Mental Health Bill [HL]

Baroness Merron Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

Moved by

[Baroness Merron]

39: Clause 36, page 52, line 4, leave out subsection (5) and insert—
“(5) In section 143 (general provisions as to regulations, orders and rules)—(a) for subsection (2) substitute—“(2) The following are subject to annulment in pursuance of a resolution of either House of Parliament—(a) any Order in Council under this Act;(b) any order made by the Secretary of State under section 54A or 68A(7);(c) any statutory instrument containing regulations made by the Secretary of State under this Act, other than regulations made under section 48B(3);(d) any statutory instrument containing rules made under this Act.”;(b) after subsection (3) insert—“(3ZA) A statutory instrument containing regulations under section 48B(3) (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””Member's explanatory statement
This is consequential on my amendment to clause 18, page 26, line 6.

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Moved by

[Baroness Merron]

45: Leave out Clause 50
Member's explanatory statement
The material in this clause is, so far as it needs to be retained, inserted into clause 36 (see my amendment to that clause).

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Moved by

[Baroness Merron]

46: After Clause 51, insert the following new Clause—
“Review of duty to notify incidents(1) The Secretary of State must carry out a review into—(a) whether regulation 18 of the Care Quality Commission (Registration) Regulations 2009 (S.I.2009/3112) (duty to notify incidents) ought to be extended to require a notification to be given in any other cases in which a person under the age of 18 is admitted to a hospital or registered establishment for medical treatment for, or assessment in relation to, mental disorder, and(b) whether the time period mentioned in regulation 18(2)(h) of those Regulations remains appropriate.(2) The Secretary of State must prepare and publish a report setting out the conclusions of the review.(3) The Secretary of State must lay a copy of the report before Parliament.(4) The report must be laid and published before the end of the period of 2 years beginning with the day on which this Act is passed. (5) In this section the following expressions have the meaning given by section 145 of the Mental Health Act 1983—“hospital” ;“medical treatment” ;“mental disorder” ;“registered establishment” .”Member's explanatory statement
This requires the Secretary of State to carry out a review into the circumstances in which incidents involving mental health patients under the age of 18 ought to be notified to the Care Quality Commission.

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

My Lords, having heard the concerns of noble Lords in Committee around the placement of children and young people, we want to go further than when we started. It is a statutory requirement for CQC to be notified when a person under 18 is placed in an adult psychiatric unit for longer than 48 hours. CQC takes action to assess risk and ensure the child is being safeguarded. Government Amendment 46 will now require the Secretary of State to review whether current notification requirements should be extended to other incidents and whether the 48-hour time period remains appropriate. A report on the findings of this review must be laid before Parliament within two years.

I am also pleased to announce today that NHS England will use existing powers under the NHS Act 2006 to require ICBs to provide information, first, on accommodation or facilities for patients under the age of 18 and, secondly, on any incidents where a person under the age of 18 is placed in a setting that is clinically appropriate but is outside of the natural clinical flow or not in a specialised children and young people’s mental health ward. Those requirements will be set out in the new service specification and made clear in the revised code of practice. Collecting this information is crucial to enable NHS England to monitor and minimise risk and make the case for changes in local capacity to meet population needs.

Finally, I am pleased to announce that we will lay regulations under existing powers to require ICBs to provide information that CQC reasonably requests and to publish an action statement where directed to do so by CQC. This will strengthen CQC oversight of how it monitors the application of the Act in local areas, such as the duty on ICBs under Section 140 to notify local authorities specifying hospitals where arrangements are in place for the provision of accommodation and facilities for children and young people. I hope that noble Lords will feel able to support this amendment. I beg to move.

[Baroness Browning (Con)]

My Lords, I just want to clarify something, as the Minister has referred quite a lot to NHS England and its role going into the future. My understanding is that there is a sea change due at NHS England. How can we be sure that some of these roles, which are very important to this Act, will still be there and that they will be the people who will be responsible?

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[Baroness Merron (Lab)]

I will answer the question at the end for simplicity; I do have an answer for the noble Baroness.

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[Baroness Browning (Con)]

My Lords, very briefly, I added my name to this amendment, but I of course support the amendment from the noble Lord, Lord Meston—it is urgent to have an answer to that when the Bill proceeds.

I support all that my noble friend on the Front Bench said about children in adult wards, but I particularly focus on his request for attention to out-of-area placements. We know, from many of the cases that, sadly, we have had to debate in this House, that, when people are detained unduly—almost as though they are placed somewhere and the keys are thrown away—it is all too often because they are well away from their home base and from convenient visiting by relatives, and, as my noble friend said, often far away local authorities that might have had some sort of overview of them previously.

This is very difficult. We know that local authorities are stretched financially, and, presumably, keeping an eye on what is happening to somebody who has gone well out of their area has a clear cost implication. None the less, we are talking about children. Therefore, I support my noble friend and I hope the Minister will find a way forward to support these children.

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords across the House for their contributions during the debate on this group, the last of the evening. I am glad that both Front Benches welcome government Amendment 46, albeit I heard the noble Earl, Lord Howe, say that he had hoped that we would go further. I am glad that the other commitments made at the start of the debate were welcomed.

Amendment 58 was tabled by the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall. We agree with the intention of this amendment but do not believe that placing more limitations and prescriptions in legislation is the best vehicle to reduce the placement of children in certain settings.

In Committee, I set out existing measures to address and monitor this issue. The latest data from the CQC’s Monitoring the Mental Health Act in 2023/24 report shows that it was notified of 120 instances where a person under the age of 18 was admitted to an adult ward, which was a 38% decrease compared to 2022-23. I committed to set out guidance in the revised code on the process to determine whether a placement is in a child’s best interests, and to ensure that safeguards are in place. NHSE will also do this in the new service specification—I will return to this point for the noble Baroness, Lady Browning. I hope that the additional commitments we have made in this debate show that the Government take this matter seriously and that we are committed to continuing to work on and address this issue.

To the point that the noble Baroness, Lady Browning, made about NHSE, I assure her that, as we work to bring the two organisations together—NHSE and DHSC—we will ensure that we continue to evaluate impacts of all kinds and that the functions currently undertaken by NHSE will continue along with that change. It will take some two years for the full process, including legislation, to take effect. However, admin changes are happening more immediately. The main thing of which I want to assure the noble Baroness is that the change into the future will not affect the commitments that we have given; they will continue, and without duplication.

Before I turn to Amendment 51, I will go back to the noble Earl, Lord Howe, who asked whether we would undertake a concerted effort to look at other directions of the issue, such as training and suitable in-patient or outreach mental health services. In response, I can say that, subject to securing further investment, NHS England is developing a new model for specialised children and young people’s mental health services, which will be supported by a new service specification and quality standards. The priority for these services is to transform and expand community services to make sure that there are local accessible community alternatives and to reduce the need for admission and dependency on in-patient beds, as well as reducing the length of stay and keeping young people closer to home. I hope that the noble Earl will appreciate that we are in the same place on this and that it is a matter of actually putting it into action.

I return to Amendment 51, which was tabled by the noble Lord, Lord Meston, and spoken to the noble and learned Baroness, Lady Butler-Sloss, and other noble Lords. We believe that the Mental Health Act is not the appropriate legislative vehicle to set out a statutory test for competence for under-16s, and nor would it be appropriate to seek to establish a test in a single setting. We are not satisfied that the possible implications for mental health in other settings where Gillick is applied have yet been fully explored.

The principle of Gillick competence is established in case law, as noble Lords will be aware, not statute. Any statutory test should reflect existing case law and would not necessarily override the application of Gillick outside the Act. The design of the test is partly aligned with the tests set out in the Mental Capacity Act. There is no consensus in the courts, as noble Lords will be aware, on whether it is appropriate to apply these tests to test competence in children under 16.

The noble Lord, Lord Meston, raised the question of unintended consequences, to which I am able to respond. The creation of any test that does not consider the interaction with existing case law could inadvertently limit the ability of children detained under the Act to exercise choice and autonomy under their care and treatment. Those are the concerns about unintended consequences.

We are also greatly concerned that, in seeking to provide clarity on assessing competence in mental health settings, two different tests could be created. This is likely to cause further confusion and a risk of legal challenge for decision-makers in mental health settings, potentially in any setting where Gillick is applied. This could have unintended consequences—I use that phrase again—for the ability of children to exercise choice and autonomy, as I have already mentioned, which I hear is counter to the noble Lord’s intention.

The noble Lord will understand that we cannot comment on or prevent how, as I say, courts will interpret the test or whether there will be further calls for similar tests. The courts may even go as far as to apply this test in other settings. That is what we mean when we say the introduction of a test for decisions under the Act will or may cause confusion and uncertainty in other settings. We do not think the consequences of this have been given proper consideration, nor can this risk be appropriately mitigated. We will consult on the statutory guidance for assessing competence in mental health settings, as I have mentioned, in the revised code of practice. I hope that will meet the intention to provide further clarity.

The noble and learned Baroness, Lady Butler-Sloss, asked what additional support would be provided to clinicians in engaging with children and young people, as we are rejecting this amendment. The Mental Health Act code of practice already provides guidance on establishing competence in under-16s. As I have said, we will consult on the guidance in the revised code of practice. I also re-emphasise that we feel it is better to focus on improving the practical application of Gillick rather than create or risk further confusion.

I hear that there are differences of opinion. While I am sure that what I say will not completely satisfy noble Lords who have raised concerns, I hope it gives a sense of where we have got to and the reasons. I therefore hope that these reasons will convince noble Lords not to press their amendments.

Amendment 46 agreed.