Mental Health Bill [HL]

Baroness Browning Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Barker (LD)]

My Lords, I shall speak to my Amendment 34. As I do so, I extend my condolences to the noble Baroness, Lady Hollins. We miss her very much today. She was extremely helpful to me only a few days ago when we were discussing the subject of this amendment, so I hope I do her a lot of justice with this.

We have heard time and time again that people with learning disabilities and autism find themselves on the wrong end of diagnoses made by practitioners with the best of intent, quite often when people are at points of severe distress, that are inappropriate because the people making them have not perhaps had the degree of experience and knowledge of working with people with learning disabilities and autism as they would otherwise have done.

We started to discuss last week that, while there are mental disorders for which detention in the sorts of facilities that we fund in acute hospitals in the NHS is right and appropriate, there are also some people for whom detention in those circumstances is absolutely not; it is an aggravating factor. Therefore, in my amendment I am seeking to address that issue: not just the competence of the people making decisions about detention and treatment but also the confidence with which they, as professionals, can approach the jobs that they are increasingly being required to do. Knowledge and understanding of learning disability and autism is expanding all the time. We now have a greater number of adults than ever before who, at stages in later life, are being diagnosed as being autistic, and I am quite sure that quite a number of those people have been subject to misdiagnosis.

The particular thing that I want to focus on is training for people who are responsible for detention and high levels of treatment. Noble Lords will be aware of the tragic case of Oliver McGowan, a young man with learning disabilities who was inappropriately treated and died. There has been an amazing campaign by his mother to ensure that that does not happen to other people by making sure that anybody who is involved in the provision of mental health services has undergone appropriate training and understands learning disabilities and autism.

My understanding from Oliver’s mother is that there are three tiers of training. Tier 1 is a level of training which is required for all people who work generally with people with learning disabilities and autism. They need to have this general level of awareness. Tier 2 is for health and social care staff and others with responsibility for providing care and support for a person or people with learning disabilities or autistic people but who would seek support from others in a complex management and decision-making process. They would be part of a team referring up to others. Tier 3 is specialist training for professionals who have a high degree of autonomy and are able to provide care in very complex situations, which might include people with learning disabilities and autism.

The training appears to be sequential. You have to have completed tier 1 training in order to go on to tier 2 and then tier 3. Tier 1 is an e-training module which takes about half a day. As far as I understand it, about 1.5 million people have done that. That is a good thing: we are getting to a greater basic understanding of learning disability and autism by many people across the NHS going about doing their jobs. Tier 2 is a one-day intensive training programme, and that has not gone so well. There have been problems with its implementation, and it is not clear how many people have undergone that training. There are also some quite considerable questions about the quality and scope of that training.

Tier 3 is not part of the Oliver McGowan programme, although it is the most relevant to this Bill. As of December 2024, the Department of Health website makes absolutely no mention of tier 3 training at all. Can the Minister tell us where the development of that training is up to, and who is responsible for ensuring that the content of it is suitable? Is it sufficiently developed for people who are having to make very difficult decisions, particularly around detention of people who are quite often in a state of disturbance at the point at which that decision is taken? If we do not follow up on this tier 3 training, then we are going to carry on in the situation where we are now, where we know that people are being wrongly diagnosed by people who, perhaps, should not be expected entirely to understand them because their professional training up to this point has largely not included such people.

The noble Baroness, Lady Murphy, and I bow to her superior knowledge, very much made the case to us last week that we are talking about different types of mental disorders and very different specialisms across the mental health services. I am therefore asking that anybody who is in a position of making the decision to detain—and let us remember that people are making decisions to detain not just under the mental health legislation but also, at times, under the mental capacity legislation—should be appropriately trained. That is why I put down my amendment which, I admit, is not perfect, but I hope that the Minister might take some of my point and my intent and that we might take this forward together.

[Baroness Browning (Con)]

My Lords, I shall speak to my Amendment 42A in this group, which follows on from the two previous amendments from the noble Lord, Lord Scriven, and the noble Baroness, Lady Barker, particularly the details that the noble Baroness has gone into about the need for training and expertise for people who are dealing across the piece with those with autism and learning disability and, importantly, when those clinicians take the decision to admit somebody. As we know, one of the problems that is facing us and why it is so important that these issues have come forward in this particular Bill is because there have been so many inappropriate admissions where people have been detained for so long that it has become a scandal.

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[Baroness Merron (Lab)]

I would be very pleased to write to noble Lords, as the noble Baroness suggests.

Amendment 42A, in the name of the noble Baroness, Lady Browning, which the noble Lord, Lord Kakkar, also spoke to, relates to appropriate expertise in learning disability and autism for medical practitioners with responsibility for recommending admission for treatment. We strongly agree with the principle of this amendment. The current code of practice sets out that, where a patient is known to belong to a group for which particular expertise is desirable, at least one of the professionals involved in their assessment should have expertise in working with people from that group wherever possible. The code also makes clear that consideration should be given to any disability the person has in order that the assessment has regard to that in the way that it is carried out.

The noble Baroness, Lady Browning, asked further about how the Bill will make sure that professionals have the right skills and expertise. This whole area rightly comes up repeatedly when we debate.

I accept that it is crucial that those with a learning disability and autistic people are dealt with sensitively and professionally. It is crucial that clinicians are able to make distinctions between a learning disability or autism and any co-occurring mental health disorder—that point was made powerfully. It is a matter for clinical judgment to determine whether a person with a learning disability or an autistic person meets the criteria for detention under Part II, Section 3 due to a co-occurring psychiatric disorder. To assist clinicians in decision-making, we will update the code of practice to provide the guidance that will be necessary, and I hope that that will make a major change.

[Baroness Browning (Con)]

I am grateful to the Minister and very encouraged by her response. I want to flag up something else that I raised. Occasionally, at some point of crisis for undiagnosed adults, the question is asked: could this be autism? At that point, we need people who have a very good working knowledge for them to raise that question, because it can make a world of difference if they are right. It is not just about somebody who presents with a diagnosis; it is about those who are undiagnosed. I do not know the quantity, but my gut feeling is that there are quite a lot of adults out there who are still undiagnosed. I do not know how the Minister will accommodate that situation.

[Baroness Merron (Lab)]

The noble Baroness makes a good point. Indeed, not everybody has a diagnosis. I suggest that, when we look at provisions, we should make clear—through the appropriate means and not in primary legislation—how the practice should take account of the point that she made very well. I will be extremely mindful of that.

We believe that the code of practice is the most appropriate place to articulate the type of experience that might be required in this area, through a non-exhaustive list of practical examples, which would avoid the need to define in primary legislation exactly what constitutes sufficient experience. The reason for that is to allow flexibility on the particular needs and circumstances of the individual. As we update the code of practice, we will engage with expert stakeholders to improve practice and to reflect the new Act. The code will be laid before Parliament before its final publication. I thank the noble Baroness, Lady Murphy, for her comments in this area.

The number of long-term detentions was rightly raised by my noble friend Lord Beamish and the noble Baronesses, Lady Murphy and Lady Browning. The number of people with a learning disability and autistic people in mental health hospitals is indeed unacceptable. Too many people are still being detained who could be supported in their communities with the right provision. Work is under way to address this. For example, NHS England has allocated £124 million of transformation funding for services, which includes funding to reduce reliance on mental health in-patient settings. Noble Lords can be reassured that I will take a particular personal interest in this area.

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Moved by

[Baroness Browning]

43: Clause 6, page 12, line 33, at end insert “, including access to a prescribing psychiatrist local to their place of residence”

[Baroness Browning (Con)]

My Lords, Amendment 43 in my name is to a list of grounds under which community treatment orders will be allowed. I have to say that, judging by the Second Reading of the Bill, including my own contribution, community treatment orders have not been a great success. I think that is a general view but here they are, listed in the Bill, and it is incumbent upon us to make them as strong and comprehensive as possible so that they are fit for purpose, if they are to remain.

I felt that there was an omission from the list of grounds in the Bill. I say to the Minister that I put my hand up immediately: I have had this this discussion with her outside the Chamber. This is something that I want to put into the Bill, but I am still not entirely sure that this is the right place for it. I hope she will not bat it out of—I do not know what to say in cricketing terms because I do not have my noble friend’s expertise in cricket. Anyway, I shall quickly move on.

We know the problem: there is a shortage of psychiatrists. In some areas, people are well served but in others they are not. Today’s debate has focused on psychiatrists who have expertise in autism and learning disability.

I am looking at a scenario where a person has autism or a learning disability, as well as a recognised mental health condition, and is discharged into the community on a community treatment order. Despite what I have said about my reservations about them in principle, because there is such a paucity of psychiatrists, particularly those who have expertise in autism and learning disability, once that person is being cared for on a community treatment order—or, for that matter, someone in the community who is not on a community treatment order but is medicated—where are the psychiatrists that they can turn to?

To my certain knowledge, there are around the country some integrated care boards that feel they are serving the autism community well enough if they can identify psychologists with expertise. There is nothing wrong with that, as there are excellent psychologists around the country, but of course, psychologists cannot prescribe. So there is a real challenge for people in that situation who need ongoing medication—the dosage of which may need to be changed, for example—having local access to an appropriate psychiatrist.

I am a bit nervous about the wording of the amendment—it is my wording, but I am still nervous about it—as it includes the word “local”. I assure the Minister that I am realistic enough to know that there is not going to be an appropriate psychiatrist just round the corner, but in many cases, as I am personally aware, there is not even anyone in the county. If someone has been subject to an in-patient stay in a mental health hospital, admitted in an emergency, that does not necessarily mean they are going to be in a local hospital; because of the shortage of beds, they may be quite far from home. So the community treatment order may not be exercised close to where someone has previously been an in-patient.

We also have problems at the borders between Wales, England and Scotland. For mental health services, there are mutually agreed agreements about where patients can be seen, and particularly where hospitalisation can take place. However, if community treatment orders are to be maintained, on discharge they may well be a long way away from where they live. That is why I have added my wording at the end of the list of grounds for community treatment orders.

We in Parliament make a great virtue of saying that decisions are made at local level. That is all well and good, but if the decision made at local level is, “We don’t need a psychiatrist within our geographic area who has that expertise”, that is not much help to the patient. I have shared with the Minister cases involving people who are not necessarily under a community treatment order but who have an ongoing need for medication and cannot access a psychiatrist with that expertise, and who end up having to travel to centres of population and paying very nice fees, thank you, privately because it is not available in any other way. That cannot be right, which is why I have added my wording to the list of grounds for CTOs. If the Minister does not think that that clause is the appropriate place for it, I will understand; but if so, I hope she will tell me where in Bill it should go, because I really believe it should be there.

As a postscript that has nothing to do with community treatment orders, for people with mental health conditions who need medication, people with autism without mental health conditions—I am looking away from the noble Baroness, Lady Murphy, at this point—and people with autism who need ongoing medication for, for example, autism-related anxiety, personalised medicine is going to be a real advantage, enabling them to know exactly the right drug and the right dosage. It is out of reach on the NHS at the moment, but personalised medicine, using DNA testing to get the right dosage, is very good. I hope we are going to see it pretty soon, particularly in mental health. Let us start with mental health. I beg to move.

House resumed. Committee to begin again not before 8.30 pm.