Mental Health Bill [HL]

Baroness Bennett of Manor Castle Excerpts

Tuesday 14th January 2025 Lords Chamber

Moved by

[Baroness Bennett of Manor Castle]

4: Leave out Clause 3 and insert the following new Clause—
“Application of the Mental Health Act 1983: autism and learning disability(1) Section 1 of the Mental Health Act 1983 (application of Act: “mental disorder”) is amended as follows.(2) Omit subsection (2A).(3) Omit subsection (4).(4) At end, insert—“(4A) Mental disorder does not include autism or learning disability for the purposes of this Act.””

[Baroness Bennett of Manor Castle (GP)]

My Lords, in moving Amendment 4, I will speak to the Schedule 1 stand part notice, which is consequent on Amendment 4. Both appear in my name. I will not speak to the other amendments in this group, although my understanding is that Amendments 5 and 38 to 41 inclusive—tabled, variously, in the names of the noble Baronesses, Lady Browning and Lady Hollins, and the noble Lord, Lord Scriven—are effectively trying to achieve the same thing but by different means. I will leave them to speak to their amendments, because I want to explain why I have structured mine in this way.

I must begin by thanking Jen Smith at the Bill office for her great patience and expert assistance to this non-lawyer in producing this and a number of other amendments. I also want to stress that I am not, unlike many people taking part in this debate, an expert in this area, but I seek to represent voices of people who have reached out to me who may not otherwise be heard in your Lordships’ Committee.

I will set out the background to Amendment 4. I had a detailed briefing from the group Liberation, a user experience group led by people who have experience of mental distress and trauma, which has the slogan “for full human rights”. It is seeking a complete end to involuntary detention in psychiatric hospitals and forced treatment for the people it represents—people given mental health diagnoses. It asked me to exclude all people from what is known as detention or sectioning.

Liberation says that involuntary detention and forced treatment are forms of disability-based discrimination, and these people should not be subject to them. This may not be the case under the European Convention on Human Rights—I acknowledge that the noble Baroness, Lady Merron, signed a statement to that effect in the Bill—but I understand that it can be argued to be the case under the UN Convention on the Rights of Persons with Disabilities. I note, however, that the Parliamentary Assembly of the Council of Europe has, in line with Articles 12 to 14 of the UN CRPD, strongly endorsed a complete end to involuntary hospitalisation and compulsory treatment and recommended the removal of Article 5.1(e) from the ECHR—the paragraph that limits right to liberty if people are judged to be “of unsound mind”. It describes it as

“not compatible with our 21st-century understanding of human rights”.

I note that the recent report on the situation in the UK from the UN Committee on the Rights of Persons with Disabilities, particularly paragraphs 79 and 80, expresses concern about the lack of government measures to end disability-based detention and that the then Conservative draft mental health Bill continued to allow involuntary detention and forced treatment. The Bill brought before us by the Labour Government still has the same kind of provisions. The argument is that the Bill as it stands remains non-compliant with the UN CRPD deinstitutionalisation guidelines and the World Health Organization publication Mental Health, Human Rights and Legislation: Guidance and Practice, in which countries are urged to replace institutions with high-quality services.

I can almost feel your Lordships’ Committee saying, “How can that be possible?” Starting from now, that looks like such a long way away. That was indeed the question that I put to Liberation, which presented me with a number of case studies from around the world. I imagine that the Minister is aware of the case of Trieste, in north-eastern Italy, which almost managed to abolish involuntary detentions. They have been replaced with wide-ranging and accessible community services, based on a whole-person approach. Its community mental health centres are open 24 hours a day, seven days a week, and they play a key role in preventing people reaching a point of crisis. This has enabled people with mental health diagnoses to remain in and be part of their local community, in line with Article 19 of the UN convention. Compulsory psychiatric treatment orders are still possible, but the numbers are very low and orders typically last seven to 10 days.

In Spain, Act 8/2021 recognises the legal capacity of all adults and stipulates that disabled people should receive the same legal treatment as non-disabled people, including those with mental health diagnoses and learning disabilities. This is still not complete equality but it is heading that way and has made further progress than we have.

Costa Rica, Peru and Colombia have all taken steps in this direction. In Peru, for example, a recent study on the impacts of crisis interventions indicates that involuntary detention rates have been significantly reduced and that, when people are detained, they typically leave hospital after a couple of days.

In Mexico, the general health law of 2022, a national civil procedure code, says that everybody has legal capacity, including people with mental health diagnoses. It enables access to supported decision-making for everybody. Mexico City, in particular, has set a real lead in delivering on this, but I acknowledge that not all of Mexico has.

Why have I tabled an amendment that would, in effect, end detention for those with autism and learning difficulties? I feel like I must apologise to the people I have spoken to, as I did not feel able to put down another amendment—this a probing amendment, by nature—as I looked at the realistic situation. The noble Baroness, Lady Tyler, in starting our debate, referred to the extreme lack of resources. I and many others have amendments later in the Bill referring to the need for it to specify the level of resources. I am sorry that I did not feel able, even in this probing stage of Committee, to table another amendment. I would like to, and I would very much welcome the Minister’s comments on how we sit in that UN framework and whether the Government have a long-term goal to reach the kind of levels that an increasing number of other countries have attained, as I have just set out in my quick survey.

But I have to look at the reality of the statistics. I have looked at the figures in the briefing from the Royal College of Psychiatrists. The number of recorded detentions in 2023-24 is 52,500. We really have to reflect on that number. Of those, we have seen a fall, to 1,880, in the level of detentions relating to learning disability and autism—that seems a step in the right direction. We are talking about disabilities. Can we really continue, a quarter of the way into the 21st century, to detain people for their disability rather than provide them with the support they need in the community? That is a question this amendment seeks to raise.

I want to reflect on the fact—we will come back to this again and again—that people are not getting the help they need, and that is leading to the state of crisis we have now. I note in Mind’s briefing that people are crying out for help and not getting it. In June 2024, very urgent referrals to crisis teams for adults were 45% higher than a year before. I should here declare my position as a vice-president of the Local Government Association and refer to the LGA briefing, which talks about the significant resource implications for councils of the Bill as it stands as presented by the Government.

There are voices here that should be heard. We should frame this in the context of the international situation of the UN Convention on the Rights of Persons with Disabilities. That is why I have tabled this amendment. I hope we can have a constructive discussion and see some real progress here today. I beg to move.

[Baroness Browning (Con)]

My Lords, I declare my interest as a vice-president of the National Autistic Society and a co-chair of the APPG on Autism, and I have responsibilities for close relatives who are on the autism spectrum.

I will speak to Amendment 5 first, and to the Mental Capacity Act, which is not the Act we are looking to change but it is my contention in this proposed clause that the Mental Capacity Act has a relationship with the Mental Health Act.

There has for some years been concern about the deprivation of liberty safeguards as defined in the Mental Capacity Act 2005. They were inserted into the Mental Health Act 2007 following the Bournewood judgment in the European court which involved an autistic man whose liberty was denied, whose carers were ignored, and who had had what I can best describe as an autistic meltdown that resulted in his incarceration for a very long time.

Although the Mental Capacity Act has much to commend it, there has been ongoing concern about the deprivation of liberty safeguards—often referred to as DoLS—and I managed to obtain a House of Lords inquiry into the Act in 2013, ably chaired by the noble and learned Lord, Lord Hardie, who is in his place today. I will quote a section of the summary of that inquiry that deals specifically with deprivation of liberty safeguards. The House concluded:

“The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned”.

--- Later in debate ---

[Baroness Merron (Lab)]

There is no need to apologise.

I am pleased to provide the reassurance that the proposed changes to the Section 3 detention criteria mean that it would no longer be possible to detain someone with a learning disability or an autistic person under Section 3, unless they have a psychiatric disorder. Additionally, the Act already requires a statement of rationale for detention and statutory forms. The registered medical practitioner will have to confirm that the patient meets the criteria for detention, including that they are suffering from a psychiatric disorder requiring hospital treatment and not just that the patient has a learning disability or is autistic. I hope that will be of reassurance to the noble Baroness.

For the reasons I have set out in respect of all the amendments—I thank noble Lords for them—I ask the noble Baroness to withdraw hers.

[Baroness Bennett of Manor Castle (GP)]

I thank the Minister for her rich and full response, and indeed all noble Lords who have taken part in this important debate. It has been long but that has been quite necessary. I thank the Minister particularly for responding directly to my question about the UN Convention on the Rights of Persons with Disabilities. I do not agree with her response but I appreciate that she engaged fully with it, so I thank her for that.

I will not go through and summarise all the contributions, but I just want to make two points, which are perhaps specifically directed to the noble Lord, Lord Kamall, and the noble Baroness, Lady Murphy. A phrase which has been missing from our whole debate is the “social model of disability”. That is the idea that society is discriminatory, and that people are disabled by the barriers in society, not by their difference. That position was endorsed by the Government Equalities Office in 2014, and so far as I know, that still holds, and it is preferred by most disability charities.

I invite noble Lords to consider another phrase in this healthcare space, which is “parity of esteem”. I think that when we come to the social model of disability and physical disabilities, most people have now accepted that if there are only steps and not a ramp, that is a failure of society, not the failure of the person in the wheelchair. However, we have not heard in this debate an acknowledgement of the same parity of esteem—the same approach to mental disability as we have accepted towards physical disability—and we should consider and think about that.

In that context, just to pick up a couple of points from the Minister, she talked about how people with autism or learning difficulties can be detained for aggressive or irresponsible conduct. The Trieste model—if I can call it that—which is being adopted by many countries around the world, asks: “Can we intervene before that point and ask what has provoked that person? Can we intervene before we need to detain someone?” That needs to be very carefully considered.

The other point that the Minister addressed, which I confronted myself with, asking why I did not table the broader amendment that I might have done, is what happens when people get to the point of being a danger to themselves or—I stress that this is extraordinarily rare—a danger to others as a result of a mental disorder. Again, how did people get to that point, and should there not be services and support and community wraparound in the Trieste style? I do not think that any nation or area is saying that it has totally got to that point, but surely we should be aiming at that.

[Lord Kamall (Con)]

The noble Baroness referred to the Trieste model, and I thought that led to quite a deal of interest from noble Lords across the House. Could she share some details on the Trieste model with other noble Lords but especially the Minister and the department, so we can all start learning those lessons?

[Baroness Bennett of Manor Castle (GP)]

I should absolutely stress at this point that I am not an expert, but I will certainly do my best to secure as much information as possible and share it with all noble Lords. The Minister may also have access to resources that may not be available to me. Reflecting on the intervention of the noble Lord, Lord Kamall, perhaps we could even arrange some kind of discussion—it might be useful—and perhaps even hear some testimony, because that would really inform our consideration of the Bill. But in the meantime, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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[Baroness Butler-Sloss (CB)]

My Lords, I should like to speak to Amendment 9, following on from the noble Lord, Lord Scriven, on Amendment 8.

We are dealing with the responsible commissioner making arrangements for the care (education) and treatment review meetings and the report. I do not know whether I am a lone voice speaking in this House but I am a mother and a grandmother, and there is not a single word in any part of this Bill about parents or guardians—not a word. I could find references to parental responsibility only in new Schedule A1 and Schedule 2, although I may be wrong.

Can I just suggest something to noble Lords? Where you have a child—here, I am dealing specifically with a child—with autism or physical or mental disabilities, it is quite probable, if not most likely, that that person will be living with their family and their parents. I must say, my experience as a family judge led me to believe that only about 5% to 10% of parents who came through the courts were not suitable to look after their children full time. But according to Clause 4—which inserts new Section 125A—the one group of people who will not be told what the future care (education) and treatment review given to their child will be includes the people with whom that child has been living for all their life. I cannot understand why this Bill seems to think that parents, guardians and other people with parental responsibility do not matter. That is why I have raised this issue. I feel intensely strongly about it, as a mother and a grandmother.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall speak very briefly, having attached my name to Amendments 19 and 20. I support all of the previous amendments, which are in essence about people knowing about care and treatment review plans. I particularly wanted to sign these two amendments because of the clause identified by the noble Lord, Lord Scriven, and the noble Baroness, Lady Hollins. It states that integrated care boards and local authorities “must have regard to” the plan—as the noble Lord outlined, that is a very weak, weaselly form of words—rather than having a duty to deliver the plan that has been established for the well-being and health of a person. The phrase in the Bill now really is not adequate.

I want to share something with noble Lords. On Friday night, I was in Chorley, in Greater Manchester, at a meeting with the local Green Party and NHS campaigners. One of the things I heard there was a huge amount of distrust and concern about integrated care boards and the restructuring arrangements that have happened with the NHS. I am not going to get into those issues now but, with the words “must have regard to”, we are leaving an open door and a door to distrust. Surely the right thing is for this Bill to say that the ICB has a duty to deliver a care plan.

On Amendment 20, we will undoubtedly talk endlessly about resources, but that there must be a compelling reason is the right terminology to have in the Bill; it really has to be justified. I believe that both of these amendments should be in the Bill.

[Baroness Tyler of Enfield (LD)]

My Lords, I will speak to Amendment 13 in my name in this group, but wish to add my support to the amendments that have already been talked about: those in the names of my noble friends Lady Barker and Lord Scriven, and the very important amendment in the name of the noble and learned Baroness, Lady Butler-Sloss. I have experience in my wider family of someone with autism, so I know full well the importance of having the parents and the wider family involved in review meetings. Frankly, it would be very difficult indeed if they were not there for those review meetings to express the wishes and preferences of the individual concerned.

I guess that that is quite a helpful link to my amendment, which is about communication needs. I know that we explored this issue pretty thoroughly in our debate on the first group—you could argue that my amendment could have been in either the first grouping or this grouping, but it is in this grouping. I will keep it short, because we have talked about this quite a lot. In essence, the amendment is designed to ensure that communication needs being met is included on the list of the subject matter that must be considered and on which recommendations must be made during the care (education) and treatment review meetings.

It is clearly vital, as we have all acknowledged, that every effort is made to ensure that autistic people and people with learning disabilities are involved in their own care and treatment decisions and are able—this is the critical point—to express their preferences and needs. To ensure that this is the case, their communication needs must be understood, considered and met; the noble Lord, Lord Kamall, made that point powerfully in our debate on the first group. Often, this needs to include understanding a person’s communications preferences; having the right sort of environment; making sure that the environment is supportive; or, sometimes, using very specific communication tools, which do exist. This can also include—this refers to the amendments from the noble and learned Baroness, Lady Butler-Sloss—the involvement of a person who knows and understands the patient well, quite often a family member or advocate. That can be key to meeting someone’s communications needs.

I am sure we all agree that care and treatment reviews need to be designed to ensure that the person affected is central to the decisions being made about their care and treatment. It is therefore absolutely self-evident that communications needs should be considered and discussed at the beginning of those meeting to ensure that the person concerned is able to express their thoughts, wishes, feelings and preferences, so that everyone involved in the care and treatment of individuals is equipped to meet those moving forward.

I am very supportive of the amendment tabled by my noble friend Lord Scriven which would lengthen the time between reviews from 12 months to six months. I think 12 months is just too long. An awful lot can happen in that period and circumstances can change. I know that we have a subsequent group on care and treatment plans, but on the point made by my noble friend Lady Barker, it is important to think of the individual in a fully joined-up way, looking at housing needs as well. I know that we are going to return to it in a subsequent group, but it vitally needs to include things such as money matters, debt advice, ensuring that the individual does not fall into financial exclusion and all of that. I have put my name to an amendment on that in a later group.