Mental Health Bill [HL]

Baroness Bennett of Manor Castle Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, in Committee, a number of us stressed the importance of those sections of the Bill relating to its application for prisoners suffering mental disorder. I continue to push to ensure that the parts of the Bill that relate to the responsibilities of the MoJ in relation to the Department of Health and Social Care are not neglected once the Act becomes law.

In Committee, I focused on calling for a government review of the impact of the Bill on prisoners, but, from listening to the thoughtful response from the noble Lord, Lord Timpson, I saw that this could become yet another bureaucratic report. I therefore commend Amendment 38 from the noble Lord, Lord Bradley, as an elegant way of ensuring that the crucial provision of a transfer to hospital within 28 days is more than an “if only” paper aspiration.

My Amendment 40, which I am delighted is supported by the noble Baroness, Lady Bennett of Manor Castle, is also a practical proposal. It is designed to tackle problems that directly pertain to the Bill, broadly because, regardless of this legislation, the reality is that there will continue to be large numbers of prisoners suffering mental disorders who are incarcerated within the prison estate rather than in secure hospitals. The question then is what happens to their mental health care when they are released. If this aspect is neglected, these ex-prisoners could well become increasingly unwell and deteriorate, and therefore be in need of future detention.

It would be a real mistake to neglect any policy or practice associated with this Bill that fails to address the need for bespoke, ongoing support in the community, in which ex-prisoners’ mental health is not allowed to fall further, creating new risks to both them and the public. This is a real risk. Estimates from a 2023 report from the Centre for Mental Health, based on a survey of 75% of prisons and young offenders’ institutions in England, found that one in seven prisoners receive mental health support while in custody—the figure is one in four among women. However, continuity of that care collapses after release. Research led by the University of Manchester recently found that, of 53 prisoners who had been in touch with in-house services due to severe and enduring mental health conditions, only four were in touch with community health services six months after release.

It is perhaps understandable why this happens. When leaving prison, both the authorities and prisoners may focus on practical challenges, such as lack of housing and how to earn money and a living, and therefore mental health support can and does slip down the priority list. It is also the case that leaving prison can present a shock to the system, and that affects this. Prisoners will be leaving a structured environment, focused on routine, and, in many instances, returning to more disorganised and chaotic conditions. Freedom may mean an arbitrary end to an effective course of treatment, someone having waited perhaps months or even years to access services, such as therapy or specialised groups, in which they have started to open up about traumatic experiences—all in-prison services. Suddenly, on release, there is an abrupt end to such support. Targeted interventions, prescribing regimes and the access to medication inside are no longer guaranteed on the outside.

I understand that ensuring continuity of care can be incredibly difficult. People leaving prison often have multiple and complex needs, and can be wary of accessing care in the community because of a lack of trust in state institutions that means that they are less likely to proactively seek out help. Ex-prisoners report that they fear that disclosing mental health challenges to, for example, probation staff will draw attention to their vulnerabilities. Then there is the dread of recall—an especially acute fear for IPP prisoners: a fear of being sent back to prison if they appear too ill to cope, or a dread of that other detention mechanism, sectioning.

All that this amendment seeks is to ensure a smooth handover between prisoners and community services. Without such ministerial reassurance, I fear that this will undermine core parts of the Bill unless it is taken into account. The stock reply to such concerns is that prison mental health services send on information to prisoners’ GPs, but in the real world this is often nonsense. Prisoners often do not have a fixed address on release, so they are discharged with just a medical letter. Prison nurses explain that they do not know where their patient will be released to, beyond a hostel somewhere, making it impossible to connect that person to even primary care. Prison-led medical staff complain that often they are not informed of the impending release until very shortly beforehand—sometimes a week or days—and this is especially acute in relation to the present early release scheme. There is not enough time to set up appropriate community provision, to communicate with services or even to conduct proper assessments of individual patients before their release. Clinical needs are therefore deprioritised, and prisoners fall through the net of statutory services.

What is needed, and what this amendment envisages, is that a relevant detention authority is responsible for discharge packages which will, for example, register prisoners with GP services in the precise area a person is discharged to, and liaise with relevant third-party organisations and community provision to make arrangements. Prisons and health authorities would work together to prevent deteriorating mental health and the potential for behaviour on the outside that would mean yet more contact with the criminal justice system for the ex-prisoner and, possibly, emergency intervention and detention.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I support Amendment 40, tabled by the noble Baroness, Lady Fox, and have added my name to it—probably not a combination that you will see very often. This amendment, as the noble Baroness set out with practical, clear evidence, makes such a lot of sense that I had to back it.

My particular interest when it comes to prison policy is women in prison. More and more shocking figures are emerging all the time about what is happening in our women’s prisons. A third of women in prison are now self-harming, which is a 29% increase in the last quarter, and 82% of women in prison report mental health problems. As the noble Baroness said, one in four women in prison are receiving help from mental health services. That is not to say that there are not enormous issues around male jails as well—the figure for male jails is one in seven—but I want to take a moment to paint a picture.

Six in 10 female prisoners are serving sentences of less than six months. Their life is torn apart and they are put into prison, where maybe they start to get help from the mental health services. Here are some other figures: seven in 10 women in prison report being victims of domestic violence; 53% report that they were victims of child abuse. We have a huge and often acute need for mental health services here, yet, as the noble Baroness set out, these women are thrown out, virtually on to the street, and the chances of continuing care and support being there are utterly unrealistic.

I suspect the Minister will say that the Government are trying to improve the situation. I respect and understand that. None the less, this is a practical, sensible measure that it would be common sense for the Government to take on board.

[Baroness Tyler of Enfield (LD)]

My Lords, briefly, I want to make a couple of contributions to the debate. In so doing, I reflect on that fact that we have not spent much time talking about the criminal justice side of this Bill. I wonder why that is.

On the amendment tabled by the noble Lord, Lord Bradley, it makes eminent sense to ensure that there is an accountable person or body responsible for ensuring that transfers to hospital occur within 28 days. I have a simple view of the world: if you want to make sure that some things get done, you need to ensure that someone is in charge and that that person is held to account. As the Minister knows, I am quite keen on responsible people, particularly in relation to this Bill, to ensure that things get done—hence, I support the amendment.

I was very interested in the arguments put forward by the noble Baroness, Lady Fox, for her amendment, focusing on ensuring that prisoners treated for a mental disorder have access to continued mental health treatment once they are back in the community. That is such common sense and such an obvious thing to do, if we are to stop repeat admissions and detentions and the whole thing becoming a revolving door. We all know that it is not easy in the community at the best of times to get access to the treatment that you need, particularly mental health treatment. It is particularly difficult for people who have recently been released from detention. Further, we all know the episodic nature of many mental health conditions, so this amendment is just good common sense.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I agree with all three amendments that we are considering at this moment, but in particular I support Amendment 51 and agree respectfully with every word that the noble Lord, Lord Meston, said. He has set it out extremely carefully and clearly.

Despite meeting the most helpful Minister to discuss this and other matters in the Bill, I absolutely cannot understand why the Government do not realise that the absence of any information to help medical professionals looking at a 14 or 15 year-old who has mental health issues, which are why they are in hospital, but who appears otherwise to be very bright, is an issue. How on earth are they to judge whether that child has the degree of competence necessary for the professionals to listen carefully to what the child has to say? If you are over 16, you are included in the Mental Capacity Act 2005, but under-16s have not been included.

I emphasise the point made by the noble Lord, Lord Meston, that Gillick is very long-winded. It would be unreasonable for any medical professional looking at a child of 13, 14 or 15 to settle down and read the judgments of the then House of Lords to find out that they say that Gillick should be applied but absolutely do not say how.

This is why we have this amendment. The Government might decide that they are not prepared to accept it. I did not see the letter that the Minister sent to the noble Lord, Lord Meston, but I cannot understand why there is any confusion. I cannot understand why a form of advice to mental health professionals on dealing with under-16 year-olds in mental health conditions might be applied in any other circumstance in any other litigation. It does not apply.

I have spoken not only to the Minister but to the very helpful team who surround her, and I have been completely unable to understand what on earth they are really worried about. I would be—and I would like the Government to be—much more worried about anyone over 16. There is primary legislation telling anyone how to judge that someone over 16 has the ability to make decisions, but there is nothing to tell anybody about someone under 16.

In my view, there will be a serious lacuna in the law that is very unhelpful, particularly to mental health professionals. What on earth are they going to do with a child who, as I say, is bright and cheerful despite what his or her mental health problems are? How on earth are they going to approach judging whether that child has the sort of competence that over-16s have?

I find it difficult that what is contained in this excellent proposed new clause by the noble Lord, Lord Meston, is seen as somehow confusing or that it will be used in the wrong circumstances, or anything like that. If Amendment 51 is not going to be accepted, what on earth is the help that the Minister expects to give to mental health professionals dealing with under-16s?

[Baroness Bennett of Manor Castle (GP)]

My Lords, I say humbly and briefly, following that expert explanation of Amendment 51 from the noble Lord, Lord Meston, and its powerful reinforcement by the noble and learned Baroness, Lady Butler-Sloss, that I attached my name to this amendment simply because I thought it was such an important one, following our debate in Committee. I felt that it should have a full slate of signatures from as broadly around the House as possible. I do not claim any particular expertise here, but my intention to do this was strengthened by the joint briefing from the Law Society, Mind and the Children and Young People’s Mental Health Coalition. It is quite notable and I am sure many noble Lords will have received it. That briefing is explicitly on Amendment 51, which just shows the level of concern on this issue among NGOs.

It is worth saying—it is kind of stating the obvious—that, as the briefing notes:

“We consider that the test should be on the face of the Bill, not in a Code of Practice as the Government suggests. This is because the courts have made clear that codes of practice should reflect the law and cannot create law”.


That sets out clearly to me, as a legal lay person, where we are. As the joint briefing then says,

“a clear and consistent approach to assessing a child’s competence can only be achieved by including a test in the Bill. The Code is not the right place”.

[Baroness Tyler of Enfield (LD)]

My Lords, I will also say briefly that I too added my name to Amendment 51 in the name of the noble Lord, Lord Meston. In Committee, I pondered this issue long and hard. At one stage, I thought that perhaps more consultation was required, but having listened to the arguments and heard from people in the sector, which was very helpful, along with the briefings we have received, I am now firmly of the view that this is a real gap in the current Bill.

We have this opportunity and, as has been said two or three times so far today, we do not get such an opportunity very often. It might be once every 10 or 15 years that we get the opportunity to look at mental health legislation such as this. I have therefore come strongly to the view that we need to make the most of this opportunity so that there is a proper test for decision-making for under-16s—a sort of competence test—within the Bill.

In coming to that view, I have taken two or three things into consideration. One is that it would apply only when the Bill requires that a child’s competence is to be considered. Then, very importantly I thought, the amendment is concerned only with the question of a child’s ability to decide, not what happens once that has been determined. Finally, this excellent amendment explicitly limits this test to decision-making under the Bill and the previous Mental Health Act 1983. In short, it applies only to children who fall within the scope of this legislation, so it is tightly drawn. The noble and learned Baroness, Lady Butler-Sloss, set out so powerfully the need for this and the case for it, in a way that I could not possibly do. I just wanted to explain how my thinking had evolved since our discussions in Committee.

Briefly, while I am on my feet, I was always very supportive of the amendment put forward by the noble Earl, Lord Howe, for strengthening safeguards for children admitted to adult wards and out-of-area placements. This is a really important issue and I shall be interested to hear what he has to say on the subject. I was also interested to hear the Minister talk about the amendment that she has put forward in relation to this, so I hope that progress is being made in this important area. I will be interested to hear what the noble Earl’s reaction is to that.