National Cancer Plan

Baroness Tyler of Enfield Excerpts

Monday 10th February 2025 Lords Chamber

[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

Baroness Tyler of Enfield Excerpts

Wednesday 5th February 2025 Lords Chamber

[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

Baroness Tyler of Enfield Excerpts

Monday 3rd February 2025 Lords Chamber

[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]

Baroness Tyler of Enfield Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

[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.

--- Later in debate ---

In general, we have to take the mental health problems among the prison population very seriously or they will put a strain on general mental health provision, as well as an already crumbling and falling apart prison situation. From the public’s point of view, the issue of mentally ill or psychotic prisoners is one that they are looking at closely, one way or another, because of a number of high-profile cases. It is very important that the Bill gets it right and does not just tick a box.

[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?

[Lord Bradley (Lab)]

Sixteen.

[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.

--- Later in debate ---

Both those amendments—one on the role of the lasting power of attorney and where it fits into the grand scheme of things, and the other on the critical point at which there is more than just a few leaflets and notices to ensure that the patient has the opportunity to produce an advance choice document—are ones that we should include in the Bill.

[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.

Mental Health Bill [HL]

Baroness Tyler of Enfield Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I will speak to Amendment 62 in this group, which is in my name, and I will try to be as brief as possible. This group is all about the statutory care and treatment plans, and I very much welcome them. They are a very positive part of this legislation and should help patients achieve recovery and hopefully discharge from mental health in-patient units as quickly as possible.

My amendment seeks to ensure that individuals who are turning 18 during a care and treatment plan have their plans reviewed to ensure that there is continuity of care when transitioning from child to adult services. I spoke earlier about the tricky issue of transitioning from child to adult services. It is important for three reasons. Young people aged 16 to 25 experience high rates of mental health problems but are less likely to access the support they need; young people often experience tricky transitions, meaning that too often they fall through the gaps—we have heard so many stories about in this Chamber in the past; and, again as we have said earlier today, young people really should have a say in their care and treatment.

We know that there is a high level of mental health need among young people in the 16 to 25 age group and that it is going up. I have no wish to return to the earlier debate about whether that rise is real, but the numbers according to NHS Digital are very much on the increase. So, while 16 to 25 year-olds are experiencing high levels of need, they are often having real difficulties accessing support. It is sometimes talked about as the treatment gap, which is what the noble Lord, Lord Stevens, talked about earlier on, and it is far wider here than for other age groups.

These poor transitions between CAMHS and adult services are generally the problem because, after someone reaches their 18th birthday—which is the upper limit for CAMHS—young people too often face a real cliff edge when trying to access mental health support. They are no longer in the age range for CAMHS and simultaneously may not reach the threshold for adult services. Effectively, it leaves young people in limbo, with no access to the mental health support they require.

There is a range of reasons for these challenges, including poor information and, very importantly, a difference in treatment models. While children’s services are generally seen as more nurturing, with a focus on treating developmental and emotional disorders, adult services in contrast focus on treating severe and enduring mental illness, meaning that young people with these diagnoses are less likely to be accepted. Just as I have mentioned, the high thresholds for support often result in young people being told that they are not ill enough for the services they need, so unfortunately things get worse and they end up being detained. Without that support during transition, young people can experience all sorts of worsening symptoms and other life outcomes. That is the rationale behind my Amendment 62.

I will mention another couple of amendments in this group that have my strong support. Amendment 64, in the name of the noble Baroness, Lady Keeley, from whom we have still to hear, really emphasises the critical importance of ensuring that, where young carers are involved in a family situation, they are identified, particularly by adult mental health practitioners, who may not have them in mind first and foremost, that people proactively look for them, and then that the young carers—who are often hidden, with their needs only identified when there is a crisis—are supported. That amendment has my full support.

Lastly, I support Amendment 59, in the name of the noble Lord, Lord Davies. At this point—because I have not done it yet—I refer to my interests in the register, both as a member of the Financial Inclusion Commission and president of the Money Advice Trust. I absolutely support what the noble Lord said about the importance of these plans, including matters to do with finance. The links between money problems and mental health are now well proven and this legislation should reflect them. The Bill provides a once-in-a-generation opportunity to ensure that people’s holistic needs, including finances, are considered as a key part of supporting recovery from a mental health crisis.

[Baroness Keeley (Lab)]

My Lords, I rise to explain the significance of Amendment 64 in my name, which aims to cover the situation of both young carers and young children in a family where a care and treatment plan is being prepared for their parent. I thank the Carers Trust for suggesting this amendment and providing a briefing on this issue. I also thank the noble Lord, Lord Young of Cookham, for his support for the amendment and, of course, the noble Baroness, Lady Tyler, who has just spoken of her support for it.

Briefly, the amendment adds the requirement that a practitioner preparing or reviewing a care and treatment plan must ask whether there are children in the family and take actions to respond if the children need help or protection from harm. This amendment would, as I said, cover young carers, but it would also cover young children where there may be safeguarding concerns—a topic which the Child Safeguarding Practice Review Panel highlighted as a theme in its latest annual report.

As the noble Baroness, Lady Tyler, just touched on, young carers are so often hidden, and often their needs are identified only when there is a crisis. Even then, the extent of their caring role and the impact it has on the child’s development may not be recognised quickly or fully assessed. This amendment would help to ensure earlier identification of children who might be in need of information, support or protection from potential harm. It would mean staff asking the right questions early on to ensure that the right information is recorded and actions taken. It would help with adequate signposting of information and a chance to offer appropriate support to avoid a crisis or manage it appropriately.

The amendment also mirrors the new wording in the Working Together to Safeguard Children statutory guidance, which covers adult social practitioners:

“When staff are providing services to adults, they should ask whether there are children in the family and take actions to respond if the children need help or protection from harm. Additional parenting support could be particularly needed where the adults have mental health problems”.


There is evidence that having a parent with a mental health problem is one of the biggest risk factors for a first episode of major depressive disorder in children and adolescents.

This is not inevitable. Research suggests that intervention can enhance parenting skills in households affected by parental depression, and it can change the way that children cope. In turn, this can reduce the risk of children internalising problems that may threaten their life chances. The amendment is designed to enhance the ability of agencies working individually and together to identify and respond to the safeguarding needs of families. It is about supporting the challenging work of finding out what is happening to children and anticipating risks and harm, of knowing when action is needed. In most cases, children receive the support, help and protection they need, but sometimes children are seriously harmed or, worse, they can die because of neglect.

Policy initiatives in recent years have called for a wider family focus on safeguarding children so that all staff recognise that meeting the needs of family members who may put children at risk benefits the child, the adult and the family as a whole. This amendment would support those efforts. The amendment is in keeping with guidance from the Social Care Institute for Excellence to “Think child, think parent, think family”, to ensure that the child is heard and their needs are met.

The Carers Trust believes that the amendment would unlock additional support from mental health professionals to work with parents and children to enable the child to have age-appropriate understanding of what is happening to their parent and information about what services are available for them in their situation and how they can access them.

To illustrate the need for the amendment, I have two short case studies. Aidan was four when his mother was first sectioned under the Mental Health Act. Throughout his childhood, Aidan’s mother was regularly sectioned and would sometimes be in hospital for a number of months. There were many occasions when the police were involved because his mother had disappeared, which was particularly scary for Aidan. In his words:

“To me, you only ever saw the police if you’d done something wrong, so I remember when they turned up at our house, I thought mum was in trouble”.


Seeing his mother being taken into hospital on a regular basis meant that Aidan had lots of questions and worries. In his words again:

“There were so many times where I wondered whether mum would ever come home. I knew she’d been sectioned but I had no idea what that actually meant or if she would ever get better”.


Staff at the hospital who were treating Aidan’s mother would regularly see him visiting. Despite this, none of the staff there told Aidan or his father about support that might be available or asked whether Aidan might need any help. It was only when Aidan was 12 and his attendance dropped at school that he was identified as a young carer.

The second case is Vamp’s story. This is a pseudonym chosen by her family. The case study is taken from a recently published child safeguarding practice review which found that a 13 year-old girl died as a result of taking drugs sold to her in a park. It was identified that her mother had had a period of serious mental illness, and that illness was identified as the catalyst for things deteriorating for the young person. Tragically, two years on, the young person had died. This is taken from the relevant extract from the child safeguarding practice review:

“Vamp’s mother did not feel that her daughter had been a young carer … as the mental illness was short term. However, Vamp’s sister described the situation as being so difficult for both. When their mother was discharged home from hospital, it was only Vamp and her mother at home. Vamp’s sister was only a young adult, and with her own baby to care for. She … said she felt that no one checked in on their mother. Vamp’s sister … said that professionals expected her mother to manage to parent Vamp, which she was not able to do alone, she needed professional help”.


This is a simple but important amendment to protect young carers. I urge my noble friend the Minister to consider it, and I commend the amendment to the House.

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[Baroness Tyler of Enfield (LD)]

My Lords, Amendments 65 and 133, in my name and that of my noble friend Lord Scriven, are both about tackling racial injustices in the operation of the Act. I am sympathetic to the amendments that we have just heard about from the noble Baroness, Lady Whitaker, who set them out eloquently. I also strongly support Amendment 138, in the name of the noble Lord, Lord Kamall.

As I have said in previous debates, a primary driver of the review of the Mental Health Act was the shocking racial injustices in the use of the Act, and we need to have that front and centre in our minds as we work our way through the Bill. Addressing racial inequalities is one of the key issues identified in the 2018 review, and there remain concerns that the Bill still does not go far enough to address that deeply entrenched inequity. As I set out on the first day of Committee when introducing my amendment on including equity as an additional principle in the Bill, black people are more than three and a half times more likely to be detained under the Mental Health Act than white people and over seven times more likely to be placed on a community treatment order. I make no apology for repeating those figures because I think they are scandalous.

Evidence shows that, on average, people from racialised communities experience greater difficulty accessing mental health services and have poorer experiences and outcomes, and we have heard examples of that. For example, black or black British people are more likely to be detained for longer and to experience repeated admission. They are also more likely to be subject to police powers under the Act and experience higher levels of restraint. It is worth noting that the noble Lord, Lord Darzi, in his recent report on the NHS, said the use of restrictive interventions in in-patient mental health settings had continued to rise, and the most recent data shows that people from a black or black British background are still significantly more likely to be subject to restrictive intervention.

I readily acknowledge that there are some measures in the Bill that should have a positive impact for people from racialised communities—for example, the introduction of the advance choice documents that we were talking about earlier, which I very much welcome—but, in my view, the Bill in its current form still only scratches the surface, really. It does not take on many of the recommendations in this area from both the independent review of the Act and the pre-legislative scrutiny committee. Can the Minister explain why those recommendations were not taken on board?

I turn to my amendments. Amendment 65—and I thank the noble Baroness, Lady Bennett, for adding her name—is a probing amendment designed to understand better the Government’s thinking on how they intend to address racial disparities in the use of community treatment orders, which we debated at length on Monday. I do not want to repeat that, save to say that community treatment orders have been used more widely than anticipated and disproportionately on individuals from particular ethnic backgrounds. It is vital that this is closely monitored to ensure that the disproportionality in use is tackled head on. We must not focus just on reductions in the overall numbers of CTOs. Does the Minister agree that that should include collecting evidence on the effectiveness of NHS England’s patient and carer race equality framework and its approach to reducing the overrepresentation of people from black and minority ethnic communities?

Just to show that, rather like my noble friend Lord Scriven, I do not get out enough, I noticed that page 88 of the lengthy impact assessment talks about 13 pilots—trusts that have already started to make changes as a result of this anti-racism framework. Can the Minister update the House on their progress? If she cannot do so now, perhaps she could write to me.

We know that people from these racial backgrounds may also be reluctant to seek help from formal services, based either on previous negative experiences or in some cases because of social stigma attached to mental health issues within their own community. Amendment 133 would require mental health units to appoint a responsible person to address and report on racial disparities and other inequalities relating to the use of the Act. This is really important and it is vital that a new responsible person role is introduced at hospital level to oversee race equality and address inequalities in the operation of the Act.

The responsible person would be responsible for publishing a policy on how that unit plans to reduce racial and other disparities which are based on protected characteristics in that unit or community mental health service. They would have responsibility for monitoring data on equalities as well as overseeing workforce training and policies and drawing up policies to address bias and discrimination. In my view, the creation of a responsible person role at local level would materially help us to move forward to a more transparent and accountable mental health system, and this accountability would be reinforced and amplified by the responsibility this amendment also places on the Secretary of State to report on progress made on reducing inequalities at national level. That is set out in proposed new Section 120H.

I really believe that such a dual-pronged approach to clear and transparent accountability could make a tangible difference in this critical area of public policy, and I look forward to the Minister’s response.

[Baroness Bennett of Manor Castle (GP)]

My Lords, as has already been acknowledged, I have put my name to Amendment 63, tabled by the noble Baroness, Lady Whitaker, and Amendment 65, tabled by the noble Baroness, Lady Tyler. Both of them have done a comprehensive job of introducing the amendments so I will be extremely brief.

The noble Baroness, Lady Whitaker, is well known in your Lordships’ House for championing the many issues affecting Gypsy, Roma and Traveller people. I particularly wanted to sign Amendment 63 because it is a very broad-ranging amendment—it is crucial that everybody gets culturally appropriate forms of explanation. It struck me as we were debating that we are focused now on mental health, but I think this probably would also apply right across the NHS to physical health because there are, of course, cultural differences in understanding our bodies, et cetera.

If we imagine the case, perhaps, of a refugee who suffers mental health difficulties, having fled their home country, where they were subject to abuse by the authorities. It is important to make sure, if they are to be sectioned, that that is carefully explained to and understood by both the patient and potentially the patient’s family. There needs to be an extra level and a sensitivity to that person’s circumstances. We will all have different circumstances, but it is important to look at it in that broad frame.

On Amendment 65, we have already canvassed quite extensively the way in which minoritised communities are currently seeing significant disparities in the way they are treated under the law in the area of mental health, particularly in community treatment orders. The noble Baroness, Lady Tyler, described this as a probing amendment. Whether this is the exact means or not, it is clear that we have to have much better data and to make sure that as soon as trends and patterns emerge in that data, they are acted on. It is encouraging to hear that this is being piloted and work is being done but it is crucial that this becomes standard and that is why it is tempting to feel that it really has to be in the Bill.

Mental Health Bill [HL]

Baroness Tyler of Enfield Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

There could, of course, be circumstances in which two clinicians might conclude in good faith that a patient’s express wishes should be overwritten—for example, where there was a doubt over the bona fides of the patient’s nominated person. But the point of the amendment is to add an extra layer to patient autonomy when the morale and mental equilibrium of the patient is so very shaky. I hope the Minister can provide some words of reassurance on these very troubling and sensitive matters. I beg to move.

[Baroness Tyler of Enfield (LD)]

My Lords, my Amendments 50 and 51 are both about the importance of non-drug-based interventions. As the noble Earl, Lord Howe, said, this group is all about maximising therapeutic benefit. I am very supportive of all the amendments in this group and my amendments are complementary to those just introduced very powerfully by the noble Earl.

I am the first to admit that I am not a clinician, and it is, of course, vital that individual decisions about treatment are made by qualified clinicians. But I am firmly of the view that, in the right circumstances and where clinically appropriate, non-drug-based interventions can be highly beneficial.

New Section 56A establishes a clinical checklist. An approved clinician will be required to go through this checklist when making treatment decisions to ensure that any given treatment is appropriate. Amendment 50 would make it clear that non-drug-based interventions are included in the alternative forms of medical treatment available, which must be identified and evaluated as part of the checklist. In short, it will establish beyond doubt that clinicians must consider and evaluate the use of non-drug-based interventions when they make decisions about treatment.

Non-drug-based interventions can cover many things, such as psychological and talking therapies, counselling, occupational therapies, art and creative therapies, physical exercise, physical activities—the list goes on. It is vital that evidence-based non-drug-based interventions are thought about, identified and considered equally when treatment decisions are made.

As I said in our discussions on Monday—this point was also just made in the introduction to this group—autistic people and people with a learning disability are too often overmedicated in hospital settings. Again, although medication may be appropriate in many places, people cannot and should not be left on their wards with little to no other meaningful therapeutic input other than that medication.

People must be seen as human beings in the round when these treatment decisions are made. That should be reflected in the type of treatment offered, including non-drug-based interventions, such as talking therapies, which are adapted to the individual and have a real prospect of offering therapeutic benefit, either in place of or in addition to medication. I readily acknowledge that treatment can involve either. That judgment is for a clinician to make.

I was very encouraged that the Joint Committee on the Bill recognised in its report the importance of non-drug-based treatment and recommended that the code of practice makes clear that appropriate treatment includes non-drug-based treatment. However, to ensure the Bill aligns with the principle of therapeutic benefit, it is important that this emphasis on non-drug-based interventions is reflected in the Bill.

It is well known that the transition from children’s services to adult services can be particularly difficult when it comes to overmedication and failing to adequately deliver non-drug-based interventions. This has included cases where young autistic people on children’s wards have been provided with some level of speech and language therapy, arts and crafts, and general help with establishing a routine. However, when the transition is made to post-18 adult services, the quality of care can drop off markedly, with no non-drug-based therapeutic treatment delivered, leading to a decline in well-being. In many ways, as has already been said, this is little different from being held in a cell.

Having a wide range of these interventions means that in-patients can have greater choice and control over their care—another key principle of the Bill. The use of non-drug-based therapies in hospital is important, not only to provide a therapeutically beneficial environment during detention but to ensure some essential continuity of support after discharge.

My Amendment 51 differs from Amendment 50 in that it would apply only to autistic people and those with a learning disability detained under Part III. It would ensure that the clinical checklist is followed when treatment decisions are made when making those decisions includes specific consideration of whether non-drug-based interventions are more appropriate in place of, or in addition to, medication.

As we have already discussed, one of the most significant changes in this Bill is the change to the detention criteria in Part II, Section 3. This means that autistic people or people with a learning disability cannot be detained under Section 3 unless they had a co-existing psychiatric disorder. However, this is not being applied to Part III patients—that is, those detained through the criminal justice system. This means that autistic people and people with a learning disability can continue to be detained for “treatment” in mental health hospitals under Part III, even if they do not have co-existing psychiatric disorders. One of the concerns about the Bill, as we have heard, is that a consequence of poor implementation could mean that more autistic people and people with a learning disability are diverted into the criminal justice pathway to get round, frankly, the new detention criteria for Section 3.

It could well be the case that Part II patients who are autistic or have a learning disability will exhibit behaviours that challenge, for which certain psychotropic medications can be prescribed. These medications can include anti-depressants, anti-seizure or anti-psychotic medications, sedatives or stimulants. NHS England’s website states:

“People with a learning disability are thought to be 16 times more likely and autistic people 7 times more likely to be prescribed an antipsychotic than the general population”,


despite existing guidance that people should be given psychotropic medication for only the right reasons, in the lowest dose and for the shortest time.

I simply conclude by saying that the focus on non-drug-based interventions in these amendments is not about saying that medication should not be used. Indeed, it can be highly beneficial in many cases. It is about ensuring that other factors that contribute to therapeutic benefit are always considered and put on an equal footing.

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Moved by

[Baroness Tyler of Enfield]

55: Clause 19, page 28, line 27, at end insert—
“(7) In section 24 of the Mental Capacity Act 2005 (Advance decisions to refuse treatment: general), after subsection (5), insert—“(6) For an “Advance decision” in relation to a treatment for a mental disorder under the provisions of the Mental Health Act 1983, a person may make a decision once they have reached 16.””Member’s explanatory statement
This amendment extends advance decisions to those who are 16 and over.

[Baroness Tyler of Enfield (LD)]

My Lords, in moving Amendment 55 I will speak to Amendment 136; both are in my name. This is another very important group, about children and young people’s competence and decision-making. Amendment 55 is about extending advanced decisions to those who are aged 16 and over. I recognise that there is also an important amendment from the noble Earl, Lord Howe, about advanced decisions—a similar issue, but perhaps taking a different approach.

The Bill will give legal weight to advance decisions within the Mental Health Act, which I very much welcome. Adults will be able to record their advance refusal of a particular treatment if they lose capacity. An advance decision will have the same effect as a refusal of treatment made with capacity and will ensure that the individual can access enhanced safeguards before the treatment can be given. Although advance choice documents, where advance decisions will be recorded, will be available to adults of all ages, the Bill as drafted does not permit under-18s to make advance decisions. As such, someone aged under 18 could say in an advance choice document that they refuse a particular treatment if they would not want it, but that would have limited weight. Specifically, it would mean that, if the child or young person lacked capacity or competence to consent to treatment when it was offered, their advance refusal would not give them access to the enhanced treatment safeguards that are available to adults, including tribunal appeal.

This means that, rather than being on an equal footing, children and young people would be disadvantaged compared with adults. Therefore, I see this very much as part of parity of treatment between children and adults. I am strongly of the view that the safeguards that flow from advance refusals of treatment should also be made available to young people. This is what my Amendment 55 is designed to do.

I add one more general point. We still have work to do in Committee to strengthen safeguards and protections for children and young people in mental health in-patient care. There should be a general principle of parity of treatment between children and young people and adults. Of course I recognise that some distinctions have to be made due to the legal status of under-18s, but I said at Second Reading, and it remains my view, that this Bill was never really designed with children and young people in mind, yet it can affect them greatly. In responding, can the Minister set out how much input DfE Ministers and officials have had on the drafting of the Bill?

It will probably help if I explain that Amendment 136 is closely related to Amendment 147, tabled by the noble Lord, Lord Meston, whom I have had the opportunity of corresponding with. I do not want, in speaking first, to pre-empt what the noble Lord will say, but I need to reference his amendment to explain mine. I share the concern that the Bill does not include a test to determine the ability of children under the age of 16 to make decisions—in other words, whether they are competent. Without such a test, this age group will not be able to benefit fully from the rights and safeguards included in the Bill; the question is how we best get there.

Under-16s are currently at a disadvantage. Whereas all those aged 16 and over are presumed to have capacity to make decisions for themselves unless evidence shows otherwise—in which case the Mental Capacity Act kicks in—under-16s are presumed to be unable to make decisions for themselves unless they demonstrate that they are competent to do so. There is also no clear and consistent approach for determining whether a child is competent. Although the concept of competence is generally understood, how to assess a child’s competence is not.

That is why I have a lot of sympathy with the amendment tabled by the noble Lord, Lord Meston, which would insert a test for determining the ability of someone aged under 16 to make decisions under this legislation. His amendment explicitly limits this test to decisions made under the mental health legislation and is explicitly focused on the criteria with which to determine whether a child is competent. No doubt he will explain his amendment far more eloquently than I could ever do. My amendment would require the Secretary of State to review whether a statutory test for under-16s would be expedient for the purpose of this Act and for mental health legislation more generally. It is very much a stepping stone towards that position and, I hope, supports change in this area.

Such a review is important because it could address some of the concerns that have been expressed in this area. It could include whether such a test should be in the Bill or in a code, how best to make it clear that a test will be specific to the scope of legislation rather than having wider application, and how such a test would help with the successful implementation of the Bill. It could help to establish that the test is specific to whether a particular child can make a particular decision at a particular time, and set out what information is required.

I am aware that, in some of our broader discussions, concerns have been raised about the possible unintended consequences of such a test in relation both to parental responsibility and to a child being seen as Gillick competent—that is, they have the ability to understand the decision. I feel that a review would be helpful in looking at these issues and addressing those concerns head-on. In that way, we would make important steps in ensuring that the whole of the mental health reforms work properly and fairly for all children and young people. I beg to move.

[Lord Meston (CB)]

My Lords, as the noble Baroness has just said, my Amendment 147, which deals with competence and decision-making, would provide what I suggest is a necessary statutory test to determine the decision-making competence of children under 16 years of age in all matters under this legislation for which such a determination is required. The Joint Committee on the draft Bill pointed out, echoing what was said in the independent review of the 1983 Act, that attempts both to protect and to empower children have produced a complex mixture of statute and case law with no single method of assessment and no consistent criteria to establish either capacity or competence. This is a particular disadvantage for children and young people, who do not have the benefit of any statutory presumption of competence such as that which applies to adults.

Importantly, the amendment, although offering a test, does not create any presumption of capacity in a child. Moreover, the reason for the child’s inability to decide is irrelevant. It would, however, require that those determining whether a child is competent must give reasonable grounds for reaching that conclusion. It is important to emphasise that this amendment is concerned only with how to assess whether a child is competent and not with the consequences of any determination that a child is competent.

This Bill has been produced with numerous references to capacity and/or competence in various contexts, including consent to CETR meetings, “disclosure of information”, “consent to treatment”, making advance choice decisions,

“terminating the appointment of a nominated person”

and involving “mental health advocates”. However, the Bill is currently silent on what is meant by “competence” and how it should be determined.

The existing statutory test in the Mental Capacity Act does not apply to those under 16. The separate concept of Gillick competence—it is derived from the pivotal case of that name, decided in 1986—requires inherently subjective assessments of the child’s understanding and maturity. I speak with some experience of having to decide whether or not a child is competent to participate independently in court proceedings concerning them. That exercise sometimes feels rather paternalistic and is, as has been pointed out, really subjective, with the test in Gillick offering no guidance on the extent to which adjustment should be made for factors such as peer pressure, drug and substance abuse, family stress, emotional disturbance or illness.

More recent case law shows that the Mental Capacity Act can be used to inform an assessment of child competence, but it is not mandatory to do so. The factors set out in this amendment to indicate a child’s ability to decide are the features carefully identified by Mr Justice Cobb, as he then was, in a case decided in 2017 concerning the difficult question of whether or not a girl under 16 had the capacity to consent to her child being adopted.

I therefore suggest that there is now a need for clearer and more rigorous guidelines—structured guidelines that are not just mechanistic checklists—for mental health and legal professionals to work with. The assessments that have to be made of a child’s ability to understand and weigh relevant information need to be decision-specific, child-specific and time-specific, and they have to recognise that competence can fluctuate as well as evolve. These are not straightforward assessments and are certainly not a mere formality.

A statutory test would be welcomed by practitioners and the courts. This is too important to be left to the code of practice; such codes are intended to reflect and supplement the law, not to create law. A clear test in the statute would only be of assistance to practitioners and would allow children to benefit from the safeguards within the Bill.

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I can assure noble Lords that we will keep an eye on this but we do not, in all honesty, intend to open this issue in the immediate term, given the broad application in a range of settings, and the wider sensitivity around matters relating to the ability of children to make decisions in relation to healthcare, care and education. We will consult on the guidance for assessing competence in mental health settings in the revised code of practice. With this, I hope noble Lords will feel able not to press their amendments.

[Baroness Tyler of Enfield (LD)]

My Lords, I thank the noble Baroness for that response. One thing we can all agree on from this discussion is that these are complex issues and people sometimes have rather different understandings of what certain things might say or mean.

Having said that, I would just like to say where I think we are on the two issues. First, on advanced decisions, I have a strong view that children and young people aged 16 and 17 should have choices that are made available to adults extended to them. As I think the noble Baroness, Lady Bennett, said, it is about having a sense of agency and autonomy and feeling that their wishes and feelings are being respected. It may be that I did not draft it very well, but I was not suggesting that everyone was going to be forced to do it. It is there as an option, and that is a really important point that possibly did not come out sufficiently in the debate. The fault for that is mine. It may be that the approach that the noble Earl, Lord Howe, was suggesting is a better way forward. I do not know; I do not mind. I just feel that, because to me this is so fundamental and a question of human rights, we will need to return to this on Report.

I turn with some trepidation now to the statutory competence test for under-16s. I have been accused of being too cautious. That is fine. I understand where noble Lords were coming from. I did not say it when I introduced it, because I thought it would be a bit to odd to say it, but I was seeing my amendment as a bit of a backstop. In other words, if the Government are not minded to accept that recommendation, at least something would happen and at least there would be some sort of progress. As I said, I was very sympathetic to the test and the way that the noble Lord, Lord Meston, set it out. It had a fair amount of support, of course, across the Chamber, but the debate also showed that there are still some quite tricky issues that need to be teased out. I do not think it was quite as clear-cut as perhaps was being suggested, not least about issues around the consistency or otherwise of the application of Gillick.

It may be that, again, I did not get the wording right when I talked about a “review”. I accept that. Reviews can be kicked into the long grass and you never see anything again. But I thought the idea of a consultation was very important and, in fact, I think it would be quite difficult, having listened to this debate carefully, to move straight to having something in the Bill without having some sort of consultation first. It might be that you would want to take some sort of powers that would enable such a thing to be put in place after that consultation had happened, but to me it just felt that some issues still needed to be teased out.

Perhaps my initial amendment was not completely ludicrous, but it has been a really good and interesting debate—

[Lord Kamall (Con)]

Probing.

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[Baroness Tyler of Enfield (LD)]

Probing, absolutely. Thank you. And again, on this issue I sense that we will be returning on Report. But, having said those things, I thank all noble Lords who participated in this debate and thank the Minister for her responses. I beg leave to withdraw the amendment.

[Lord Meston (CB)]

My Lords, I do not want to prolong this, but I have to say that, although I am disappointed and a little surprised by the response from the Government, the intention is to align the Mental Capacity Act and Gillick. It is frankly not correct, if I understand the situation, to say that it is not based on case law. I referred to a specific case in which the judge formulated, essentially, the test that appears in my amendment. As I say, I do not want to prolong this but, if necessary, I can refer the Government to that case.

Mental Health Bill [HL]

Baroness Tyler of Enfield Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I rise to speak to Amendments 102, 105 and 106 in my name. These amendments all deal with extending the provision of advocacy services to informal patients below the age of 18. When I read the other amendments in this group, I thought, “Goodness me, this is going to be a bit tricky, isn’t it?”. It felt at one point as if we were diametrically opposed, and that is not a comfortable position to be in against someone with years of expertise who is as distinguished as the noble Baroness, Lady Murphy. However, I have listened carefully to what she has to say and the nub of it is her concern about resources. On that point, I fully get it, about the workforce generally and advocates in particular. I am going to press on with my amendments none the less, because I am trying to deal with the principle as opposed to the resources.

Both the Independent Review of the Mental Health Act and the Joint Committee on the draft Bill recommended that advocacy should be extended to informal patients. Currently, only those detained under the Mental Health Act 1983 have a legal right to advocacy services. The Mental Health Bill introduces a new opt-out scheme, meaning that all detained patients will get an automatic referral to advocacy services. The Bill also extends advocacy to informal patients, but they will not be captured by the new opt-out scheme, meaning that informal patients will still be required to ask for support via an advocate. This is at the very nub of the problem with which I am concerned.

It is crucial that children and young people aged under 18 admitted to mental health in-patient care informally should have an automatic referral to advocacy services, in line with those who are detained under the Act. There may not be very large numbers—that is relevant to the resource concerns—but it is worth remembering that a higher proportion of children and young people are admitted to mental health hospitals informally. Indeed, it is estimated that around 31% of under-18s are admitted to in-patient care this way—namely, on the basis of their own or parental consent. Having access to an advocate automatically will help young informal patients understand and exercise their rights and ensure they have a say in the decisions made about their care and treatment. This could also lead to improved outcomes and prevent young people being kept in hospital for any longer than they need to be—something I am sure we all agree on.

It is worth adding that the lack of access to advocacy for informal patients has been a long-standing concern. There is a real concern that children and young people admitted informally will continue to experience problems accessing an advocate under the new system proposed as part of the Bill. It has been noted that, often, young informal patients do not understand their rights and feel an underlying threat that, if they break the rules in some way, they will be sectioned. We have to take that into account. Despite the concerns about resources, which I fully understand, access to an advocate is crucial in helping children and young people who are informal patients navigate what is a very complex system.

[Baroness Berridge (Con)]

My Lords, I will speak briefly to support the amendment tabled by the noble Baroness, Lady Tyler. The extension of advocacy services to children and young people is important, because, as she outlined, there is a disproportionate number of children who are voluntary—I think there are just under 1,000 a year—in mental health institutions.

It is also important to recognise that there are other additional rights that children have when they are detained, or when they have agreed and consented to go into hospital. They need to continue their education while they are in there. It is important to advocate for what their entitlement is while they are in hospital—I think we are all used to walking past the hospital school that is within a normal physical illness hospital—thereby enabling them to continue their education and considering what their rights are in that regard. That is obviously so important for them and their recovery, so I support the amendment from the noble Baroness, Lady Tyler.

Mental Health Bill [HL]

Baroness Tyler of Enfield Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Murphy (CB)]

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

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

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

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

[Baroness Tyler of Enfield (LD)]

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

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

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

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

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


I see this as a key preventive measure—

“detention under the Mental Health Act 1983”.

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

[Baroness Parminter (LD)]

I am sorry that I did not jump up in time before my Front Bench spoke.

I just wanted to add my voice to support Amendment 139 in the name of the noble Earl, Lord Howe, and the report on community-based services. It is really timely and we need it. The case was made very carefully and well by others, so I will not expand much other than to say that an extensive report was done in November by the leading charity, Beat, which looked at the case for more intensive community care and daycare for people with eating disorders in order to avoid—the very point that the noble Earl, Lord Howe, made—ending up getting to such a point of severity that they need to go into mental health facilities and be detained, which indeed happened to my daughter, as I made clear at Second Reading.

The case has been well made that a report should be made. I agree with my noble friend Lady Tyler that two years seems quite a long time off, particularly as recent work has been done, particularly in the field of eating disorders, to show that you can both reduce the number of patients and reduce the cost if you make the investment up front in community services.

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This amendment aims to ensure that, given that we have brilliant researchers making real progress, Parliament knows about that, it is incorporated into treatment, and we are really keeping up. As we heard earlier in the debate on this group, we are not at the moment.

[Baroness Tyler of Enfield (LD)]

My Lords, I want briefly to make a couple of comments on this important group. As everyone has acknowledged, an absolutely vital change to the Bill is that, in the future, people with learning disabilities and autism will not be detained by the Bill and their needs are to be met in the community. I am sure we can all agree on and gather around that.

The noble Lord, Lord Beamish, made the point that, far too often in the past, people with learning disabilities and autism have been overlooked. I see the Bill as a real opportunity to do something substantive about that. That is why I note some of the amendments we have heard about in this group—certainly those in the names of my noble friends Lord Scriven and Lady Barker, and others—about the importance of having properly trained staff with up-to-date knowledge and expertise, as the noble Baroness, Lady Bennett, has just mentioned.

For any of this to happen, it is important that there is a proper plan, that is costed; the resources need to be available, and properly trained staff with up-to-date expertise need to be available in the community. To ensure that there is some sort of accountability around all this, I reiterate the question that my noble friend Lord Scriven asked the Minister: when will we see new targets—we have not got any at the moment—to reduce the number of detentions of people with learning disabilities and autism? It would be helpful to know that those targets will be put in place and that there is some way of monitoring the progress on all the important things we have been talking about in this group.

[Lord Patel (CB)]

I agree with what has been said: we need a definitive plan for how things will work out. We cannot rely on it being in five or 10 years because, as the noble Baroness, Lady Murphy, said, it then just becomes an ambition rather than a target to achieve.

I support the amendment of the noble Baroness, Lady Browning, which strongly asks that the people who look after children with autism and learning disabilities are properly assessed by properly trained and accredited people. We know that, currently, children are ending up in detention inappropriately because they are assessed to have a psychiatric condition such as schizophrenia—as the noble Baroness, Lady Browning, said—when, although they might have some psychiatric sub-condition, they fundamentally have autism or learning disability problems.

I am sorry that the noble Lord, Lord Adebowale, is not here to speak to his Amendment 150, which asks quite powerfully for a clear plan to be laid out, with resources tied to it, to achieve the ambitions there are in the Bill. I would have supported his amendment probing the Minister as to how resources will be allocated to achieve the ambitions for those targets to be met.

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[Baroness Murphy (CB)]

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

[Baroness Tyler of Enfield (LD)]

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

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

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[Baroness Tyler of Enfield (LD)]

I shall make a few points in response to the amendments that we have been discussing in this group. The noble Baroness, Lady May, made, very powerfully, an incredibly compelling case. The point she made about police officers sitting in A&E for many hours is so important. Not only is that a waste of police resources, it is often completely inappropriate for the person suffering from acute mental health problems. It can also be incredibly alarming for others in A&E. We all know that, sadly, far too many people are waiting for far too long in A&E, in the sort of environment that is in no way conducive to their overall health, physical or mental. That is my first point.

My second point relates to something that the noble Lord, Lord Davies, said. There will still sometimes be a role for police officers. I know from personal experience how much a police presence can be required when a person suffering a very acute mental health crisis is likely to harm both themselves and others. Those others can often be family members who are trying to support the person suffering from the crisis but are also pretty scared for their own safety. It is important that we are talking about widening the range of people who can be that primary responder, but we are not saying that it should never be the police.

I agree that if we have a wider primary responder, that individual must be prepared to do it, happy to do it and appropriately trained. We heard a lot in earlier groups about the importance of good training. I was particularly taken with the statistic that the noble Baroness, Lady May, raised about the views of paramedics and how many of them support this, because they are the people right at the sharp end. I cannot quite remember the number who support it, but it was very large, and so I think it is something that we should take seriously.

Finally, I want to lend my support to Amendment 49A in the name of my noble friend Lady Barker. Speeding up access to appropriate services is important, as is making the best use of the workforce that we have. For those two reasons, the amendment that my noble friend put forward is important.

[Lord Meston (CB)]

My Lords, I hesitate to interrupt, but I want to make much the same point that the noble Baroness has made based on my experience of a trip to A&E last year. I mentioned it anecdotally at Second Reading. There was a very disturbed person in A&E when I was having to wait there for some three hours. The hospital staff were struggling to contain the person in one room, as he kept leaving. He was not violent, but he was obviously distracting the hospital staff and worrying the other people present, who included children. As soon as anybody asked the staff what they were going to do, they said that they had to wait for the police. I have no doubt that the whole episode that I witnessed was prolonged by the need to wait for the police. Clearly, if this amendment or something like it is approved, it will widen the range of those who could be called upon to deal with such a crisis.

Mental Health Bill [HL]

Baroness Tyler of Enfield Excerpts

Committee stage
Tuesday 14th January 2025 Lords Chamber

Moved by

[Baroness Tyler of Enfield]

21: Clause 4, page 8, line 21, at end insert—
“(ba) the person is under 18 years old and satisfies the conditions in (b)(i) and (b)(ii),”Member’s explanatory statement
The amendment inserts a new subsection that extends the duty on integrated care boards to establish and maintain a register for those at risk of detention to all children and young people under the age of 18.

[Baroness Tyler of Enfield (LD)]

My Lords, I will also speak to Amendments 27 and 32 in my name. My amendments all relate to children and young people, but this group also includes important amendments in the name of my noble friend Lord Scriven, which I support, on the duties on commissioners, integrated care boards and local authorities regarding care provisions for people with a learning disability or autism. Also important are the amendments from the noble Baronesses, Lady Browning and Lady Hollins. I add my condolences to the noble Baroness, Lady Hollins. I am sure we are all thinking of her today.

By way of context, the Bill introduces a new duty on integrated care boards and local authorities to commission community services for those with a learning disability and autism. The Bill also places dynamic support registers on a statutory footing. These are welcome and much-needed duties, and the Bill presents a crucial opportunity to strengthen the support provided to those with learning disabilities and autism. However, I want to go further. I recognise that there is some piggybacking on my part, but I am passionate about the mental health support that is available to children and young people, so I believe that the duties to provide community services should be extended to include everyone aged under 18, to ensure that children and young people can have their needs met without them having to be admitted as in-patients. That is where is my Amendments 21, 27 and 32 come in—they are all interrelated.

Amendment 21 seeks to extend the duties placed on integrated care boards to maintain a register of those at risk of detention to all under-18s. Amendments 27 and 32 would extend the new commissioning duties on integrated care boards and local authorities to include under-18s. In essence, the duties are both to identify and to commission services in the community that meet the needs of all under-18s.

As I think we all know, the Bill has been introduced at a point when waiting times and thresholds for mental health support for children and young people across early intervention services, targeted support services, CAMHS, et cetera are worryingly high. Consequently, too many children and young people are left to reach crisis point. Evidence shows that the number of children referred to emergency mental health care in England has increased by more than 50% in three years. These amendments will not only help to achieve improved outcomes for children and young people but have wider benefits for the mental health systems through intervening at an earlier stage, providing improved care for children and young people in the most appropriate settings, and reducing costs. This is all in line with the Government’s key drive to move to a more community-based, preventive model of healthcare—and, frankly, that should apply to mental health as well as to physical health, and to children and young people as well as to adults.

We all know, as we have discussed so many times in this Chamber, that children’s mental health support has historically been woefully underfunded. There is a lack of clear accountability to ensure that effective community provision is in place. I therefore consider that adding all children and young people to the new commissioning duty placed on local authorities and ICBs in the Bill is crucial to ensuring that their needs can be met at an early stage, preventing crisis and later admission to mental health in-patient care. We should worry about the whole system and try to prevent people getting to in-patient care, as well as worrying about those who do. In short, my argument is that their needs should be met without the need to detain children and young people, wherever that is possible.

Research has demonstrated that children’s and young people’s experience of in-patient care is consistently poor, too often further harming their mental health. A survey conducted by Mind on children’s and young people’s experience of care in mental health hospitals found that 69% of the young people surveyed said that their experience as in-patients had not been positive. In my view, a shift to such community-based provision would not only reduce the number of children and young people requiring in-patient beds but would in turn reduce demand for in-patient care and the risks of children and young people being cared for in what can often be highly unsuitable environments. It would also ensure that those with the most complex needs who do need in-patient care receive high-quality care in a setting that is right for them.

In case people are sceptical as to whether this sort of care can be provided in the community, I am aware of case studies of types of support in the community, such as hubs and the like, that can be used to manage high levels of risk. Where that care is provided in the community, in a relaxed, warm and calm environment, it can often be an alternative to young people having to visit A&E, where they may not get specialist mental health support and waiting times can be so long. I beg to move.

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With those remarks, I ask that the noble Baroness will be good enough to withdraw her amendment.

[Baroness Tyler of Enfield (LD)]

My Lords, I thank the Minister for her response. I also thank other noble Lords who have participated in this debate.

For me, the nub of this grouping has been the whole issue of prevention—I think “getting upstream” was the phrase my noble friend Lord Scriven used—and having in place within the community better and more responsive services, with the aim of reducing admissions to in-patient care but, at the same time, improving the in-patient care that is available, because the only people there are those for whom nothing else will work. It is very welcome that the Bill puts the dynamic support register on a statutory footing. On the two amendments from the noble Baroness, Lady Hollins, beefing that up still further, I think I heard a slightly encouraging response from the Minister. I will look carefully at Hansard tomorrow, as I am sure will the noble Lord, Lord Crisp, to see what was said.

I can see that while some people may think that prevention is very important, they would ask what it has to do with this Bill. I do not see it like that. You have to take a system-wide approach. To get the whole mental health service working, even when you are looking at what I call the hard end—the crisis end—you have to look at what is happening at the preventive end and try to reduce the number of people who might need to be admitted. That would send an important message that there are clear legislative requirements for what services should be available within the community. This Bill, frankly, is the obvious place to do it—hence the amendments around children and young people that I raised.

I was pleased to hear the Minister say that the transformation and the 10-year plan will apply at least as much to mental health as to physical health. That is very encouraging and I am glad that we have got it on record. I was not altogether surprised that the Minister thought that my amendments were unnecessary. I do not agree. I was not just talking about children and young people with learning disabilities and autism. They are obviously a very important group, but my rationale for trying to broaden it out to all children and young people was, in essence, to make sure that only those with the most complex needs would receive that higher-quality care in an in-patient setting—everyone would benefit from that approach. The Minister talked about a new approach to children’s and young people’s services, and I look forward to hearing more details. I do not know whether the Minister can tell us when we might expect to see that.

Finally, my view is that the 1983 Act was never really designed with children and young people in mind; I think everyone agrees with that. This Bill is an opportunity for us to put children and young people centre stage—hence my amendment. This is such an important topic that I think we shall be returning to it on Report. On that basis, I beg leave to withdraw my amendment.

Amendment 21 withdrawn.

Mental Health Bill [HL]

Baroness Tyler of Enfield Excerpts

Committee stage
Tuesday 14th January 2025 Lords Chamber

Moved by

[Baroness Tyler of Enfield]

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

“Equity

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

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

[Baroness Tyler of Enfield (LD)]

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

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

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

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

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

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

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

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

[Baroness Tyler of Enfield (LD)]

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

Amendment 1 withdrawn.

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[Baroness Bennett of Manor Castle (GP)]

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

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

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

[Baroness Tyler of Enfield (LD)]

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

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

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

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

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