope that the Government welcome that.

Amendment 1 would add a fifth principle to the existing four set out, which of course I fully support, and provide additional momentum towards the goal of addressing the racial disparities in the Mental Health Act. I believe that making equity one of the guiding principles, as in my amendment, would give it far greater clarity, weight and focus. If we look back at the underlying rationale for this legislation, addressing inequalities, particularly racial inequalities, is one of the key issues identified in Sir Simon Wessely’s review of the Act and is one of the key drivers behind this Bill. However, concerns remain in the sector and beyond that the Bill as drafted does not go far enough to address this deeply entrenched inequity. Adding such a principle would also reflect existing duties under the Equality Act and the requirements of the patient and carer race equality framework, a point made by many noble Lords at Second Reading. This would go some way to recognising one of the key drivers behind reforming the Act: to address racial disparities.

I will give a quick reminder of the key facts. Black people are more than four times as likely to be detained under the Act than white people. Black people are over seven times more likely to be placed on a community treatment order, a CTO. On average, people from racialised communities have a worse experience of care and worse outcomes, and black and black British people are more likely to be detained for longer and to experience repeated admission. They are also more likely to be subject to police powers under the Act and to experience higher levels of restraint than white people. These are gaping disparities in the use of the current Act, and we must ensure that the Bill does something about them.

My Amendment 3 is intended to probe whether the principles in subsection (2B) will be statutorily binding. Given that the code can only reflect law and act as guidance, placing the guiding principles in the code leaves a loophole in which they can be deviated from. That is the purpose of this amendment. The Bill provides an updating of the principles to be contained in the statutory code of practice, and that is welcome, but it does not include the statutory principles appearing in the legislation in the way that principles appear in Section 1 of the Mental Capacity Act 2005. I am not clear about the reason for this distinction between the two pieces of legislation, hence this probing amendment. I would welcome an explanation from the Minister of the thinking behind this distinction.

I am aware of strong views held by those working in the sector that it is hard to understand how the principles will be binding unless they are included in the Bill itself. Many feel that this would have much greater force than simply being referenced as “things the Secretary of State must consider” when writing the code. There is also case law. Back in 2005, R (Munjaz) v Ashworth Hospital Authority made it explicitly clear that the Mental Health Act code is guidance rather than instruction.

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With that final comment, and for the reasons I have outlined in my response, I am grateful to noble Lords for their consideration of these amendments and for tabling them. I hope they will feel able not to press them.

[Baroness Tyler of Enfield (LD)]

I thank the noble Baroness for her extremely comprehensive but very helpful response to all the amendments, and I am happy to withdraw.

Amendment 1 withdrawn.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall speak very briefly, having attached my name to Amendments 19 and 20. I support all of the previous amendments, which are in essence about people knowing about care and treatment review plans. I particularly wanted to sign these two amendments because of the clause identified by the noble Lord, Lord Scriven, and the noble Baroness, Lady Hollins. It states that integrated care boards and local authorities “must have regard to” the plan—as the noble Lord outlined, that is a very weak, weaselly form of words—rather than having a duty to deliver the plan that has been established for the well-being and health of a person. The phrase in the Bill now really is not adequate.

I want to share something with noble Lords. On Friday night, I was in Chorley, in Greater Manchester, at a meeting with the local Green Party and NHS campaigners. One of the things I heard there was a huge amount of distrust and concern about integrated care boards and the restructuring arrangements that have happened with the NHS. I am not going to get into those issues now but, with the words “must have regard to”, we are leaving an open door and a door to distrust. Surely the right thing is for this Bill to say that the ICB has a duty to deliver a care plan.

On Amendment 20, we will undoubtedly talk endlessly about resources, but that there must be a compelling reason is the right terminology to have in the Bill; it really has to be justified. I believe that both of these amendments should be in the Bill.

[Baroness Tyler of Enfield (LD)]

My Lords, I will speak to Amendment 13 in my name in this group, but wish to add my support to the amendments that have already been talked about: those in the names of my noble friends Lady Barker and Lord Scriven, and the very important amendment in the name of the noble and learned Baroness, Lady Butler-Sloss. I have experience in my wider family of someone with autism, so I know full well the importance of having the parents and the wider family involved in review meetings. Frankly, it would be very difficult indeed if they were not there for those review meetings to express the wishes and preferences of the individual concerned.

I guess that that is quite a helpful link to my amendment, which is about communication needs. I know that we explored this issue pretty thoroughly in our debate on the first group—you could argue that my amendment could have been in either the first grouping or this grouping, but it is in this grouping. I will keep it short, because we have talked about this quite a lot. In essence, the amendment is designed to ensure that communication needs being met is included on the list of the subject matter that must be considered and on which recommendations must be made during the care (education) and treatment review meetings.

It is clearly vital, as we have all acknowledged, that every effort is made to ensure that autistic people and people with learning disabilities are involved in their own care and treatment decisions and are able—this is the critical point—to express their preferences and needs. To ensure that this is the case, their communication needs must be understood, considered and met; the noble Lord, Lord Kamall, made that point powerfully in our debate on the first group. Often, this needs to include understanding a person’s communications preferences; having the right sort of environment; making sure that the environment is supportive; or, sometimes, using very specific communication tools, which do exist. This can also include—this refers to the amendments from the noble and learned Baroness, Lady Butler-Sloss—the involvement of a person who knows and understands the patient well, quite often a family member or advocate. That can be key to meeting someone’s communications needs.

I am sure we all agree that care and treatment reviews need to be designed to ensure that the person affected is central to the decisions being made about their care and treatment. It is therefore absolutely self-evident that communications needs should be considered and discussed at the beginning of those meeting to ensure that the person concerned is able to express their thoughts, wishes, feelings and preferences, so that everyone involved in the care and treatment of individuals is equipped to meet those moving forward.

I am very supportive of the amendment tabled by my noble friend Lord Scriven which would lengthen the time between reviews from 12 months to six months. I think 12 months is just too long. An awful lot can happen in that period and circumstances can change. I know that we have a subsequent group on care and treatment plans, but on the point made by my noble friend Lady Barker, it is important to think of the individual in a fully joined-up way, looking at housing needs as well. I know that we are going to return to it in a subsequent group, but it vitally needs to include things such as money matters, debt advice, ensuring that the individual does not fall into financial exclusion and all of that. I have put my name to an amendment on that in a later group.