Mental Health Act 1983

Baroness Keeley Excerpts

Thursday 25th July 2019 Westminster Hall

[Barbara Keeley (Worsley and Eccles South) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hanson, as it was to serve under Ms Buck earlier. I join others in congratulating my hon. Friend the Member for Bermondsey and Old Southwark (Neil Coyle) on securing this debate and echo their comments about the moving way in which he opened the debate. He started with his own family experience and then made a very powerful speech. I am sorry that you missed it, Mr Hanson. We heard contributions from the right hon. Member for New Forest East (Dr Lewis) and the hon. Member for Plymouth, Moor View (Johnny Mercer), as well as my right hon. Friend the Member for North Durham (Mr Jones) and my hon. Friends the Members for Bristol East (Kerry McCarthy) and for Stockton North (Alex Cunningham). I am sure we all want to thank Sir Simon Wessely and his team for their work in reviewing the Mental Health Act.

The wide range of perspectives in the debate is welcome. It shows how wide-ranging the work is and how it touches on so many different aspects. One thing on which we can all agree is that the current Mental Health Act is not working. It is too often overly restrictive and fails to give people the support they need, as we have heard. Before I discuss the contents of the review, I want to mention why it is so important that we get this right, because being detained under the Mental Health Act, although it is sometimes life-saving, can be immensely damaging if it goes wrong, and we have heard already about how it can go wrong. I, too, am going to talk about a case: the case of Matthew Leahy.

On 7 November 2012, Matthew was admitted to a mental health hospital under the Mental Health Act. On 15 November, he hanged himself in his room at the hospital. The Parliamentary and Health Service Ombudsman has identified failures in Matthew’s care that may have led to his death, but they have taken seven years to come to light. My hon. Friend the Member for Croydon North (Mr Reed) talked about delays. They are exasperating, concerning and impossible for families who have to live with the loss of a loved one. Some of the failures in Matthew’s case were truly shocking. He complained that he had been raped in the mental health hospital. The ombudsman found that had Matthew not phoned the police himself, it is not clear that staff on the unit would have done so. Anyway, the police failed to take action.

My hon. Friend the Member for Bermondsey and Old Southwark referred to the level of sexual assaults on patients—an appalling record, as reported by the CQC. It should be of deep concern to us that that is happening. Staff also failed to act when Matthew reported, and he had physical injuries that could have been caused by rape, which should have been a major cause of concern. It is also deeply concerning that his care plan was falsified and other paperwork was lost. Although he had a care plan for his first 72 hours in the unit, staff produced a fuller care plan only after he died. That that should have happened when he was apparently under the protection of the state is unacceptable. We must ensure that we know what went wrong in his and other cases of death so that we can act to prevent it from recurring.

There have also been issues with the subsequent investigation. The initial report by the NHS partnership contained inaccuracies about how Matthew’s care had been planned. Across the board, the partnership failed to learn the lessons of Matthew’s death, which compounds the tragedy of that young man taking his own life while he was in the care of the state. As my hon. Friend the Member for Croydon North has said, there should be independent investigations of deaths that occur in mental health hospitals. I know that the Minister has been asked before to set up an inquiry into Matthew Leahy’s death. I ask her to commit to doing so now, so that we can learn the lessons from that tragic event and prevent such a thing from happening again.

Sir Simon’s recommendations will not solve every problem with our in-patient mental health services, but the Opposition believe that they would improve them, and would remove many of the major issues with the Mental Health Act. Although we have a little time, we cannot focus on all 154 of the recommendations. I just want to discuss the principles that he felt should be central to the operation of the Act. My hon. Friend the Member for Bermondsey and Old Southwark outlined those four principles in his opening speech.

The first principle is choice and autonomy. Of course, it should go without saying that, wherever possible, we give people control over what is happening to them. I am glad that the Government have committed to introducing advance choice documents. Those will be central to ensuring that people can exercise choice over what happens to them. We have heard in many of today’s speeches why that is important. I ask the Minister to confirm today, if she can, when those plans will be brought forward. There will be instances when people cannot exercise the choice themselves, so Sir Simon’s proposals for the new nominated person role and increased use of advocates will ensure that in those circumstances people are still able to influence their care.

During the passage of the Mental Capacity Act 2019 there was a great deal of discussion, involving my hon. Friend the Member for Stockton North, about advocacy. We must ensure that local authorities are fully funded to provide those vital services. It would be a travesty if someone were denied a voice because of budget constraints at their local council. Can the Minister tell us whether the Government will provide additional funding for advocacy to ensure that that does not happen?

The second principle is that of least restriction. It seems self-evident that we should try to ensure that people retain as much of their freedom as possible, but we have heard of the number of ways in which that does not happen. It might mean supporting people to enter mental health hospitals voluntarily rather than their being detained, or ending the use of seclusion and segregation and the terrible cases of restraint that we heard about.

The third principle is therapeutic benefit. Again, it should be self-evident that everything done under the Mental Health Act should be clearly aimed at helping the person in question to recover. If it is not, what is the justification for detaining them? My hon. Friend the Member for Bristol East talked about people with autism and learning difficulties in mental health hospitals, and we have to question how often their detention for periods of five years, or five and a half years, helps them at all, and whether any of what happens to them could be talked about as treatment.

Finally, Sir Simon emphasised the importance of treating the person as an individual. In particular, that section of the review focused on the current experiences of young people and people from BAME communities in mental health facilities. We have heard about that in speeches today. My hon. Friend the Member for Bristol East talked about the lack of support for families of children with out-of-area placements. Sir Simon recommends that, while those still exist—my party pledges to do away with them—financial assistance should be available when a young person is admitted to a placement away from their family. We are committed to ending inappropriate out-of-area placements, but my hon. Friend the Member for Bristol East talked about a case where, if a facility was the only one that would be able to provide the care, a parent would choose it. However, that support and financial assistance must be available. It is not right to cut off a young person’s support network when they need it most.

My right hon. Friend the Member for North Durham also talked about why the powers under the Act are being used more with people from BAME communities, and we must focus relentlessly on the facts.

[Mr Kevan Jones]

Does my hon. Friend agree that we cannot leave the matter where it is? We need an inquiry into it. Sir Simon calls for more research, but unless we have an inquiry we will not be able to get the policy changes to identify what is, clearly, going wrong.

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[Barbara Keeley]

Indeed, and what my hon. Friend the Member for Croydon North has said, today and in speaking about the Mental Health Units (Use of Force) Act 2018, has helped us to focus on the issue of the number of times when young people—particularly from BAME communities—are subject to the Mental Health Act, segregation and restraint. It is not acceptable. None of those cases is acceptable, but it is totally unacceptable if one group seems to be singled out in society for such measures—particularly tragically in the case of Seni. I applaud my hon. Friend the Member for Croydon North for taking that one case and pushing it through to legislation, and the Minister for supporting it.

All the principles I have outlined are important. It is only by following them that we can ensure that a reformed Mental Health Act will work in the interest of those it is designed to help: people with mental health conditions. Will the Minister confirm whether the Government will accept recommendation 1 of the review, that the four crucial principles be put on the face of the Act? We had a bit of a battle during the passage of the Mental Capacity Act 2019 in getting the Minister to accept that things should be on the face of the Bill, but things such as advocacy are pretty important, and it will not be acceptable if they can be overlooked or treated as a budgetary problem.

[Alex Cunningham]

Does my hon. Friend agree that one of our particular concerns was the way that the proposals related to young people and the fact that although there appeared to be safeguards that might look after adults, the protection for young people, and provision to give their families the necessary help to support them, was thin?

[Barbara Keeley]

Indeed, and we did try valiantly to get the Minister to accept amendments, but she would not. There is concern. It is a good thing to include 16 and 17-year-olds in the legislation, but not if there are no safeguards. There are real worries. In many cases that I have looked at, and where I continue to try to support families, parents feel ignored and helpless. They feel that mental health hospitals act without reference to the people who know the young person best.

One area in which Sir Simon did not make recommendations was the definition of a mental disorder. Specifically, he concluded that it was not appropriate for his review to decide whether autistic people should remain within the scope of the Act purely because of their autism. I agree with Sir Simon that that is a complex topic, but we should not let it be an excuse for inaction. Autism is not a mental health condition, but the Mental Health Act treats it as though it is. As a result, there are 1,150 autistic people in in-patient mental health facilities. A proportion of them will have mental health conditions that require treatment, but it should never happen that someone is detained purely because they are autistic or because they present with behaviour that could be challenging. I know of many cases where that is happening.

We all saw the deeply disturbing BBC “Panorama” programme on Whorlton Hall, which revealed the shocking treatment that autistic people were subjected to while detained in mental health hospitals. I am sure we would all agree that that treatment is simply unacceptable, but we must do more to prevent it. The best way of doing that is to ensure that people are not put into in-patient environments unnecessarily. If someone does not have a mental health condition that is being treated, they should not be held under the Mental Health Act. Can the Minister confirm that when the Government bring forward the proposals in the review, they will go further than Sir Simon and commit to ending the outdated practice of treating autism in the same way as mental health conditions?

It is eight months since Sir Simon’s final review was published, although it does not seem like it. He made more than 150 recommendations. We did not expect the Government to respond to all of them straightaway, but in eight months they have responded to fewer than a dozen recommendations. The other 140 apparently have to wait for the White Paper. We have heard about more reviews from the new Prime Minister this morning. All we seem to get is more rounds of consultation and more reviews, but Sir Simon consulted widely during the review. His review was informed by the experiences of 988 people, including 467 service users—the inclusion of service users is praiseworthy—and evidence from 75 organisations and 90 professionals working in the field. I hope that that included social workers. I thank my hon. Friend the Member for Stockton North for making such a strong case for the involvement of social workers; I agree with him.

The only reason I can see for further consultation would be if the Government were planning to go further on some of the recommendations than Sir Simon did—for example, in removing autism from the scope of the Act. Can the Minister confirm whether that is the case? If not, can she tell us why she feels that the consultation that Sir Simon carried out is insufficient? Surely it would be better to publish a draft Bill and carry out pre-legislative scrutiny in the normal way than to do what has become known as kicking the can down the road. Six months ago we were promised a new set of guidance on the Mental Capacity Act, but that has not been mentioned at all since then. Those are the things that should be coming forward.

We have also been told that there will be a mental health White Paper to implement the findings of the review—we find ourselves waiting for Green Papers and White Papers. Someone could be forgiven for looking at that and thinking that the Government simply do not care about people waiting for much-needed reforms. I know that the Minister cares, but do her Government care? Can she give us a date for the publication of the Government’s mental health White Paper? It is popular to say a season or the end of the year, but a date is more useful to work with. I realise that it is a time of great uncertainty for Government Ministers—I hope that we will see this Minister in her place in future—but a firm date would help us to hold the Government to account should they let their focus slip.

People with mental health conditions have been let down for too long. The review represents a rare opportunity to make changes that have cross-party support—the consensus in this debate has been encouraging—to a system that does not work properly. I hope that the Minister, and the incoming Government, do not waste this opportunity by delaying it further, which would leave people stuck in a system that is harming, not helping, them.

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[Jackie Doyle-Price]

On mixed-sex wards specifically, I cannot tell my right hon. Friend what the proportion is, but we are ensuring that the guidance on sexual safety on mental health wards is being rolled out. I will write to him specifically on that, if he will indulge me.

[Barbara Keeley]

An important point is that Matthew Leahy phoned the police to report the rape, but they concluded that it was part of his delusion—that was the reason they gave for not taking action. In the case of Whorlton Hall, the police also did not act on reports of assault, although assault was clearly going on. The Minister needs to take that problem up with the Policing Minister. It is not acceptable that what someone says is ignored if they are autistic or detained under the Mental Health Act 1983, because the level of sexual assault is disturbing, as my hon. Friend the Member for Bermondsey and Old Southwark (Neil Coyle) said.

[Jackie Doyle-Price]

That is an excellent point, and it plays into a general prejudice that people who are in detention are just an inconvenience to be managed. In the context of Sir Simon’s review, the whole ethos that any reform we make should be about empowering patients brings with it obligations to challenge other aspects of the system, not just the care providers. The hon. Lady is right to say that I need to take that up with the Policing Minister, which I will do as part of rolling out our preparations for the White Paper. I understand the hon. Lady’s lack of confidence when I say that the White Paper can be expected before the end of the year, but that is certainly my ambition, notwithstanding the fact that I know she has been waiting rather a long time for another paper that she was promised.

I can reassure the hon. Lady on the extent of the work that Sir Simon has done and the engagement we have had, especially with service users. Rather like the hon. Member for Bermondsey and Old Southwark, those service users shared with us their personal experiences, often reliving significant distress. Given that they have participated and that we have raised their expectations, we would, to be frank, be letting them down if we did not address that. I do not think that would be in any way forgivable, so, as long as it is on my watch, we will be pushing ahead.

As the hon. Member for Bermondsey and Old Southwark said, we are dealing with legislation passed in 1983, so although this appears to be a once-in-a-generation opportunity to reform this legislation, I hope that that is not the case. The situation is probably more symptomatic of the fact that we have not given this matter as much attention as it deserves, but clearly that has changed. The world has changed in terms of how we debate mental health, and that is welcome. Chiming in with the discussion we have had today, I am keen that we take this matter forward with consensus.

I pay tribute to the leadership that Sir Simon has shown in this review. As well as not ducking the controversial aspects of examining the legislation, he has engaged in dialogue and dealt with them in such a way that it is accepted that Members, peers, service users and professionals need to consider them. I am incredibly grateful for what he has done.

We talk more about mental ill health now, but when it comes to severe mental illness—the hon. Member for Bermondsey and Old Southwark spoke about schizophrenia —that is something that reveals incredible prejudice in people. As we have heard, if someone is able to manage their condition, they can live a full and independent life, but the key is being able to manage the condition with the appropriate support. We still have a lot to do in educating the public and society about the real impact of severe mental illness.

There are so many issues, but I will try to address them all in the time I have. The hon. Member for Bristol East (Kerry McCarthy) asked about out-of-area placements for people with autism and learning disabilities. I must say that this is something that really bothers me. Far too many people remain in institutional care and in out-of-area placements, and nowhere is that more true than in the field of learning disabilities and autism.

It is interesting, once we dig under the issue, to see that we have been very successful in getting people with learning disabilities out of in-patient care and into the community. However, that has been matched by a bigger increase in the number of people with autism finding their way into in-patient care. That tells me—I do not think this will be a surprise to anyone in the Chamber—that we are not doing enough to diagnose autism early enough, and as a consequence we are not equipping people with the skills to be able to live independently.

The ultimate result is that we end up putting people in in-patient care. Quite often, those people are forgotten about and it becomes very expensive to keep them there, so not only are we failing people by not having services for them early enough, but we are adding significant cost to the taxpayer and, frankly, doing harm, because the longer those people stay in in-patient care, the more their ability to live independently diminishes. As far as I am concerned, that is a major failing that we need to address.

[Jackie Doyle-Price]

I agree with every word that the hon. Lady says. One of our expectations of the new mental health support teams that we are rolling out into schools is that they will be able to work with schools and to spot people who might be in trouble. She is right that, with girls particularly, autism is under-diagnosed, and by the time the challenges start to have an impact on mental health, it is much more difficult to give people appropriate support. Early diagnosis is key.

I am pleased that we are now setting up a unit within the Department of Health and Social Care to look at neurodiverse conditions and what more we can do to improve service provision for them. I am also pleased that NHS England shares my concern about this and that we can expect more work on it, but there remains a lot to do and I do not shirk from admitting that.

[Barbara Keeley]

There is also the financial difficulty that my hon. Friend the Member for Bristol East (Kerry McCarthy) referred to. Private hospitals that autistic people and people with learning disabilities end up in tend to be very expensive—we know that the placements can be as much as £730,000 a year. The answer is to fund placements in the community. Years ago, when we were moving people out of long-stay mental health institutions, there was a dowry system. The Government do not have a dowry system to help with this, so Transforming Care failed because there was no mechanism to transfer funding from the NHS, which is taking the hit on cost, to cash-strapped local authorities. If local authorities are to continue being cash-strapped, and I hope they are not, some mechanism is needed there. My party has pledged to put in £350 million a year of transfers to make that happen. Does that idea recommend itself to the Minister? I know she is bothered about this.

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[Jackie Doyle-Price]

It is a fantastic school. It was amazing how the principle of mental wellbeing ran through the whole school from walking in to the point where the kids pick up a sticker that reflects their mood and put it on the whiteboard, so straightaway the teacher could look out for those who were feeling a bit distressed. The other amazing thing was the teaching assistants, who instead of being based in each classroom all had specialisms and did lots of one-to-one activities outside the classroom. Even more importantly, there was a facility to reach out to parents pre-birth—obviously families tend to go and see schools. I was hugely impressed, and that goes to show how we should be encouraging innovation and imagination with regards to these services. In fact, it is probably the poster organisation to show that mental health is not everybody else’s problem; it is all our problem. The ability for such engagement in school is fantastic, so well done Charles Dickens Primary School.

Members will be pleased to know that Sir Simon Wessely has worked with the sector, and interest groups in the sector, in coming up with his proposals. I am also in regular dialogue with them to discuss the principles. In the spirit with which we all approach reform of the Mental Health Act, we obviously want to keep people safe, so there needs to be the power for potential detention, but most importantly we need to protect the rights of patients and empower them. That is the principle that I really want to underline.

[Barbara Keeley]

We have moved past the point of discussing people with autism and learning disabilities. I take on board the Minister’s concern, but I wonder whether she could answer my question. Under a reformed Mental Health Act, is she looking at—or minded to look at—changing how people with autism are included as if they have a mental health condition? That is important to a lot of people, and Sir Simon did not rule on it.

[Jackie Doyle-Price]

We need to look at issues about autism in the round. The hon. Lady is right that it is currently treated as a mental health issue for the reasons outlined by the hon. Member for Bristol East: it is not diagnosed until a mental health issue materialises. That is really the issue. I would like us to use the 10th anniversary of the Autism Act 2009 to reboot our approach to ensuring that we are looking out for people with autism. In a way, we must go through the same journey with autism and learning disabilities as we have with mental health. That does not really answer the question from the hon. Member for Worsley and Eccles South.

[Barbara Keeley]

It is about the legislation.

[Jackie Doyle-Price]

As far as legislation is concerned, ultimately people with autism who are suffering from mental ill health will be detained under the Mental Health Act. Perhaps we ought to pick up how that interacts with other legislation as we develop the White Paper. The overlap is a clear problem.

I have paid tribute to Sir Simon Wessely. We are all about making sure that our reforms deliver genuinely person-centred care. We should be removing coercion and control as far as we can.

My hon. Friend the Member for Plymouth, Moor View (Johnny Mercer) talked about Georgi Lopez, who addressed the all-party group and whom I had the pleasure of meeting. She tells a compelling story about her contrasting experiences. She readily concedes that on one occasion being detained under the Act was the best thing that could have happened to her, but on another occasion it did her genuine harm. In fact, Members who read Frank Bruno’s book will find exactly the same story. It is almost as if once someone is on that pathway and under detention, they will always be seen through that prism. We need to tackle the underlying prejudice. People who are suffering from mental ill health are vulnerable; they are not an inconvenience. Any services provided by the state need to be working with them to support them, not to do them harm.

Our overall objective when we asked Sir Simon to look at the Act was to reduce the rising number of people detained under it. I hope that underlines the spirit with which we are approaching the inquiry. We also asked him specifically to address the disparities in how the Act is used, highlighting in particular the impact on black and ethnic minority groups, but also on women. It is of great credit to him that he went much further than that and led a full review of the entire Act. Again, that raises the expectations on me to deliver fundamental reform—but that is fine; it is what I am here to do. He did so with such speed, and having taken so many with him, that he has provided exactly the right conditions to approach reform.

Sir Simon built relationships with service users and carers, and I am riding on the back of them. I meet those people regularly to hear directly from them about their responses to his recommendations. We will continue with that. I have been struck by some of the experiences shared with me by service users and family members, which bring home how disempowering it can be. I often talk about the arrogance of medical professionals who, when someone turns up and says, “Fix me,” send them along. That dismissiveness can be more so in mental health than anywhere else. We need to ensure that we put in a regime that treats people with dignity and respect.

At the heart of this issue, the current Act has much too big a disempowering effect, which does too much to remove people’s autonomy and not enough to support their decision making and influence over their own care. It is dehumanising. We should look at detention as the last resort, because it does genuinely do harm. That is not to be critical: staff will act with the best of intentions, but a lot of it depends on culture. When Georgi Lopez shared her experiences, she talked about the two very different cultures of the organisations in which she was detained. When the CQC visits such places and assesses whether they are well led, it must assess the culture and whether patients are genuinely empowered.

I do not think we should duck the fact that sometimes we will have to detain people for their safety and that of others, but we need to ensure that we have the right guarantees in place. I am struck by something that Sir Simon always says: from the moment of detention, release planning should start there and then. A credible care plan is all about getting people back out and re-empowered. It should be based on consent and empowering the patient.

As has been mentioned, Sir Simon’s report contains 154 recommendations. I will work with the Ministry of Justice on a joint White Paper from both Departments, which will come forward by the end of the year. We have already started to implement the recommendations that we can, and I hope that Members are reassured by how, last week, the previous Prime Minister re-emphasised her commitment to making sure that we tackle the issues regarding black and ethnic minority detainees. I know she will continue to have a full interest in these issues from the Back Benches. I reassure the hon. Member for Worsley and Eccles South that if she sees no sign of a White Paper, she has a good ally on the Government Benches to hold the Government’s feet to the fire. I look forward to engaging with all hon. Members on those recommendations when we come forward with our White Paper, for which we should also consider the issues that have been highlighted during the debate.

As I have said, we want to modernise and ensure that people who are detained under the Act receive better care by improving patient choice and autonomy in their treatment. We will introduce statutory advanced choice documents to enable people to express, in advance of detention, their view on the care and treatment that works best for them.

It is important to talk about the role of family, because we have agreed that patients should be able to identify a nominated person who will have the power to look after their interests under the Act. At the moment, the next of kin is the default. I have heard compelling evidence from patients who have said that that is not always appropriate. Family members can often be a source of abuse or additional pressure and harm, so patients want to be able to nominate someone, which seems extremely sensible. I recognise that that will cause some controversy.