Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

We need these services in the community, across so many areas and in so many aspects. If we are going to deliver this Bill, those services have to be there. Surely, Parliament should be able to make a regular assessment of what provision there is, and the Government should have to account for that.

[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.

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As the Minister knows, we have spoken about this issue privately and I am grateful for the conversation we had. Will she agree to consider making a change to Clause 42 along the lines I have proposed? I beg to move.

[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.

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[Baroness Merron (Lab)]

My Lords, I am grateful for all the contributions in this group. I will start with Amendment 115, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall. Under the Bill, services should not only offer individuals who are likely to benefit from making an ACD information and support to do so, they should proactively support such individuals. This is functionally equivalent to a right to request an advance choice document.

The amendment applies to large groups. We have concerns that, for example, it may be practically challenging or sometimes inappropriate to contact people who were detained some time ago. We intend to identify groups in the code of practice that services should target; it can then be updated in response to changing best practice and emerging research.

On the point raised by the noble Earl, Lord Howe, and referred to by the noble Lord, Lord Stevens, and the noble Baroness, Lady Browning, about how advance choice document information is made available to patients, we will set out in the code of practice detailed guidance on how services should discharge their duties under the Bill to inform and support individuals to make an ACD. Any failure to implement the duty in this aspect of the code could ultimately be challenged in the courts. I hope that gives some indication of the strength of that provision in the Bill.

The noble Lord, Lord Stevens, raised the implementation timeline, as outlined in the impact assessment. We want to ensure that there is appropriate resource in the system before ACDs can be brought in. I am sure noble Lords understand that this is critical, for ACDs to have the right level of impact. For example, the effect of ACDs is dependent on the expansion of the second opinion appointed doctor service. In the meantime, services can, of course, progress with putting ACDs that deal with patient needs and wishes overall should they become detained. That would very much build on the work that South London and Maudsley, and others, have done.

I turn to Amendments 117 and 125 in the name of the noble Baroness, Lady Barker. I confirm that we are committed to mitigating the barriers that get in the way of creating an advance choice document. The code will make it clear that commissioners should provide accessible information in response to individual needs, with flexibility around how individuals make their preferences known—the point that the noble Baroness raised. We plan to create a standard advance choice document template for people to complete, with supporting guidance. That should prompt thoughts about the things that an individual may wish to consider and decide before they become unwell. I can assure noble Lords that the template will be available digitally as well as in hard copy. Our intention is that a digital version of the document will be created for easy access by professionals as needed.

Amendment 120, tabled by the noble Baroness, Lady Murphy, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, has the stated intention that mental health in-patients create an ACD. While the Bill does not prevent this, in most cases it will not be the best time, as patients may be very unwell and lack capacity. Insights from the South London and Maudsley NHS Foundation Trust with King’s College London suggest that encouraging people to create an advance choice document after discharge—when their health has improved and the support network can help—can be useful. The person’s community mental health team is best placed to provide support, rather than an independent mental health advocate whose role is to support people who are detained. The duty on commissioners in the Bill is intended to focus on the community and other contexts outside of hospital. We feel that this is more likely to increase the uptake of advance choice documents.

[Baroness Barker (LD)]

The crucial question that the noble Baroness is asking is around which staff can access this information and where. That means that the information in the ACD has to be always available to whoever is seeing the patient, wherever they happen to be. Does that mean that, as in palliative care, the ACD will become part of an electronic patient record, and that there will be an expectation that all practitioners, wherever they are, will refer to it all the time?

[Baroness Merron (Lab)]

The noble Baroness makes a good point. I am sure she is aware that one of the main pillars of change as we move towards the 10-year plan is shifting from analogue to digital. I am sure that this will be part of those considerations.

I now turn to Amendment 121, tabled by my noble friend Lord Davies of Brixton and supported by the noble Baronesses, Lady Tyler and Lady Neuberger. The noble Baroness, Lady Tyler, spoke to this very amendment. We know that financial problems can worsen or trigger mental illness. We agree that individuals should be encouraged to include in their ACD any care and support to help them manage their financial circumstances when unwell. The code of practice will include guidance from professionals on this point, while the template will prompt people to consider financial matters.

On Amendment 122, tabled by the noble Baroness, Lady Browning, and supported by the noble Lord, Lord Patel, it is important for practitioners to be aware of, and, where applicable, to consult with, the person’s attorney. However, we do not agree with requiring people to include all of the information contained in the lasting power of attorney in their ACD. The document is owned by the individual, who should be free to include what matters to them. Some of the information in a person’s lasting power of attorney may not be relevant, and copying over its contents may introduce inaccuracies due to human error. We intend to encourage service users to include the existence of an LPA where applicable in their advance choice documents, and practitioners can then be made aware and take the relevant steps.

On Amendment 123, tabled by the noble Baroness, Lady Browning, we agree with the aim that is stated here. The code of practice will set out all of the groups which services should proactively target to make an advance choice document, including people on the dynamic support register. The code can be updated in line with emerging research and best practice, as I have said a number of times before, and can include detail and nuance that is not possible in primary legislation.

With those remarks from me in mind, I hope that noble Lords will feel able not to press their amendments.