Mental Health Bill [HL]

Lord Stevens of Birmingham Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

[Lord Bradley (Lab)]

My Lords, I shall speak to Amendments 96A to 96C and 163A in my name in this group. They deal with the transfer of prisoners from prison to hospital in a specified timeframe of 28 days. I am obviously pleased that this has been included in the Bill under Clause 35, but I briefly give some background.

I first recognised a need to incorporate a time limit in legislation in my independent report to government in 2009. At that time, the Department of Health had piloted a 14-day waiting limit with strong support from stakeholders to roll this out nationally, and I recommended this in my report. Although it was accepted in principle, it was not implemented. However, Sir Simon Wessely’s review picked it up again with a more realistic 28-day time limit, which was then included in the draft Bill and now in this Bill, ensuring a statutory requirement rather than relying on good practice guidance.

My amendments are therefore probing amendments to understand how the 28 days will work in practice—essentially, when does the clock start? First, Amendment 96A would replace the words “As soon as practicable” with

“No later than two days”.


HM Inspectorate of Prisons found that one factor contributing to delay was confusion around when the 28-day transfer period starts, with 34% of patients not referred on day zero of the 28 days. This amendment would ensure that the referral notice is made no later than two days after an initial request, therefore clarifying on what day counting begins.

Secondly, Amendment 96B would change “must seek to ensure” to “must ensure”. The scrutiny committee, of which I was a member, heard that “seek to ensure” is quite vague and open, and therefore recommended this amendment. I believe, as do many organisations such as the Prison Reform Trust, that the inclusion of “seek to” in the current wording of the Bill implies only an attempt to successfully transfer within the 28-day time limit, rather than it being the guaranteed outcome, save for exceptional circumstances. It would provide a clearer, more definitive commitment to adhere to a 28-day time limit for referral.

Amendment 96C would require that a specified, accountable person be appointed by the relevant referring body to ensure that the specified 28-day transfer period is met. While there are many agencies involved in arranging prison transfers, I am concerned that there should be a person to whom accountability is assigned. As it stands, the Bill lists in new Section 48A(3) the persons to whom the referral notice must be given—the notified authorities—but there is no person, agency or authority assigned, either with overall accountability or accountability for each part of the process. I believe that there is significant merit in creating a single role to help increase and assure accountability—for example, a dedicated official whose primary function would be to ensure efficient transfers with the ability and power to liaise and intervene at the most senior level where necessary.

The amendment would clarify accountability and support the desire expressed in the impact assessment to increase,

“accountability for all agencies involved in the transfer process to meet”

the deadline. This was supported by Sir Simon Wessely’s independent review, which stated that it would help

“unblock the institutional barriers and … give … the teeth it needs to push the transfer through”.

I absolutely agree with this, and I hope that the Minister will too in his conclusion to this debate.

Finally, Amendment 163A would require the Government to publish guidance on what counts as “exceptional circumstances” specified in new Section 48A(4) and (5), as inserted by Clause 35. That provision provides for a 28-day transfer period for acutely mentally ill patients held in prison to be transferred to hospital. Examples are given in new subsection (5) of what exceptional circumstances are not, for example:

“a shortage of hospital accommodation”

or

“a shortage of hospital staff; unless occurring as a result of other exceptional circumstances”.

This amendment would provide an opportunity to clarify what does constitute exceptional circumstances. This would help to avoid doubt, confusion and subjective judgment over what may or may not be an exceptional circumstance and to help ensure smooth and efficient transfer. Again, I hope the Minister will be able to respond positively to that, perhaps with examples of what are exceptional circumstances.

Finally, I just note that, for transfers to be successfully completed in the 28-day time limit, the Government must ensure that appropriate bed provision in psychiatric intensive care units and secure care settings in every geographical area of the country is developed, together with a skilled workforce. I am sure that we will return to this topic at a later stage in our debates.

In conclusion, as I mentioned earlier, it is 16 years since I made my proposals on transfers, and I hope that that they are now coming to fruition. I am grateful to the Government for that and for not trying my patience any longer.

[Lord Stevens of Birmingham (CB)]

My Lords, like the noble Baroness, Lady Murphy, and the noble Lord, Lord Bradley, I too support the aim behind Clause 35, which is to ensure the speedy access to specialist mental health support for people in prison. Like the noble Lord, Lord Bradley, I also think that there is great merit in his Amendment 163A, which seeks to ensure that the Secretary of State produce statutory guidance on the definition of what will count as exceptional circumstances for the reasons that the noble Lord has given.

The Explanatory Notes give examples of what might count as an exceptional circumstance where the 28-day standard would not apply: prison riots, hospital floods or exceptional clinical reasons. Those are three examples, but it would be good to see more precision on this question because, as the Government’s Delegated Powers Memorandum says, the meanings of these words will be litigated. They will show up in judicial review and private law action. Therefore, the clearer the Government are prospectively, the less frictional cost and time there will be through the justice system and health system in giving effect to the new standards that are set out here in what hopefully will become the Act.

However, having supported the noble Lord, Lord Bradley, on that amendment, I will disappoint him now by just injecting a note of caution on his Amendment 96B. As we have just heard, it would leave out “seek to” in respect of delivering on the 28-day standard; excising those words, as he said, would in effect make it an overarching requirement—a “must”—even if there is a shortage of hospital accommodation or no staff available.

If the thought behind this is that the principal drivers of delays are essentially administrative processes then a “must” on 28 days can, in a sense, be given effect without a downside. But I wonder whether we actually have sufficient evidence to know that that is the root cause of such delays as occur. As I understand it, about four-fifths of the transfers from prisons to our specialist mental health facilities in the first half of the current financial year were to psychiatric medium-secure units and psychiatric intensive care, both of which are in very high demand and incredibly expensive resources, with highly constrained supply.

The impact assessment rather glosses over this question. When describing whether this new standard for transfers to hospital from prisons might introduce additional cost, it says at paragraph 169:

“Costs for the measure have not been monetised because they are principally driven by wider systematic changes which are supported by the legislation”—


that is, its administrative friction. It goes on to say something which I do not quite understand. I would be grateful if the Minister could interpret for us what the department meant when it wrote that an additional reason the costs were not being monetised was to ensure that

“resources are available to achieve transfers within the time limit in a greater proportion of cases”.

What are these “resources available to achieve transfers”? Are they additional or substitute resources? What is the scale of them? What was meant in the drafting of that paragraph?

My hypothesis is that this is not just about administrative friction. It is actually due to constraints on the supply in expensive and specialised mental health services, and therefore the unintended consequence of mandating, through excising “seek to” and making 28 days a trump card for people coming from prisons, would be one of three consequences.

Prisoners with severe mental health needs would find themselves in unsafe and poorly staffed facilities; or, by virtue of being in prison, you would displace a non-prison-based mental health patient who might have higher needs, as that is what the statute requires; or, under the Clause 49 powers, you would, effectively, see the Department of Health using the Henry VIII power, which it has in this Bill, to quickly rewrite 28 days and make it 180—or something else—because, as the delegated powers memo said, it might do so in that circumstance

“where insufficient beds are available to meet demand over a sustained period of time”.

For all those reasons, there may be unintended consequences of Amendment 96B which require further scrutiny.

However, in the spirit of wanting to make this work practically, I have laid down Amendments 97 and 98, which, essentially, as the noble Baroness, Lady Murphy, said, look to reciprocate the 28-day requirement. If you are aiming to get prisoners transferred to mental health facilities in 28 days or, similarly, when their treatment is complete, one should expect that the Prison Service or Immigration Service will ensure the return the prison estate to free up those scarce and specialist beds for other prisoners or patients who require treatment.

In a way, my amendment is a very gentle one. All I suggest is that if there are people stuck in specialist mental health beds who ought to be being returned to prison, that would constitute an exceptional reason for being unable to accept new intakes of prisoners being transferred. The reason this is such a gentle amendment is, of course, that the Government pray in aid the June 2021 best practice guidance for the transfers, which says that, although it should be a 28-day standard for moving from prison to mental health facility, it should be 14 days if moving back the other way to free up the bed. I have not proposed a 14-day requirement on the Prison Service, just the reciprocal 28 days, so, in that spirit of joint working, I hope these amendments will find wide support.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, briefly, I am with the noble Lord, Lord Bradley, as opposed to the noble Lord, Lord Stevens, on the “seek to” question. When I read Clause 35, I was very excited about what it promised; I thought that, at last, this was being taken seriously. I talked to a range of people who worked in criminal justice, and they said: “Oh, it is not going to happen; what are you excited about?”—they just did not believe it. At Second Reading, I cited Richard Garside from the Centre for Crime and Justice Studies saying that Clause 35

“while welcome, feels aspirational rather than practically implementable in the current system”.”.—[Official Report, 25/11/24; col. 549.]

I started to look at it again and thought that the danger for those of us who are following this debate is that we get bought off by this aspiration, and that, in practical terms, it will not mean what we all thought it was meant to. I am quite keen that we toughen up the statutory requirements.

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Amendment 163A, tabled by my noble friend Lord Bradley, would ensure that Clause 35 is commenced only when the Secretary of State has clarified the meaning of “exceptional circumstances” and guidance on that definition is laid before both Houses. If we were legislatively to define exceptional circumstances, it would severely restrict our flexibility to update the definition based on an ever-evolving array of patient needs, which would be likely to delay implementation of the 28-day statutory transfer time limit while the definition is coined. As the noble Baroness, Lady Tyler, and the noble Lord, Lord Stevens, pointed out, cross-agency work to support the implementation of this provision has led to a greater understanding of the barriers to meeting the 28-day timeframe. It has revealed the systematic barriers and the scale of the challenges, which include workforce, bed capacity and estates, which is why we intend to commence this provision after 18 to 24 months and are seeking additional funding to support this ambition. I hope this provides reassurance, and I urge the noble Lord—

[Lord Stevens of Birmingham (CB)]

Can I just make sure I heard the Minister correctly? I think he said the that one of the reasons it would not be appropriate to do as the noble Lord, Lord Bradley, suggested—that is, to set out a statutory definition—was because it would take too long to do it and would delay implementation of the 28-day standard. I think he now just said it is intended that that will come into force in 18 to 24 months, the implication being that he thinks it would take 18 to 24 months to produce a piece of statutory guidance about what constitutes an exceptional circumstance. Is that correct?

[Lord Timpson (Lab)]

Having been in discussions with colleagues over the past couple of weeks on this point, I tested with them the processes involved in making sure that we can make this as robust as possible. One of the issues surrounding exceptional circumstances is the need for flexibility so that some of our professionals do not unwittingly break the law in exceptional circumstances. I am happy to write to the noble Lord with further details.

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[Baroness Barker (LD)]

My Lords, this is an interesting collection of amendments. I suggest that they are all slightly flawed but with good intent behind them.

In relation to Amendment 99 in the name of the noble Lord, Lord Kamall, as members of the scrutiny committee will know, we spent a long time talking about what happens in A&E departments. Our committee was very lucky to have Rosena Allin-Khan as a member; she is not just the MP for Tooting but a practising A&E doctor at St George’s Hospital. When we were wandering off into theoreticals, she managed to drag us right back to what actually happens.

The key issue that we returned to, as a committee, was that no matter what the police’s formal position is about their involvement in mental health crisis treatment, they will be there. First, people will go to A&E because the lights are on and, secondly, some of them will be very distressed, so members of the public and members of staff will expect the engagement of police officers. A lot has been said about the particular legal status of somebody who is detained in hospital. They are not technically detained, because they are not in a mental health facility. Yet we know that there is a need for spaces within A&E that are properly built and staffed as safe havens for a time, so that somebody who arrives in a state of distress can be in an appropriate place where they can become calm and, therefore, not be taken off inappropriately into the criminal justice system.

I can see what the noble Lord’s amendment is getting at. It deals with it in a very partial way. Following our discussions, and the discussion we had the other day with the noble Baroness, Lady May, on her amendment about police involvement in crisis moments for people with mental health problems, I hope that we might be able to come up with an amendment which is a bit fuller than the one which the noble Lord has put forward.

Amendment 137, the second in the name of the noble Lord, Lord Kamall, is about monitoring what is being done about the use of illegal drugs and substances in mental health services. I listened carefully to what he said. Does he think that this does not happen already? I have been to a number of acute mental health services in London. It is clear that staff have to deal with very difficult situations. This cannot be an issue that does not happen; it must be part of the daily risk assessment of anybody working there. Does the noble Lord think that it is extensive enough to warrant this kind of reporting and is this another legal duty that we want to put on staff? Is it the best use of their time, compared to other things? I am in no way against getting good data out to solve problems, if that is the best way to do it, but I am not entirely sure that his amendment does that.

The noble Baroness, Lady Bennett of Manor Castle, is absolutely right to focus us again on a question that we have never had answered since 1983, about which resources go into acute services and which into community services. When we have a legal change, as we did in 2006 with the move to community treatment orders, what happens to the flow of resources? Crucially, what is the impact? We just do not have the answer. We have a health system which is very good at delivering itemised care. I suggest that it does not actually deliver that many care pathways. Even when it does, I have never seen any clear evidence that patient information and money flows are sufficiently sophisticated to explain to us whether any of the policy intents that we want to see—that all noble Lords who have ever spoken on mental health in this place have wanted to see—will come about. Her amendment may not be perfect either, but I certainly support the noble Baroness and her intent.

[Lord Stevens of Birmingham (CB)]

My Lords, I also support Amendment 151 from the noble Baroness, Lady Bennett. Whether such reporting should be specifically confined to community mental health services or be more expansive than that is obviously for debate. Whether it should be bi-annual or more frequently, or once a Parliament, does not really matter. The point is to try to continue to put a spotlight on the gap between need and availability in mental health when, for all the reasons that we have talked about, there is sometimes a tendency to downplay that aspect of health and what the health service does.

As the noble Baroness said, if we cast our minds back to last Wednesday when we had that debate about whether the apparent increase in demand for children and young people’s mental health services was real or not, it was paradoxical that, later that evening, the embargo dropped on the Lancet Child & Adolescent Health paper on mental health. It showed that there had been a genuine and unparalleled increase, particularly in younger women’s needs for specialist eating disorder services. Having young people who are severely ill is not an artefact of culture.

Having those kinds of data brought together in one place and published with the imprimatur of the Government would be helpful, rather than as a sort of periodic post-election exercise of the sort that the noble Lord, Lord Darzi, provided. He, of course, also drew attention to the gap that exists between need and the availability of mental health services. I think he used a figure from April 2024 to point out there were more than a million people waiting for mental health, learning disability and/or autism services, of whom 345,000 referrals had waited longer than a year and 109,000 of those were for children and young people under the age of 18. There is a real gap here and a need to continue to put the spotlight on it, to mobilise attention and resource. I welcome the spirit behind Amendment 151.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have spoken a lot about the dangers of medicalising ordinary life and giving it a mental health label. The contribution I made in the previous Committee day on ADHD managed to get picked up by newspapers and generally cited as, “Cruel Baroness hates everybody that says they have ADHD”, so I have become even more infamous.

I welcome the call by the noble Baroness, Lady Bennett, for a review, because the more information and data we have about what is available in the community, the better. My only word of caution is that we should also recognise that, although we need more data, sometimes that data can be used as part of an advocacy for more resources and that data can be unreliable. My only caveat is that whatever the review does, it should not just take superficial headlines or self-diagnosis and self-ID as the truth, and that we should have some scepticism in that regard. We are going to have to understand the implications of this Bill when it is enacted for community care and provision. Therefore, I would welcome any attempt at getting to grips with the reality of that.

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[Baroness Barker (LD)]

My Lords, Amendments 117 and 125 in this group are in my name. I tabled them in part to reflect what happened during the work of the scrutiny committee. We had long discussions about the benefits of ACDs, which were originally brought in under the Mental Capacity Act. I speak as the person who spent an awful long time trying to get them into that Act. They were brought in in the face of some resistance from practitioners. In fact, they have worked extremely well. It has been helpful to both patients and practitioners to know in advance, particularly for people who may have fluctuating illnesses, what it is that they want to do.

I point out yet again to the Committee that often, these are referred to as a decision to refuse treatment, but they are not always that. In the case of some advance choice decisions, people may say to their healthcare providers, “At the moment I am well. I know that, when I am ill, I may try to refuse treatment, but I want you to override that; I want you to carry on the continuity of my care”.

My amendment reflects something we were told. It will be no surprise to people that the noble Baroness, Lady Finlay, drew attention to the work that has been done in palliative care not only to make sure that people are aware of their right to make an advance choice decision about what they may wish to happen to them as their care continues, but to make it electronically. That was found to be one of the biggest barriers for practitioners, who would say, “We were in a crisis, and we couldn’t see it”. A lot of work has been done within the palliative care world to bring in new standard ways of doing things electronically. There is a pilot going on with the assistance of a private company, Thalamos—I think King’s has been trialling it—and it has so far been found to be extremely successful.

On a very prosaic level, the noble Earl, Lord Howe, is absolutely right that the more that patients feel empowered, particularly in mental health care, the better they do. There are also rather simple things: it takes a lot less time on the part of staff to read the stuff and not to be for ever filling in endless bits of paper. There are time and money efficiencies that can be put into front-line care.

All I ask is that, in addition to what the noble Earl, Lord Howe, said, we go one stage forward. Let us be honest: some mental health patients can have quite chaotic lives and they might not be the most tech savvy, but they need the same opportunities as anybody else to get on to a system that we know works and which needs to become the default position for all practitioners, rather than, as it is at the moment, an aspiration.

[Lord Stevens of Birmingham (CB)]

I strongly support the amendments in this group, particularly that in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall. I share the concern, as I think I mentioned at Second Reading, that as currently drafted this proposition could amount to an unenforceable, verging on vacuous, set of requirements, be it noticeboards or helplines. I very much hope that, between now and Report, Ministers will look to adopt the alternative proposition that the noble Earl, Lord Howe, has put forward. If, for whatever reason, that is not the case, I hope that collectively we might return to the question.

I have two small further points. I think I am right in interpreting the Bill as saying that guidance will be issued as part of a Section 118 code of practice which will give clarity on the duties of ICBs and NHS England in relation to the ACD part of the new Bill. I hope that that will, among other things, specify in more detail the categories of people who must be offered an ACD in accordance with the new statutory right which we will, I hope, have created; by whom the offer may be made; the fact that it should be recorded digitally, for the reasons that the noble Baroness, Lady Barker, has set out; and a number of other elements. Expecting individual ICBs to figure it out is a recipe for a subtherapeutic dose, shall we say.

My third and final point is that early evidence suggests that if the benefits described in the impact assessment come to fruition in the real world then there will be a positive impact, including on reduced compulsory admissions. Admittedly these are small and non-UK studies, as the material makes clear, but there is nevertheless a case for getting on with ACDs at scale, if the benefits that are hypothesised might actually be obtainable. It is therefore surprising to see in Annex C III of the impact assessment the suggestion that ACDs will not actually come online until 2029-30. It will take relatively marginal additional staff costs and time to do this, for a relatively small number of people. The suggestion is that it will be a surprisingly precise 55,071 people who might get a new ACD in 2029-30 and about 8,000 people who will get an updated one. These are not huge volumes, and we may be under-egging the pudding, but if the benefits are potentially there to be had, why on earth should we assume that we do not get going on this until 2029-30?

For all those reasons, I support the amendments in this group, particularly that from the noble Earl, Lord Howe, and the noble Lord, Lord Kamall.

[Lord Davies of Brixton (Lab)]

My Amendment 121 seeks to add financial circumstances to the advance choice documents. I spoke in the last session of the Committee about the importance of the link between financial problems and mental health problems. I draw attention again to work that has been undertaken by the Money and Mental Health Policy Institute, which suggested this amendment, and declare that I am a member of its advisory committee.

It is very welcome to see, in Clause 40, that health commissioners will have a duty to ensure that services inform people about advance choice documents. I listened to the speeches of the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, about extending the reach of these documents. I very much look forward to the reply from my noble friend the Minister, because they sounded pretty convincing to me.

Ensuring that everyone has access to an advance choice document is something that the Money and Mental Health Policy Institute has called for previously. We believe that this clause must go further to advance a specific prompt about people’s financial situation. It may seem a small matter, but for people who have been detained under the Mental Health Act, who are possibly too unwell to keep themselves safe, finances are understandably often the last thing on their mind. As I mentioned in a previous session, this does not stop bills needing to be paid, debts mounting and collections activities being escalated. Including a section on money in the document would help people have greater choice and control over their finances when they are in crisis.

A person recalling their experience of receiving treatment for their mental health shared this comment with the Money and Mental Health Policy Institute:

“I was never asked if there was anyone who was opening mail and keeping on top of my day-to-day living stuff … It’s always the same. I go in for treatment and come out to find my financial world is in a bigger mess than when I went in. The resultant terror, shame and guilt undoes all the work of the treatment and I am back in crisis again”.


This section should include explicit prompts which encourage people to reflect on and stipulate their preferences around finances. That can include consideration of how priority bills will be paid; preferences around access to credit; and advance planning to identify and empower a third party to manage their finances on their behalf, such as a lasting power of attorney or third-party mandate.

By including a systematic consideration of finances in ACDs and offering explicit prompts, people can be supported to have greater control and choice. It would better enable healthcare professionals, as well as the individual concerned, to put in place preventive measures to safeguard individuals from the financial harm that can be caused by, and exacerbate, mental health crises.

As mentioned previously, this is not about requiring healthcare professionals to support people with financial advice, or to deal with issues they have neither the expertise nor the capacity to deal with. It is about empowering them to identify people in need and refer them to the appropriate existing support.