Mental Health Bill [HL]

Debate between Lord Scriven and Earl Howe

Report stage
Wednesday 2nd April 2025 Lords Chamber

[Lord Scriven (LD)]

My Lords, I rise very quickly to support the amendment from the noble Lord, Lord Stevens, and have put my name to it.

I will add a couple of extra things to the noble Lord’s very well-argued case. Modest as it may be, I think it is an effective measure—and this is why I think it is and why the House should support the noble Lord’s amendment if he decides to push it to a vote. It is not that the Secretary of State has announced that the percentage will decrease next year; the percentage decrease happened during this financial year, going down from 9% to 8.78%. So we are now on a trend for the percentage of National Health Service spend on mental health.

Furthermore, one has to question the priority of the Government when they look at the national planning guidance and some of the targets that have been dropped from it. There are no plans to target the 2 million long waiters waiting for mental health care. It would be slightly disingenuous of the Minister, in response, to talk just about the mental health investment scheme, because all it refers to is ICB spend. The uniqueness and cleverness of the amendment from the noble Lord, Lord Stevens, is that it talks about all health service spend, including non-ICB spend, specialised commissioning and other elements that need to be there.

Mental health takes up 20% of illness treated by the NHS, which will probably be spending 8.7%. Because of the trend that is happening, the amendment from the noble Lord, Lord Stevens, is absolutely vital to ensure not just that the percentage is maintained but that the community facilities within this will be funded and implemented.

[Earl Howe (Con)]

My Lords, I will not speak at length, but I express my support for the case put forward by the noble Baroness, Lady Tyler, in her Amendment 50. Her concerns around the resourcing of the mental health workforce are well founded and there is no better source of evidence for those concerns than the CQC, which I thank for briefing me, very fully, on this subject at the beginning of last month.

When we look at the issue of workforce sufficiency, a paradox confronts us. Between 2019 and 2024, the mental health workforce grew by nearly 40,000 full-time equivalent staff—an increase of 35%. Yet, when we sit down to read the CQC’s recently published Monitoring the Mental Health Act in 2023/24, we find that staff shortages are a pervasive feature throughout the service. There is a cocktail of reasons for this apparent contradiction: very steeply rising patient demand; patients being admitted to hospital with a greater acuity of mental illness; a struggle in many places to recruit staff with the right skills; and poor retention of skilled staff, with, as a consequence, a high reliance on agency workers. That all impacts the quality of care given to patients, because, with hospital staff suffering burnout and temporary staff coming and going, there is often no opportunity to develop the kinds of therapeutic relationships that make patients feel psychologically safe and secure.

Of course, not all areas of the country are the same. Geographical disparities affect the availability of different skill sets, resulting in different kinds of problems manifesting themselves: for example, in one of the three high secure hospitals, the CQC encountered cases where patients were being kept in their rooms during the day. Elsewhere, on a number of in-patient wards, patients with autism or a learning disability reported that staff lacked the necessary training to look after them properly. In other settings, the lack of training is more basic: agency staff very often do not know how to operate the hospital’s IT system. This mixed picture underlines the fact that the amendment from the noble Baroness, Lady Tyler, is expressed in exactly the right way, since it mandates that biennial staff sufficiency reviews should be done not centrally but by commissioners locally.

That formula is appropriate for another reason. Depending on where you are in the country, there can be different sorts of barriers to accessing care, whether the barriers are for people from ethnic minority groups, for children and young people or simply for people living in areas of high deprivation. The more people find it difficult to access the care that they need, the more seriously they can be at risk. That particularly applies to children. The noble Baroness, Lady Bennett, made that point. We have not heard much from the Government about workforce planning generally, but this is an area where this exercise just cannot wait.

This leads me to Amendment 59, in the name of the noble Lord, Lord Stevens. It will not be much comfort to him if I say that I am right behind the sentiment of the amendment. He knows that, sadly, I cannot ask my colleagues on these Benches to vote for it, simply because I do not think it is appropriate for primary legislation to tie the hands of Government in matters of health spending. Those macro decisions surely have to be for Ministers.

Nevertheless, the flagship principle at the centre of the amendment is parity of esteem—a principle that is enshrined in statute and to which I am totally signed up, alongside, I am sure, all of your Lordships. However, parity of esteem is a broad concept and should, in my view, be measured in a range of ways, not simply by reference to monetary input, important as that is—and it is important.

Mental Health Bill [HL]

Debate between Lord Scriven and Earl Howe

Report stage
Monday 31st March 2025 Lords Chamber

[Lord Scriven (LD)]

My Lords, I thank the noble Baroness for detailing very clearly the Government’s amendments. I also thank the Minister, who I see in her place, for, again, a very collaborative approach and for, on this occasion, implementing exactly not just what was in my previous amendment, so ably moved by my noble friend Lady Tyler, but what came from the Delegated Powers and Regulatory Reform Committee.

On the use of ECT, the powers in the government amendments before the House mean that the balance is absolutely correct on not having the second doctor’s signature and consent, as well as on the need to save life and the use of ECT. I thank the Government sincerely for not just listening but acting on the concerns that were around.

[Earl Howe (Con)]

My Lords, the House will be grateful to the Minister for these government amendments, which, as the noble Baroness made clear, cover two principal policy issues. Accordingly, I have two sets of queries.

On the changes for the rules for authorising electroconvulsive therapy, I am sure it is not the Government’s intention in any way to water down the safeguards surrounding the administering of ECT. However, in relation to Amendments 16 and 17, taken together, can the Minister reassure me? The Bill, as modified by the proposed amendments, will posit that there could be circumstances in which a patient who has the capacity to consent to ECT but who has not consented to it could nevertheless find their refusal to treatment overridden by the decision of a single treating clinician. Even in a situation where the judgment of the clinician was that ECT was necessary to save the patient’s life, it seems to me a significant change from the current rule whereby the decision of a second opinion appointed doctor is required in all cases where it is proposed to administer ECT to a non-consenting patient who has the capacity to consent.

Amendment 17 makes it clear that the regulatory authority—the CQC, in other words—may give permission for ECT to be administered only on the say-so of a single doctor where a SOAD is not available and “exceptional circumstances” apply. I will not ask the Minister to define what “exceptional circumstances” might consist of, but it is to be assumed that a primary example of such circumstances might be when time was of the essence and no SOAD could be located soon enough to avoid exacerbating the risk of harm or death.

So my questions are, firstly, has this proposed change been prompted by a general awareness across the mental health sector that the availability of SOADs can frequently prove a problem in circumstances where urgent decisions are needed? In other words, to put it bluntly, are we being asked to change the law because of habitual shortcomings in NHS communication arrangements? I would be concerned if that were the case.

Secondly, what guidance, if any, will the CQC formulate for itself to ensure that, when its decision is sought to temporarily waive the requirement for a SOAD, it will not do so just on the basis of a SOAD being unavailable? Will it also commit itself to a standard procedure whereby it will seek at least some background detail from the treating clinician of the case before him or her, such as the reasons why they consider that administering ECT to that particular patient carries particular urgency? In other words, can we be reassured that the treating clinician’s opinion will be subject to at least a modicum of testing and cross-questioning before the CQC issues the go-ahead for ECT to be administered? I hope so, because anything short of that could turn into a tick-box exercise.

The other government amendment on which I would appreciate further clarity is Amendment 26, which

“changes the process for appointing a nominated person”.

One of the changes proposed is that the various statements and signatures required for appointing the nominated person no longer have to be contained in the same instrument. The other is that the nominated person’s signature no longer has to be witnessed. I was grateful for the Minister’s explanation, but it implies that the written instrument that appoints the nominated person and is signed by the patient in the presence of a witness can be executed without the nominated person themselves being in the room, or indeed anywhere near. At the moment, the Bill says:

“The instrument appointing the nominated person must … contain a statement, signed by the nominated person in the presence of”


the same person who witnesses the signature of the patient.

I previously assumed that the reason for that provision was the responsibility that the Bill places on the witness—quite a serious responsibility—to ensure, as far as possible, that the nominated person, whoever they are, is a fit and proper person to act in that capacity. It would appear now, with this amendment, that there is no need for the witness even to clap eyes on the individual who is nominated. How can that be right? Without at least meeting the nominated person, how can any self-respecting witness certify, hand on heart, that, in the words of the Bill, they have

“no reason to think that the nominated person lacks capacity or competence to act as a nominated person,”

or that they have

“no reason to think that the nominated person is unsuitable to act as a nominated person”.

Are they simply meant to take the patient’s word for it?

This alteration in the wording raises all sorts of question marks in my mind, given the concerns expressed by noble Lords in Committee about misplaced loyalty towards a particular individual, a naivety on the part of a child or young person, or even some degree of psychological manipulation of a young person—for example, someone who makes it their business to set a child against their own parents.

In Committee, the Minister herself emphasised the need for the law to prevent exploitation and manipulation. While I did not at the time think that her response was completely reassuring, I saw it at least as an acknowledgement that the role of the witness could not be fulfilled properly without some sort of contact with the nominated person. Was I right or wrong on that? It would be helpful if the Minister could explain how my misgivings in this area, about the way in which the nominated person procedure comes to be implemented in practice, might be allayed.

Mental Health Bill [HL]

Debate between Lord Scriven and Earl Howe

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Earl Howe (Con)]

I am grateful to the noble and learned Baroness. I hope it was implicit in what I said that I would look to this Bill to include an order-making power that would enable regulations to be laid in due course that would cover not only 16 or 17 year-olds but also those under 16, and Parliament would then approve them. No doubt this is a matter that we can discuss further after this, but I hope that the point of principle is clear, which I fully support, that this issue needs to be sorted through this Bill.

[Lord Scriven (LD)]

I have listened to the noble Earl’s argument carefully, and in principle I support what he is trying to do. The only problem with leaving the matter to a statutory instrument, rather than putting it on the face of the Bill, is that it is far easier for the Secretary of State to change that, even despite the will of Parliament, based on the way that Parliament works. Why could it not be on the face of the Bill, to give absolute certainty, rather than in a statutory instrument, which normally gives flexibility and powers to a Minister?

[Earl Howe (Con)]

There are two answers to that. First, it is generally unthinkable for a Government to lay regulations without first having consulted the relevant parties. Secondly, if we are honest, putting something on the face of a Bill is not the whole story; there would need to be proper clinical guidance published alongside that for practical purposes for hospitals and elsewhere.

NHS: Independent Investigation

Debate between Lord Scriven and Earl Howe

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.

Infected Blood Inquiry

Debate between Lord Scriven and Earl Howe

Tuesday 30th July 2024 Lords Chamber

[Earl Howe (Con)]

My Lords, this is a welcome Statement and I thank the Minister for repeating it. During the passage of the legislation that underpins the creation of the infected blood compensation scheme, one thing that I am very glad that we all agreed on across the House was that we should not let party politics interfere with our collective aim of reaching a fair and workable set of legal provisions in response to Sir Brian Langstaff’s recommendations. It is therefore particularly welcome to see that collegiate spirit continuing under the newly appointed ministerial team, and I thank them for that.

The debate that took place last Friday in the other place served to clarify a number of important questions arising from the Statement and I do not therefore propose to dwell on matters that have already been covered. The main areas that I would like to touch on relate in one way or another to the projected timetable for delivering compensation and justice in all its forms. It is excellent to hear that the recent period of election purdah did not prevent the further interim payments of £210,000 being made to beneficiaries of the infected blood support schemes living with infections, as was promised by the previous Government.

However, the other promise that we made was to put in place as soon as possible arrangements to make an interim payment of £100,000 to the estates of deceased people who were infected with contaminated blood or blood products and whose deaths have not yet been recognised. To fulfil that promise, it is clearly necessary, as the Statement indicated, to reach consensus between the devolved Administrations and the Government in Westminster, as well as those in charge of the existing support schemes, on how exactly those arrangements should be implemented. Can the Minister say how those discussions are progressing? Is she confident that, when applications for those payments open in October, they will open across the United Kingdom, as opposed to just a part or parts of the United Kingdom?

Secondly, the Statement made it clear that the regulations to establish the scheme would be made on 24 August, which, as the Act provides, is exactly three months after Royal Assent. How will that work, procedurally and legally? One risk that we identified when the Victims and Prisoners Bill was being debated was that a three-month deadline for making regulations might be too rigid if the Summer Recess, and/or an election campaign, meant that the regulations would have to be made at a time when Parliament was not sitting. Our solution was to create the Infected Blood Compensation Authority in shadow form, with a view to timing Royal Assent for a date some time in July, when we judged that the risk of a parliamentary recess or Prorogation interfering with the making of regulations would be reduced. Because of reservations expressed by Labour shadow Ministers, it was not possible to build any flexibility into the statute to allow for those risks, which, as things have turned out, may be seen as unfortunate, because Royal Assent had to happen as soon as the general election was announced. Can the Minister clarify what the legal effect will be of the regulations being made when Parliament is not sitting? At what point will the Infected Blood Compensation Authority be legally in being?

Next, one of the key reassurances that I gave when taking the Bill through was around the need to listen to the victims. We envisaged involving the infected blood community directly in two ways: first, in setting the final shape of the compensation scheme and, secondly, in assisting Sir Robert Francis as interim chair of the authority in ensuring that the scheme, when up and running, was implemented fairly and with the full benefit of input from those whose lives have been directly affected by this calamity. As regards the former, it is good news that Sir Robert Francis completed his engagement exercise last month and that he will be publishing the outcome in advance of 24 August. As regards the latter, can the Minister reassure the House that it is still the intention for the infected blood community to be represented in the compensation authority through its committees and subcommittees? If so, is work proceeding now to give effect to that intention?

Could I next ask the Minister to confirm a point that I know is still a matter of anxiety for the infected blood community? It is a question that concerns those currently in receipt of support payments. As the responsible Minister, I gave the House an assurance that no one will be worse off under the final compensation scheme than they would have been under existing support schemes, and that an additional top-up payment would be made to anyone assessed as being entitled to less money than would otherwise have been payable via the infected blood support schemes. In other words, I promised that those people who have a legitimate expectation of receiving a certain sum of money from support payments over their lifetime will have that expectation honoured. Can the Minister confirm the assurance that I gave? Following on from that, can the Minister clarify for me whether what are now classed as ex gratia payments under the support schemes are now in effect to be rebadged as compensation?

I shall touch also on a further concern within the infected blood community, relating to access to necessary treatment. Victims have told me that parts of the NHS have been slow to recognise the moral and clinical urgency of treating those whose illness, or multiple illnesses in some cases, stems directly from receiving infected blood or blood products. Will the Minister ask her colleague in the Department of Health and Social Care to look into this and report to the House on how any difficulties of this sort might best be remedied? The Republic of Ireland issues a special card to those registered as having been infected by contaminated blood or blood products, so that there is no argument when someone presents themselves to the GP or the hospital. Is that an idea that could be considered here?

While on the subject of treatment, can the Minister say whether everything is on track in NHS England and the devolved Administrations to roll out the bespoke psychological support service for those infected and affected by the infected blood disaster?

Finally, the Statement is right to pick up Sir Brian Langstaff’s finding that there is a culture of institutional defensiveness that can too often rear its head in areas of the public sector. The Government have stated their intention to bring forward a statutory duty of candour to address that issue—and, indeed, this was a proposal that we debated at some length during the passage of the Victims and Prisoners Bill. It is an idea that has obvious appeal and no doubt the Government will bring forward legislation in due course when they are ready to do so. However, I said, during our debate, that it is an idea that merits a reasonably long run being taken at it before it is set in legislative stone—and I repeat that view today, because I do not in fact think that a duty of candour is of itself a magic bullet that is capable of changing what is often an ingrained culture.

The duty of candour that we have already in the NHS has not prevented some very serious and high-profile disasters arising out of poor care, or even criminal behaviour. Similarly, we already have the Civil Service code, which mandates honesty and transparency but has not, alas, prevented the kinds of cover-ups and dishonesty in departments of government that Sir Brian Langstaff has highlighted. So, finally, will any proposals to introduce statutory duty of candour for the public sector as a whole be preceded by extensive and thorough engagement with all those parts of the public sector to which the duty is intended to apply?

[Lord Scriven (LD)]

My Lords, I welcome the Minister to her place and wish her well in the role she is undertaking. We on these Benches also welcome this Statement and commit to a collaborative cross-party approach to this very important issue.

Victims of the infected blood scandal and their families have been waiting for decades to see justice. Tragically, as we know, thousands have died without ever having received compensation. The report of the inquiry into the scandal, chaired by Sir Brian Langstaff, laid bare the suffering inflicted, the cover-ups and the systematic failures of individuals and of the British state as a whole. Not only did individuals and the state fail to help these victims, but in many cases people were lied to, treated with contempt and dismissed outright. It is good to hear updates on progress, but victims have waited far too long and there are still some gaps.

I want to follow up on the comments by the noble Earl, Lord Howe, about the treatment and some dismissive approaches by the NHS. Rather than just having a card, now that patient records are electronic would it be possible to put an automatic flag in them so that the onus is on the service and not the individual to make sure that timely treatment is given by the NHS?

An infected blood compensation authority will be set up, but what framework is being set for a light-touch approach to those seeking compensation? We have seen that compensation schemes, such as for Horizon, can be complex and difficult for those who have been affected to navigate. What framework are the Minister and the Government asking the compensation authority to undertake that will make it as light-touch as possible but with appropriate probity in place?

Another problem with the Government’s proposals for compensation is that only infected victims and bereaved partners are entitled to the autonomy award. This is being used as a catch-all to cover, for example, clinical trials and the loss of the right to have children. Affected parents cannot claim this £50,000 award, but it is the only measure that looks to compensate for the financial outlay of supporting the child or children of the deceased and their partners over many years.

Another issue with the autonomy award is that it does not recognise infected and affected partners whose pregnancies have been terminated as a result of links to their blood infection. Does the Minister not agree that there is a good case for the autonomy award to be extended to specific affected individuals who can prove injury? I look forward to the Minister’s answers.