Mental Health Bill [HL]

Lord Meston Excerpts

Report stage
Wednesday 2nd April 2025 Lords Chamber

[Lord Bradley (Lab)]

My Lords, I will speak briefly to Amendment 47, so eloquently moved by the noble Baroness, Lady Tyler. As the House will know, the establishment of a mental health commissioner was a recommendation of the joint scrutiny committee on the Bill, of which I was a member, but, disappointingly, it was not included in the Bill. As I have said on a number of occasions, I believe that a commissioner could be a voice at a national level, promoting the interests of those who are detained or are likely to be detained under the Mental Health Act, together with the interests of their families and carers.

There will be a need for rigorous, robust and consistent oversight of the implementation of the Act, wider mental health policy issues and service development, particularly workforce capacity, over the next decade and beyond. The establishment of a mental health commissioner could ensure public confidence, transparency and accountability during that period.

However, since Committee, the landscape has shifted somewhat. First, throughout the passage of the Bill, as we have heard, the Minister has made the case that the CQC, as the regulator, already has responsibility for the range of activities proposed for a mental health commissioner. This view was recognised by the Official Opposition. I still have considerable doubts about it but, as we have heard, the CQC has now created the role of Chief Inspector of Mental Health, because it at last recognises the crucial importance of mental health services in supporting people to lead fuller, healthier lives, and the need for specialist expertise in regulating those services. The eminent doctor, Arun Chopra, has been appointed. I hope to meet him as soon as possible, to be clear about his role and the range of activities that he sees it as his role as regulator to undertake. I hope that may go some way towards allaying my concerns.

Secondly, and importantly, the Secretary of State, Wes Streeting, has stated that, in future, he is determined to be directly accountable to Parliament for the performance of the health service—obviously, including mental health. To achieve that, he wishes to reduce arm’s-length bodies. As we all know, he has already announced the abolition of NHS England. Clearly, that will lead to significant uncertainty during the reform process, and the establishment of a mental health commissioner at this time would be unlikely to land favourably. It is clear to me that primary legislation might be required, yet again, to implement the NHS reforms that the Secretary of State is advocating, so Parliament may have a further opportunity to consider the new architecture of the NHS and then determine whether to bring forward plans for, among other things, enhanced advocacy and oversight of the implementation of the Act, and to support the policy development that a mental health commissioner, as we have heard, could bring to the table.

In the meantime, I will continue to take every opportunity to hold the Government to account, as the Secretary of State has assured us he will welcome. The Secretary of State should be looking particularly at the implementation of this Act and the capacity of the service to deliver it in a timely way. I will be looking at further developments of mental health policy, particularly the interface between health and the criminal justice system in the future.

[Lord Meston (CB)]

My Lords, I support the introduction of a commissioner. There seem to be three basic arguments that suggest it would be a good measure to take at this stage.

The first is the proven value and quality of work done by other independent commissioners, particularly the Children’s Commissioner, the Domestic Abuse Commissioner and the Victims’ Commissioner, as already mentioned. The second is the need for a commissioner to oversee the prolonged implementation of this Bill when it is enacted and the wide-ranging scope of work to be covered by the new legislation. Thirdly, a commissioner will enable standards of good practice to be maintained and raised. The existence of a dedicated commissioner should in fact remove, or at least reduce, the need for periodic statutory reviews of specific areas of work and functions in the field of mental health.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I have attached my name to Amendment 47, in the name of the noble Baroness, Lady Tyler, and I raised this issue at Second Reading.

A powerful case has already been made for a mental health commissioner, so I am just going to make one comparison here. At the same time as this Bill has been going forward, in the other Chamber I have been dealing with the Armed Forces Commissioner Bill. An Armed Forces ombudsman was created, which in some ways has parallels with the Chief Inspector of Mental Health and the CQC. It was found that that was not effective or strong enough, and now the Government themselves are going for the Armed Forces commissioner model.

There is another parallel. One of the reasons why it is felt so strongly that there needs to be an Armed Forces commissioner model is that members of our Armed Forces do not have the same rights. They have certain responsibilities laid on them and are treated differently from other members of society, which is why they need a special advocate. The parallel with people who are potentially subject to the Mental Health Bill is obvious.

In the health space, I have been heavily involved over the years with the Patient Safety Commissioner, which was initially resisted by the Conservative Government of the time. Eventually the fight was won, and it is now seen to be a huge success. This is a model that we can see working and that is seen to be necessary.

The Government have expressed a desire to get rid of arm’s-length bodies and make decisions themselves. The Government devolve decision-making to those so-called quangos—the arm’s-length bodies—but that is not the case with the Patient Safety Commissioner; there is no parallel here. They are a person who is there as an advocate and to have oversight; they are not making decisions. I do not think the Government can shelter under that umbrella.

--- Later in debate ---

Moved by

[Lord Meston]

51: After Clause 51, insert the following new Clause—
“Determination of ability to decide for persons under 16(1) For the purposes of this Act and the Mental Health Act 1983, a person aged under 16 (referred to in this section as a child) is able to make the relevant decision if they can—(a) understand the information relevant to the decision;(b) retain the information; (c) use or weigh that information as part of the process of making the decision;(d) communicate their decisions (whether by talking, using sign language or any other means).(2) Where a child is able to decide in accordance with subsection (1) above, that child will be competent for the purpose of this Act.(3) A child is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).(4) A person determining a child’s ability to decide under this section must—(a) have due regard to Article 12 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (“the Convention”), and(b) must be able to show reasonable grounds for their belief that the child is or is not able to make the relevant decision.(5) When considered by any appropriate court or tribunal, any question whether a child is able to make the relevant decision within the meaning of this Act must be decided on the balance of probabilities.”Member’s explanatory statement
This amendment inserts a test for determining a child’s ability to make decisions (competence) under the Mental Health Act.

[Lord Meston (CB)]

My Lords, I explained this amendment on the assessment of competence of under-16 year-olds on Monday, and was grateful for the forceful support that it received. However, I recognise the realities of the Government’s determined objections to it. I record my thanks to the Minister for her explanation in a letter to me and the noble and learned Baroness, Lady Butler-Sloss, this afternoon, indicating the Minister’s wish to make progress on the matters which we raised. I therefore simply ask the Government to consider circulating a preliminary draft of the guidance to be produced, preferably before the Bill leaves Parliament. I also ask them to consider whether a designated task force could be used to formulate that guidance. I will not be moving my amendment.

Amendment 51 not moved.