Mental Health Bill [HL]

Baroness Hollins Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

I hope that when the Minister responds to these amendments, even if she has not read the Autism Act or is not familiar with this particular part of it, she will give some commitment that Secretaries of State will not ignore the promises made about services in this Bill and that we can be sure that those services will be in place before the Bill is enacted. I beg to move.

[Baroness Hollins (CB)]

My Lords, I will speak to a number of amendments in my name. I thank noble Lords who have added their support. I also support the amendment in the name of the noble Baroness, Lady Browning. I thank the Minister for the very helpful meetings and correspondence about the outstanding issues my amendments seek to rectify. I apologise for the slightly lengthy explanation that follows.

I declare my interests: I have the benefit of expertise from a psychiatrist attached to the Royal College of Psychiatrists parliamentary scholar programme and research support from a PhD student from King’s College London. Until November 2024, I was chair of the independent oversight panel to review the use of seclusion and segregation for adults with learning disabilities and autistic people. I am grateful to panel members for advice on my amendments relating to long-term segregation. The key message of the report published by the panel, My Heart Breaks, was that long-term segregation has no therapeutic benefits and that it can retraumatise already traumatised people.

When the Mental Health Act was introduced in the early 1980s, our understanding of learning disability and autism was limited, and therapeutic interventions were inadequately developed or trialled. The impact of trauma on the development of people’s behaviour—the behavioural responses to their trauma—and mental illness was very poorly understood. Regrettably, during the 2007 review, the appalling conditions experienced by patients subject to long-term segregation had yet to gain public awareness, so this group of people was once again overlooked and harmful restrictive practices persisted unchecked.

We now possess a much clearer understanding about the nature of learning disability and autism. We therefore know that they cannot be cured my medication or short-term therapies, and we understand the harmful impact of restrictive practices.

We know that therapeutic community-based settings offer far better outcomes where they exist, enabling people to lead fulfilling and productive lives, and community care is more cost effective than prolonged in-patient stays. Although I acknowledge the introduction of the Mental Health Units (Use of Force) Act 2018, this legislation alone cannot address the deeper systemic issues that I have encountered in my work.

The Bill is an opportunity to add the necessary external scrutiny, and the stricter safeguards needed for long-term segregation. Without this, we risk becoming more of a record-keeping tool rather than a catalyst for real change, and the Bill relies heavily on the Mental Health Act code of practice, which is guidance and not law. In practice, we know that services do not always follow it. It is a large document; I reckon that most psychiatrists probably have not read it. It is huge already, and we are going to add more to it.

The amendments I propose directly address these shortcomings. Amendment 55 would require notification of long-term segregation within 72 hours, significantly strengthening oversight from the beginning of this restrictive practice. The Minister has told me that the CQC is already looking for the best way to introduce notification, and I hope she can say more about that. If she is not minded to place this in primary legislation, please can we have an estimate of when this restrictive practice notification will be brought into practice?

Amendment 3 mandates immediate investigation and safeguarding reviews when minimum standards—which would need to be outlined in the code of practice—are breached, or when long-term segregation becomes prolonged or repetitive. Given the profound deprivation of liberty involved, I believe these safeguards are essential. If the Minister accepts no other amendment, can she please accept Amendment 3? One might assume that safeguarding is already in place, but my review found that there were certain definitions of what safeguarding is, and being in long-term segregation for long periods of time was not one of them.

Amendment 56 mandates independent reviews that would provide external oversight within 28 days of a patient being placed in long-term segregation. Experience shows that independent evaluations, especially when they are multidisciplinary, are one of the most effective mechanisms for disrupting institutional inertia and preventing prolonged and unnecessary segregation.

The introduction of independently chaired care (education) and treatment reviews by the Government in 2019 has already demonstrated the value of external scrutiny, but these reviews are only funded until the end of the current year. They have exposed and addressed issues that have been tolerated or overlooked within the host hospital for years. The impact is clear: when independent professionals review cases, inappropriate long-term segregation is far more likely to be challenged and addressed. Given their success, I believe that independent reviews should be a statutory requirement. If the Minister is not minded to accept Amendment 56, could she reassure your Lordships’ House that these independent reviews will continue to be funded for as long as long-term segregation exists?

We already have statutory oversight mechanisms for other hospital interventions. Medication and electroconvulsive therapy require review by second opinion doctors under the SOAD CQC system, yet long-term segregation—one of the most restrictive interventions possible—lacks equivalent scrutiny. Although tribunals oversee a patient’s detention under the Act, they rarely examine specific treatment decisions, such as segregation. A formal independent review process could be built into existing legal and oversight structures, such as SOAD and the CQC, without requiring significant structural adjustments. Of course, there will be workforce shortages in the short term. However, the cost of independent reviews is undoubtedly lower than the financial and human rights costs of keeping patients in long-term segregation for years.

The Government plan to revise the code of practice. Amendment 52 seeks mandatory updates to the code of practice to provide clear guidance about the minimum standards needed for the accommodation used, and strict standards for the initiation, continuation and termination of the enforced social isolation that is euphemistically called “long-term segregation”. Defining minimum standards is critical, given the appalling conditions in which some people are being detained. They are beyond your Lordships’ imaginations, I assure you.

Amendment 57 mandates the appointment of an independent responsible officer by a hospital manager to proactively monitor and address the use of LTS, to ensure compliance with independent recommendations and to actively promote less restrictive alternatives. This too could be brought into practice very quickly, because the SOAD independent review and obligations on hospital managers are already in place.

I thank Mencap, the National Autistic Society, the Challenging Behaviour Foundation and VoiceAbility for their help drafting Amendments 4 and 5, which would require His Majesty’s Government to publish a fully costed plan to provide sufficient community services. These services are needed to switch on the important learning disability and autism elements of the Bill. One of these amendments was originally tabled for Committee and has been revised in light of the Minister’s response. Both would require the Government to consult with stakeholders to develop and publish a costed plan to ensure that integrated care boards and local authorities provide a sufficient number of the right services, as needed, to people with learning disabilities and autistic people.

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[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I start by saying how grateful I am to noble Lords for their amendments and for the contributions they have made today. I express my thanks at the beginning of this first day of Report for the generosity of time and expertise of noble Lords from across the House—I have greatly appreciated it.

I turn now to the specifics. As the noble Baroness, Lady Browning, is aware, I agree with the principle behind Amendment 1, but there are limited circumstances where it might be appropriate to use the Mental Capacity Act to ensure that patients get the right support. I am glad that the noble Baroness welcomed my letter and that it was helpful. For people who have recently received treatment for a psychiatric disorder under the Mental Health Act, the Mental Capacity Act may be required to continue to support the individual in hospital in the short term while a community-based placement is being arranged.

Monitoring our reforms will indeed be crucial, as many noble Lords have said today. The NHS England assuring transformation dataset collects data on the number of people with a learning disability and autistic people detained in mental health in-patient settings under the Mental Capacity Act. As the noble Baroness herself referred to, the current number is fewer than five; nevertheless, it is, as she said, important.

I reiterate from this Dispatch Box the commitment that I made in the letter. Ahead of reforms to Part II, Section 3, we commit to monitoring the number of people with a learning disability and autistic people who are detained under the Mental Capacity Act, and will include a line on this in standard publications. Should we see an increase in this number following the reforms and discover that the Mental Capacity Act is being used inappropriately, we will ensure that appropriate action is taken.

I thank the noble Baroness, Lady Hollins, for her work on long-term segregation. Many noble Lords have raised facilities and community resourcing. I will address this, and the concerns about commitments in this Act being applied, when I turn to Amendments 4 to 6. On Amendments 3 and 55, there is a requirement in the Mental Health Units (Use of Force) Act 2018 to publish instances of isolation in mental health units. We have consulted on making this and other restrictive practices notifiable to the CQC within 72 hours for all patients in mental health hospitals, allowing the regulator to take prompt appropriate action.

Practical concerns were raised through the consultation that was held, which we are legally required to consider. I hope noble Lords will understand that because of this I am unable to commit to mandating reporting at this stage or to give a timeline, which I was asked for. However, noble Lords can be well assured that I more than understand the urgency. My officials have written to the CQC to commission it to develop a proportionate reporting mechanism, as has been referred to, and these changes can be made in regulations.

The noble Baroness, Lady Hollins, asked about restricted practice notification. Because this is to be made in regulations, clearly that will be, as usual, when parliamentary time allows. Every NHS-funded organisation is responsible for ensuring that safeguarding duties are applied. The code of practice requires the local safeguarding team to be made aware of any patient in long-term segregation.

On Amendment 56, the code of practice already sets out that a patient’s situation should be reviewed by a clinician at least once every 24 hours and at least weekly by the multidisciplinary team. The CQC has received funding to continue the programme of independent care or care (education) and treatment reviews for two years, and reviews recommenced in May 2024. We need to consider the programme’s impacts and the outcome of the spending review before future decisions are taken. Doing this outside legislation allows for flexibility. The independent care (education) and treatment reviews model has evolved as we have learned about what works best. We want to be able to continue to deliver the right approach. On Amendment 52, we will review the guidance in the code of practice on the use of long-term segregation, drawing on available evidence. This does not require primary legislation.

To my point on drawing on available evidence, we will indeed use the report of the noble Baroness, Lady Hollins, alongside other evidence, to consider changes that need to be made to the Mental Health Act code of practice, which we will review as part of the implementation of the Mental Health Act reforms after Royal Assent. We hope that this, alongside other actions that we are taking—including the continuation of ICETRs and NHS England’s quality transformation programme—will make progress to reduce long-term segregation.

There were points raised about Amendment 53, which we will return to in the debate on the fifth group. On Amendment 57, it is our belief that this duplicates existing requirements. The Mental Health Units (Use of Force) Act 2018, once fully implemented, will require mental health units to have a responsible person who must keep a record of any use of force by staff.

I absolutely understand the concerns that many noble Lords have raised about community support. This has driven Amendments 4 to 6. I also recognise the need for accountability and scrutiny of these reforms—a point that has been made several times.

I say to the noble Lord, Lord Scriven, that I hope I am about to do better by him than, “It will be all right on the night”, but he will be able to judge that. I am pleased with what I can commit, which is that within a year of Royal Assent, and each year subsequently, we will lay a Written Ministerial Statement in both Houses. This will include setting out details of the work that has been done over the preceding 12 months to implement this legislation and plans for how we will implement future reforms. It will include progress on the learning disability and autism reforms and plans for community provision.

Regarding Amendment 68 and the remarks by the noble Lord, Lord Crisp, we have heard concerns about possible unintended consequences, such as the potential criminalisation of individuals or detention via other legislative routes. To avoid such scenarios, we will commence changes to Section 3 only once there are strong community services in place and it is safe to do so, because flexibility is essential.

I hope that these commitments will satisfy noble Lords not to press their amendments.

[Baroness Hollins (CB)]

Will parliamentarians be able to question and amend the plan that will be laid before Parliament every year? The lack of ability to influence that process and that plan concerns noble Lords.

[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.

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Tabled by

[Baroness Hollins]

4: Clause 4, page 10, line 5, at end insert—
“125FA Community Services Sufficiency Plan: commissioning of services for autistic people and people with a learning disability(1) The Secretary of State must prepare and lay before Parliament a document setting out a plan for resourcing and commissioning sufficient community services for autistic people and people with a learning disability to ensure the operability of provisions in the Mental Health Act 2025. (2) The document shall be referred to as the “Community Services Sufficiency Plan”.(3) The Community Services Sufficiency Plan must be published within one year of the day on which the Mental Health Act 2025 is passed.(4) The Community Services Sufficiency Plan must include—(a) a definition of “sufficient community services” in relation to autistic people and people with a learning disability, including how sufficient community services will be assessed regarding the operability of provisions in the Mental Health Act 2025;(b) the actions that the Secretary of State will take to ensure community services are available to meet demand for autistic people and people with a learning disability after the end of the 28-day detention period under section 2(4) of this Act (admission for assessment);(c) the actions that the Secretary of State will take to ensure that sufficient community services for autistic people and people with a learning disability are available to prevent detention under section 3 of this Act (admission for treatment);(d) plans to allocate appropriate resource to ensure operability of services, including, but not limited to, financial resource;(e) plans to ensure that responsible bodies and individuals receive the necessary training in autism and learning disability to carry out support, diagnosis, and treatment;(f) plans for data collection to support the commissioning of sufficient services for autistic people and people with a learning disability;(g) targets and milestones relevant to—(i) the number of autistic people and people with a learning disability who are detained under this Act, and(ii) the development of sufficient community services for autistic people and people with a learning disability,(h) any other information the Secretary of State deems relevant.(5) For a period of 10 years beginning on the day on which the Community Services Sufficiency Plan is first published, the Secretary of State—(a) must keep the plan under review, and(b) may revise it.(6) If the Secretary of State revises the Community Services Sufficiency Plan, the Secretary of State must publish it as revised.”

[Baroness Hollins (CB)]

My Lords, I am grateful for the promises made by the Minister, but they are not wholly reassuring and I had intended to test the opinion of the House. However, I would like to put on record the lack of support from the Opposition Benches, even though I have the support of many Members of the Cross-Bench group and noble Lords on the Liberal Democrat Benches. This lack of support is surprising, given the failure of their own plan, Building the Right Support. I fear it would be wasting the time of your Lordships’ House for me to proceed, so, instead, I will keep an eagle eye on the progress of the promised plan and the resources allocated to make it achievable, as well as the degree of challenge and amendment that will be facilitated. I will not move Amendment 4.

Amendment 4 not moved.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow that short but extremely powerful contribution, informed by so much professional experience. I think that the whole House would like me to acknowledge that.

My Amendment 63 is about the powers of tribunals to determine challenges against treatment decisions. In many ways the argument for this follows on from the noble Baroness, Lady Watkins, just said. Things go wrong. However much we are trying through this Bill to improve the treatment of people with serious mental illness, I am afraid that we all acknowledge that things will continue to go wrong. Again, I have tabled this amendment at the request of Mind, which feels that there should be something like this. The amendment would not create any automatic right. It says that the Secretary of State may, by regulations, make provision about appeals. It would set up the framework to make this possible.

We had extensive discussion on this in Committee. I will not rehash all of that. We are trying to create mechanisms of common justice, ways forward and possibilities. We all acknowledge that so much of what is in this Bill will not be delivered within a month, a year or even two years, but it is trying to create the frame to make that possible. This is a very strong argument for that.

The noble Baroness, Lady Watkins, powerfully made the case for Amendment 14. I added my name to it as it is so important that it should have a full slate.

I will briefly address Amendment 13, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, to which I have also added my name. All through Committee, it kept occurring to me, though I never found the place to reflect it, that the word “trauma” does not appear once in the Bill. I was really surprised about that. I thought about several debates that I have had, going back to the Domestic Abuse Act and the Schools Bill under the previous Government that never became an Act. There was a lot of discussion about the need for trauma-informed environments and trauma-informed care. There is a general sense of intention from your Lordships’ House that this is one of the things that we are thinking about, but there is nothing about it in the Bill.

Therefore, this amendment would add the words

“seeks to minimise the patient’s distress”

and promote their

“recovery from any childhood trauma”.

That is possibly a bit narrow. The Minister might take away and think about the fact that nothing in the Bill talks about the fact that so many of the patients we are talking about will have been through hideous traumas: childhood abuse, domestic abuse, war situations, torture—all kinds of circumstances. This is a chance to ensure that we put in the Bill, perhaps even more broadly than in this amendment, an awareness of the need to think about trauma. I think we are all thinking this, but let us ensure that it is written down in law.

[Baroness Hollins (CB)]

My Lords, I agree with the noble Baroness’s points about trauma.

I will speak to Amendment 53. I credit my parliamentary scholar with writing it. His experience as a practicing psychiatrist confirms my experience of many years ago, before I retired as a psychiatrist. The code of practice is too often ignored or inconsistently applied, leaving vulnerable patients without essential safeguards. A thematic review of independently chaired reviews into the use of long-term segregation, which I oversaw for the previous Government, found that around a third of providers were not reviewing long-term segregation in line with the current code’s requirements. Unfortunately, this problem extends beyond LTS and is evident across other settings, including acute care for individuals with personality disorders.

There is often a disconnect between what we assume guidance and policy achieve and the reality of front-line psychiatry. As the strategist Helmuth von Moltke said, no plan survives first contact with the enemy. In this context, no guidance survives contact with the complexities and pressures of day-to-day clinical care. That is precisely why guidance alone is not enough. Despite the requirement to have regard to the code, breaches frequently go unchallenged. Again and again, we see that statutory law, not just guidance, is needed to ensure compliance and protect patients’ rights. Also, detained patients are not in a position to take a provider to court if their treatment is not in line with the code.

That is why this amendment seeks to introduce a statutory accountability mechanism for non-compliance with the code of practice. It would establish enforceable obligations on providers, ensuring that failure to adhere to the code carried real consequences, that compliance is not optional, and that hospitals would be held accountable when failure to follow the code resulted in harm or breaches of a patient’s rights.

Legislation typically drives funding priorities. We have seen time and again that, where the law mandates action, resources follow. Section 2 of the Mental Health Act limits detention to 28 days. If this timeframe was merely guidance, would it be as strictly adhered to? Without a statutory requirement, would the same level of resource be dedicated to mental health tribunals? When the maximum detention period under Section 136 was reduced from 72 hours to 24 hours under the Policing and Crime Act 2017, we saw an immediate and dramatic change in practice across the country. If this had been guidance alone, I doubt we would have seen such swift and universal compliance.

Prior to the Mental Health Act 1983, patients could be detained indefinitely, with minimal safeguards and little external oversight. The introduction of statutory time limits and legal protections under the 1983 Act marked a turning point, contributing to the decline of long-term institutional care and supporting, importantly, the rise of community-based mental health services and rights-based community care. Without statutory backing, there is no guarantee that revisions to the code of practice will be implemented or enforced.