Mental Health Bill [HL]

Earl Howe Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Earl Howe (Con)]

My Lords, I begin by extending my gratitude to the noble Baroness, Lady Merron, for introducing the Bill into your Lordships’ House and for her very clear exposition of its contents. It is a Bill that we on these Benches warmly welcome. That welcome should not come as a surprise because, as the noble Baroness said, the Bill before us is the successor to a draft Bill prepared by the previous Government, a draft that owed its origin to my noble friend Lady May, on whose watch a review of the 1983 Act was initiated some seven years ago during her time as Prime Minister. Much of what we see laid out here is the product of diligent work carried out by Professor Sir Simon Wessely and his review committee, as well as the Joint Committee of both Houses, so ably chaired by my noble friend Lady Buscombe.

The passage of the Bill presents us with a golden opportunity to address both the current state of mental health provision and the law that governs it. The last major update of the Act took place in 2007 under the previous Labour Government. That may not sound like a long time ago but, as we shall no doubt hear from others, experience gained in the intervening years has taught us that a further update is indeed warranted if we are to ensure that the Act remains relevant and appropriate, and that its powers are proportionate.

Wherever the state uses its powers to deprive an individual of their liberty, the necessary safeguards must be in place so that those powers are used sparingly, proportionately and with the highest regard for human dignity and autonomy. That is why the Bill is so important. Since the last set of changes to mental health legislation in 2007, the number of people being detained under the Mental Health Act has grown exponentially. In fact, since 1983, the numbers have nearly doubled to a total of over 52,000 new recorded detentions between 2023 and 2024.

Within that total, we have also seen a stark disparity in the classifications of those being detained. Black people are 3.5 times more likely to face detention under the Act. Shockingly, to my mind, there are currently over 2,000 people with autism and learning disabilities detained in mental health hospitals across the country. I was equally shocked by the realisation that people with autism can be detained even if they do not have a mental health condition, leading to disproportionate, burdensome and wholly inappropriate treatment.

These issues occupied centre stage in the Wessely review, which proposed the formal recognition of four key principles that should from now on govern both theory and practice in this area of the law. The principles are: choice and autonomy; least restriction on liberty; therapeutic benefit; and the person as an individual. The previous Government fully accepted these four principles and—giving life, as it were, to those principles—the draft Bill set out to make a number of important changes. It strengthened the rights of patients with a learning disability, it gave patients greater autonomy in choosing how they wish to be treated, it introduced duties on commissioners to better understand and support people with a learning disability or autism, who may be at risk of crisis, and it sought to update community treatment orders, which are one of the key drivers of racial disparities in the numbers of people subject to restrictions under the Act.

It is therefore very pleasing indeed to see this Government’s firm commitment to enacting exactly these reforms, and I, for one, hope that as the Bill proceeds, we can come together as a House to implement and, where necessary, improve this hugely beneficial set of changes.

With consensus as the thread that, happily, we expect to run through our consideration of the Bill, there are nevertheless certain themes within it that are likely to require our particular attention. The first of these is community treatment orders. CTOs were first introduced in the Mental Health Act 2007. The Joint Committee on the earlier draft Bill was very clear that CTOs had been widely overused and that they are one of the leading causes of the racial disparities that I referred to a minute ago. The Bill before us makes a number of changes to the criteria governing the use of CTOs, all of them designed to support two of the key principles in the Bill: those of least restriction and therapeutic benefit.

As far as they go, these changes are desirable. However, the Bill stops short of including the full suite of recommendations made by the Wessely review. The Centre for Mental Health has raised this as a key concern. It points out that there is still no persuasive evidence of the benefits of CTOs. Against that background, it argues that a number of checks and balances are needed on the use of CTOs in future, over and above those already in the Bill. In particular, it notes that the committee recommended a full statutory review of the use of CTOs to report within a fixed timeline, which, on the face of it, is the least that we should be doing. I think we will want to debate in Committee why the Government have not felt it appropriate to go as far as the Joint Committee and the independent review recommended in this area.

The next important theme is children and young people. According to NHS data—and this was highlighted by the noble Lord, Lord Darzi, in his recent review—932 children in mental health units were subject to restrictive interventions in 2023-24. In total, more than 84,000 restrictive interventions were carried out on these children, which is a 51% increase from the year before. This is the highest number of restrictive interventions recorded since figures were made available in 2019, and that is despite the number of children in mental health units appearing to decrease.

We have a duty to use the Bill as an opportunity to identify ways of reducing such restrictive interventions and using them more humanely and more proportionately. Two years ago, the Government launched the Oliver McGowan training for NHS staff to help them better deal with young patients with autism. Noble Lords may remember that this was in response to a truly harrowing and appalling set of occurrences that ended with the death of a young man. It is fair to say that the case shook the health service to its core. I believe we have in the Bill the opportunity to take forward those lessons so as to protect children who may be at risk from unwarranted detentions.

The independent review and the Joint Committee had much to say about how treatment of children under the Mental Health Act could be improved. Unfortunately, by no means all those recommendations have found their way into the Bill. One such omission relates to the inappropriate placement of under-18s into adult wards or facilities that can sometimes be miles away from their home. The Joint Committee found that in each of the years 2016-17, 2017-18 and 2018-19, over 1,000 children were placed out of area, and that in 2020, 21% of children and young people were placed as in-patients more than 50 miles from their home.

It is perfectly obvious that being taken to an unfamiliar environment in a place far away from friends and family is almost guaranteed to exacerbate the issues young people face when experiencing a mental health crisis. On top of this, data from the Care Quality Commission showed that in 2021, 249 children and young people admitted for mental health treatments were housed on adult wards for more than 48 hours, some for a good deal longer than that. These are uncomfortable figures; I hope noble Lords on all sides of the House will want to ensure that, through this Bill, we take all possible steps to bear down on the scale of these problems and strengthen the protections afforded to children and young people.

One of the core themes that has remained prominent throughout the process that has led to this Bill is that of choice: giving patients as great a degree of autonomy as possible in how they are treated and maximising their ability to determine what happens to them if they are detained. In that regard, I think the Bill succeeds on many counts, but one measure recommended by the Joint Committee was that there should be a statutory right to an advance care document for every patient who has been or may be detained under the Mental Health Act. The Bill, as it stands, does not follow up on this recommendation. Instead, it places a duty on NHS England and integrated care boards to make information regarding such documents available to patients. I do not doubt that this is a beneficial reform, but we should debate whether it goes quite as far as it usefully might. Guaranteeing patients and service users the chance to state and record their preferences for care and treatment plays directly into the key principles of choice, autonomy and treating every person as a rounded individual—so what are the barriers to doing that?

There are a whole host of detailed issues which we will need to cover in Committee. The final, major area I want to touch on is that of the role played by the police. Inevitably, circumstances arise in which the police are required to become involved with people who may be a risk to themselves or to others. There is a strong feeling that encounters with the police are far too common for people with mental health conditions. As the independent review and the National Police Chiefs’ Council have pointed out, the presence of the police in situations where a mental health issue poses a risk of serious injury or death can be counterproductive. In its written submission to the Joint Committee, the Metropolitan Police stated that:

“Our officers simply cannot provide the specialist care needed, exposing both patients and officers to extreme risks”.


The NPCC has also expressed its concern that the role of the police in mental health pathways must be reduced.

It is welcome that the Bill goes some way to addressing this. Clause 46 removes police stations and prisons as places of safety, thereby preventing patients experiencing mental health crises from being locked up inappropriately. However, there is a potential knock-on effect that we should talk about in Committee. Well-intentioned as the provision is, it could well lead to a rise in people being admitted to accident and emergency departments, escorted by the police, and having to wait in crowded spaces with the lack of the necessary, specialised facilities until they can be assessed by clinicians. In this environment, the risk of harm could well be multiplied. We need to ask how this risk can best be mitigated. I fear that any realistic answer will need to involve resources, by which I mean taking steps to ensure that the requisite arrangements are made for NHS trusts to deal with an increase in the number of mental health patients being admitted to hospitals as places of safety. This is not an easy set of issues, but it is a subject that we cannot duck.

Parliament must see to it that wrongful, inappropriate and untherapeutic detentions of those undergoing a mental health crisis are brought to an end. The Bill provides us with a necessary and welcome opportunity to transform the treatment of those with mental health conditions and to bring both doctrine and practice well and truly into the 21st century. Along with my noble friend Lord Kamall, I look forward to working with the Minister and with noble Lords on all sides of the House to scrutinise and—where we can—improve the Bill’s provisions. Many thousands of the most vulnerable members of our society are depending on us to do so.

NHS: Independent Investigation

Earl Howe Excerpts

Tuesday 8th October 2024 Lords Chamber

[Earl Howe (Con)]

My Lords, I am glad we are having this debate on the report by the noble Lord, Lord Darzi, even if the tone set by the Statement—which I am sure noble Lords have read—is, as far as I am concerned, rather regrettable. It is regrettable because the noble Lord, as one would expect of that most distinguished man, has produced a thoughtful and carefully argued diagnosis and set of prescriptions for the NHS. It would have been better to treat those findings on their own terms rather than as an excuse for a highly charged political rant. Having said that, I hope that, in this House at least, we can maintain debate on a rational and civilised level.

There are indeed problems in the health service that are there for all to see and others that are less immediately visible. These problems are real and indeed require sustained remedial effort. The noble Lord, Lord Darzi, attributes them to a mixture of causes, one being inadequate central government funding. I do not expect the noble Lord to be an apologist for the previous Government, but it would have been nice if he had acknowledged more fully that, despite so-called austerity, health service funding rose in real terms in every year since 2010 and in the last five years by nearly 3% in real terms per annum. The problem, as Sir John Bell has pointed out, is not a lack of money: it is that too much of the money has been sucked, suboptimally, into acute care settings and not enough into the community. The noble Lord goes on to say that very thing. But let no one conclude from that that community funding has been neglected. The last Government oversaw the opening of 160 community diagnostic centres. As my right honourable friend said in the other place, this is the largest central cash investment in MRI and CT scanning capacity in the history of the NHS.

Is there more to be done? Yes—but the results are there and proving their worth. The NHS is currently treating 25% more people than it did in 2010. It is delivering tens of millions more out-patient appointments, diagnostic tests and procedures than it did when the coalition Government came into office. Some of the community services are being delivered by staff employed by acute trusts—the statistics tend to hide those numbers. Yes, we can talk about the need for greater productivity, but this progress—it is indeed progress—is all down to the efforts of the dedicated clinical staff across the health service on whom we all rely, and who are more in number than at any time in the service’s history.

Please do not criticise the last Government for focusing on the numbers. The imperative of planning ahead to train the right number of staff for the right care settings was amply fulfilled in the last Government’s workforce plan—a publication heralded by the NHS chief executive as

“one of the most seminal moments”

in the NHS’s history.

Can the Minister nevertheless say, despite the fact that the report is not mentioned by the noble Lord, Lord Darzi, whether the Government will embrace the workforce plan and take it forward as the NHS clearly wants and needs? Can she also say whether the Government will adopt the productivity plan announced in the last Government’s Spring Budget? That plan—again, unaccountably not mentioned in the report—would deliver the “tilt towards technology” that the noble Lord rightly advocates, with a big productivity gain to boot.

I said that the noble Lord, Lord Darzi’s report was carefully argued, but not all of it is well argued. I cannot allow his colourful statements about the 2012 Health and Social Care Act to go unchallenged. To attribute the NHS’s current difficulties and challenges in large part to that Act is, frankly, ridiculous. What that Act did was to complete the process that the noble Lord himself started, which was to ingrain quality into the commissioning and delivery of healthcare based on clearly defined standards and outcomes, meaning that providers would be competing with each other based on the quality of care and treatment that they delivered to patients.

The noble Lord, Lord Darzi, now says that we need to move away from the whole idea of competition, but I suspect he has misled himself, because he goes on to say:

“The framework of national standards … incentives and earned autonomy … needs to be reinvigorated”,


along with patient choice. What is that framework if it is not a framework of healthy competition between providers based on quality? Therefore, what role does the Minister see for competition alongside collaboration —I do not think the two are mutually exclusive—in driving up the quality of NHS care?

I have a few final questions. We are told that a 10-year plan will be produced based on the findings of the noble Lord, Lord Darzi. Whose plan will that be? Will it be the Government’s plan, and if so, how will the Government avoid what might look like a prescriptive top-down set of instructions to the health service? Does the Minister think it important that the NHS takes ownership of the plan and, if so, how will that be achieved?

In essence, the noble Lord, Lord Darzi, believes that we need to get from point A to point B—in other words, from acute settings to community settings; from tired old premises to brand new ones; et cetera. Does the Minister agree that we cannot transition from point A without first finding the money to create a functioning point B? In other words, will she and her fellow Ministers urge the Chancellor to commit to the capital expenditure necessary to achieve that?

Lastly, I quote the noble Lord, Lord Darzi:

“The vast array of good practice that already exists in the health service should be the starting point for the plan to reform it”.


Does the Minister agree with that and, if so, how does she reconcile those sentiments with the Government’s mantra—which is so discouraging to the men and women of the health service—that the NHS is “broken”?

[Lord Scriven (LD)]

My Lords, I thank the Minister for bringing the Statement to the House. You do not have to be a mastermind to realise that the NHS is straining at its seams. It is only down to the great work of the many thousands of people who work in the NHS that millions of people get great care, even though some fall between the cracks.

The Darzi report is a very good medical history and it gives a diagnosis, but we all know that the treatment plan is going to be the important point if we are to deal with a reformed, new and productive NHS. There are some welcome themes in the report that are not new. Those who know the previous Darzi report will see have seen some of them before: prevention; moving resources from hospital care to primary and community care; dealing with the wider determinants of health; improvements in and parity for mental health; and a bigger role for public health.

I understand that the Minister will answer many questions by saying that we need to wait for the 10-year treatment plan, and probably the Budget, before such specific questions can be answered, but I have a few general questions for the Minister, to get at least a sense of the direction that the Government wish to take.

Is it the Government’s intention to restore the public health grant back its 2014 levels? Are there any general views about looking at changing the structure of public health, nationally or locally? On capital, what is the Government’s thinking about the general theme of allocation to hospital and non-hospital services, and how will this be managed and monitored? On data, what is the Government’s thinking on the workforce plan, particularly when there is a huge imbalance when it comes to digital and data between the private sector and skills within the NHS? That is not to say that there are not some good skills within the NHS, but there is clearly an imbalance.

Welcome as it is that the report talks about moving resources from hospital to non-hospital settings, I was a manager in the health service in the early 1990s and I know that this has been said since at least the 1970s. What are the Government going to do to be able to move resources from sunk costs in the acute sector into other sectors? What mechanisms will be put in place? How will this be monitored? More importantly, who will be held accountable for making sure that it actually happens? How will the new neighbourhood approach affect the existing workforce plan? If a new health service is anticipated, what will the effect be on the workforce plan and the implications for capital allocation?

We all want to see a productive and effective healthcare system that improves peoples’ health and independence, but that cannot be brought about if we do not have a strong, effective, well-funded social care system. I do not understand why social care has been kicked down to the next Parliament, or how we are going to solve the health and well-being of the population without that being done. If the major reforms of social care are in the next Parliament, what steps are the Government going to take in this Parliament to deal with the social care crisis?

I look forward to the Minister’s answers, but, more importantly, to the 10-year treatment plan’s arrival in the next few months.