Mental Health Bill [HL]

Baroness Berridge Excerpts

Monday 25th November 2024 Lords Chamber

[Baroness Berridge (Con)]

My Lords, it was a privilege to sit on the Joint Committee to scrutinise the Bill, but it was disturbing to see for how long the legislation has been failing patients, their families and clinicians. I thank my noble friend Lady May, who is not in her place, for instituting the process and for placing a clear focus on the disproportionality faced by racialised communities. There is much to commend the Bill, such as the change in detention criteria, and statutory care and treatment plans, but it could still be improved.

The introduction of community treatment orders made a bad disproportionality situation even worse. The mental health factsheet accompanying the Bill says that black communities are seven times more likely to have a CTO than their white counterparts, although that is an improvement on the evidence to the committee, where we were told that it was up to 11 times, while Parliamentary Office of Science and Technology research states that it is up to 10 times. Whatever it is, it is too high. If CTOs are to remain, I hope the Minister will outline that proper research will be undertaken to understand what is causing that disproportionality.

While I welcome the changes to CTOs, I stand by the Joint Committee recommendation that they should be abolished for Part II patients; I stand with Mind on that. There are differing opinions on this issue now, and it would be useful to return to it in Committee. Because of disproportionality, the CTO issue is of particular importance to certain communities. However, I agree with the noble Lord, Lord Adebowale; we also heard about the informed research showing that advance choice documents are known to reduce detentions and reduce medicalisation when someone is detained. So, while I am pleased to see the advance choice document in the Bill, I ask His Majesty’s Government to consider that there should be a right to request that.

As the Bill goes through Parliament, I hope that the hard work of a smaller, often less-resourced group of activists for these communities will be appreciated. The work of the NAS and Mencap is exemplary, but sometimes those who are not able to shout the loudest are in the greatest need of our support. I am sad to notice that two of the provisions that are particularly important to racialised communities are being diluted.

One of the most important changes is that the outdated use of nearest relatives is being replaced by nominated persons who represent the patient and exercise relevant statutory functions. It is important to note the power that the nominated person has. It includes the power to order the discharge of the patient, unless of course a barring order is made. Ideally, the nominated person is chosen by the patient, but if they do not have capacity, that function is done by the approved mental health practitioner—AMHP. Those are welcome changes for most adults—I note the comments from the noble Lord, Lord Alderdice—but the Joint Committee’s report highlights that all is not clear with regard to the nominated person and children and young people.

The decision not to have a new piece of legislation is a particular problem. When the Mental Health Act 1983 was passed, it was envisaged that it would really apply only to children in the criminal justice system. To complicate matters, the Children Act 1989 was passed, with further amendments later on giving 16 and 17 year-olds the right to consent to medical treatment if they have capacity. Then came the Mental Capacity Act, which does not apply to under-16s but does if you are 17. Then Gillick competence was added to the mix. Yes, it is all rather fudgy, even before you add on the nominated person under the Act.

I will give a couple of examples. For the under-16s, under new Schedule A1, the nominated person must be the person with parental responsibility, but what of the situation of a special guardianship arrangement where the parents keep some residuary parental responsibility? Does the AMHP have to appoint the parents and the special guardian? That would set up quite a difficult arrangement for clinicians. Also, why does this schedule refer to a local authority being “willing” to act as the nominated person? Under the Children Act when there is a care order, local authorities have a duty to act when they have parental responsibility.

I turn to the 16 or 17 year-old who lacks capacity to appoint a nominated person. There is no mention at all of parents’ responsibility in paragraph 10 of that schedule, yet the young person might be living with them. So if the nominated person uses the powers of discharge, a process takes place for them to be discharged. You are relying on the mental health institution to remember that parental responsibility lasts until someone is 18 and to tell the parents that the patient is on their way home. That might not sound like a problem, but if you have got other, younger children in the household, it might be a risk to them to have that person back in the household. Also, a 16 or 17 year-old may be under a care order. Is the local authority going to be informed because it is going to be providing the accommodation? The schedule is silent on that. A common statutory mechanism is to mandate for particular circumstances like those of the under-16s but to have a presumption for other situations. So why not have some kind of presumption that a 17 year-old person with parental responsibility should be the nominated person if they are residing with them?

The previous Government accepted that after the independent review on children and young people more thought needed to be given. So will the Minister agree to have a meeting about children and young people with officials, interested Peers, and the experts in this field who are practising in this niche area of the Mental Health Act and the Children Act?

Children and young people are also in a vulnerable position if they have learning disabilities and autism and no co-occurring mental health illness. If they are in crisis and the parents need help, if there is no Mental Health Act provision, then what happens? We have heard about the use of DoLS under the Mental Capacity Act, but if you are 17 or 18 and lack capacity and are held under that, there is no Section 117 aftercare. However, if you are under 16, or 17 with capacity, you are not under the Act at all. Where does that leave you? That probably leaves you under the inherent jurisdiction of the High Court or, rarely, a care order. Only last week the Children’s Commissioner reported on around 1,000 children a year who are now under the jurisdiction of what is called a High Court DoLS order. Let us just say her report is not good news about that third provision to restrict a person’s liberty.

While the situation for those with learning disabilities and autism is currently shocking—and I marvel at the work of the noble Baroness, Lady Hollins—the Act could make a bad situation worse. This is also important to cover at the meeting that I have suggested and as High Court DoLS are a relatively new creation, it would be good to have there former members of the judiciary who have had experience of imposing those orders on children and young people.

I am disappointed not to see the recommendation from the Joint Committee of a mental health commissioner as part of the Bill. Since the Joint Committee reported, rare events have shown the danger to the public if mental health services fail. Often it is those who not medically trained but are friends and family who can see that someone is getting really unwell and needs help. Is it obvious to know where to go if you have tried the previous hospital and you have tried to use PALS? Do friends and relatives know that it is the CQC that they need to go to? The police have rightly stepped back in some respects in these situations. Not appointing a mental health commissioner is a missed opportunity as it is imperative that those people know somewhere to go to. While the Joint Committee’s report was not overt about this being a function of the mental health commissioner because it was before the events I have outlined, an emergency process such as this could well fit within their remit. It would be a one-stop shop. While there is a mental health homicide review under way, if there is the need to legislate, we could now be missing it. However, if His Majesty’s Government established a mental health commissioner whose functions could be by way of secondary legislation, the door to legislation remains open if that review suggests such measures.

Finally, I hope the Minister will inform your Lordships’ House that the Law Commission is being requested to look at whether, in England and Wales, we should be doing what the noble Lord, Lord Alderdice, recommended, and which is happening in Northern Ireland: the fusing of our mental capacity and mental health laws. This is a sticking plaster only on an area of law that badly needs a restart.

--- Later in debate ---

[Baroness Merron (Lab)]

My Lords, I put on record my gratitude to all Members of your Lordships’ House for contributing to what was widely agreed, I am sure, to have been an excellent debate—excellent not just because of the level of engagement but because of the detail. I really feel that spirit of wanting to improve the legislation and the support for the Bill thus far. I will endeavour to respond to as many themes as possible; I am very grateful to the noble Lord, Lord Kamall, for his sympathy, which I accept, but I regard that as a good thing. I regard it as admirable that I will not be able to answer all the questions, because that is the purpose of being here. It sets us up for Committee. It is obviously going to be a very rich Committee, and I very much look forward to it.

I hope noble Lords will understand that I look forward to following up on the many points that I will not get a chance to address in the time I have and doing a proper review of the debate today, picking up points as needed. I pay tribute to the dedication and the detailed attention to the Bill that noble Lords have already given. I am very glad to see my right honourable friend the Secretary of State gazing on. The reason I say that now is that the Secretary of State knows only too well—and not just from me—the contribution that your Lordships’ House makes and will continue to make. I for one certainly appreciate it, as I know he does.

I also thank the noble Baroness, Lady Parminter, for her bravery in sharing her and her family’s experience and anguish of eating disorder. I say the same to my noble friend who shared her experience about her sibling. It is not always easy to do that, but it really brings a lived experience of those around the person we are often thinking about, and it is so important that we do that. This debate has confirmed to me what I knew already—but it is always worth doing it again. It is the product of persistence and of a number of investigations and recommendations. It is also inspired and underwritten by the tireless campaigning that many have undertaken to improve the rights and experiences of people with mental health conditions and learning disabilities and autistic people.

It also reflects the input of those with lived experience, which was first raised as necessary in the debate by the noble Baroness, Lady May. It is about striking the right balance between getting the details of a framework of legislation right, along with the urgent need for reform, and the point that noble Lords have raised about how that is going to be done.

Attitudes and knowledge, as many noble Lords have acknowledged, have changed radically. Mental health is increasingly out of the shadows, and through the Bill we can make sure that legislation does a much better job of keeping up with a shift in societal attitudes and expectations and the development of treatment.

Regarding the role of your Lordships’ House, like the noble Baronesses, Lady May and Lady Barker, I recognise the relevance of this House. I too welcome that the Bill has started its passage through Parliament here because I believe your Lordships’ House will do the job that it is here to do, which is to improve legislation, and this debate today has certainly confirmed that.

In looking at what we are trying to achieve, I am reminded of the words of Professor Sir Simon Wessely in his foreword to the independent review’s final report, where he said that

“we want the Mental Health Act to work better for patients, the public and professionals. We hope that the result will be to reduce the use of coercion across the system, whilst giving service users more choice, more control and better care, even in the event that detention is still required. And we particularly hope that the end result will be to reduce the inequalities and discrimination that still remain”.

Almost six years after the former Prime Minister, the noble Baroness, Lady May, commissioned that independent review, the draft legislation before us speaks to those aspirations as well as delivering our manifesto commitment to modernise the 1983 Act.

On the reduction of detentions, I certainly agree with the noble Baroness, Lady Murphy, and other noble Lords that reducing detentions cannot be achieved by legislation alone. It will depend on having the right services in the community.

New models of care in the NHS are already giving over 400,000 adults greater choice and control over their care. We are also trialling new models of care through six early implementers, bringing together community crisis and in-patient functions into one neighbourhood team that will be available 24 hours a day, seven days a week, to increase access and improve continuity of care in the community. I know from the debate today that many noble Lords are looking for that sort of development and good practice.

As we know, the Bill makes a number of improvements in respect of patient experiences and care, and of the increase of choice and autonomy. It seeks to tackle racial discrimination and provide safety for public, staff and patients, and to provide better support for those with autism and learning disabilities.

I turn to some of the main themes that have been raised. I say to the noble Baroness, Lady Tyler, that we continue to be committed to engaging with those with lived experience. Part of the point of the Bill is that, where those with lived experience have not had their voices heard, I believe our continued engagement will allow that.

On racial inequalities, many have spoken passionately about this matter, including the noble Baronesses, Lady Watkins and Lady Buscombe, and the noble Lord, Lord Adebowale. The racial disparities associated with the operation of the current Act were one of the many drivers of reform, and rightly so. The changes in this Bill will give patients greater say in their treatment and encourage more collaboration and less coercion in care and treatment planning, which are all crucial to reducing inequalities. This will include increasing oversight and scrutiny of community treatment orders, where racial inequalities are at their most acute. It will also be about encouraging the uptake of advance choice documents, where those with lived experience, as I said in my opening remarks, have been very generous in their reference to their use in reducing inequalities. Legislating so that people can choose their own nominated person will also protect rights.

Inequalities in outcomes are not just a result of how the Act has been applied but also due to wider social and economic factors. We will therefore be working across government to ensure that the Bill’s provisions are effectively implemented, aiming to reduce those racial disparities in decision-making under the Act, starting with using the code of practice to make clear which actions can be taken in the application of the Act. We are also taking forward non-legislative reforms recommended by the independent review, including the Patient and Carer Race Equality Framework and also piloting culturally appropriate advocacy models to support those from minority ethnic backgrounds to understand their rights under the Mental Health Act and to give voice to their individual needs.

On the mental health commissioner, I have heard many comments, including those expressed by the noble Baronesses, Lady Murphy, Lady Barker, Lady Buscombe and Lady Berridge, and the noble Lord, Lord Bradley, and others. That is quite a group to address, but I will have a go. It is true that we have not taken forward the pre-legislative scrutiny committee’s recommendation to establish a statutory mental health commissioner. We recognise that improvements need to be made to the quality of care and the patient safety landscape. However, the concerns are that the proposed mental health commissioner’s function would be potentially largely duplicative of existing bodies and functions, and nobody wants to risk diluting accountability or causing confusion. As noble Lords will know, Dr Penny Dash has been asked by the Secretary of State to assess if the current range and combination of organisations within the healthcare regulation landscape is effective and to make recommendations of what might be needed, and I think it is important that we await her recommendations.

Learning disability and autism were raised by a number of noble Lords, in particular by the noble Baronesses, Lady Hollins, Lady Buscombe and Lady Browning, my noble friends Lady Keeley, Lady Ramsey and Lord Touhig, and the noble Lords, Lord Scriven and Lord Adebowale. This is a very important point and I recognise that we want to improve care and support for the over 2,000 people who are currently detained, as well as anybody who may need support in the future. We know from the NHS’s safe and wellbeing reviews that four in 10 people who are detained in this group have needs which could have been met in the community with appropriate support. That is why we are going to be focusing on developing community services and improving the quality of care, which will happen alongside the Bill’s reforms.

Through the Bill, we will be taking forward a package of measures for those with a learning disability and autistic people, so there will be a significant programme of work, alongside investment. I will be pleased to engage with expert stakeholders and those with lived experience, including parliamentarians, and to update your Lordships’ House as we progress.

With regard to the recommendations of the pre-legislative scrutiny committee, there is no doubt in my mind that the Bill has benefited greatly from undergoing scrutiny in 2022. It is a better Bill for that and we have tried to incorporate more of the Joint Committee’s recommendations within it. Many of those recommendations relate to the statutory code of practice and we will consider how we take these forward following Royal Assent.

On the important point of implementation, raised by many noble Lords, including the noble Lords, Lord Adebowale and Lord Bradley, the truth is that we estimate that the full implementation of these reforms will take around 10 years. The speed at which we can implement will be limited by the time that we need to expand and train the workforce. This goes to the point raised by the noble Lord, Lord Kamall, and I am grateful for his honesty in the way that he described previous work on the workforce. I thank him and his ministerial colleagues—predecessors of mine—who have worked on this.

The reality is that while some reforms can commence much sooner than others, we will need to commence powers under the new Bill in phases. Implementation will depend on what happens during the passage of the Bill and the reality of future funding settlements—to the point raised by the noble Lord, Lord Stevens—as well as other developments, such as the 10-year plan, but I can briefly give an indicative timeline.

A small number of reforms relating to the criminal justice elements of the Bill will commence within two months of Royal Assent. In the first year after Royal Assent, there will be a focus on updating the code of practice and creating the necessary secondary legislation to enable implementation. We will need a further year to train existing staff on the reforms and ensure that processes are in place. We would therefore hope to commence the first phase of significant reform in 2027, and to commence further reforms as and when there is sufficient resource in place to do so. In the spirit of honesty, the truth is that for what I would call the most burdensome reforms—for example, the increased frequency of mental health tribunals—those would not be likely to commence before 2031-32.

Alongside the passage of the Bill itself, we are looking closely at implementation in relation to learning disability and autism. Again, the exact timing of implementation of the reforms will depend on future funding. I know that noble Lords will understand that I am limited in what I can say on that, but we have already demonstrated our direction of travel by: treating and resourcing mental health seriously, including having a mental health professional in every school; introducing open-access Youth Futures hubs; recruiting 8,500 mental health workers; and having £26 million in capital investment. Indeed, there is the priority that many noble Lords, including the noble Lord, Lord Crisp, have acknowledged of bringing this Bill forward as a matter of urgency.

The noble Lord, Lord Meston, and the noble Baroness, Lady Berridge, raised the disparity of treatment between children and adults. It is true that there are a small number of reforms which do not apply to children and young people, as was also raised by the noble Baroness, Lady Watkins. It is the case that there is a difference; nevertheless, we are committed to improving children and young people’s autonomy over their care and treatment. We still believe that these reforms will go some way to achieving this. Like adults, under-18s should be supported to share their wishes and feelings by the clinician when it comes to care and treatment decisions.

On the issue of prison transfers, which was raised by the noble Baroness, Lady Watkins, and the noble Lords, Lord Scriven, Lord Bradley and Lord Adebowale, we recognise that operational improvements are needed to ensure the safe and effective implementation of the statutory 28-day limit. NHS England is indeed taking steps to address some of the barriers to timely transfer of patients. The wording in the Bill, which refers to the need to “seek to ensure” a transfer within 28 days, should be sufficiently robust to provide accountability for a breach of that time limit, while recognising that there are multiple agencies involved.

As we know, while this legislation—

[Baroness Berridge (Con)]

I hate to interrupt, given the lateness of the day and the lateness of the hour, but the point that a number of noble Lords were making in relation to children is that this Bill potentially does not sit with the principles under the Children Act. If the Government intend impliedly to repeal parts of the Children Act, then it would be good to have that clarification from the Dispatch Box.

[Baroness Merron (Lab)]

I look forward to coming to that point in Committee. The marrying up of legislation will be important, as is making progress on the Bill. That applies to the point of the noble Lord, Lord Alderdice, and others about fusion. We do not want to hold up this Bill while we make progress, but we will be mindful of the interface with other legislation.

In this Bill we are starting with the most overdue reforms to make the law fit for the 21st century. I very much look forward to working through the Bill in much greater detail in Committee. I am most grateful to all noble Lords who have not just spoken this evening but worked to get us to this point.