NHS England Update
Baroness Tyler of Enfield Excerpts(6 days, 9 hours ago)
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Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)
My Lords, I am very conscious that a number of noble Lords want to get in. Can all keep their questions brief? I will take the Liberal Democrat contribution first and then Labour.
Baroness Tyler of Enfield (LD)
My Lords, I will be brief. With such a strong emphasis in the Statement on reducing duplication and bureaucracy, can the Minister say what consideration is being given to fusing NHS England’s regional offices with the remaining ICBs that come within their geographical area? It strikes me that there is scope for savings there.
Baroness Merron (Lab)
All of this will be looked at by the transformation team, because it is a considerable change. I thank the noble Baroness for that contribution, and I will ensure that it is heard.
Safe Housing and Hospital Discharge
Baroness Tyler of Enfield Excerpts(6 days, 9 hours ago)
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Baroness Merron (Lab)
I very much commend the innovation and the commitment of people locally in the way that the right reverend Prelate describes. ICBs would be wise to work closely with the third sector in order to provide support and to tackle the very real challenges. With regard to decisions on how they use their funding, it is for ICBs to take into account the needs of the population and provide accordingly. As I say, it would be a wise ICB that took advantage of the innovation and the commitment in its local area.
Baroness Tyler of Enfield (LD)
My Lords, does the Minister think that there is a case for further guidance or even legislative change to ensure that ICBs—those left standing anyway—are actively improving integration between the NHS and other stakeholders, such as housing and local government? We all understand that social care is vital to successful discharge plans. Is the Minister able to say how many ICBs have senior representation from social care or local government on their boards?
Baroness Merron (Lab)
As the noble Baroness is aware, ICBs bring together local government and local health services. While I cannot be as specific as the noble Baroness asks, I will be very happy to look into that. There is not just an expectation but a requirement, as I said, to agree plans locally, which means more timely and more effective discharge. Certainly, the better care fund is crucial, so I feel that we are going in the right direction. This is a matter that we constantly have under review, and we are always looking for ways to improve delivery.
Primary Healthcare Facilities
Baroness Tyler of Enfield Excerpts(1 week, 1 day ago)
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Baroness Merron (Lab)
There are indeed many aspects of community care, as the noble Baroness refers to in terms of community hospitals. I emphasise that we are moving towards a neighbourhood health service, with more care delivered locally to create healthier communities, to spot problems earlier and to help people stay healthier for longer. It is of course up to local health systems to decide how best to serve their local communities, and services will vary according to where they are across the country.
Baroness Tyler of Enfield (LD)
My Lords, as part of the shift from hospital to community, what specific plans do the Government have to set up more walk-in diagnostic centres and polyclinics as a way of allowing quicker and easier access to joined-up healthcare for patients, giving them greater control and reducing current pressures on GP surgeries and hospitals?
Baroness Merron (Lab)
We will be providing further details in the national implementation programme, but I can say that neighbourhood health guidelines have already been published to help ICBs, local authorities and health and care providers to continue to progress neighbourhood health. We will trial neighbourhood health centres to bring together a range of services, and others that the noble Baroness refers to, to ensure that healthcare is closer to home and that patients receive the care they deserve when and how they need it.
Autism and Learning Disabilities: Hospital Detention
Baroness Tyler of Enfield Excerpts(2 weeks ago)
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Baroness Tyler of Enfield
To ask His Majesty’s Government what plans they have to respond to recent reports of an autistic woman with learning disabilities being detained in a mental health hospital for 45 years.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, this Question refers to a very sad and concerning story. This Government want more people with a learning disability and autistic people to be supported in the community, not detained in mental health hospitals. That is why we are proposing reforms to the Mental Health Act, which this House is currently scrutinising. Through this, we want to help ensure that people get the support they need in the community, improving care and keeping people out of hospitals.
Baroness Tyler of Enfield (LD)
I thank the Minister, and I am sure the whole House was appalled by this shocking case, which came to light only due to a BBC investigation. Does the Minister agree that to prevent such a terrible situation arising again, we cannot just wait for the Mental Health Bill to get on the statute book with its current five- to 10-year implementation period? What immediate plans do the Government have to set up a system to review long-term detentions? Does the Minister agree with me that a mental health commissioner, currently under debate in the Bill, could take on this role?
Baroness Merron (Lab)
I am grateful to the noble Baroness for tempting me to agree with her comments about a mental health commissioner. We have debated that, and the noble Baroness is aware that we do not feel that this is the right way forward. However, I am sure we will return to that on Report.
With regard to not waiting for the Mental Health Bill to become an Act, of course I agree. The number of people with a learning disability and autistic people who are in mental health hospitals is unacceptable, and there are still too many detained who could be supported in their communities. We have taken immediate action in allocating funding to local areas: £124 million for learning disability and autism services. We are making sure that the workforce has the right skills and knowledge through work such as the HOPE(S) model. We are providing for the CQC to deliver independent care (education) and treatment reviews. NHS planning guidance provides a continued focus on improving mental health and learning disability care, with an objective to deliver a minimum—I emphasise minimum— 10% reduction in the use of in-patient care.
Mental Health Bill [HL]
Baroness Tyler of Enfield ExcerptsMonday 24th February 2025
(1 month ago)
Lords ChamberRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-V Fifth marshalled list for Committee - (20 Feb 2025)
“Cost and implementation reporting(1) The Secretary of State must lay a report before Parliament four months after the passage of the Act, and annually thereafter, assessing the costs and implementation dates of provisions in the Act.(2) The report must include details on—(a) the monetised and non-monetised costs to the health and social care system;(b) the monetised and non-monetised costs to the justice system;(c) costs associated with additional training for NHS staff responsible for treatment provisions;(d) costs related to community care services and infrastructure;(e) costs for additional training for approved mental health practitioners and independent mental health advocates;(f) additional costs incurred by local authorities;(g) housing and care-related costs for individuals with autism or learning disabilities; (h) additional costs incurred by the Care Quality Commission;(i) costs for training responsible clinicians and other relevant parties involved in patient care.(3) The report must also include a monitoring and evaluation strategy for the reforms introduced by the Act, including—(a) commencement timelines for the Act’s provisions;(b) an assessment of the Act’s impact on patient outcomes including user feedback; (c) relevant data to evaluate whether the reforms are being delivered as intended;(d) assessments of the impact of new safeguards and support mechanisms on patient and carer experiences.(4) Following the publication of the first report, the Secretary of State must arrange for the tabling of—(a) a motion for resolution on the report in the House of Commons moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of the report moved by a Minister of the Crown.(5) If the report is rejected by the House of Commons, the Secretary of State must deliver a statement to Parliament within a period of three months which addresses the contents of the report.(6) Subsequent reports are not subject to the provisions of subsection (4).”Member’s explanatory statement
This amendment requires the Secretary of State to present a report to Parliament detailing the costs and implementation assessments of the Act after one year, and annually thereafter. The first report published under this provision must be subject to a resolution motion in both Houses of Parliament.
Baroness Tyler of Enfield (LD)
My Lords, I rise to speak to Amendment 130 in the name of my noble friend Lord Scriven, who is unable to be in his place today. On these Benches, our view is that this amendment is essential to the success of reforms proposed in this Bill. It would ensure not only accountability but the continuous assessment of costs and implementation timelines related to the vital provisions of the Bill. In short, it is a costed plan. It is grouped with various other important amendments, some of which I strongly support.
The issue we have repeatedly encountered in both mental health policy and community care is that we end up with community but very little actual care within it. This gap leads to preventable health crises, placing individuals and services under immense strain. Therefore, we must do everything to avoid this outcome. Yet so far in Committee we have not heard the necessary reassurances that adequate provisions will be in place nor that they have been properly costed and strategically planned for community care.
At its core, this amendment champions the need for transparency in the investment and execution of mental health care, specifically within community settings, where the demand will be greatest when the changes in legislation are brought forward. We cannot afford to enact these mental health reforms without a clear understanding of their financial and structural impact on the health and social care system, the justice system, local authorities and, most importantly, the lives of those who rely on these services.
In short, the amendment would require the Secretary of State to lay a report before Parliament within four months of the passage of the Bill and annually thereafter. The report would provide a detailed assessment of both the monetised and non-monetised costs associated with the provisions of the Bill. Specifically, it would outline the financial commitments necessary for the training of NHS staff and approved mental health professionals, the expansion of community care services and the provision of adequate housing and care for individuals with autism or learning disabilities. Furthermore, the amendment would ensure that the Care Quality Commission was adequately resourced to uphold the highest standards of mental health provision. These are fundamental requirements, because without a clear cost framework and implementation plan, we risk leaving individuals in crisis without the support they need.
However, it is important to say that the amendment is not simply about numbers; it is about real lives. The monitoring and evaluation strategy included within this proposal would ensure that reforms were not just theoretical but delivered tangible improvements in patient care. It would require the Secretary of State to assess patient outcomes, collect user feedback and measure the effectiveness of new safeguards and support mechanisms.
If we fail to scrutinise and report on the costs and impact of this legislation, we risk underfunding critical services, delaying implementation, and ultimately failing those who are most vulnerable. Mental health services, particularly those delivered in the community, are a necessity and not a luxury. They prevent hospitalisations, support recovery and uphold the dignity of those living with mental health conditions. This amendment would ensure that these services were not only established but were adequately funded, effectively implemented and continuously improved.
I turn briefly to Amendments 163 and 164 from the noble Lord, Lord Stevens, which I see as complementary and mutually reinforcing to Amendment 130. In particular, Amendment 164 would ensure that mental health funding was not cut as a share of overall health service funding until this Act was fully implemented. The amendment supports the principle of parity of esteem by putting a floor under the aggregate mental health service funding share in England; in essence, enshrining the mental health investment standard in law, something that we very much support. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, in speaking chiefly to my Amendment 153, I shall say briefly that I very much agree with what the noble Baroness, Lady Tyler, just said and support, as does she, the related amendments that come after this. They interrelate with an amendment of mine that was discussed earlier in Committee about the funding of community services. Funding is the great issue right across the board, and it is essential that there is something in the Bill that addresses that. My amendment, although it looks somewhat different from the others in this group, is closely related to them, because, as the noble Baroness said, we have to be concerned about the implementation of the Bill and not just its nature.
My amendment says that for-profit companies should not deliver under the Bill. It does that in two ways. It says:
“Any new facilities or organisations created to deliver the provisions of this Act must not be operated by for-profit companies”.
It then says that within five years of the day on which this Act is passed, the Secretary of State must ensure that what is now for-profit in this space is transferred to not-for-profit. Why is that essential to implementation? I shall put it into three categories.
The first is the cost of paying profits from what should be money for the provision of services. The second is quality issues associated with for-profit companies; after all, their directors and management have a duty to maximise the return to shareholders. That is the way that for-profit companies are set up in this country. The third is that there are issues of stability.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to noble Lords for their contributions to this first debate today, and I start by saying how glad I am—I am sure other noble Lords will say this too—to see the noble Baroness, Lady Hollins, in her rightful place. I certainly heard her support for the amendments that we are discussing.
Before I turn to the amendments, it may be helpful to your Lordships’ Committee if I briefly set out some of the high-level plans for implementation of these reforms. I am grateful for the understanding—the noble Earl, Lord Howe, made this point—that time is required. I also understand the emphasis that noble Lords are putting on pace and, of course, we try to match those two things together, but I know we are all agreed on the need to get the Bill in the right place and the Act delivering.
The first priority after Royal Assent will be to draft and consult on the code of practice, and we will be engaging with people with lived experience and their families and carers, staff and professional groups, commissioners, providers and others to do this. The code will be laid before Parliament before final publication, and I am committed to working with noble Lords to ensure that we get this crucial piece of work absolutely right. We expect that this process will take at least a year.
Alongside the code, we will be developing secondary legislation, which will also be laid before Parliament, with more detail on areas such as statutory care and treatment plans. We will then need time to train the existing workforce on the new Act, the regulations and the code. This will likely be in 2026 and 2027, and we intend to commence the first major phase of reforms in 2027.
Of course, some reforms are going to take longer, as noble Lords will appreciate. The noble Baroness, Lady Neuberger, tempted me to go even further than five years, and I thank her for the temptation, but I know I will not be able to please her on this occasion. Of course, it takes time to train new second opinion appointed doctors, judges and approved clinicians, so, as set out in the impact assessment, we believe it will take 10 years to fully implement the reforms, but I emphasise that these timelines are indicative, and we will iterate these plans as we get more certainty on future funding and the wider workforce plans. Of course, I fully appreciate the importance of parliamentary scrutiny and accountability of this work, which is crucial, and I am committed to updating the House throughout the implementation period.
Turning to the amendments, I will start with Amendment 130 in the name of the noble Lord, Lord Scriven, kindly introduced by the noble Baroness, Lady Tyler. I say in response that any implementation plan, as proposed in the amendment, which would be published four months after Royal Assent, would be very unlikely to contain any more detail than is already in the impact assessment. It is important to prioritise drafting the new code and the secondary regulations after Royal Assent. I also confirm to your Lordships’ Committee that we will commission an independent evaluation of the reforms, alongside existing monitoring and reporting by the CQC.
As I have said, I fully expect to update the House during the planning and delivery of the reforms. However, a requirement in primary legislation to publish annually, and within four months of Royal Assent, would be premature.
Amendment 153, tabled by the noble Baroness, Lady Bennett, would prohibit for-profit companies from delivering provisions of the Act. I listened closely to the concerns raised by the noble Baroness, but I do not share the view that a ban on for-profit providers is the right approach, for the reasons that were set out by the noble Earl, Lord Howe, and the noble Baroness, Lady Fox. Our focus should indeed be on ensuring that we have high-quality and good value-for-money services. However, I assure the noble Baroness, Lady Bennett, that we are already investing in a significant quality transformation programme and piloting new models of care to ensure that care is focused on the individual, with maximum therapeutic benefit. That is where our priority lies and for that reason we are resisting this amendment.
Turning to Amendment 163, I am grateful to the noble Lords, Lord Stevens and Lord Kamall, and the noble Baronesses, Lady Tyler and Lady Neuberger, for bringing this issue before the Committee. As I said in my opening remarks, I too want to see the benefits of these reforms coming into play quickly and effectively. We intend to commence the reforms in phases, because some can be implemented more quickly than others, which need more time. This is not just about money but about building system and workforce capacity. For example, the impact assessment estimates that we need over 400 additional second opinion appointed doctors and over 300 additional approved clinicians. Many of these will be consultant psychiatrists, who would already need to have commenced training prior to the legislation for us to fully implement the Bill within five years, as required by this amendment. Rather than having a fixed deadline, as is proposed, we intend to monitor the impact of investment and test readiness to commence new powers on an ongoing basis, commencing each phase when we are confident that it is safe and effective to do so.
Finally, I turn to Amendment 164, tabled by the noble Lord, Lord Stevens, and supported by the noble Lord, Lord Kamall, and the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger. I associate myself with the comments about the commitment to treating physical and mental health equally, in line with this Government’s manifesto commitments. The mental health investment standard requires ICB spending on mental health to grow at least in line with overall recurrent funding allocations. Based on total planned spend for 2024-25, we expect all ICBs to meet the standard in this financial year.
There are already mechanisms to ensure that spending on mental health is prioritised. I refer noble Lords to Section 12F of the NHS Act 2006, which requires the Secretary of State for Health and Social Care to lay before Parliament an annual document setting out whether they expect NHS England and ICB spending on mental health to increase in the next year. The Secretary of State will publish this statement before the end of this financial year.
As several noble Lords said, funding for mental health spend goes beyond the scope of the Mental Health Act, which aims to improve the care and treatment of individuals who have a mental illness and need to be detained in hospital or subject to restrictions in the community. Therefore, I respectfully suggest that the Act is not the appropriate mechanism for holding the Government to account on mental health spend. I ask the noble Baroness to withdraw the amendment.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her very comprehensive response and all noble Lords who have spoken. It was very helpful that the Minister started by setting out some of what I think she called the “high-level” plans for implementation. It was good to hear about what is going to happen with the code of practice and about plans to bring forward secondary legislation. I hope I heard correctly that it will be 2027 when we see the first major stage of these reforms starting to happen on the ground. That is the good side of this debate; it is incredibly important, because this is one of those issues where the implementation is as important as the policy, and that is why it is right that we are having this discussion.
“Mental Health CommissionerAfter section 142B of the Mental Health Act 1983, insert—“Mental Health Commissioner
142C Independent Mental Health Commissioner: establishment(1) There is to be an office known as the Office of the Mental Health Commissioner.(2) The Office in subsection (1) must be established by the Secretary of State three months after the day on which the Mental Health Act 2025 is passed.(3) The Office of the Mental Health Commissioner will be led by an individual appointed by the Secretary of State titled the “Independent Mental Health Commissioner”.(4) The role in subsection (3) is referred to as the “Mental Health Commissioner”.142D Functions of the Commissioner(1) The Mental Health Commissioner is responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under the provisions of this Act and the Mental Health Act 2025, particularly regarding the provision of treatment, care, and detention of people with a mental disorder.(2) The Mental Health Commissioner is also responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under this Act which relate to the Mental Capacity Act 2005 and the Mental Health Act 2007.(3) The Mental Health Commissioner must publish an annual report on the use of functions discharged under this Act, which must assess—(a) the quality of mental health care treatment provided by relevant services;(b) the accessibility of mental health care treatment services;(c) the relationship between mental health and the criminal justice system;(d) inequalities of mental health care provision regarding protected characteristics under the Equality Act 2010; (e) the use and effectiveness of detention measures under this Act, including but not limited to Community Treatment Orders, for the purposes of therapeutic benefit outlined in section 1(2B);(f) challenges surrounding stigma of mental health conditions;(g) the accessibility of advice and support to mental health service users, their families and carers on their legal rights;(h) other issues deemed appropriate by the Mental Health Commissioner.(4) In fulfilling their duties under subsection (1), the Mental Health Commissioner may review, and monitor the operation of, arrangements falling within subsection (1), (2) and (3) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the principles in section 118(2B) of this Act.142E Appointment and tenure of officeThe Secretary of State may make regulations which make provision as to—(a) the appointment of the Mental Health Commissioner (including any conditions to be fulfilled for appointment);(b) the filling of vacancies in the office of Commissioner;(c) the tenure of office of the Mental Health Commissioner, including the circumstances in which they cease to hold office or may be removed or suspended from office.142F Remuneration of roleThe Secretary of State may—(a) pay the Commissioner such remuneration and allowances, and(b) pay, or make provision for the payment of, such pension or gratuities to or in respect of them, as may be provided for under the terms of their appointment.142G Appointment of staff(1) The Commissioner may appoint any staff they consider necessary for assisting in the exercise of their functions, one of whom must be Deputy Commissioner.(2) During any vacancy in the office of Commissioner or at any time when the Commissioner is for any reason unable to act, the Deputy Commissioner may exercise their functions (and any property or rights vested in the Commissioner may accordingly be dealt with by the deputy as if vested in them).(3) Any member of the Commissioner's staff may, so far as authorised by them, exercise any of their functions.(4) The duties of the Deputy Commissioner must be determined by the Commissioner.(5) Regulations may provide for the Commissioner to make periodic or other reports to the Secretary of State relating to the exercise of their functions and may require the reports to be published in the manner required by the regulations.142H Examination of cases(1) The Secretary of State may, by regulations, make provision for the examination by the Mental Health Commissioner of the cases of those who are detained under this Act receiving treatment by authorised mental health care providers.(2) The regulations may include provision about—(a) the types of case which may be examined; (b) the circumstances in which an examination may be made;(c) the procedure for conducting an examination, including provision about the representation of parties;(d) the publication of reports following an examination.(3) The Secretary of State may, by regulations, provide for the Office of the Mental Health Commissioner to access and examine relevant data on mental health treatment provision held by NHS England and any other authorities the Secretary of State considers appropriate.(4) In cases under subsection (3), reasonable steps must be taken to ensure that data provided to the Office of the Mental Health Commissioner is anonymised.(5) Regulations may, for the purposes of enabling the Mental Health Commissioner to examine or determine whether any recommendation made in a report following an examination has been complied with, make provision for—(a) requiring persons to provide the Mental Health Commissioner with information, or(b) requiring persons who hold or are accountable for information to provide the Mental Health Commissioner with explanations or other assistance, for the purpose of an examination or for the purposes of determining whether any recommendation made in a report following an examination has been complied with.(6) For the purposes mentioned in subsection (3), the Mental Health Commissioner has the same powers as the High Court in respect of—(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad), and(b) the provision of information.(7) No person may be compelled for the purposes mentioned in subsection (5) to give any evidence or provide any information which they could not be compelled to give or provide in civil proceedings before the High Court.(8) The regulations may make provision for the payment by the Mental Health Commissioner of sums in respect of expenses or allowances to persons who attend or provide information for the purposes mentioned in subsection (5).142I General powers(1) Subject to any directions given by the Secretary of State, the Commissioner may do anything which appears to them to be necessary or expedient for the purpose of, or in connection with, the exercise of their functions.(2) This may include—(a) collaborating with health services, public authorities, charitable organisations, and other entities deemed necessary by the Mental Health Commissioner that are responsible for the provision of mental health care across the United Kingdom, including, but not limited to NHS bodies, the Care Quality Commission, and the Parliamentary and Health Service Ombudsman;(b) making recommendations to the Secretary of State regarding treatment and detention provisions contained in this Act;(c) ensuring that authorities and public bodies with responsibilities for enforcement under the Mental Health Act 1983 have the necessary capacity and resources to undertake duties; (d) promoting mental health wellbeing;(e) ensuring access to treatment;(f) safeguarding the rights and welfare of patients;(g) other duties deemed to be necessary by the Secretary of State.142J Accounts(1) The Mental Health Commissioner must keep accounts in such form as the Secretary of State may determine.(2) The Mental Health Commissioner must prepare annual accounts in respect of each financial year in such form as the Secretary of State may determine.(3) The Mental Health Commissioner must provide copies of the annual accounts to the Secretary of State and the Comptroller and Auditor General within such period after the end of the financial year to which the accounts relate as the Secretary of State may determine.(4) The Comptroller and Auditor General must examine, certify, and report on the annual accounts and must lay copies of the accounts and of their report before Parliament.(5) In this paragraph “financial year”, in relation to the Mental Health Commissioner, means—(a) the period beginning with the date on which the Mental Health Commissioner is established and ending with the next 31st March following that date, and(b) each successive period of twelve months ending with 31st March.142K Regulations(1) Regulations under section 142E or 142H are to be made by statutory instrument.(2) A statutory instrument containing regulations under section 142E or 142H may not be made unless a draft of the instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.””
Baroness Tyler of Enfield (LD)
My Lords, I am sorry, it is me again. My Amendment 131 would establish a mental health commissioner for England as a new statutory office within government. I am quite conscious that it is a rather long and detailed amendment, but to my mind that reflects the importance of it to the successful implementation of the overall Act and the pivotal role that a commissioner would play. I am very grateful to the noble Lord, Lord Bradley, and to the noble Baronesses, Lady Murphy and Lady Bennett, for adding their names to my amendment, which gives a sense of strong cross-party support.
The Joint Committee recommended the creation of a statutory mental health commissioner to help drive the ongoing process of system reform and ensure accountability for implementation—I always felt that that was one of its seminal recommendations. I believe a mental health commissioner would provide sustained leadership for mental health, complementary to the existing roles and structures that we have, as well as monitoring the effective implementation of the Act. The commissioner would operate inside government and in the wider public sphere, giving the role real teeth.
Yes, the commissioner would have influence within government and the NHS, but they would also have the freedom to speak out when they considered it necessary to lead public debate, challenge stigma and break down boundaries and taboos. They could help galvanise action across departments and systems to improve population mental health and ensure that people living with mental illness are treated fairly and equitably in every sphere of life. In short, the commissioner could bring about a much-needed transformation in our mental health services. By establishing the role in statute, we would ensure that mental health would no longer be a topic that waxed and waned in its profile and importance within government and was reliant on either short-term interest or sometimes very hard-won attention.
Reflecting on the very important debate we had on reducing racial inequalities, I would consider that both assessing and taking action on inequalities in mental health would also be a critical role for the commissioner. Such a commissioner would be well placed to take responsibility for the oversight of a new responsible person role for addressing and reporting on racial disparities in mental health units at local level, as we discussed earlier in the debate on my Amendment 133.
We have an excellent example and model to follow in the way the Children’s Commissioner operates. From my extensive work on children’s issues over the years, I know how effective and influential that role has been, particularly during a period when there has been a change of Government. It has genuinely shifted the dial. I get the fact that it may not always feel 100% comfortable for the Government of the day, but they should embrace and welcome the additional scrutiny, ideas and recommendations that are based on engaging directly with people with lived experiences about their concerns.
That is certainly how it is happened with the Children’s Commissioner, who I think has done excellent work on children’s mental health. I know that it has proved to be empowering for children and young people to feel that their voice is being heard at the top table. I want that same opportunity to be in place for people with mental illness. It has the potential to make this Act a truly ground-breaking piece of social reform.
Mental health commissioners already exist in a number of international jurisdictions, including Scotland, Ireland, Canada, New Zealand and Australia. There is some helpful research from the Centre for Mental Health that shows the value of such roles in other countries.
I feel I can already anticipate the Minister’s response. At Second Reading, the Minister said the commissioner might duplicate the work of the Care Quality Commission. I do not think that is the case, as their roles would be complementary, as the Children’s Commissioner complements the work of Ofsted. The functions of the two are clearly different: they have different powers and responsibilities that between them provide extra benefit to the public that could not be achieved by one of them alone. Both have the powers of entry to inspect services that work with children, but their roles and the outcomes they seek to provide are very different. The Children’s Commissioner has a wide advocacy role across the whole of government, as well as civil society more broadly, so they can act in a way that Ofsted cannot possibly do.
So I very much hope that the Minister will be willing to discuss this with me when we meet later this week and, indeed, with other noble Lords who have expressed support, to discuss how we can really make this fly. I beg to move.
Lord Bradley (Lab)
My Lords, I strongly support Amendment 131, to which, as my noble friend Lady Tyler has stated, I have added my name. I can be brief because of the eloquence and comprehensive nature with which she introduced the amendment.
First, to note my registered interests, as this is probably the last day of Committee, the establishment of a mental health commissioner was recommended by the Joint scrutiny Committee of which I was a member. So it was a great disappointment that the Government did not include it in the Bill.
As I said at Second Reading, the mental health commissioner should be a voice at national level, promoting the interests of those who are detained and who are likely to be detained under the Mental Health Act, together with the interests of their families and carers, raising awareness of their needs and challenging stigma and stereotypes. Crucially, the commissioner should be at the forefront of tracking and scrutinising the implementation of these reforms.
There is widespread support for the establishment of the commissioner, both inside and outside Parliament and from statutory, non-statutory and charitable organisations. For example, the Centre for Mental Health, for which I am an ambassador, has stated:
“A Mental Health Commissioner … would offer sustained leadership for mental health—complementary to existing roles and structures in government. They would operate both within the machinery of state and in the media and wider public sphere. They would have influence within government and the NHS, but with the freedom to speak out when necessary: to lead public debate, challenge stigma, and break boundaries and taboos”.
I totally agree with this view. However, in reply to this proposal at Second Reading, supported by many noble Lords, the Minister pushed back on it stating that there are concerns that
“the proposed mental health commissioner’s function would be potentially largely duplicative of existing bodies and functions, and nobody wants to risk diluting accountability or causing confusion”.
The Minister went on to say:
“As noble Lords will know, Dr Penny Dash has been asked by the Secretary of State to assess if the current range and combination of organisations within the healthcare regulation landscape is effective and to make recommendations of what might be needed, and I think it is important that we await her recommendations”.—[Official Report, 25/11/24; col. 584.]
The key word here, I think, is “regulation”, and I do not agree with this view.
Since Second Reading, I have looked at the terms of reference of commissioners and regulators in various areas of public policy, and I believe that these roles are quite distinct. I agree with the noble Baroness, Lady Tyler: the role of the Children’s Commissioner and the separate role of the education regulator Ofsted are a good comparison. I do not think these two roles dilute accountability or cause confusion. Further, I cannot remember if it has ever been suggested that these roles should be amalgamated or that the Children’s Commissioner should be abolished. In fact, I believe that there is widespread support, particularly from the public, for the invaluable independent work undertaken by a Children’s Commissioner.
I also think the Minister herself has made a very persuasive case for a mental health commissioner in her many constructive responses to the amendments already debated, especially today. My noble friend has noted, among other things: the complexity of the legislation and its interrelationship with the Mental Capacity Act 2005, the need for significant investment in community services, the development of a skilled and complex workforce, and the number of years it will take to implement all the provisions of the Bill. This will need rigorous, robust and consistent oversight of implementation and wider health policy and service developments over the next decade and beyond.
The establishment of a mental health commissioner will ensure transparency and accountability and introduce a real force for good for the development and delivery of high-quality mental health services across the country. I hope the Minister will now agree and support this amendment.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Baroness, Lady Tyler, for tabling Amendment 131, supported by the noble Baronesses, Lady Bennett and Lady Murphy, and my noble friend Lord Bradley. As noble Lords are aware, I understand the intent behind the amendment. We have carefully considered the proposed functions of the commissioner that it outlines, and we recognise that improvements are needed to ensure that the system works effectively. But as noble Lords are aware, we do not feel that a new body is the answer. As the noble Lord, Lord Kamall, said, it may only duplicate existing functions, rather than providing the clarity and leadership that I know everyone is seeking. I was particularly interested to hear the noble Lord give his reflections on the opinions of the previous Government about a proposed mental health commissioner.
Overseeing implementation of the reforms is the role of the Department of Health and Social Care, working with NHS England, the Ministry of Justice and the CQC in England, and, in Wales, with the Healthcare Inspectorate Wales.
On the interaction between this legislation and the Mental Capacity Act, we are committed to keeping that under close review to minimise challenges potentially faced by front-line professionals.
The annual report by the commissioner proposed in the amendment would overlap with the CQC’s annual Monitoring the Mental Health Act report. The CQC’s annual statutory reporting reflects the views of thousands of patients interviewed each year by the CQC. Many of the issues that the commissioner would assess and report on, such as the accessibility of advice and the quality of services, are already reported on by the CQC.
It is proposed that the commissioner would examine cases of people detained under the Act. This clearly overlaps with the functions of the CQC and Healthcare Inspectorate Wales, which have a statutory duty to monitor and, where appropriate, to investigate. The Act provides the regulator with similar powers—for example, to gather information to support it in exercising these powers.
The Health Services Safety Investigations Body is responsible for conducting independent investigations into patient safety concerns across England to identify ways to improve mental health care and patient safety. It has just concluded a series of investigations into in-patient mental health care and is currently undertaking further work.
With regard to the proposed commissioner’s general powers, it is the Government’s role, with NHS England, to ensure sufficient capacity and resources in the system. It is the role of NHSE’s national director for mental health and the medical director for mental health and neurodiversity, newly established last year, to oversee and take forward improvements to mental health services. It is already the role of the regulator to safeguard the rights and welfare of patients, while other organisations independently investigate complaints.
Minimising duplication with these organisations and functions would require significant remodelling of the system, interrupting ongoing programmes and responsibilities that are important to the smooth delivery of the Mental Health Act reforms. Having said that, we recognise that improvements need to be made in the quality of care and the patient safety landscape. We are committed to that goal and intend to overhaul the healthcare system to make it better for all patients.
The CQC has already begun to implement the recommendations made by Dr Penny Dash and Professor Sir Mike Richards: a new chief inspector for mental health will use their independent voice to amplify and respond to the experiences and outcomes of people who use services. Implementation of Mental Health Act reform will be at the top of their “to do” list.
On the wider landscape, we expect to hear soon from Dr Dash who, as noble Lords have said, is reviewing the broad range of organisations that impact on quality and safety, many of which I have mentioned today, and is due to report on whether greater value could be achieved through a different delivery model.
Reference was made in the debate to the role of the Children’s Commissioner, which the noble Baroness, Lady Tyler, particularly focused on. I want to place on record my gratitude to the Children’s Commissioner for the work done on children’s mental health. But, in reflecting on the debate earlier, I should say that the Children’s Commissioner is operating in a rather difference landscape. The proposed mental health commissioner would have a much narrower purview that, for the reasons I have stated, risks overlapping with existing organisations in a way that the Children’s Commissioner does not. I understand why the Children’s Commissioner is being looked to, but I cannot draw that direct comparison myself.
The challenges we have heard about in this debate have highlighted areas we need further to focus our efforts on. I look forward to speaking to the noble Baroness, Lady Tyler, about this topic this week, and I am sure that I will have further conversations about it. For all these reasons, I ask the noble Baroness to withdraw Amendment 131.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her response and thank other noble Lords for their support: in some cases, strong support; in others, what I can only describe as support up to a point—if you know what I mean.
The noble Lord, Lord Kamall, was right to say that we on these Benches feel passionate about this. We think it has the potential to make a real difference and transform not just mental health services at the crisis end—the detention end—but how the whole mental health landscape works.
I would just say in response that I am slightly surprised that the Government consider the current arrangements to be satisfactory. The Joint Committee clearly did not. It spent an awful lot of time looking into this and made a recommendation for a reason.
“General duty to secure sufficient resources for services in the community(1) It is the general duty of integrated care boards to ensure, insofar as is reasonably practical, that services in the community responsible for delivering care, treatment, or detention provisions under the Mental Health Act 1983 and this Act have the necessary resources, including financial support, to meet service demands.(2) Additional forms of resource may be determined by integrated care boards in consultation with relevant local authorities or health care service providers and may include—(a) sufficient numbers of trained medical professionals;(b) purpose-built facilities for patient care;(c) community services responsible for out-patient care.”Member’s explanatory statement
This amendment places a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand on services to ensure that the provisions of the bill function as intended.
Baroness Tyler of Enfield (LD)
My Lords, yes, I am afraid it is me again. I thank my noble friend Lord Scriven and the noble Baroness, Lady Bennett, for adding their names to Amendment 134. Of course, we have already acknowledged in many of our debates that the provisions in the Bill rely heavily on strong and effective community provision being in place, but there are real concerns within the sector that community provision is not currently sufficient to support the changes set out in the Bill. In my view, the new duties placed on local authorities and integrated care boards to ensure an “adequate supply” of community support lack teeth, and no real accountability measures have been put in place as yet to ensure that this duty is fulfilled. My Amendment 134 would place a general duty on integrated care boards to ensure that services in the community had the necessary level of resource to meet demand for services.
This amendment is closely related to the amendments in group 1, already debated—indeed, I am not quite sure why this one was not included in that group; groups remain a bit of a mystery to me. It is worth noting that the Equality and Human Rights Commission recommended in its response to the Joint Committee that the Government should, in line with the recommendation of the independent review, ensure that there was
“sufficient, high-quality, appropriate, community-based mental health services and pathways to meet the needs of all adults, children and young people”.
It stressed:
“These should include therapeutic alternatives to detention, preventative support to minimise the risk of crisis, and wider community services that enable good mental health and recovery”—
something I will be returning to in a later amendment. Is the Minister able to say what consideration the Government have given to that specific recommendation?
The EHRC also felt that the Bill needed strengthening
“to ensure sufficient community-based services in practice in order to end inappropriate detentions. This was highlighted in the most recent annual review of the Mental Health Act by the CQC, which stated: ‘While we support the government’s objective to reduce hospital admissions for people with a learning disability and autistic people under the MHA, this can only be achieved by an increase in community support, including trained staff, and high-quality alternatives to admission’”.
I want to finish by focusing on the workforce aspect. Following the previous Government’s 2021 White Paper, the Royal College of Psychiatrists commissioned an independent assessment of the impact of the proposed changes on the psychiatric workforce to better understand how many additional psychiatrists would be required to deliver the reforms in the proposed year of implementation and, indeed, 10 years later. Based on that White Paper, the research found that by 2023-24, an additional 333 full-time equivalent psychiatrists would be needed in England, costing £40 million per year, and that by 2033-34, a further 161 full-time equivalent psychiatrists would be needed. While these figures may not necessarily accurately reflect the exact number of psychiatrists needed to deliver the reforms we are talking about in the Bill, or the current timelines for the legislation, they demonstrate clearly the impact on a workforce which is already understaffed and carrying high vacancy levels.
Back in March 2016, NHS England set a target to have an additional 1,040 consultant psychiatrists in post in England by March 2024. Based on these targets, as of July last year there was a shortfall of some 770 psychiatrists across England. That is a big shortfall. The impact assessment, while absolutely voluminous, is—as far as I can see—silent on where these people are going to come from. However, it estimates costs of around £99 million for alternative mental health care for people no longer admitted to hospital. It also estimates some £5.5 billion of savings from fewer overall admissions and fewer detentions for people with a learning disability or autism. It goes on to say that the benefits
“should not be understood as cashable”.
Can the Minister say what specific mechanism will be used for diverting more money into community services?
Psychiatrists are absolutely critical but are only one part of the wider mental health workforce, which also includes mental health nurses, clinical psychologists, mental health social workers, occupational therapists and others. Can the Minister say whether detailed plans to grow the overall mental health workforce will be contained in the 10-year plan and the upcoming spending review?
I am conscious that I have asked quite a lot of detailed questions, so if the Minister would prefer to write to me with her response, that is fine. I add that I am sympathetic to the aims of Amendment 157 in the name of the noble Lord, Lord Davies. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to again follow the noble Baroness, Lady Tyler of Enfield, and offer support to her. I will be very brief because there has already been a comprehensive introduction.
It is useful to draw a comparison to see how we might look at some kind of composite as we get towards Report. This amendment places a general duty on integrated care boards to ensure that services in the community have the adequate levels of resource, which is why I signed it, but who gives the resources to the integrated care boards? Ultimately, it is the Government.
My earlier amendment sought a regular process of reports and parliamentary oversight, and I suggest that we need both. This is a good, strong amendment to give the duty to the ICBs. But we also need to see that there is the oversight and that ICBs have the capacity to support the duty they are being given.
Baroness Merron (Lab)
My Lords, I thank noble Lords for their contributions on both these amendments. I turn first to Amendment 134 in the name of the noble Baroness, Lady Tyler, and spoken to by my noble friend Lady Ramsey and the noble Baroness, Lady Barker, both of whom shared real-life examples to illustrate what is being spoken about here.
This duty to consider mental health needs, as well as the needs of those with a learning disability and autistic people, in the community as well as in hospital is already covered by ICBs under the National Health Service Act 2006, as amended by the Health and Care Act 2022. An ICB must arrange for the provision of services to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility.
ICBs and their mental health trusts are also required to prepare a joint forward plan that describes how the ICB will arrange for NHS services to meet its population’s physical and mental health needs, and the needs of those with a learning disability and autistic people.
On the general point with regard to the long-term workforce plan, which the noble Baroness, Lady Barker, mentioned, it will report in a few months’ time, later in the year, which I hope will give a lot more substance to answer the kinds of questions that are being raised. The noble Lord, Lord Stevens, asked about incremental requirements for psychiatrists on a year-by-year and whole-time-equivalent basis. I say to the noble Lord that the impact assessment sets out our best estimate at this point, but the plans need to be seen as somewhat iterative. With regard to further specific questions, including those raised by the noble Baroness, Lady Tyler, I will indeed be glad to write.
Turning now to Amendment 157, in the name of my noble friend Lord Davies and spoken to by the noble Lady Baroness, Lady Bennett, as we have already discussed in relation to Amendment 134, there is already a duty on ICBs to provide sufficient hospital and community services under the National Health Service Act 2006. Furthermore, chapter 16 of the Mental Health Act code of practice already states that local authorities, NHS commissioners, hospitals, police forces and ambulance services should have local partnership arrangements in place to deal with people experiencing crises in mental health.
We accept that there are issues with bed capacity and patient flow, as referred to by the noble Baroness, Lady Hollins. I will resist using the term “patient pathway”, but I certainly agree that they are part of what happens to a patient and they are indeed linked—whatever form of words we choose to use. That is why, in the recent NHS planning guidance, we have tasked local systems with reducing the length of stay in mental health wards and have committed £26 million to improve mental health crisis care, with a further £75 million to reduce inappropriate out-of-area placement. All this is already in train and does not suggest a requirement for primary legislation. So, for these reasons, I ask that the amendment be withdrawn.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister yet again for her response. We have had a number of discussions so far this afternoon in this broad area, and indeed, as was alluded to, on previous Committee days. They are interrelated, so it is sometimes hard to separate the individual groups. I think at the very heart of all of our discussions is concern about two things: first, how we ensure that there is sufficient provision within the community to provide the sorts of services we all hope to see and which are fundamental to the successful implementation of the Bill; and, secondly—I think this came out very clearly—the need for really good workforce planning and understanding it on a year-by-year basis.
I was encouraged to hear from the Minister that we can expect to see the long-term workforce plan—I think she said—in a few months’ time. I very much look forward to that. I hope it includes some of the workforce planning and modelling of community provision that my noble friend Lady Barker referred to, and I hope, above all things, that it is slightly clearer than the impact assessment, which, I have to be honest—it may just be me; it might have been late at night when I was looking at it—I found somewhat on the opaque side. I am really hoping for greater clarity when we see the long-term workforce plan. This issue is not going to go away. In what form we return to it at Report, I am not quite sure, but, for the moment, on that basis, I beg leave to withdraw the amendment.
Baroness Neuberger (CB)
My Lords, I should have declared interests before, as chair of University College London Hospitals NHS Foundation Trust and of Whittington Health NHS Trust. I also was a vice-chair of the review of the Mental Health Act, which reported in 2018 and is relevant, because I very strongly support this amendment to which I have added my name. It is something that the review did not address. We should have done. We did not have it raised sufficiently strongly with us by service users to whom we talked a great deal. That was an omission. It is very important that we do this. I hope that the Minister can say that this will be included in the legislation in its final form, and that she will accept this amendment or something redrafted along its lines.
I am very grateful to the wonderful Money and Mental Health Policy Institute—I pay full tribute to the noble Lord, Lord Bradley—for its briefings. When, in 2022, it conducted a piece of research looking at the finances of 200 people who had received care from secondary mental health services, it found that, quite unsurprisingly, a majority of the people who responded had experienced an income drop while receiving support from mental health services and struggled to pay their mortgages or for food, or missed a payment on energy, rent, council tax, or whatever it might be. This was a problem that kept coming back and they kept talking about. But the majority also expressed real support for the idea of making plans, ahead of time, for how to deal with their finances and how this would all be managed when they were unwell, as many people have episodic periods of being unwell. It seems to me that that piece of work is a cast-iron argument in favour of using breathing space to tackle these financial issues. I very much hope that the Minister will be able to support this.
Baroness Tyler of Enfield (LD)
My Lords, I rise very briefly to add my support to this amendment. I have been very pleased to add my support to all three of the amendments that the noble Lord, Lord Davies, has tabled in this area of financial inclusion. I remind your Lordships’ Committee of my interests as a member of the Financial Inclusion Commission and president of the Money Advice Trust.
I have always been a strong supporter of breathing space. It is a really important debt respite scheme, which has made a huge difference to the lives of many people struggling with debt. The idea of automatically offering this to people who are detained under the Act is absolutely the right thing to do. There is just so much evidence about the links between people spiralling into mental health crises and then into financial crises, which makes their recovery so much harder. I was pleased to hear the noble Lord, Lord Davies, talk about the sort of debt advice which might also then be available.
Everything that needs to be said about this amendment has already been said, so I underline my support for it and, like other noble Lords, very much hope we might hear some encouraging words from the Minister.
Baroness Tyler of Enfield (LD)
My Lords, I rise very briefly to add my support to Amendments 143 and 144, in the name of the noble Earl, Lord Howe. I added my name to these amendments. I am also very sympathetic to the other amendments in this group, both Amendment 142 and the two amendments that the noble Baroness, Lady Berridge, has just spoken to.
The noble Earl, Lord Howe, introduced these amendments in an incredibly compelling, moving and, indeed, comprehensive way. In a way, I do not feel that there is very much for me to add. I did have to think quite hard—there was part of me that wanted an outright prohibition, but I recognise the state of the mental health services we have at the moment. Unfortunately, there are times—hopefully, in only a few desperate cases, as the noble Earl said, and for a very short time—when these measures have to be taken. As undesirable as I think it is, we need to recognise the world in which we live.
I would also like to underline—because most of the debate so far has been about children in adult wards, which is clearly hugely undesirable—the importance of considering children placed out of area. That is, so often, when there is no suitable or available bed. It goes back to the issues raised by my noble friend Lady Parminter about eating disorder beds. It is hugely detrimental for children and young people to be placed out of area, away from their support networks—their family and friends who they so desperately need as part of their recovery at a time of real crisis—so I want to underline the importance of that, as well as the importance of real transparency and rigour when a child is, very unfortunately, placed in an adult ward, hopefully for a very short period of time.
Baroness Butler-Sloss (CB)
My Lords, I come to this totally uneducated, so what I have heard this afternoon I have found very shocking. I agree with what has been said already, and I was particularly shocked by the comments from the noble Earl, Lord Howe. I would like to underline what the noble Baroness, Lady Berridge, has said about the fact that these are children. They may be 17 and a half but, under the Children Act 1989, they remain children and, across all legislation dealing with children, “best interests” comes in.
From what I have heard, it sounds as though adult wards do not understand that these are genuinely children and have to be treated separately but, much more importantly, that their best interests are not necessarily, or almost certainly not, the same as those of adults. I wonder whether it should not be permeating all establishments, private and public, that, if they have to take into an adult setting those under 18, they have to deal with them in a special way. I remain horrified by what was said and I hope that the Minister, who is a particularly sympathetic person, will pick this up and take it across the board.
Mental Health Bill [HL]
Baroness Tyler of Enfield ExcerptsMonday 24th February 2025
(1 month ago)
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Baroness Tyler of Enfield (LD)
My Lords, I had not intended to come in on this group, but, having just heard the very powerful—and, in places, very alarming and harrowing—speech from the noble Baroness, Lady Fox, I will just ask the Minister whether he can explain what plans the Government have to assess and evaluate the impact of the provisions of the future Act on prisons and the criminal justice system, even if they are not planning a formal review. We need to know how the impact will be assessed.
Lord Kamall (Con)
My Lords, during the passage of this Bill, both the noble Baroness, Lady Fox, and the noble Lord, Lord Bradley, who is not in his place, have spoken passionately about people with mental health issues in prison. The noble Baroness, Lady Fox, referred to Valdo Calocane, and I know that the Government have instigated an inquiry. That particular case was the motivation for Amendments 160BA and 160BB in a later group, to which my noble friend Lord Howe will speak.
During the earlier debates on this, both at Second Reading and in Committee, I was particularly struck by the remarks of the noble Baroness, Lady Fox, on Chief Inspector Charlie Taylor’s graphic description of seriously mentally ill people in prisons being akin to a Victorian nightmare. After that debate, I read some of what Charlie Taylor had said, particularly about his visit in 2022 to Eastwood Park, where he witnessed
“bloodstains on the floor and scratch marks on the walls—evidence of the levels of distress of the women being held there”.
The noble Baroness, Lady Fox, also told the Committee about the experience of prison staff, saying that one of the most difficult things is the danger that prisoners with mental health issues pose to themselves, other prisoners and staff. In fact, Charlie Taylor gave an example of an incident when staff were
“unable to stop one inmate from repeatedly running into a brick wall due to a lack of suitable training”.
These are very important issues that the noble Baroness and other noble Lords are raising.
Given all this and its importance—I know that one of the reasons the Minister was appointed to his position was his experience and passion for prison reform—it seems reasonable to ask the Secretary of State to publish a review of the impact of this Act on prisons and to assess whether it provides for adequate support for ongoing treatment and care in those settings, including adequate staff training. I am sure this will be of help not only to the Secretary of State for the Department of Health and Social Care but to the Ministry of Justice. I look forward to the Minister’s response.
“Duty to promote mental health well-beingAfter section 142B of the Mental Health Act 1983, insert—“Duty to promote mental health well-being(1) It is a general duty of local authorities and any body in carrying out functions under this Act or the Mental Health Act 2025 to promote mental health well-being.(2) In carrying out the duty under subsection (1), local authorities and commissioning bodies must have regard to—(a) the prevention of mental illness,(b) the promotion of positive mental health,(c) the reduction of stigma and discrimination associated with mental health conditions, and(d) the provision of accessible and appropriate support services to individuals experiencing mental health challenges.(3) Local authorities and commissioning bodies must publish an annual report outlining the steps taken to discharge their duty under subsection (1), including an assessment of—(a) progress in improving mental health well-being in their area for persons affected by the provisions of this Act, and(b) any barriers to promoting mental health well-being for such persons and proposed actions to address them. (4) The Secretary of State may issue guidance on the discharge of the duty under subsection (1), and local authorities and commissioning bodies must have regard to such guidance.””
Baroness Tyler of Enfield (LD)
My Lords, there has been discussion throughout Committee about whether this Bill and our deliberations should stick strictly to detention under the Act or range wider. I know that there are different views on this issue. I have said consistently throughout our debates that we need to see what more we can do to prevent people reaching the point where the only option is being forcibly detained.
I feel that a key omission is a power around prevention. Given the cost of statutory in-patient admissions under the mental health legislation, and the stated intention of the Secretary of State to reduce hospitalisation through prevention, I find this surprising. Therefore, I have brought forward a simple amendment that would give relevant authorities the power to promote mental ill-health prevention in their communities, while of course being realistic about current financial realities.
My Amendment 160B seeks to explicitly grant relevant bodies, including integrated care boards, public health bodies and local health boards in Wales, the power to promote mental ill-health prevention within their communities. It would also empower organisations such as social care and the voluntary sector to take proactive steps in reducing the likelihood of individuals reaching crisis point and requiring detention under the Act.
I was pleased recently to have the opportunity to discuss this with the Approved Mental Health Professional Leads Network, which is very much involved in this. It expressed its support for such an approach. I think we all understand that the causes of mental health issues are complex and can be as much around societal issues, such as employment, housing and poverty, as clinical issues. That is clearly recognised in the AMHP’s role, which acknowledges that while a clinical perspective is always appropriate, other perspectives can be equally valuable. As was explained to me, at the core of the approved mental health professional’s role is a responsibility to explore less restrictive alternatives to detention for individuals in crisis.
As has been quoted a number of times in this Chamber, recently the Secretary of State said that the Government will publish a 10-year plan early next year setting out how they will deliver three big shifts in the focus of the NHS,
“from hospital to community, from analogue to digital, and from sickness to prevention”.
I see this legislation, and indeed this amendment, as an opportunity to make a reality of that statement in relation to mental health. While there will always need to be provision for statutory interventions for those who present a severe risk to themselves or others, it is surprising to me that, in this journey from hospital to community and sickness to prevention, there is no explicit mention of the promotion of good mental health within the Bill.
There is plenty of evidence of the links between prevention and reducing detention. I was going to give some examples, but the hour is late and noble Lords will be pleased to hear that I am not going to. There are also plenty of examples of alternative approaches to detention, such as crisis cafes and safe spaces, community crisis response teams, mobile mental health and social care professionals who respond to individuals in crisis, peer support networks, sanctuaries and respite services. All these have been shown to be effective in reducing the need for hospital admissions.
To conclude, by formally giving relevant bodies the power—it is a power, not a duty—to promote mental ill-health prevention, this amendment encourages a proactive rather than a reactive approach to mental health care and support, thereby, I hope, reducing reliance on crisis interventions, including involuntary detention. I beg to move.
Lord Kamall (Con)
My Lords, I thank the noble Baroness, Lady Tyler, for introducing this amendment. It is quite clear that noble Lords across the Committee agree with the Government’s commitment to move the emphasis from sickness to prevention. This amendment is clearly aimed at that, as the noble Baroness has said.
During my time as a Health Minister and since, I have met a number of community and civil society projects, charities and mental health professionals who have shared the amazing work being done across the country to improve the well-being of local communities. I put on record my thanks to the late Baroness Greengross and the noble Lord, Lord Howarth, for introducing me to the wonderful world of creative health and to the National Centre for Creative Health. Its work addresses the theme of earlier amendments from the noble Baroness, Lady Hollins, and the noble Lord, Lord Crisp, on the overprescribing of antidepressants and looking at alternatives. We are not saying that medication is a bad thing necessarily. It is very appropriate in some cases, but there are alternatives, such as social prescribing.
The late Lady Greengross introduced me to a wonderful organisation called Intergenerational Music Making, and I put on record my thanks for its work. It invited me to take part in one of its intergenerational music hubs in Guildford last December and, despite being handed a guitar to play along, I found it inspiring to see the difference that music can make in improving well-being and bringing people of all ages together, including some children from a local learning disability charity.
Noble Lords will also know of the equally amazing work done by many social prescribing organisations, using music, art, drama and green spaces. A career in creative health also opens up new opportunities for budding actors and rock stars who can train as drama and music therapists while waiting for their big break. But many do not wish to be stars and actually find their work, combining their passion with improving mental well-being, fulfilling in its own right.
However, one criticism I hear is that, although there is amazing work on well-being in different primary care settings or in different trusts and integrated care systems across the country, the challenge is how we spread the best practice across our system of health and care, while recognising that what works in one area may not always be an off-the-shelf solution in another locality.
The amendment from the noble Baroness, Lady Tyler —which says that
“Local authorities and commissioning bodies must publish an annual report outlining the steps taken to discharge their duty”
to promote mental health and well-being—may be a way to address this concern. Given that, I hope it is an amendment that the Government will consider. If not, perhaps the Minister can tell your Lordships how the Government intend to encourage the sharing of best practice in improving mental well-being across our system of health and care, particularly across different communities with different needs and different constraints, in order to improve the mental well-being of the nation.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank the noble Baroness, Lady Tyler, for tabling Amendment 160B. We recognise the importance of local organisations taking collective action to promote mental well-being and prevent mental ill-health. However, turning to the amendment very specifically, we do not feel that this amendment suggests the best approach, as there is potential for introducing unnecessary burdens on local authorities and commissioning bodies. It may also be duplicative of other existing duties, such as the Care Act duty, to promote individual well-being.
However, the noble Baroness, Lady Tyler, and the noble Lord, Lord Kamall—whom I also thank for his contribution—may be interested to note that the existing prevention concordat for better mental health, a voluntary agreement signed by local authorities and integrated care boards across the country, does involve, for those who sign it, a commitment to take
“evidence based preventive and promotional action to support”
population mental health and well-being.
Through the NHS 10-year plan, which the noble Baroness referred to, and as noble Lords are aware, we aim to encourage stronger partnership working between local government mental health services and the voluntary and community sector—which, as we know, plays a vital role, as the noble Lord, Lord Kamall, described—in order to galvanise that shift, which we all seek, from sickness to prevention. On the basis of the reasons outlined, I hope the noble Baroness will withdraw her amendment.
Baroness Tyler of Enfield (LD)
I thank the Minister for her remarks and the noble Lord, Lord Kamall, for his. I am interested to hear about the prevention concordat and hope to hear more about that; I think that could be a useful way forward. Overall, I remain of the view that having something about prevention in this Bill—we have not got it yet—sends out an incredibly important signal.
I am very happy to accept that the way it is currently worded may not be the best and that we could find other ways of doing it. But I would be really disappointed if, in the final piece of legislation, we do not, in some way or another, have something that underlines the importance of prevention. I am not going to go over all the arguments again. I can see us returning to this on Report and, on that basis, I withdraw my amendment.
Earl Howe (Con)
My Lords, I beg to move Amendment 160BA and will speak to Amendment 160BB. These amendments, tabled in my name and that of my noble friend Lord Kamall, stem directly from the harrowing case of the murder of three people by Valdo Calocane in Nottingham. The Minister and, indeed, other noble Lords may question the propriety of referring to an individual case in this way. However, I believe that this is one occasion on which it is legitimate to do so.
The amendments I have tabled were drafted in the light of the facts that have emerged from the full independent investigation into the care and treatment of Valdo Calocane in the months leading up to the tragic events of 13 June 2023. There have also been press articles on a report by the Independent Office for Police Conduct, the IOPC, which identified 11 mistakes in the run-up to that fateful day. There is a great deal about the case that is known and not disputed, and, given the magnitude of the tragedy, it would be remiss of this Committee not to spend at least a little time considering its implications.
Before I go further, there are two things I need to say. The first is to acknowledge that the Government have agreed to a judge-led public inquiry that will start in a matter of weeks. Secondly, on that account I will do my utmost to avoid saying anything that would undermine that inquiry.
There are a number of issues arising from the treatment of Valdo Calocane that are directly relevant to the Bill because they are of wider application. The report of the independent investigation recounts the timelines associated with Calocane’s treatment. His first contact with mental health services was on 24 May 2020, when he was arrested for criminal damage and a Mental Health Act assessment was undertaken. That assessment indicated that Calocane was experiencing the first episode of psychosis brought on by sleep deprivation and social stressors.
During that first contact, he was not detained for treatment as he acknowledged that he required help for his condition. However, after returning home, Calocane was arrested again and, on admission, was considered not to have capacity to consent and was consequently detained under Section 2 of the Mental Health Act. After that episode of treatment, he was again detained on 13 July 2020, this time under Section 3 of the Mental Health Act. Upon discharge, he was
“considered to have a primary diagnosis of paranoid schizophrenia and was to continue with antipsychotic medication”.
During the course of 2021, Calocane was detained again under Section 2 of the Act and continued treatment in the community. He began missing appointments with his care co-ordinator and mental health care team from July 2022. On 4 August, the care co-ordinator attempted to make a home visit, but the given address was incorrect. On 17 August, the care co-ordinator attempted to reach Calocane at a new address, which received no response.
The report then states:
“On 23 September 2022 it was documented that as no contact had been made with VC, a decision was made at an MDT meeting on the 22 September to discharge VC back to his GP due to non-engagement. A letter to VC’s GP was written the same day, outlining non-contact and that VC had been discharged”.
The key aspect of all this is the problematic last line:
“There was no contact between VC and mental health services or his GP between this date and the tragic incidents in June 2023”.
For a whole nine months prior to the killings there was no contact between any health service and Calocane. What this demonstrates is that the co-ordination of the community aspect of Calocane’s care was clearly inadequate. After he began to miss appointments, it appears that there may not have been sufficient attempts at outreach. There were evidently issues with maintaining contact between mental health services and the patient.
It is this issue that my Amendment 160BB tries to address. The amendment takes the form of a report on continuity of care, to ensure that all options can be explored. I do not profess to have the answers but, as proposed subsection (2) in the amendment makes clear, such a report must include discussion of the possibility of creating some form of duty, placed on ICBs and/or hospital managers, to
“maintain contact with patients known to have a mental disorder”.
This is not too far from one of the recommendations of the independent investigation, which said:
“NHS England and other national leaders, including people with lived experience, should come together to discuss and debate how the needs of people similar to VC are being met and how they are enabled to be supported and thrive safely in the community”.
The point is that, somewhere along the line, the mental health care system failed Valdo Calocane and ultimately his victims and the wider public. As we debate this Bill, we have the opportunity to address these potential failures, in the hope that we can make progress towards minimising the number of patients who slip through the net in this way.
The second issue to arise from the case relates to the publication of the investigation. Noble Lords will remember that controversy arose when the NHS trust responsible refused to publish the full version of the independent investigation into the treatment of Valdo Calocane, due to patient confidentiality. We all know that the NHS did subsequently publish this investigation—I have just referenced it above—but this was not without significant public and political pressure.
There are questions to be answered about whether patient confidentiality rules should apply in cases such as this, where there is a significant public interest. Of course, there should always be adequate safeguards to ensure that a patient’s medical records are protected, but, as my Amendment 160BA sets out, where there have clearly been significant institutional failings regarding a patient who has been treated under the Mental Health Act and who has then gone on to commit a violent offence, it may very well be in the wider public interest for such investigations to be published in full.
I am under no illusion that this amendment is the absolute best solution to the problem. But I hope it at least starts a conversation and pushes the Government to review their approach to publication. There are obviously a number of concerns raised by these harrowing events. We obviously must do better. In the light of the published report, does the Minister believe that there are any measures that could and should be taken now, prior to the report of the judge-led inquiry? I thank the Minister in advance for the considered answer that I know that she will give. I beg to move.
Baroness Tyler of Enfield (LD)
My Lords, I rise quickly to say that I am very sympathetic to the aims behind these two amendments. They have been set out very powerfully and comprehensively by the noble Earl, Lord Howe. I feel, particularly, that an obligation to publish a report of an investigation of the type we have just heard about is absolutely essential if we are to avoid a repetition of these terrible events. There must be a way of learning lessons from this, and transparency and publication are an important part of that.
Baroness Fox of Buckley (Non-Afl)
My Lords, I was pleased to see these amendments as well. The noble Earl, Lord Howe, explained why they are important. He has conceded—I tried to imply the same in my own amendment—that it is not necessarily clear how best to raise these issues, but that we need to. If we are seen by the public discussing a mental health Bill, going through the whole thing and refusing to acknowledge one of the big controversies of recent times, which was a mental health issue, it will discredit the Bill when it becomes an Act.
In relation to the reluctance of the NHS trust to publish its investigation and the use of patient confidentiality, I note that the families of the victims saw this very much as an excuse and were very angry about that. It does not help us to have a discussion with the public about mental illness because it then seems as though murder was committed but, somehow, mental illness was used as an excuse. We have all heard that argument being used; that is why I referred to the fact that there was some dispute about whether Calocane should be sent to prison or to hospital. The more openness that we can give this, the less stigma and confusion there will be. We need to have this debate out in the open.
Finally, I have a question on the judge-led inquiry and what we now know from the investigation by the trust. How will that impact this Bill? How, practically, will we be able to incorporate what we have learned from that into our discussion on a whole new piece of legislation on mental health? It would seem that we need to be able to take on board some of the recommendations of the inquiry and what we now know from the investigation by the trust.
Baroness Tyler of Enfield (LD)
My Lords, I will speak to Amendments 160C and 160D in the name of my noble friend Lord Scriven. These amendments would ensure that any changes to this primary legislation implemented through secondary legislation were properly considered by Parliament before they took effect.
Amendment 160C makes it clear that certain provisions in subsection (5) should not be included under the general powers in Clause 51, and Amendment 160D then strengthens parliamentary oversight by requiring that any statutory instrument amending or revoking this primary legislation be approved by both Houses before it comes into force; that is, by using the affirmative procedure.
This is a matter of proper scrutiny. Primary legislation is carefully debated before it becomes law, as we have demonstrated throughout this Committee stage, and any later changes to it should not be made too easily or without full consideration. If a statutory instrument can amend or remove part of an Act without Parliament’s approval, there is a risk that important legal protections could be altered without proper deliberation.
This is particularly important in the context of mental health legislation, where the law directly affects the rights, personal liberties, and treatment and care of highly vulnerable people. I hope that the Government will recognise that these amendments, which are completely in line with the recommendations of the Delegated Powers and Regulatory Reform Committee, simply ensure that when primary legislation is changed, it is done with the same level of scrutiny that was given to it in the first place. I beg to move.
Earl Howe (Con)
My Lords, I will keep this brief since I can do no more than back the noble Baroness, Lady Tyler, in every word that she has said in support of these two amendments. We are dealing here with a Henry VIII clause that is surely far too permissive given the great sensitivity of the Bill’s entire subject matter and, as the noble Baroness said so well, its momentous significance for the health and well-being of very vulnerable people.
The absolute minimum that Parliament can expect is that Parliament be consulted in the exercise of these powers. The affirmative procedure is therefore entirely appropriate for any statutory instruments made under this clause and I hope the Minister will not disagree with what is proposed.
Baroness Merron (Lab)
My Lords, I thank the noble Lord, Lord Scriven, for tabling Amendments 160C and 160D, which were introduced by the noble Baroness, Lady Tyler, and spoken to by the noble Earl, Lord Howe.
The proposal in the amendment, as was referred to, was a recommendation in the report from the Delegated Powers and Regulatory Reform Committee. I hope that your Lordships’ Committee will welcome that we are actively considering this proposal and will publish our response to the committee’s recommendation ahead of Report.
Baroness Tyler of Enfield (LD)
My Lords, I very much welcome the statement we have just heard from the Minister. I think it is a good point on which to finish our deliberations tonight and I thank her very much. I also thank the noble Earl, Lord Howe, for his support. I beg leave to withdraw the amendment.
National Cancer Plan
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Baroness Merron (Lab)
I cannot give that specific commitment to the noble Baroness. However, as I know your Lordships’ House is aware, one of the three major shifts we seek through the 10-year plan—this is very relevant to the noble Baroness’s point—is from sickness to prevention. Improved health absolutely is preventive for a number of conditions, including cancer. We need to get that message across, as well as supporting people to make improvements to their health.
Baroness Tyler of Enfield (LD)
My Lords, I pay tribute to all the staff at the Whittington Hospital and the Royal Free Hospital for the excellent treatment and ongoing care I have received for my own skin cancer. I will return to the question of early detection. What additional steps are being taken to try to counter the reluctance people sometimes feel to participate in screening programmes? I am thinking of bowel cancer screening and the embarrassment some people still feel, and cervical cancer screening, which many women find a very painful procedure. There is evidence that some younger women are no longer having this screening because they find it too painful. What steps are being taken to try to alleviate that?
Baroness Merron (Lab)
I am glad to hear the noble Baroness making statements about the quality of care she continues to receive, and I wish her well. She makes a good point about screening; some 15 million people are invited to screenings and about 10 million take them up. For bowel cancer screening, we have reduced the age to 50 to incorporate more people. That is very welcome, but I take on board exactly what the noble Baroness said: the tests that are painful or embarrassing all have to be dealt with. As part of the review of screening programmes, there is a constant, repeated look at how communications can be improved to target those who need the screening, and to try to be more creative. I refer again to the community diagnostic centres, which are where people need them to be and are less worrying than, for example, going to a hospital. I take the point about painful screenings, but, for us, it is also important to talk about the alternative, because without that screening I am afraid that the outcomes will be far worse.
Care Homes: Safety Ratings
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Baroness Merron (Lab)
My noble friend is quite right in her observations. Indeed, serious shortcomings are at play. As for the age of the assessments, to which she refers, that is of scant help to those who are seeking to make decisions for either themselves or those who they care for. The CQC, under its new leadership, is prioritising tackling the oldest assessments. The first order of priority is to reduce the registration backlog, which at present is over 10 weeks, and address issues with the registration portal. An independent review has been commissioned to look specifically at the technology that will help reduce the backlog and provide the very necessary up-to-date assessments.
Baroness Tyler of Enfield (LD)
My Lords, can the Minister say what urgent steps are being taken to restore public confidence in the CQC’s ratings, and, in particular, what measures are being taken to ensure that the voice of both the patient and their families is given far greater weight in the way that these judgments and ratings are made by the regulator?
Baroness Merron (Lab)
I agree that public confidence is absolutely crucial. That is why honesty is very important and why the Secretary of State accepted in full the recommendations of Dr Dash’s review into the CQC, which was published in October. In addition to new executive leadership, a recruitment process is under way for new non-executive leadership, including the chair, which is very important. I agree with the noble Baroness on the importance of the patient voice, because that will lead to greater confidence. There is a long road to go down, but I am absolutely confident that we are well on the way.
Mental Health Treatment: Waiting Times
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Baroness Tyler of Enfield (LD)
My Lords, I welcome the fact that the new NHS operational planning guidance, which the Minister just referred to, includes targets for improving mental health care, learning disabilities and autism. What assurances can the Minister give that these targets will be properly reflected in the forthcoming spending review, the NHS 10-year plan and the updated NHS workforce plan to ensure we really do see parity of esteem between physical and mental health?
Baroness Merron (Lab)
I can confirm the commitment of the Government to parity of esteem between mental and physical health services, as was outlined in our first programme of legislation confirmed in the King’s Speech. It will have absolute regard in all the areas the noble Baroness refers to. I know she is aware that I cannot comment specifically on spending reviews, but all that will be announced publicly in due course.
Mental Health Bill [HL]
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Baroness Berridge (Con)
My Lords, Amendment 74 properly sits alongside Amendment 82 in the previous group, so I rise to speak predominantly to Amendments 75, 78 and 79A to 81. This group seeks to ensure that the expansion of choice and autonomy for children and young people under the Bill sits consistently with the child protection law of the Children Act, which I believe the noble and learned Baroness, Lady Butler-Sloss, was involved in creating.
This is not a new issue. The independent review way back in December 2018 stated:
“There needs to be careful consideration of how the powers and rights of the NP”—
the nominated person—
“will interact with other areas of the system, including care orders, guardianship and child arrangement orders, where the overlap with parental responsibility is particularly important”.
Parental responsibility has been dealt with in a series of amendments by the noble and learned Baroness, Lady Butler-Sloss, so I will not address that. It is regrettable that over six and a half years later, we still have not sorted this matter and there is no draft code of practice for noble Lords to refer to.
However, I am grateful for the meetings the Minister has had with colleagues, and for the policy document disclosed last week, which made small steps. I hope the Minister can confirm that she has met the Minister for Children and Families and DfE officials regarding this matter, as they hold responsibility for the Children Act. I am also grateful that the Children’s Commissioner has now stated her concerns in this aspect, as well as for the excellent work of the Children and Young People’s Mental Health Coalition.
To avoid this being dry law, I will give two quick examples that illustrate the conflict remaining between the proposed reforms and the protections under the Children Act.
First, a 15 year-old child is Gillick competent but still does not quite understand why she has not had any contact with dad. However, there are days of evidence in the family court showing that dad is violent, controlling and coercive; a child arrangements order was made, giving him only what is called letterbox contact. The child appoints dad as the nominated person, and dad of course now has contact. Cannily—these people are canny—on the Thursday before a bank holiday weekend, he applies to have the child discharged. The 72 hours to bar this application pass by the locum’s staff, et cetera—we can all imagine the inquiry—and dad has now taken the child and disappeared. I leave it to the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, to outline what mum, who has parental responsibility under this Bill, knows is going on. Children and young people should of course be given choice and autonomy—my amendments do not seek to undermine either that or Gillick competency—but surely we must consider circumscribing that when the family courts have, for child protection reasons, restricted the role of adults who should normally care for and love that child or young person.
I turn to the second scenario. A 17 year-old lacks the capacity to appoint so the AMHP is making the decision to appoint the nominated person. However, the 17 year-old is under a special guardship order—maybe they ran away from the special guardian—and was picked up by the police while trying to find dad, whose address they had on them. Dad still has parental responsibility, of course, so the AMHP contacts him and appoints him as the nominated person. Again, he applies for discharge. The child tries to return to the special guardian, who has no idea that the child is about to return home, so no one is there to receive them. The child leaves in distress and harms themselves.
The AMHP can be forgiven for thinking that child special guardianship orders end at 16 years old, as I cannot find them mentioned at all in the Bill. The same scenario would apply to a child in care as paragraph 9 of Schedule 2 to the Bill is blissfully unaware that 16 and 17 year-olds can be under a care order. The AMHP, according to the Bill, is under no duty to appoint the local authority for a 16 and 17 year-old under a care order or a special guardianship order in this scenario.
The solution to the second scenario is in Amendments 79A and 80A; I am grateful that the noble Baroness, Lady Tyler, has added her name to the latter. Where any person under the age of 18 is being detained—that is about one-third of young people—the AMHP is given a list of people who must be the nominated person, not just those with parental responsibility and the local authority in relation to care orders, as in the Bill and as outlined in the policy document.
Dominic Marley, the co-chair of the AMHP Leads Network, has written to me. He says that he
“fully supports the amendment … In its current form, the Bill conflicts with other legislation affecting children, such as the Children Act 1989. The Bill fails to consider the various orders relating to parental responsibility as outlined in the Children Act 1989”.
He goes on to say:
“This is a deeply concerning omission and is likely to give rise to confusion and uncertainty in practice. We believe the amendments you have tabled will provide clarity in this regard, clarity which should be provided by primary legislation”.
My final point on this second scenario is that the Minister’s policy document states that, for under-16s who lack competence, as in this scenario, the AMHP will appoint the special guardian as the temporary nominated person. Can the Minister explain why the Bill says that the AMHP must choose the local authority if there is a care order in place, but not if there is a special guardian? I repeat the point made in the previous day in Committee: the mental health code cannot create a “must” unless it is included in the Bill or secondary legislation.
The solution to my first scenario is more difficult, and I accept that it is less likely to occur in practice. Most of the one-third of young people who are detained under the Act will lack capacity by the time they are detained but, if we want to maintain as much of a child’s or young person’s choice and autonomy when they have capacity, we must act when they have capacity. Amendments 75, 78, 80 and 81 disqualify certain people, such as the no-contact parent under a child arrangements order or the residual person with parental responsibility when a special guardianship order has been made. The amendments also mandate certain people who have to be chosen, such as special guardians.
I accept that that is a very clunky way of doing it. Another option is for His Majesty’s Government to forbid certain people rather than mandating anyone. Another option would be to give the job of disqualifying people to the family court by amending the Children Act. Therefore, the court, on making a care order, a child arrangements order, or a special guardianship order—for which it often hears evidence—would name certain people as being disqualified from acting as a nominated person.
So I hope the Minister can clarify her policy document, as it includes the child-in-care scenario where the nominated person is a parent—usually where the child resides—who has their parental responsibility limited. It states that the witness—the person involved in the process—
“would assess the appointment of such an individual as unsuitable due to the potential risks to the child and therefore prevent this”.
Is that mandatory language? If it is, why not use “must” and put it in the Bill? Are the Government actually giving the AMHP, the young person or that witness the ability to go behind the care order of the family court? If the Mental Health Act code says that the witness just has to document that, if it is “should” rather than “must”, do we really want to enable that?
The policy document then immediately says:
“We will set out in the Code of Practice considerations for the witness to make beyond those set out in legislation”—
I am not sure that makes sense—
“including how to make these judgements”.
That now seems to be truly discretionary language. I again outline the three categories from the code: “must”, “should” and “may”. Which one is this? If this is “should” then, as I say, the child can go behind the family court order as long as the witness writes down the reasons. I expect the Minister to be very clear in her response, if we are undermining the authority of the family court.
Amendment 79 is a quick clarification of whether the child or AMHP can appoint more than one person as the nominated person. Amendment 85 adds the grounds of
“not acting in the best interests”
so that the AMHP can remove the nominated person—for instance, if they discover that they have trafficked the child to the UK. That is not just for children and young people but for all patients.
I return to the risks to children and young people in both the scenarios I have outlined. These are not triggered by the AMHPs, and they will not be triggered by poor training, a lack of resources or levels of staffing—nor triggered by those who the family court said could pose a risk to the child or young person. These would be triggered by how His Majesty’s Government currently propose to change the law. In the worst-case, but sadly foreseeable, scenario where a child dies at the hands of a nominated person who had already been known to be a risk, as outlined by the family court, I expect that the Chief Coroner would need informing of your Lordships’ debate. Otherwise, professional and other staff might take all the blame. Also, would the Secretary of State for Education in fact still be able to do a serious case review of the death of that child, or would she not be conflicted? A dangerous person got access to a child because the nominated person process was a backdoor to the Children Act. So can the Minister outline whether the nominated persons part of the Act will be enforced before the consultation on the code of practice she is so often relying on?
Finally, I quote from the policy document again:
“We appreciate that there are complications inherent in the complexity of modern family structures, (e.g. separated parents) in addition to the existing system around children’s legislation (e.g. special guardianships, child arrangement orders). These are not complications which have been created by the Nominated Person policy and they exist in the context of Nearest Relative as well”.
Yes, of course the current situation is complex, but this view in the policy document is not shared by the independent review, by the response to His Majesty’s Government’s White Paper—where these concerns were also raised—or by the Joint Committee, civil society or the Children’s Commissioner. The Minister is alone in this view. I know that, in your Lordships’ House, we are not entitled to see legal advice that His Majesty’s Government obtain, but I hope the Minister can assure the Committee that Treasury counsel with specialisms in the Children Act and mental health have been asked to give an opinion.
The child protections that the Children Act has upheld for decades are so vital. I hope we will come back to this on Report, when I hope the Secretary of State for Health and Social Care and the Secretary of State for Education will lay the necessary government amendments. I beg to move.
Baroness Tyler of Enfield (LD)
My Lords, I will speak briefly to Amendment 80A, to which my name has been added.
I did not intervene in the first group but I share the general view expressed, which is relevant to this group of amendments, that not enough thought has been given to the interaction between the Mental Health Bill and other key legislation, particularly the Children Act 1989. That concerns me, because that is where really key and important child protection sits. That is a general concern I have.
Baroness Tyler of Enfield (LD)
My Lords, I will just add a couple of brief points. This is a really important set of amendments and the issue of making it easier to transfer people between prisons and hospitals is critical. If you like, it is at the heart of some of the reforms that we are looking at. I have a lot of sympathy for the amendments put forward by the noble Lord, Lord Bradley. I am also aware that he has waited a very long time. Did he say that it was 28 years?
Baroness Tyler of Enfield (LD)
Just the 16. Anyway, it is a long time to wait.
The amendments aiming to make it clear, as the noble Lord said, when the clock starts ticking are really important, so that there is real accountability injected into the system. Often, when things go wrong it is where no one really feels responsible for something, so it does not happen. I will also be interested to hear what the “exceptional circumstances” do and do not include—I hope we will get some examples—because if they include just things such as shortage of staff or beds, we will not get very far at all, given the current state of mental health beds.
I understand the rationale behind the amendments tabled by the noble Lord, Lord Stevens; the reciprocity is a really important point to make. I just have slight concerns that we might be saying that this cannot happen in the way that the noble Lord, Lord Bradley, wanted to see, because we know that we have not got the scarce and specialist beds. They are just not available; it is very important to be practical about it.
It comes to the heart of the matter of this whole Bill: we know that, unless proper resource is put into the implementation of the Bill, it is not going to work at all. We know that, with mental health provision, particularly a secure unit, particularly with the state of the estate, the shortage of staff and all of that, there has to be wholesale investment in it for these things to work. I think the time has come. I simply add my voice to others to say that I hope the noble Lord practises patience—but I think he has waited long enough so I hope his patience will not be tested any longer.
Lord Kamall (Con)
My Lords, I thank all noble Lords who spoke to the amendments. I also thank the Government for allowing the Minister for Prisons, Probation and Reducing Reoffending to reply to this group. That is very much welcomed by the Committee. I think it was the noble Lord’s father who once said, “Kindness is good for business”. In this case, he might find that kindness is good for his noble friend the Minister. Given how hard she has been working on the Bill, I think she deserves some respite, so I am sure that that is very welcome.
So far, we have debated the importance of limiting detentions for those with autism or learning disabilities without co-occurring mental disorders. We have also debated the community treatment orders. But until now, we have not covered the provisions of the Bill relating to this new statutory 28-day time-limited period for transfers from prisons to hospitals. As the noble Lord, Lord Bradley, has said, he has been very patient. Therefore, the Government enshrining this target in law is welcome. Unfortunately, progress towards the goal of 28 days, as set out in the 2021 guidance and the White Paper, has been slower than anticipated.
His Majesty’s Inspectorate of Prisons, in its 2024 report The Long Wait—I am sure the noble Lord is aware of this—said that
“people linger in prison for weeks, often months and even, in the worst cases, for more than a year waiting for their transfer to be completed”.
Unfortunately, even though the 28-day guidance was there from 2022-23, only 15% of patients in that period were transferred to hospital within that timeframe. Sadly, the average wait was 85 days, and one prisoner was identified as waiting 462 days for transfer to hospital.
These Benches welcome the 28-day limit being put on a statutory footing, but, as other noble Lords have said—not only on this group of amendments but on others—once again, there is an issue of implementation here. Just because it is in legislation does not mean it will deliver the improvements that are necessary.
The noble Lord’s colleague—the noble Baroness, Lady Merron—has been very candid with noble Lords, saying that not everything in the Bill will be delivered now, and that there is a 10-year timetable for implementation. Given that, will the Minister say, at this stage, whether the 28-day limit is an aspiration or something that could be delivered immediately? If, at this stage, it is an aspiration and—understandably so—awaiting future spending reviews, is he able to give an indicative timeframe? Is the hope for the next 12 months, the next five years or, perhaps, up to 10 years? That information would be very welcome to noble Lords. Many noble Lords have been asking this throughout this debate. We understand that not everything is going to be solved overnight, but it would be good if we could have as much information as possible on the Government’s intentions and aspirations, including indicative timetables, where they are possible. We also understand that not everything is going to be clearly tagged at this stage.
Another finding from the prison inspectorate’s report was that there were serious flaws with the data held on patients who were awaiting transfer. I understand that there is no publicly available data describing the access and waiting times for beds. The Minister might be able to correct me on that. Some of the data on the numbers of prisoners awaiting transfer obtained from providers had significant gaps, due to a lack of consistent and accurate reporting, and some data contained errors and unreliability. This might also impact on Amendments 97 and 98 from the noble Lord, Lord Stevens.
The noble Baroness, Lady Merron, may well tire of hearing me repeat the importance of collecting accurate and complete data, but, as I and many other noble Lords have said on many occasions, we really cannot solve many of the problems we face without data that is as accurate and timely as possible. Therefore, I urge both Ministers to take up the issue of data reporting for patients awaiting transfer from prison to hospital with their respective departments.
Turning to Amendment 96C in the name of the noble Lord, Lord Bradley, which creates an accountable person who will be appointed to oversee the transfer process and ensure that the statutory 28-day limit is completed, I think this, once again, speaks to the point of implementation. This could be a sensible way of holding providers to account and working with them to address the shortcomings in patient transfers. Given the Government’s 10-year timeframe for implementation, noble Lords have raised the importance of oversight and accountability. Therefore, in the remarks from the Minister and in any subsequent letter, I hope that the Government will be able to address the issue of implementation and to give an indicative timetable. I look forward to the Minister’s response.
Baroness Tyler of Enfield (LD)
My Lords, I will very briefly underline my very strong support for Amendment 121 in the name of the noble Lord, Lord Davies. I remind noble Lords of my relevant interests in the register.
The noble Lord set it out very clearly so I do not need to add to what he said, other than to say there is a great opportunity for us to ensure that, for the first time in legislation, finances are considered a key part of supporting recovery from a mental health crisis. I am aware of far too many stories of people suffering from severe mental health crises or who are detained whose finances go into complete and utter freefall. It is so difficult for them then to recover their finances. That often means, in turn, that they have further mental health problems. That is all I wanted to say. I support the noble Lord, Lord Davies, very strongly.
Baroness Butler-Sloss (CB)
In the absence of the noble Baroness, Lady Murphy, I will just say that I support all these amendments. I expressed concern about under-16s and those aged 16-18, but that does not stop me thinking that these advance choice documents are an excellent plan. However, I am concerned about the point that the noble Baroness makes with Amendment 120. An independent mental health advocate would be extremely helpful, because there may be quite a lot of people who really would not know how to make an advance choice document, would be very concerned about it and might write down some really not very sensible things, when they could have help as to what they really wanted. I strongly support the noble Baroness’s amendment.