Mental Health Bill [HL]

Baroness Browning Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

1: After Clause 3, insert the following new Clause—
“Application of the Mental Capacity Act 2005: autism and learning disability
(1) In Schedule 1A to the Mental Capacity Act 2005, paragraph 2, after the last line of the table, insert—

“Case F

P has autism or a learning disability and is not subject to any of the mental health regimes

See paragraph 5A”

(2) In Schedule 1A to the Mental Capacity Act 2005, paragraph 5, at end insert—
“5A (1) This paragraph applies in Case F in the table in paragraph 2.
(2) P is ineligible if the following conditions are met.
(3) The first condition is that P objects to being—
(a) admitted for treatment as a mental health patient, or
(b) given some or all of the mental health treatment.
(4) The second condition is that a donee or deputy has not made a valid
decision to consent to each matter to which P objects.
(5) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following—
(a) P’s behaviour,
(b) P’s wishes and feelings, and
(c) P’s views, beliefs and values.
(6) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them.
(7) For the avoidance of doubt, Case F and this paragraph do not apply to determine P’s ineligibility in respect of admission for assessment of mental disorder.””
Member’s explanatory statement
This amendment to the Mental Capacity Act 2005 would prevent the Deprivation of Liberty Safeguards scheme being used to replace detention under section 3 of the Mental Health Act for people with learning difficulties or autism who do not have a mental health condition.

[Baroness Browning (Con)]

My Lords, I will speak to Amendment 1, which is in my name, and then to Amendment 4, in the same group, to which I have added my name.

Amendment 1 is exactly the same amendment that I tabled in Committee. I have brought it forward yet again because I felt it was so important and I did not feel that we went into as much detail as we should have to recognise the real challenge that the Mental Capacity Act could have to the Mental Health Act, as amended by the Bill we are debating. I am enormously grateful to the Minister; she has not only had a one-to-one meeting with me specifically about this clause but has sent me a letter. I hope it will be appropriate for me to quote some of it.

I am concerned, as are others, including many charities—I refer to the charities I am registered to in the record—such as the National Autistic Society, Mencap and of course the Law Society, which I am grateful to for drafting this particular amendment. There is a difficulty with the Mental Capacity Act. Under the Bill, we wish to prevent people with autism and learning disabilities who have no additional identified mental health condition being deprived of their liberty—they should not be. The worry is that the existing Mental Capacity Act will be used instead to take away their liberty and admit them to a mental health hospital. We know the history in this area, which we have debated many times in this House.

In my discussion with the Minister, I raised with her the fact that the NHSE service model for commissioners sets this out very clearly. At 4.3, it says:

“Alternative short term accommodation (available for a few weeks)”—


we are talking about just a few weeks—

“should be available to people, as and when it is needed, to be used in times of crisis or potential crisis as a place where they can go for a short period, preventing an avoidable admission into a hospital setting. It might also provide a setting for assessment from teams providing intensive multi-disciplinary health and care support (see principle 7) where that assessment cannot be carried out in the individual’s home”.

I think we all recognise that there will be some circumstances under which people will not be able to remain wherever they are, in either their domestic home or their normal place of residence. But, none the less, there should be alternatives to them being admitted to a mental health hospital.

To detain them under the Mental Capacity Act and the DoLS—deprivation of liberty safeguards—has other consequences. Those rights in the Mental Capacity Act include the rights of the nearest relative or nominated person to object to discharge, accessible and automatic referrals to tribunals, independent reviews of medical treatment, statutory care and treatment plans, and of course Section 117 aftercare. So it is not a question just of the Mental Capacity Act being used to deprive people of their liberties; there are associated issues that almost take away even more rights from the individual.

As I mentioned, the Minister and I have discussed this in some detail and I am very grateful to her for agreeing in her letter to me, first, that she has concern—I believe she has genuine concern—about this area. In order to mitigate what might happen under the Mental Capacity Act, she has shared something with me in her letter. I hope this does not seem impertinent, but it is such a good letter and I hope she will put it in the Library, because I am sure it would be of interest to many people in the House. She gave me a lot of data about how the Government are already making sure, and will continue to make sure, that there is proper monitoring of people who are detained under the Mental Capacity Act who may have autism or a learning disability but who do not have an associated mental health condition.

In bold letters, the letter says:

“Ahead of the changes to Part 2, Section 3, we commit to monitoring the data on the number of people with a learning disability and autistic people detained under the MCA”—


Mental Capacity Act—

“and will include a line on this in our standard publications”.

The existing data shows that the number is very few—it is in single figures. But, although it is in single figures, the Act that we hope to put on the statute book does not want anybody: we do not want even one person detained, as they have been previously. We hope that the Mental Capacity Act will not be used.

In addition to this commitment in bold from the Minister in this letter, I am half-comforted, because the other half of the equation is what happens if people are to stay in the community but in specialised environments and with specialised staff to deal with what might be a crisis. We have mentioned that, with autistic people, there could be a meltdown, which can be quite traumatic for the individual and for the people around them dealing with them, but is not a psychotic incident—an autistic meltdown is not a psychotic incident and it does not warrant automatic admission to a mental health hospital. How are we to identify suitable places when these facilities are needed? Again, the Minister has made commitments to the services that should be available in the community for people with autism and learning disabilities to make sure that those services and facilities are available.

--- Later in debate ---

[Baroness Merron (Lab)]

I have heard from noble Lords that they are concerned with having transparency, holding the Government to account and being updated on the situation. I absolutely agree with all those points, which is why I am pleased to make that commitment. Parliament has a number of routes available to it to hold the Government to account. I have just outlined the manner in which we will be transparent and the way the Government will be held to account by having to do that. As always, parliamentarians have the ability to scrutinise in many ways.

[Baroness Browning (Con)]

My Lords, we have heard a lot of very salient and not just helpful but wise words in the debate on this group of amendments. I thank the Minister for standing at the Dispatch Box and making commitments that are now on the record with this Bill. When people ask what Parliament’s intention was, she has left us in no doubt on some important points, particularly on my amendment concerning the need to monitor the use of the Mental Capacity Act in respect of autistic people and people with learning disabilities. I am grateful that she has done that and for a similar commitment I think I heard her make around some of the concerns that the noble Baroness, Lady Hollins, had.

Finally, the Minister has not given us exact dates as to when implementation will take place. We imagine it may be staged—not all in one go—but before the end of this year, the committee upstairs will report on the post-legislative scrutiny of the Autism Act. That will cover a wide range of issues, particularly services to people with autism. I hope that, perhaps in her deliberations on this Bill, when she sees that report—I cannot predict what the outcome of that will be—she will take those into account as well. For certain, services provided under the Autism Act, if they are provided in a timely way, will reduce the number of services that will be needed under the Mental Health Act. It is not rocket science; it is pretty basic that if you provide those services, that downward spiral in mental health is reduced. With that, I beg leave to withdraw my amendment.

Amendment 1 withdrawn.