Mental Health Bill [HL]

Debate between Lord Kamall and Baroness Berridge

Committee stage
Monday 20th January 2025 Lords Chamber

[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.

[Lord Kamall (Con)]

My Lords, I have a few brief comments on this group of amendments. In response to Amendment 43A, tabled by the noble Baroness, Lady Barker, given that anyone subject to a CTO already receives something in writing, it should not be too difficult for the Government to accept her amendment. Assuming that they have a right to access independent mental health advocates, it seems like a very reasonable amendment.

Like the noble Baroness, Lady Tyler, I must admit that, when I read the amendments tabled by the noble Baroness, Lady Murphy, I wondered—given that the amendments from the noble Baroness, Lady Tyler, and the noble Lord, Lord Scriven, seek to extend access to independent mental health advocates—why she would want to exclude informal patients from access to those advocates. However, as she explained, and as my noble friend Lady Berridge commented on day one in Committee, we have to deal with the world as it is, not the ideal world that does not exist. As the Minister has often reminded us, this will not all happen in one big bang; the Government’s plan is for it to take over 10 years, subject to spending reviews and resources.

In fact, the noble Baroness, Lady Murphy, made what appear to be two valid points. The first is that we need to be realistic about resourcing. As the impact assessment suggests that expanding access to independent mental health advocates to informal patients will cost £81 million every year, we have to ask: is that the best use of that money, if it were available, given all the other demands on it?

On the noble Baroness’s second observation, I thought that the research cited was interesting: that extending these independent mental health advocates from one environment or cohort of patients to another does not necessarily mean that it will work.

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[Lord Kamall (Con)]

I thank the noble Lord, Lord Scriven, for that, as I would not want to be using inaccurate information. Maybe the Minister can check with her officials, thanks to the wonderful use of technology, to ensure that we have an accurate figure by the time that she gets up to respond to our points. Whichever number is accurate for the cost of extension, it does have an impact on how noble Lords may feel if these amendments come back on Report.

The study that the noble Baroness, Lady Murphy, shared with us contained two statements which I picked up on, and which I hope the noble Baroness will correct if I am wrong. First, patients found the process was a positive experience. But, secondly, the study found no evidence that it had any impact on the outcomes of the care and treatment. That is an important point to make. Once again, what is effective, and what works? Sometimes, feeling better and being more positive is part of a treatment, and we should not dismiss that.

I do not want to sound too negative, as I thought that the North Carolina study was very positive, and the noble Baroness and I corresponded about this over the weekend. It was interesting that it found that black mental health patients benefited from having an independent mental health advocate, especially if the advocate was also black, as patients felt better supported, and more confident that they would be listened to by someone. The crucial point was that it appeared to reduce the rate of repeat detentions. This is one of the crucial issues throughout the Bill. This is one of the reasons why my noble friend Lady May asked for the Wessely review.

[Baroness Berridge (Con)]

I do not wish to interrupt my noble friend’s flow, but this is one of the key things that is evidence-based, and that does reduce detention for those communities, so it is important.

[Lord Kamall (Con)]

I am grateful to my noble friend for that intervention, because this is something that we could learn from here. Given the point that the noble Baroness, Lady Murphy, made at the beginning, would taking that lesson from the black community in North Carolina work with black communities up and down the country here? I hope it is something that the Government could look into, or respond to, as one of the ways, once we have the relevant data, to reduce the rate of detention and CTOs for people from the black community.

I end by asking the Minister that question: is she aware of whether her department has looked at—was it North Carolina or South Carolina?

Mental Health Bill [HL]

Debate between Lord Kamall and Baroness Berridge

Tuesday 14th January 2025 Lords Chamber

[Baroness Berridge (Con)]

In supporting Amendment 1, I am delighted that the noble Baroness, Lady Tyler, began Committee with this focus on the impact of the Mental Health Act on racialised communities, because that is where this whole journey began, with the noble Baroness, Lady May, when she was Prime Minister, announcing it in that context—and then, of course, it became a wider reform of the whole Act.

I served on your Lordships’ Joint Committee with the other place, scrutinising the Bill. In the course of that, I became aware of the relative strengths of civil society among some of the groups. There were excellent civil society groups speaking on behalf of people with learning disabilities and autism; they were highly professional and articulate. We had one evidence session on the effect of the Mental Health Act on racialised communities, but I saw that the strength of civil society and of media coverage in that area was less—so I am sympathetic to Amendment 1, which would give a profile to one of the main issues under the legislation.

On whether the table should be in the Bill to be in the code or in the Bill sitting as primary legislation, I have sympathy for that proposition. We have learned that the code of practice merely reflects primary legislation. I am aware, of course, that the independent review came up with those four principles, and this fifth one was not part of that. I expect to hear the Minister say that it is already in the Equality Act, so we do not need to put it in the Bill—but I am persuaded of the merits of the amendment. During the whole process of an independent review, a White Paper, a response to a White Paper, a draft Bill, a Joint Committee and now the Bill before your Lordships’ Committee, it has become clear to me that many of the changes that ethnic minority communities need to see are in practice. They are in resources and training—people would not look to the Bill and see their needs as the first or an important priority in it. I would be grateful if the Minister would take seriously this consideration of putting this equity principle in the table and putting it in the Bill, full stop, and not within the code.

[Lord Kamall (Con)]

I begin by thanking all noble Lords who spoke to this first group of amendments in Committee. Before I comment, I refer noble Lords to my interests as set out in the register. I am not an honorary fellow of the Royal College of Psychiatrists, noble Lords will be relieved to know, but I should mention my previous work with a couple of think tanks—the Institute of Economic Affairs and Politeia, which have both published on health and social care issues. There is also my work at St Mary’s University, where I am a professor of politics and international relations, and which has recently applied to open a new medical school. I also sit unpaid on the advisory board of a start-up coalition, and I know that there are a number of start-up companies helping people with mental health conditions. I just wanted to cover those interests, in case anyone made any accusations.

This group addresses the principles that will guide the application of the Mental Health Act, as set out in the Wessely review. Sir Simon pointed out, rightly, that there are already guiding principles in the code of practice, but that

“there is limited awareness of these, and it seems very likely that they do not inform practice in the way they should”.

Clearly, as noble Lords said at Second Reading, the important aim of including the four principles is to improve their application and ensure the highest level of care and therapeutic benefit for patients, while ensuring that all patients are treated as individuals.

I thank the noble Baroness, Lady Tyler, for her Amendment 1. Of course, equity is at the heart of the Bill, as my noble friend Lady Berridge just said. The Wessely review was commissioned by my noble friend Lady May of Maidenhead with the intention of understanding why a disproportionate number of black people were being detained and receiving community treatment orders under the Mental Health Act. I think all noble Lords welcome the idea of including equity in principle, as long as it then feeds through into practice. That is the key here, and my question for the Minister is: would putting the principle in the Bill make a difference to practice? How do we make sure that it makes a difference to practice, rather than simply adding the words or adding the principle? One of the values in the NHS constitution is that “everyone counts”. Does this equality duty go further than that, and would it have a greater practical significance? That is one of the questions we need to dig out and probe the Government on.

The noble Baroness, Lady Tyler, makes an interesting observation with her Amendment 3. The principles were included in the Bill, as the Wessely review argued, to improve clinical practice. This is vital, because we know that the Mental Health Act is the legislation that is used to compel detention in hospital for treatment. This may very well raise awareness of the principles, but once again, how do we make sure that this is applied? We have to keep pushing this point, although I will not repeat it again, of making sure that this gets fed in to practice in the clinical setting.

I also note the amendments in this group of the noble Baroness, Lady Whitaker. I will not repeat the statistics that she read out about the impact of the lack of or inappropriate support for people with mental health issues or learning difficulties. Of course, it is not difficult to appreciate the complexities. Someone in my close family worked with speech and language therapists in his youth, and I could see the difference it made. It is almost too obvious to say, but how do you get your needs across if you cannot communicate them, or your needs are not understood by the person who is supposed to be offering treatment? As the noble Lord, Lord Patel, mentioned, this is included in the Explanatory Notes, but how do we make sure that it gets into the Bill and into practice? Obviously, it is a problem that is acknowledged by the Government, or it would not be in the Explanatory Notes, but why have the Government chosen not to go any further on this issue?

I was very struck by what the noble Baroness, Lady Murphy, said about Amendment 49 and her concerns. Will the Minister address that debate? Of course, we all want to make sure that patients feel that they are understood. We know that patients have to be supported as much as possible to make sure they get their point across and that they are understood, in order to give them adequate treatment, but I noted the concerns of the noble Baroness, Lady Murphy, even though the noble Lord, Lord Patel, intervened. Have the Government taken a view on this or does the Minister need to write to us? I look forward to her comments.

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[Baroness Berridge (Con)]

Perhaps I can clarify. I think that the noble Baroness’s amendment is to some extent based on the spirit of the Joint Committee’s report, which was about providing some kind of mechanism, after the 28 days—I am glad to see the noble Lord, Lord Bradley, nodding. There would be a specialist tribunal, and we said that it should be composed of people with experience of learning disabilities and autism, so that there was not a get-out for clinicians that they had not done the assessments properly. There would have to be grounded reasons to go beyond the 28 days and, in exceptional circumstances, you could authorise the detention, to make sure that the law covered that gap or group of people. No one wanted to see people detained for the reason that there was no community provision—that is ridiculous.

I accept that the reality is probably going to be that clinicians will find a mental disorder diagnosis to use the powers under Part II to do what is in the best interests of that person and their family at the time. But the law should also cover that situation and not force clinicians into those diagnoses—hence the need for accurate data, so that we can track what is happening when the law is enacted.

[Lord Kamall (Con)]

Once again, I am grateful to all noble Lords who spoke to this group of amendments. The purpose of today’s Committee is to probe the Government, but it is interesting that we find noble Lords probing each other—though I have learned a huge amount from these discussions. They say that discourse leads not only to liberty but to an increase in knowledge.

I add my words to those of the Minister and offer my condolences to the noble Baroness, Lady Hollins, who is not in her place today. I recall a debate in 2021 led by the noble Baroness—one of my first as Health Minister—in which she highlighted that people with learning difficulties and autism were being detained in secure settings, even when an assessment had recommended that they should live in the community. This goes back to the words of my noble friend Lady Berridge, who talked about how we can deal with the world as it is and not with the ideal world that we want to live in.

I was shocked at the time by what the noble Baroness, Lady Hollins, told the House about some of the findings from the oversight panel for the independent care (education) and treatment reviews. I bear in mind what the noble Baroness, Lady Bennett, said, when she gave some examples of other countries with much shorter detentions, but I will never forget the story that the noble Baroness, Lady Hollins, told about a Mr W, who had been detained in hospital for more than 20 years, spending most of his time in what amounted to solitary confinement. At the time of the debate, Mr W had been living in his own home for nearly three years, near his family, with his home environment and care being built around his needs. That is something that all noble Lords are trying to push for in this group of amendments. It was not only a heart-warming story but the point was made that, financially, it cost no more to support Mr W living in his own home than it did to detain him in hospital. More importantly, the noble Baroness shared the happy ending that, despite the trauma of being in the wrong environment for so many years, Mr W was, we hope, going to live happily ever after. That highlights the reasons for the amendments in this group.

I should add that I recall the noble Baroness who is now the Minister pushing the Government from these Benches on ending detention. I am sorry—I am going to be a little naughty here, but she can do it if we ever get back into government. She told the House that the average length of stay for people with a learning disability and/or autism in in-patient units was 5.4 years, saying:

“That is 5.4 years that no person will ever get back”.—[Official Report, 28/10/2021; col. GC 231.]


She asked how that could be justifiable when the cost of living in the community was the same as the cost of detention. I know that she is naturally sympathetic to ending these detentions. The detention of those with autism and learning disabilities was one of the central issues addressed by the Wessely review.

I was interested in Amendment 4, in the name of the noble Baroness, Lady Bennett, arguing the definition of “mental disorder” under the Bill. While I am sympathetic to the amendment, can the Minister confirm whether my understanding is correct that the World Health Organization defines a mental disorder as

“a clinically significant disturbance in an individual’s cognition, emotional regulation, or behaviour”,

and whether the WHO includes neurodevelopmental disorders, which includes autism? If so, are the Government sympathetic to Amendment 4 and considering bringing forward their own amendment? How would they avoid running contrary to the definition accepted by the WHO and included in the Diagnostic and Statistical Manual of Mental Disorders, particularly DSM-5? I understand the point that these things can change, as the noble Lords, Lord Stevens and Lord Scriven, have very importantly alluded to.

Amendment 5, in the name of my noble friend Lady Browning, seeks to ensure that, if a person has autism or a learning difficulty but not a mental health condition, we should not be using deprivation of liberty safeguards to replace detention under the Mental Health Act. We fully support my noble friend’s amendment and the intention behind it.

I am grateful to noble Lady, Baroness Murphy, who has tabled Amendment 35, for the time she has taken to share her experience and expertise with me and my noble friend Lord Howe. She addresses an issue that we should all be aware of with any legislation: that of unintended consequences. While most noble Lords here today would accept and support ending these detentions, for all the reasons that we have all given, and particularly after the harrowing stories that the noble Baroness, Lady Hollins, told all those years ago, how will the Government ensure that anyone with learning difficulties who could potentially pose a considerable risk in the community receive the required supervision? That is the challenge here, and it is the challenge to which my noble friend Lady Berridge referred when she reminded us that we have to talk about the world in which we live and not the ideal world that we all want.

I am very grateful to my noble friend Lady Berridge for sharing some of the deliberations of the pre-legislative Joint Committee, particularly on the issue of the High Court DoLS. Given that, and the point of the noble Lord, Lord Scriven, if we are to have alternatives, how do we prevent detention by the back door or opening a massive loophole for detention?

Amendment 39, from my noble friend Lady Browning, would ensure that detention was for needs associated with the degree of psychiatric disorder, along with Amendment 40. We are sympathetic to that, and I look forward to the Minister’s response.