Mental Health Bill [HL]

Debate between Lord Stevens of Birmingham and Lord Bradley

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.

Mental Health Bill [HL]

Debate between Lord Stevens of Birmingham and Lord Bradley

Tuesday 14th January 2025 Lords Chamber

[Lord Stevens of Birmingham (CB)]

I too am supportive of the spirit and intention behind Amendments 19 and 20, but I want to raise two textual questions relating to whether they would give effect as was intended.

In respect of Amendment 19, I am not sure that the explanatory statement accurately characterises what the amendment proposes. It says that the amendment ensures that ICBs and local authorities would

“have a duty to carry out”,

whereas at the point at which those words would be inserted it appears that the duty would also then fall to the patient’s responsible clinician. Amendment 19 by itself would essentially see CETRs overriding the judgment of the responsible clinician, which I think is quite a significant step to take.

In any event, I wonder whether Amendment 20 undoes any of the good work that Amendment 19 proposes in the first place. It says that you can ignore the exhortations of Amendment 19 if there is a “compelling reason” to do so. My question to the drafters of Amendment 20 would be: what statutory interpretation should be placed on “compelling reason” and how might the courts be expected to adjudicate in the event of judicial review?

[Lord Bradley (Lab)]

I support and have added my name to Amendment 13, tabled by the noble Baroness, Lady Tyler, around communication issues. As she rightly pointed out, this could have been linked to Amendment 2, which has already been debated at some length. I will not repeat the same arguments, but they apply to this amendment, which is why I support it.

I also very strongly support the amendment on housing tabled by the noble Baroness, Lady Barker. I am chair of NHS England’s health and justice advisory board and have worked on the development of RECONNECT, the service to support people coming out of prison back into the community, which is very much a health-based initiative. Unless their housing needs are met at that point, their treatment, their support and their care plan can fall apart very quickly. Consequently, they are very quickly back in the criminal justice system. The same comparison can be made with this amendment. I strongly support housing being at the core of all issues relating to health and social care.