Health and Social Care: Winter Update

Baroness Merron Excerpts

Tuesday 21st January 2025 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I want to echo the comments of the Secretary of State in the other place about the appalling treatment of Achamma Cherian, who was stabbed in the Royal Oldham Hospital last Saturday. It is absolutely intolerable for any member of NHS staff to be treated in this way. Can the Minister reassure your Lordships’ House that staff in A&E especially are protected, but also throughout our NHS?

I want also to start by thanking our NHS and social care staff for their remarkable effort. One of the problems that our NHS and social care staff have faced is total exhaustion since the winter of 2019-20. Immediately following the winter pressures, we were faced with a pandemic. Everybody in the NHS is now saying that this winter feels much worse, simply because it is yet another year of winter pressures.

Ambulance services have had to change their advice across the country to warn of being overstretched. A leaked memo from the West Midlands Ambulance Service says that patients who had collapsed with abdominal pain and vomiting, which are category 3 and 4 calls, and even, in the periods of highest demand, with heart attack or stroke, which is category 2, were told, “We don’t have an ambulance available to respond to you and it may be hours before one is available. Is there any way you can arrange safely to get to a hospital emergency department?”

I am minded to tell the House that, when I got a bus the other day that passed University College Hospital at Warren Street, a number of people got off who were clearly extremely unwell and being taken to the hospital by their families. What are the Government planning to do to support patients who need urgent ambulance services that are not available—for reasons that we understand are often to do with backlogs in A&E, queues and so on?

The Statement says that the experience of patients this winter is unacceptable, and we on these Benches agree. It is the opposite of a vicious circle: it is a circle of hell, not just for patients but for staff. I note that the Secretary of State commented in the Statement on what he saw when he was visiting, but worse is to come. We know from the Royal College of Nursing survey published earlier this week that we have patients dying in corridors, with nurses feeling absolutely unable to provide support for them.

It is not just 14 years of underinvestment; frankly, we are now seeing the problems of the wrong reforms that happened some years ago now. That has resulted in particular in pressure on primary care. The Statement focuses on hospitals but does not address the real crises that are going on in primary care.

In addition to the issues of funds and the planned extra doctors, who will take a while to come in, what are the Government planning to do to prevent hospitals constantly referring patients back to primary care when they need just an X-ray or a test, rather than being dealt with by the doctor they are seeing in hospital?

The emphasis of the Statement is obviously on the current high level of infections. It comments on the more than 5,000 patients in hospital beds with flu, but it does not say that we need to add to that RSV, pneumonia and Covid. The problem is that there is no weekly data from the UKHSA, which no longer collects and publishes such data. I hope the Government are prepared to consider reinstating that. An interesting graph on social media about two weeks ago set the peaks and troughs of all these infection spikes over the last three years against the increasingly long absences of NHS staff due to extended sickness, and they mirror exactly. I ask the Minister—who will remember that when she was in opposition, I asked this of many Ministers—what is happening in hospitals to encourage staff, when facing infection spikes, to wear masks and to encourage others to do so? This is about getting the basics right.

The Chancellor has made an investment this year. Compared to past winter investments to cover the winter crisis, how much is going to be there for the long term—or, by the time we get to March, will it all have been sucked up by the current winter crisis?

The Statement says that it is not too late to get yourself vaccinated. I have to tell noble Lords that, if you are a clinically vulnerable patient—and I count myself in that category—it is. GP services keep being given deadlines, which they pass on to patients. Patients then discover that they cannot get the vaccines at their local surgery. If they are inspired to go and find help elsewhere, that is fantastic. However, I suddenly got lots of texts from my surgery saying, “You haven’t been vaccinated yet. Go and get vaccinated”. I had been vaccinated. The problem is that the pharmacy database does not relate to the GP database. When will that be remedied? I have been going on about this problem for well over a decade. It is ridiculous that I have to intervene and say, “Actually I have had it—at your request”.

I have talked before about primary care, and it is shameful that the previous Government did not provide enough vacancies for newly qualified GPs last year. I credit this Government for providing some support and money this year to make sure that is happening. Will this continue to happen in future years or is it one-off, one year’s money? While the extra funding for general practice is welcome, it is not enough without the contractual change between primary care and secondary care. Have the Government taken account of that? It is not solving the real problem, which is that GPs and their staff are facing phenomenal pressure in their systems.

To conclude, most people are saying that this is the worst crisis we have faced in years. Unlike other parties, particularly the former Government, I am not prepared to blame the current Government for that. I credit the Government for the steps they are taking, but will they look at the longer-term issues that need to be dealt with to get our NHS back in a stable condition so that patients can rely on the service, from ambulances through A&E, general practice and hospital service?

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

My Lords, I pay tribute to staff in health and social care for their commitment all year round, but particularly when the pressures are on us all in the winter. The noble Baroness, Lady Brinton, mentioned the nurse who was attacked at Royal Oldham Hospital. Our thoughts and prayers continue to be with her, her family and friends, and we wish her a speedy recovery. I can assure the noble Baroness and your Lordships’ House that protection of staff, and freedom to work and move around without abuse, harassment and discrimination, are all very important to us as a Government. There will be more about that as we talk about the workforce plan.

Let me make a few general points. I thank the noble Baroness and the noble Lord, Lord Kamall, for their questions and observations, all of which are important. As the Secretary of State said in the other place, it is crucial that we are honest, and I hope by now that your Lordships’ House will realise that we are, as a new Government, not frightened to say what the reality is, which is why the noble Lord, Lord Darzi, was commissioned to look into the state of the NHS. The noble Baroness, Lady Brinton, asked about long-term issues and that is exactly where we are.

I acknowledge the significant pressures faced by the NHS this year. However, cold weather, a sharp rise in flu and other infections, and other stresses and strains are not unusual, and we should not be surprised that winter comes every year. It is not acceptable to be going into a crisis every year. We have also taken immediate action. For example, beating the backlog of waiting lists is crucial, as is the 10-year plan because it will create an NHS for all year round. In addition, the emphasis is on getting social care into the right place, both in the immediate and the long term, because—as noble Lords regularly and rightly say—it is inextricably linked with the NHS.

Both Front Bench speakers talked about data and planning and preparation. There was a great deal of planning and preparation for what was then the upcoming winter, which we are now in, across health and social care. In the words of my right honourable friend the Secretary of State, we have been doing our best with the hand that we have been dealt. The noble Baroness, Lady Brinton, acknowledged that and I am grateful for her acknowledgement and her support. Annual winter pressures will always exist, but they should not automatically lead to an annual winter crisis.

These issues will not be solved overnight. It is going to take time, but we believe it can be done. That is why we are making investments—the noble Baroness asked about investment. The Budget committed an extra £26 billion to health and care—not as a knee-jerk reaction but to allow us to plan now and for the future.

On planning and preparation, I assure your Lordships’ House that the Secretary of State meets senior leaders in social care regularly. He also meets the UK Health Security Agency and NHS England regularly. Those groups are key to Ministers keeping on top of this.

We also have an excellent national operations centre, which I pay tribute to—that goes to the point raised by the noble Lord, Lord Kamall. The data available from it allows a focus on individual hospitals and individual patient waiting times. As of last week, we were down to one critical incident across the country, which compares positively with the 24 that were in place before.

The noble Lord, Lord Kamall, asked about lessons learned—if I might paraphrase it like that. I assure the noble Lord that before the spring we will set out lessons from this winter and the improvements that we will make ahead of next winter. For me, that is very welcome, because that is about acting as quickly as possible and looking to the future.

The noble Baroness, Lady Brinton, spoke about primary care, which is key to taking pressure off. I know that the noble Baroness is well aware of the three key pillars of the 10-year plan, which will be available in the not-too-distant future. I am sure that your Lordships’ House will want to discuss that at length, and I will be pleased to do so. To take the points from both noble Lords, that is all about the move from analogue to digital, from treating sickness to prevention, and from hospital to community. Those are not just words; they will greatly assist with the long-term planning that I know both noble Lords are seeking.

The noble Baroness referred to primary care. We have committed to recruiting over 1,000 newly qualified GPs through an £82 million boost to the additional roles reimbursement scheme. The key thing about that is that it will increase the number of appointments delivered in general practice. If I might make another point to the noble Baroness, we recently made announcements about GPs being able to make a direct referral for tests and scans to stop the real “around the houses” of sending a patient to see a consultant, who then sends them away for the relevant tests and scans before they can see them in the round. That will do a lot to reduce waiting times and increase access.

The noble Baroness was right to raise corridor care. She will have heard the Secretary of State say that

“we will never accept or tolerate patients being treated in corridors. It is unsafe, undignified” ”.—[Official Report, Commons, 15/1/25; col. 364.]

He has also made it clear that he is ashamed of that situation. I say that in a spirit of honesty. That is a feeling I share. The Secretary of State also said that he could not, in all honesty, promise an end to corridor care by next year because, as he rightly observed, it will take time to undo the damage that has got us to this place. It will be through investment, reform and planning that we will be able to do that.

The noble Baroness also asked about winter funding. That is a very important point, because over many years we have seen last-minute winter funding arriving too late to make a difference, no matter the intention. This time, as I mentioned, the Chancellor allocated nearly £26 billion to the NHS for 2025-26 in the Autumn Budget. That means, in comparison with the funding that it would have got under the last Government, that the NHS will receive £2 billion more. For me, perhaps the most important point is the ability to plan ahead and factor in the need to support preparation for winter.

There are a number of other points that I could make and I am sure that noble Lords, as we move to further questions, will raise them. In the meantime, I thank both Front Benches for their interest and their questions, but also for their challenge.

[Lord Laming (CB)]

The Minister will be pleased to know that the House was glad that she referred to social care. Every day in the winter there are thousands of patients who no longer need to be in hospital; it is not good for them to remain in hospital, and it is not good for the NHS that they remain in hospital. In addition to the considerations of the social care commission, which will take some time to go through, will it be possible to have a proper endeavour to address these issues before next winter? As the Minister said, there always seems to be a winter crisis now. Would it be possible to get local government and the charities together, but also—and this is not difficult to do—to respect the role of unpaid carers and to provide support for people who are, in effect, taking over the care of patients who would otherwise remain in hospital?

[Baroness Merron (Lab)]

The noble Lord is right to remind us of the challenge of having people in the right place, rather than in hospital when they do not need to be there. We have already taken action, so I am pleased to be able to reassure him that, while the noble Baroness, Lady Casey, will look at long-term solutions for social care, she will present a report within a year from her commencement, which will add to the actions that we have already taken.

The noble Lord talked about unpaid carers—and I certainly share the respect that he holds for unpaid carers, so I am very pleased that we have given the biggest boost in income to family carers through eligibility for the carer’s allowance. That has meant an additional —on average, of course—£2,300 a year. That is the biggest boost since carer’s allowance was introduced in the 1970s. We are also legislating for a fair pay agreement, for the first time ever, which will help to tackle the number of vacancies, now standing at 131,000. There will be immediate action, because discharge requires being able to be in the right environment, which might be home but it might need an adaptation. Through the disabled facilities grant there will be a further 7,800 adaptations to homes both this year and next year. So we have taken the immediate action—and, yes, there is a lot more to do.

[Baroness Winterton of Doncaster (Lab)]

My Lords, my noble friend the Minister has just reiterated what the Statement said—that one of the key levers for easing winter pressures is NHS reform, particularly moving some hospital services into the community, which could deal with some of the issues raised by the noble Baroness, Lady Brinton, including X-rays, scans, tests and so on. Does she agree that this will require close collaboration between NHS trusts, hospital trusts, local authorities, ICBs and, sometimes, the private sector? Will she work with Ministers in other departments, not only to remove any obstacles there might be to this but to actively encourage it to happen at the local level? By the way, there are some good examples in South Yorkshire of this happening, and proposals for it to happen.

[Baroness Merron (Lab)]

My noble friend is quite right to highlight the good examples in South Yorkshire. There are good examples across the country and one of our challenges, as the Secretary of State has said, is taking the best to the rest. This is a very good example of that. I certainly agree with her observations. This requires joined-up working locally and nationally, which is why we work closely with other departments in both the immediate term and the longer term as we seek to reform health and social care.

[Baroness Watkins of Tavistock (CB)]

My Lords, I declare my interests as an NHSE board member and a fellow of the Royal College of Nursing. I absolutely acknowledge that the Health Secretary and the team, including the Minister, are trying to resolve many of these problems. However, I echo the comments of the noble Lord, Lord Laming, that we need something much more quickly than the long-term plan. Can serious consideration be given to funding four or six weeks of care as soon as people leave hospital, whether or not there is a legal entitlement to that cost, to get the one in seven people currently lingering in hospital beds out into better facilities so that they can be supported by their families and friends? Also, the criticism of the advertisements for corridor nurses is absolutely incorrect; we need a higher percentage of nurses in A&E and surrounding departments if they have a much higher number of patients than they were originally established for.

[Baroness Merron (Lab)]

I thank the noble Baroness for bringing her comments before the House and for acknowledging our efforts, direction and commitment, because this is not easy and, as she knows, will not happen overnight. However, we need to tackle delayed discharge, following the point made by my noble friend Lady Winterton, through the development of local partnership working between the NHS and social care and making sure that the right support is there to return home—if that is the best place for people—or for an intermediate arrangement. This should not be just an issue of hospital or home; sometimes people need facilities along that trajectory, because they have different needs and their conditions do not stay still. That is why it has to be local partnerships.

Every acute hospital has access to a care transfer hub which brings together professionals from the NHS and social care to manage discharges of people with more complex needs who need extra support. We will shortly publish the better care fund policy framework, which will drive greater impact from over £9 billion of public spending on integrated care. Reducing delayed discharge will be a key part of that. I heard the request from the noble Baroness. She will understand that we have to take account of the financial situation we inherited, but we also need innovation, creativity and practicality to find answers to these very long-standing challenges.

[The Lord Bishop of Manchester]

My Lords, the nurse who was attacked and injured at work recently and who has been kindly mentioned several times already today is a member of one of our Oldham congregations. I assure your Lordships’ House that she and her family remain very much in our prayers in Manchester.

Research by the National Churches Trust published last year shows that the ministry of the UK’s church buildings saves the NHS £8.4 billion every year. Church projects help keep many people out of hospital; they support others when discharged. Other faith communities do similar work and many of them do it in partnership with us.

Secondly, the problem in winter—even in the balmy climate of Manchester—is that it gets cold. Part of the work to prevent serious illness lies in keeping people warm and offering them social contexts where some early signs of declining health can be picked up before they become too serious. Many of my churches in Manchester, along with other places of worship all across the nation, take part in the Warm Welcome Campaign which does precisely that. They are open maybe for a morning and offer a free lunch as well as a warm space where people can just socialise and not worry about their heating bills.

Does the Minister agree with me that places of worship make a vital contribution to the nation’s health and save the NHS money? Will she not only join me in thanking them but ensure that those of her ministerial colleagues who are presently considering whether the Listed Places of Worship Grant Scheme should be extended beyond the present financial year are apprised of these facts?

[Baroness Merron (Lab)]

I made a call for creativity, and I compliment the right reverend Prelate on his creativity; I will certainly pass on his comments to my colleagues. I am delighted to agree with him about the importance not just of places of worship but of communities, including faith communities. As the right reverend Prelate said, we can find the finest examples of community provision which support the NHS and social care through churches, synagogues, mosques and other places of worship. I pay tribute to and thank all those that do this. Of course, this is overwhelmingly done by volunteers, and I pay tribute to all of the volunteers in faith communities and beyond.

[Baroness Pitkeathley (Lab)]

My Lords, the Statement mentions 12,000 patients in hospital beds where they do not need to be. The noble Lord, Lord Laming, has rightly drawn attention to the fact that many of those people discharged are dependent on the care provided by their families. In spite of many reports written about the need to plan discharge from hospital—at least one of them written by me 40 years ago—too much discharge still happens at pace and without planning. It is Friday afternoon and suddenly, the consultant needs the bed. Oh, funny that: there is no care available in the local community. Would the Minister agree that all the reports about discharge indicate that you should start planning for discharge the minute the patient is admitted, and that this planning should include those who are going to provide the care, whether that is the voluntary sector or the patient’s own family?

[Baroness Merron (Lab)]

I agree with my noble friend about the need to plan sooner. It gives the opportunity to assess what is, is not, and can be made available. I also very much share my noble friend’s comments about involvement—involvement of the patient themselves but also of their loved ones. I know from the reports that my noble friend has done over the years how she has shone a spotlight on the exclusion of the very people who could assist in the discharge procedure and make it go smoothly. I welcome her comments that the discharge is as important as the admission and the care people get while they are in hospital.

[Lord Bichard (CB)]

I too acknowledge the commitment and effort being made, and also, of course, the commitment on the front line. I am not a health professional—and I feel particularly conscious of that, given some of the people in the Chamber this afternoon—but I have spent too much time in the last 12 months as a client and had much time to reflect upon the fact that the problems with the health service are much the same as the problems in most other public services. First of all, we do not design the service around the client and the patient, and, whatever I am told, that still seems to me to be so obvious. We do not join up the various services: pharmacies, GPs and district nurses, who I have got to know quite well. We do not make effective use of digital or AI, and we do not make good use of the community and voluntary sector and charities. Sometimes, we resent them, or they are resented. Of course, there is the issue of social care.

I think we all know this, and I am hearing the right things coming out of government at the moment, but, actually, these things have been there for 20 years. They have been said about and talked about for 20 years, yet things have not really changed. I really want to be convinced that they are going to change, but I want to be convinced that we are learning from the lessons of past failures and that we are focusing on owning up to those failures, because that is the only way in which we will move on. Can the Minister reassure me that we are looking at why it has taken so long and that we are really determined to take on the barriers?

[Baroness Merron (Lab)]

I am grateful to the noble Lord. These things do not just happen; we are here because of a failure to reform, a failure to invest and a failure to get the right productivity and results that we need. Indeed, there has been a failure over a number of years to do exactly what the noble Lord spoke about. I could not have put it better myself. The noble Lord came up with the most marvellous advert in his comments for the central pillars, to which I referred, of the 10-year plan, which will soon be available, following the biggest ever consultation in the history of the NHS.

The noble Lord talked about community. One of the things that we will be ensuring will happen in the NHS is a movement of focus from hospital into community. The noble Lord talked about digital. We will move from analogue to digital. He also talked about services being around the patient. I have frequently said that we need to get the services around the patient, not the patient around the services. There is also the move from sickness to prevention. All these three pillars will completely transform the National Health Service.

The noble Lord also referred to the third sector, including charities. We could not deliver much of what we deliver without them, and charities often are extremely well-placed to do things that statutory services cannot, so they are part of the equation and I offer all respect to them.

[Baroness Cass (CB)]

My Lords, the investment described in additional GPs is really welcome, as are the other reforms in primary care. However, one of the challenges in previous recruitment drives into primary care has been losing people from the other end and not being able to retain. Therefore, will the Minister tell us about retention strategies and how they will counteract that really troubling trend?

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[Baroness Merron (Lab)]

The noble Baroness is quite right. It is not just about recruitment, although it gives me the opportunity to speak also on the previous point made by the noble Lord about the importance and effectiveness of interdisciplinary teams. Again, the workforce we need must be one that can provide for the 10-year plan, and that plan means that some things will take 10 years, while we are already doing other things. We have to make sure we have the right training. On the point about retention, we know what staff are saying to us: their morale is low; they are under pressure and feel exposed, and, in many cases, they feel frightened. I am shocked to find the amount of racism that is experienced. It is not possible to overlook any of these things, so in the coming year, as we give more information on the workforce plan—and I am looking forward to doing so—it will be a workforce for now and the future, not the past.

First-cousin Marriage

Baroness Merron Excerpts

Monday 20th January 2025 Lords Chamber

[Lord Farmer]

To ask His Majesty’s Government what plans they have to address the health and social impacts of first-cousin marriage, including those relating to women’s rights.

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

My Lords, NHS England continues to drive improvements in care and access to genetic services for all communities, including through research into the health risks of closely related couples—second cousins or closer—having children. In 2024-25, there was an investment of £1 million in the Genetic Risk Equity project, which supports equity of access to genetic services for the small proportion of closely related couples who have a higher risk of having children with certain genetic conditions.

[Lord Farmer (Con)]

I thank the Minister for that Answer. Pakistani-heritage journalist Matthew Syed has highlighted the risk-multiplying effect of genetic disorders when cousins intergenerationally marry cousins, as happens in remote Shetland, Orkney, and in the British Pakistani community. Pakistanis account for 3.4% of births nationwide but 30% of recessive gene disorders. The NHS employs staff specifically to deal with consanguinity-related diseases. Given this considerable disease burden, and the NHS cost, will this Government mount a health information campaign warning of this significant extra risk?

[Baroness Merron (Lab)]

I understand the point that the noble Lord is making, but this is a very complex topic in respect of which there is a great lack of reliable data. Any plans for any health information campaign anywhere clearly need to be considered carefully. Perhaps I can reassure the noble Lord that staff from the Genomic Medicine Service are already working with other national projects, such as Born in Bradford and Best Start for Life in Birmingham, to engage with the communities most affected by first-cousin marriage. Of course, any campaign plans for Shetland and Orkney will be a matter for the Scottish Government.

[Baroness Brinton (LD)]

My Lords, I am grateful to the Minister for referring to the Born in Bradford study because 18 months ago, it reported that over the last decade, the number of intra-cousin marriages in the Pakistani community had substantially fallen. The reasons for this were awareness of the risk of congenital abnormalities, young people staying in education longer, and changing family values. This is clearly a successful project. Is it being replicated elsewhere in the UK?

[Baroness Merron (Lab)]

The noble Baroness is right that consanguineous unions are decreasing. While it had the best data, the NIHR-funded study, Born in Bradford, to which the noble Baroness and I have referred, found that between 2000 and 2010, 39% of British Pakistani couples in Bradford were first cousins. However, that reduced by 27% by 2019, for the reasons suggested. Driving change across whole ranges of areas makes a difference, but it is important that we keep this in perspective and make any communications and support absolutely appropriate.

[Lord Winston (Lab)]

My Lords, surely, this Question is an example of the great value of our genetic science in Britain, and the excellence of the National Health Service in this area. In the Midlands, as the noble Baroness has mentioned, these diseases are common, but the progress we have made in their diagnosis and treatment—and, to some extent, prevention—has been quite remarkable and will continue. I have to add that many of the diseases are extremely rare in such families, and therefore what you could do about cousins in every case would be impossible, but the information being given is exemplary in most cases.

[Baroness Merron (Lab)]

I am grateful to my noble friend for those very informed observations, and I share the assessment that he has made.

[Baroness Uddin (Non-Afl)]

My Lords, I welcome the reduction in the number of interrelated family marriages, not only in Bradford; the numbers have also drastically reduced in the Bangladeshi community. I understand that countries such as Saudi Arabia have a significant number of first-cousin marriages. In pursuing the suggestions of the noble Lord, Lord Farmer, about a further awareness campaign, can we also learn something from Pakistan, Bangladesh and Saudi Arabia, or anywhere else where this practice exists? Can the Minister confirm whether she has undertaken any discussions internationally?

[Baroness Merron (Lab)]

I certainly have not, and I am not aware of discussions that have taken place between Ministers or officials in our department and those in other countries. However, I will be very glad to look into that and to write to the noble Baroness.

[Lord Kamall (Con)]

My Lords, I thank my noble friend Lord Farmer for the Question, and the Minister for the sensitive way in which she is handling it. When we want to look at policy in sensitive areas, surely, we should be led by the data, so I just wonder what the Government’s latest data is. We know that about a decade ago, 6% of congenital defects or anomalies were in children born to first cousins in Pakistani communities, compared to 3% for the wider population. I have seen more recent statistics that say the figures are now 4% and 2%. So, what is the latest data the Government are working with, and what level would those congenital defects have to reach before they were seriously concerned?

[Baroness Merron (Lab)]

I thank the noble Lord for his support in this area, which is indeed sensitive. The statistics he quotes are quite right. It is of course an interesting reflection that the risk of genetic abnormalities does not just double from 3% to 6% in those infants whose parents are first cousins, but also doubles in older white British mothers—I am a bit worried about saying “older” because it is actually over 34. However, the point is well made that it is not just this group. NHS England has recently published guidance to improve the recording of national data on closely related couples, so I hope that noble Lords will find this of interest as we go along. But of course, there has also been much investment in research as well as data development, and I absolutely agree that data is what has to drive us.

[Lord Patel (CB)]

My Lords, we know that there are over 6,000 genetically related rare diseases and that, apart from first-cousin marriages, there are other high-risk areas. One, which the Minister just mentioned, is the age of the mother, but this also applies to the age of the father, to people who undergo certain medical technology treatments for fertility reasons, and to mothers who smoke at a higher rate. So, there are lots of other influences that may give rise to genetic-related issues at birth. But the important question is: are there any areas where we can definitively say, “If you do X, Y and Z, or if you do not do X, Y and Z, the incidence of genetic diseases will be reduced”?

[Baroness Merron (Lab)]

The noble Lord is absolutely right that there is a whole range of factors in this area, and I am grateful to him for bringing that before your Lordships’ House. He will of course be aware of the main pillars in the 10-year plan: for example, moving from sickness to prevention, which is key. The noble Lord also mentioned tackling smoking, which we will continue to drive forward. But I wanted to use the Question to highlight that the NIHR is undertaking research projects into improving early recognition, diagnosis and treatment of specific genetic and congenital diseases, particularly in communities with high rates of marriage between close relations. So, to the specific point, I again hope that that will be helpful.

[Lord Foulkes of Cumnock (Lab Co-op)]

Will my noble friend have discussions with the Foreign, Commonwealth and Development Office about the data for and experience in some of our overseas territories, particularly Tristan da Cunha and St Helena?

[Baroness Merron (Lab)]

Yes; that will be extremely helpful in this regard, and I thank my noble friend.

Mental Health Bill [HL]

Baroness Merron Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

[Baroness Berridge (Con)]

My Lords, on the amendment outlining the definition of “serious harm”, two situations were raised with us on the Joint Committee. One was that the change in the criteria is the main tool that will help with racial inequalities; I would be grateful if the Minister could outline how she envisages that will work in practice. The second point was about the period during which such serious harm has to be exhibited. We heard numerous times about people with psychosis, many of whom—I think it was over 70%—do not realise that they are getting ill when they are presenting. How poorly do they have to get? Sometimes the intervention might need to be sooner than in the definition we understood of “serious harm”, which was slightly different from that which the independent review had, which I think was of “significant harm”. If the Minister could address those two points, that would be very helpful.

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

My Lords, I thank noble Lords for their contributions to this important debate in which a number of key issues have been raised.

Amendment 23, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, relates to new Section 125D, regarding registers of people with a learning disability and autistic people who are at risk of detention. The amendment would remove new Section 125D(5), which defines

“specified risk factors for detention”.

I heard the noble Earl, Lord Howe, refer to this as an Aunt Sally amendment—I politely have “a probing amendment” here but I hope that we are in the same area—that is intended to clarify the definition of

“specified risk factors for detention under Part 2 of this Act”.

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[Earl Howe (Con)]

My Lords, I shall be very brief, because other noble Lords have already eloquently articulated the arguments that are almost self-evident about the importance of services for people with autism or a learning disability and, in particular, the importance of training all staff who may find themselves working in those fields. I agree very much with the remarks of my noble friend Lady Browning and the noble Lord, Lord Scriven, and I was particularly interested in the research mentioned by the noble Baroness, Lady Bennett of Manor Castle, which brings us into a whole new dimension, I think, in this debate.

The need to train all healthcare staff, no matter what role they perform or which part of the health service they serve in, should surely be taken as read. This should be training both in the initial identification of those with autism or a learning disability and in the skills needed to handle such individuals with the necessary sensitivity and insight. I was interested in what the noble Baroness, Lady Barker, had to say about that. The behaviour of a person who is on the autistic spectrum can be baffling to anyone who has had no experience of it, and because of that it can be open to misinterpretation. A situation of that kind carries dangers, which is why it is so necessary for healthcare staff to know how to react in a way that will make the situation better and not worse.

This is not the first time that we have debated this important topic. I believe we may be told by the Minister that mandatory training in these areas is already provided for in Section 20 of the Health and Social Care Act 2008. The provision reads:

“Regulations under this section must require service providers to ensure that each person working for the purpose of the regulated activities carried on by them receives training on learning disability and autism which is appropriate to the person’s role”.


That broad provision was inserted into the 2008 Act thanks to an amendment which your Lordships approved three years ago, during our debates on the Health and Care Act 2022.

So, a provision on training is already enshrined in law; the problem is that we have no way of knowing the extent to which it is being implemented in practice. Hence, Amendment 145 would require the Secretary of State to publish a review on mandatory training for all persons who treat patients with learning disabilities and autism under the 1983 Act and consult as necessary to determine the extent to which health service staff are actually in receipt of such training. I see this amendment as perhaps a logical partner to Amendment 152 in the name of the noble Baroness, Lady Bennett, and indeed, in his absence, to the amendment of the noble Lord, Lord Adebowale.

While the vast majority of people who provide care to people with learning disabilities and autism do so with compassion and professionalism, we have seen a number of failings in care for people with those conditions. At the same time, detention will continue to be necessary in some cases where a patient with autism or a learning disability is suffering from a separate mental health condition. In all those cases, regardless of the context in which a person presents, we need to have confidence that the people providing care have the training they need to deliver that care sensitively, and above all, capably. I would venture to say that the people who need to have most confidence in the system apart from the person receiving the care are the parents or nearest relatives of that person. Hence, I believe we need more transparency on how well the system is working than we have currently.

Incidentally, one of the things that could come out of a review of training is an opportunity to look at the current processes for whistleblowing. An important aspect of improving standards of care is to have a system of accountability that includes listening to everyone in the sector, from the most senior staff to the most junior. No one should be afraid to speak up when they see something going on that does not look right, and I should be very grateful to hear what the Minister has to say on this whole theme and on the other important issues that noble Lords have raised.

[Baroness Merron (Lab)]

My Lords, I express my gratitude to noble Lords, not just for their amendments but for the way in which this debate has been conducted. I appreciate much of what lies behind the contributions and amendments today.

I first turn to Amendment 33, tabled by the noble Lord, Lord Scriven, and supported by the noble Baroness, Lady Hollins, and also Amendment 150 in the name of the noble Lord, Lord Adebowale. All of these were spoken to throughout this group, including by the noble Baronesses, Lady Tyler and Lady Murphy. I noticed that Amendment 150 was particularly referred to by the noble Lord, Lord Patel, and the noble Earl, Lord Howe.

On the matter of data collection, I absolutely share my noble friend Lord Beamish’s view on its importance, the need for the visibility of data and the need to find out what is behind detention. However, I can give the reassurance that the data and statistics that were referred to are being collected and published. They will continue to be monitored and published monthly in the assuring transformation statistics for learning disability and autistic people, and I hope that will be helpful to my noble friend.

The amendments I am referring to, which the noble Lord, Lord Scriven, introduced, require the Secretary of State to publish plans within a specified timeframe, outlining the Government’s plan to allocate sufficient resources for the commissioning of services for the detention and treatment of autistic people and people with a learning disability, as well as costed plans which show how integrated care boards and local authorities will ensure provision of adequate community services for these groups.

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[Baroness Barker (LD)]

This is a key point for a lot of the amendments that noble Lords have asked about. Can the Minister write to all noble Lords with more detail of the training programme—its content, the timetable, who is going to be responsible for making sure that it is implemented and reviewed? Will she specifically deal, in that letter, with my question about whether tier 3 training is included?

[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.

[Lord Beamish (Lab)]

On that point, I welcome what my noble friend the Minister has announced, but the real problem is about housing, including specialist housing in different areas for individuals leaving secure units. That is not universal throughout this country, as people leaving mental health units are then having to travel long distances. Surely we need local plans, and that money going in locally to provide the housing needed.

[Baroness Merron (Lab)]

My noble friend makes a good point about housing; we discussed it on day 1 in Committee. We are working with our ministerial colleagues who deal with housing on the need for the right kind of housing to be available. The point was well made and is taken.

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[Baroness Bennett of Manor Castle (GP)]

I understand that the Minister may wish to write to me on this, but I wonder whether there is a real prioritisation of those experts by experience guiding that research, and what input there might be. If the Minister can write to me, that would be fine.

[Baroness Merron (Lab)]

I would be pleased to write to the noble Baroness.

As I set out in response to other noble Lords, I hope the Committee has heard how much I agree that the adequacy of training is a key issue. We are aware that developments in best practice in caring for people with a learning disability and autistic people need to be reflected throughout. As I set out, the Health and Care Act 2022 requires that staff be given the training appropriate to their role, and we expect that this should be reviewed in line with the up-to-date situation. The CQC assesses staff training as part of its regulatory function. For these reasons, I ask the noble Lord to withdraw his amendment.

[Lord Scriven (LD)]

My Lords, I thank noble Lords who have taken part in this useful and informative debate, and I thank the Minister for a thorough explanation of what happens. However, there does seem to be a disjoint between what is happening on the ground and what people in an office in Whitehall seem to think is happening. That is why noble Lords have discussed issues to do with data, training, a costed plan, research and development, and the implementation of people who at least have training and an expertise in diagnosis. Something just does not feel right. The Minister has explained what is happening, but without a fully costed plan up front, with targets, accountability and data ongoing, what will happen is what happens now. Things will be diverted and diluted, and we will not be able to hold the plan to account. For that reason, while I thank the Minister for the explanation she has given, I feel that we will return to this issue at a later stage to dig down and get that deliverable framework. In the meantime, I beg leave to withdraw my amendment.

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[Lord Kamall (Con)]

My Lords, given that all those who have spoken to this group of amendments have been brief, I shall try to be brief. Once again, I thank the noble Baroness, Lady Murphy, for discussing with me in an exchange of emails over the weekend the intent behind the amendments in her name.

The noble Baroness, Lady Murphy, makes a reasonable point about clauses in the Bill that contain the phrase “likelihood of the harm” or “serious harm may be caused”, because it is assumed that such risks are quantifiable and predictable. I was struck by her observation that psychiatrists, psychiatric nurses and academics have warned about the difficulty of being able to predict episodes of violent behaviour in individuals because the base rate for violence, particularly serious violence, in the population is low. One of the things that we keep saying throughout this debate is that we need to see the evidence and the data, and that that should drive decisions that are being made. Given that, I am grateful to the noble Baroness for sharing the statistics, which I will not repeat but which reinforce the point that she wanted to make.

Considering those statistics, I am sympathetic to two specific points that the noble Baroness made. The first is that making statements about individual risk based on such statistics is complex and possibly unsafe, and, as the noble Baroness said, may be unethical. The second is that it may be helpful to use structured risk-assessment systems in routine clinical practice, if used by appropriately trained staff, to predict possible violence at a group level. However, given that many noble Lords have spoken about patient-centred care and the importance of understanding the individual and their sensory profile, surely we should be looking at patients as individuals, where the clinician better understands the individual patient’s mental state, relevant history and response to treatment given his or her life circumstances.

I will be interested in the Minister’s response to the amendments in the name of the noble Baroness, Lady Murphy, urging the Government to replace wording such as “likelihood of the harm” or “serious harm may be caused”. These terms are inexact and somewhat ambiguous and do not appear to be driven by evidence. Perhaps there are more appropriate terms for more holistic and comprehensive assessments.

Amendment 45, tabled by the noble Baroness, Lady Tyler, proposes that the definition of appropriate medical treatment includes the setting in which treatment takes place. This takes us back to a point made on the first day in Committee by the noble Baroness, Lady Barker, and just now by the noble Baroness, Lady Tyler, that for those with autism and learning disabilities, being held possibly in noisy, bright, busy settings full of people who may be strange to them, and where they may feel powerless and worry about what will happen next, is likely to affect their mental health and well-being. Therefore, surely it is important that we take account of the points made by the noble Baronesses, Lady Barker and Lady Tyler, particularly in Amendment 45.

On Amendment 48, it is really important that care is led by the level of therapeutic benefit. That should be based on evidence to drive those decisions. Given that, I look forward to the Minister’s response.

[Baroness Merron (Lab)]

My Lords, I am most grateful for the contributions that have been made and the amendments that have been tabled.

I turn first to Amendments 37A, 37C, 38A, 38B, 42B, 42D, 42E, 42G and 42H, all tabled by the noble Baroness, Lady Murphy, and spoken to by other noble Lords, including the noble Lord, Lord Kamall, regarding the new criteria. Let me say at the outset that the new criteria explicitly require decision-makers to consider the risk of serious harm and the likelihood of those harms occurring in order to justify detention. Clearly, the reason for this is to ensure that any risks to the public and the patient are consistently considered as part of the assessment process, and to protect patients from lengthy detention when these risks are unlikely to occur. I hope that this will be helpful for some of the debate that we have had.

The amendments tabled by the noble Baroness, Lady Murphy, seek to revise the proposed new risk criteria to remove any mention of risk that “may be caused” or the “likelihood” of the risk transpiring. The purpose appears to be to remove any prospective assessment from the detention decision and instead focus on the risk as it can be established at the time. The noble Baroness, in her introduction, asked about the reasonableness of the words in the provisions, and I understand that this is where the concerns lie. I should also thank the noble Lord, Lord Kamall, for his comments on evidence and data and their importance. In answer to the noble Baroness, I should say that the independent review found that the current criteria for detention are too vague and recommended that the Government should update the detention criteria to be more explicit about how serious the harm has to be and how likely it is to occur to justify detention. The intention of the revised detention criteria in the Bill is not to ask clinicians to make predictions but to clarify that they should consider whether a harm is likely to occur, based on their assessment and knowledge of the person—something that the noble Lord, Lord Kamall, focused on—rather than based on risks which may never occur.

Any consideration of risk arguably preserves the need to look at what might happen rather than what is happening or has happened in more concrete factual terms. We think that it is important that the detention criteria allow clinicians to detain based on the risks that they think are likely to happen, rather than just the risks that have already materialised. This enables them to act early to prevent harm to the patient or others. In line with the intention of the noble Baroness’s amendments, this should be based on personalised individual risk assessments and information about the patient’s history and personal circumstances—again, something that I know noble Lords are exercised by, which is about the individual approach to this.

We did engage again on the changes to the detention criteria last summer, in light of the recommendation on this issue by the pre-legislative scrutiny committee, and to assure ourselves that the detention criteria struck the right balance between allowing clinicians to continue to take early action when they are concerned about a patient’s or others’ safety and the independent review’s concerns that people could be detained on the basis of risks that might never occur.

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[Earl Howe (Con)]

My Lords, there is little for me to do following the persuasive speech of my noble friend Lady May, other than to say how much I support her in putting forward her amendments. I hope that the Minister will approach the proposals my noble friend has made in a receptive and constructive way.

I was struck by the case put forward by my noble friend Lady Buscombe about how technology could assist in the handling of mental health incidents. I hope equally that the Minister will wish to follow up on my noble friend’s suggestions.

The question of whether police officers, and only police officers, should exercise the powers under the Act to remove a person suffering from a mental health crisis to a place of safety is one that, as my noble friend Lady May said, has been simmering in the Home Office and the Department of Health and Social Care for a decade or more. Extending those powers to suitably trained healthcare professionals would be a change that I suggest goes with the grain of this Bill as regards the emphasis that it places on looking after mental health patients in the best possible way. That is not a criticism of the police in any sense. The police do a magnificent job in tackling anything that they are called upon to do, but, as we have heard, the police themselves say that the vast majority of instances in which they are called upon to deal with a mental health incident do not require a policing response.

The issue of risk is important to consider. Statistically, as my noble friend said, most mental health incidents present no risk whatever to the police attending. Admittedly, it is not always possible to tell in advance how risky a particular encounter is likely to be, but I agree with my noble friend that, provided that a paramedic is suitably trained and equipped, they will have the necessary skill set to deal with any risk to their own safety, bearing in mind that if a police presence turns out to be necessary, they can always call for one.

I very much hope that, between now and Report, the Minister will agree to meet my noble friend, if that is what she wishes, to map out a way forward that will lead to a broadening of the Sections 135 and 136 powers.

[Baroness Merron (Lab)]

My Lords, this has been an interesting debate, with much agreement across the Committee. I noted the support from both the other Front Benches, from the noble Earl, Lord Howe, and the noble Baroness, Lady Tyler, for much of what has been said.

Let me first discuss Amendments 37B, 38C, 42C, 42F and 128B in the name of the noble Baroness, Lady May, along with Amendment 158 in the name of my noble friend Lord Davies of Brixton. I am most grateful to the noble Baroness and my noble friend for bringing this issue before the Committee today. Amendments 37B, 38C, 42C and 42F would add a new category of authorised persons and would provide that police constables and such authorised persons may detain a person under Sections 2, 3 and 5 of the Act.

I share the recognition from the noble Baroness, Lady Barker, of the noble Baroness, Lady May, who I commend for her work to pave the way and dramatically reduce the use of police cells as a place of safety for those who are experiencing a mental health crisis. I listened carefully to the noble Baroness’s words of advice to all government Ministers; all I can say is that I cannot think how much better we could be advised than by a former Home Secretary and Prime Minister.

I thank the noble Baroness, Lady Watkins, for what I might call her notes of caution in respect of extending provisions, and the noble Lord, Lord Meston, for sharing his first-hand experience to add to the debate today.

We understand the broad intention of these amendments and of Amendment 128B, also in the noble Baroness’s name, to reduce police involvement in mental health cases for all the reasons that were said, including the extra distress that an officer may—inadvertently, of course—bring to a very delicate crisis situation.

The noble Baroness, Lady May, asked how the Bill will ensure that pressure is not placed unduly on police resource. I understand that that is very much a driving consideration, so let me say a few things on that matter. We recognise the pressure on the police, who are responding to a very large volume of mental health-related incidents, although—this is not to dismiss the point—detentions under Section 136 have decreased this year by 10%, and we are removing police cells as a place of safety to reduce some of this burden. We recognise, in particular, that police time in health settings should be reduced. I give an assurance that we have committed to look at this issue and to update the code of practice to clarify the handover process between police and health, including in A&E, which the noble Baroness, Lady Tyler, spoke about. We recognise the confusion around the application of the legal framework that can tie up police time when it would be lawful for them to leave a patient with health staff.

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[Baroness Barker (LD)]

I thank the Minister for her characteristically full and attentive response. I understand why she is not too enamoured by my amendment, and I do not intend to push that much further. However, having listened to her response to the noble Baroness, Lady May, I cannot help but arrive at the conclusion that, while we are quite content, because we all agree, to see police officers being taken away, we are not going to change anybody else’s roles or responsibilities to plug what will be an inevitable gap. I return to something I have said today and previously: this will be the only mental health legislation for 20 years. If we let this go through, in the certain knowledge that we are creating a big gap which will not be filled by existing roles or the deployment of people within the NHS, we are being quite negligent. We are consigning a lot of people to finding themselves without appropriate support at moments of distress, and that goes for staff who happen to be around at the same time.

The noble Baroness, Lady May, is a fan of Geoffrey Boycott. I hope that she goes in to bat again and does not give up. There is an enormous gap here and we have just made it worse.

[Baroness Merron (Lab)]

I appreciate the contribution of the noble Baroness. None of us, including the Government, wishes to create a gap, either intentionally or unintentionally. I should have said in my remarks that the noble Earl, Lord Howe, asked whether I would meet the noble Baroness, Lady May, should she so wish. The answer is yes. I was glad to do so previously with the Secretary of State; it was extremely helpful.

I assure the noble Baroness, Lady Barker, that there is no intention to create a gap, and we would be happy to elaborate further. She is absolutely right to say that we should be cautious and that it would not be good legislation to do that. The challenge is whether the amendments before us are the answer. I hope that this is a helpful comment.

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[Baroness Butler-Sloss (CB)]

I too want to add, equally with great care, to this very interesting discussion. I am concerned about the police. I have not quite understood from the Minister her thoughts on a point that has been made twice now by the noble Lord, Lord Meston about everybody waiting for the police. Are the Government thinking of making it unnecessary for the police regularly to attend?

[Baroness Merron (Lab)]

I thank noble Lords for their interventions. To the noble and learned Baroness, Lady Butler-Sloss—how can I put this?—I say that the police should be there only when they are needed because they are the police. It is true—the point was made very well in the course of the debate introduced by the noble Baroness, Lady May—that it often goes beyond that. That is why “right care, right person” is something that colleagues are working on with police forces, as well as looking at the whole connection with health services. It is well understood.

I heard the comments of my noble friend, as well as those of the noble Baroness, Lady Watkins, following on from the noble Lord, Lord Scriven. When the noble Lord, Lord Scriven, was speaking, the words that came into my head were “chicken and egg”, about legislation and skills. We looked at skills, but—these are not quite the right words—not at the expense of addressing the question of whether the law is in the right place. They are connected, but I refer the noble Lord to the points made earlier, by me and the noble Baroness, Lady Watkins, about the response we have had from health and care professionals. It is about finding the right way. I take the point that there is a gap now. We do not want to make it worse, and we know that it is not acceptable.

[Baroness May of Maidenhead (Con)]

My Lords, may I say how grateful I am to all those across the House who have supported my amendments. When the Minister first stood up and started to respond, I got quite excited and hopeful. I thought the points had landed, but then, as she carried on speaking, my hopes were dashed as I realised that, in a very elegant way, she was actually rejecting all the points that I had made in my amendments.

The Minister emphasised the code of practice and dealing with the issue of the handover between police and medical professionals. The whole point of my amendments was to ensure fewer handovers between the police and medical professionals, because there would be fewer times when the police were called as the first responders to a mental health incident. The Minister kindly said she would meet with me, and I hope she might be willing for the noble Lord, Lord Davies, also to be part of that discussion.

The noble Baroness, Lady Barker, referenced my admiration for Sir Geoffrey Boycott. One thing about Sir Geoffrey Boycott was that his centuries tended to come quite slowly. Maybe the response and government reaction to this will be a little slower than I had anticipated; but, on the basis that I anticipate that that reaction may come and the century may be scored, I beg leave to withdraw the amendment.

Mental Health Bill [HL]

Baroness Merron Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

Can the Minister assure the Committee that the Government have a real understanding of the effectiveness of CTOs, or just say, “This is what we understand about CTOs, and this is what we need to do more research on to understand them more”? If so, many noble Lords might feel a bit more reassured. I look forward to the Minister’s response.

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

My Lords, I am most grateful to noble Lords for their contributions in this important and interesting area. There have been, and to some degree still are, many different opinions across the Committee. This has been one of those rare occasions when parliamentarians may say that they have changed their minds having listened to the debate and looked into things further; that has added to the richness of what we have before us.

Amendment 43 tabled by the noble Baroness, Lady Browning, would require clinicians to ensure that patients had access to a local prescribing psychiatrist when deciding on a community treatment order. I heard the noble Baroness’s comments about the word “local”; I appreciate her drawing the attention of the Committee to that. I particularly heard the support given by the noble Baroness, Lady Parminter.

In the Bill, to put someone on a community treatment order, it must be necessary for the patient to receive medical treatment, which can be provided without detention in a hospital. I think I heard the noble Baroness, Lady Fox, say—I hope she will forgive me for not quoting her directly—that we should not demonise hospitals. She is nodding; I thank her for that. I can assure her that there is no intention to do that; it is about getting a better balance in the interests of getting the right care for individuals. The responsible clinician must consider whether appropriate medical treatment is available. That would, by necessary implication, include access to a local prescribing psychiatrist if it is what the patient needed.

For a CTO to be made, our reforms also require a community clinician with oversight of the patient’s treatment in the community to agree. The Bill therefore already means that, when deciding whether a CTO is appropriate, access to a prescribing psychiatrist will be fully and properly considered if access to medication is required.

I recall that the noble Baroness, Lady Browning, raised an important point about the shortage of prescribing psychiatrists in some areas and the impact that this could have. We intend that the measures in the Bill in relation to dynamic support registers will improve the monitoring of the needs of, and support for, people who may be at risk of going into crisis and being detained under the Act. ICBs and local authorities will be required to have regard to information on the register when exercising their commissioning and—we have discussed this before—market-shaping functions respectively.

I mentioned earlier the requirements in respect of learning disability and autism training, and autism training for psychiatrists. I hope that will help to reassure the noble Baroness.

Amendment 44, tabled by the noble Lord, Lord Scriven, and spoken to by a number of noble Lords, including the noble Baronesses, Lady Berridge, Lady Parminter and Lady Fox, and the noble Lord, Lord Kamall, relates to the review into the extension of CTOs. I completely understand why the noble Lord was inspired to come forward with this, having been inspired, as the noble Lord and the noble Baroness, Lady Berridge, said, by the words of the noble Baroness, Lady Parminter, at Second Reading and the way in which she relayed her personal experience. That kind of contribution and the impact that it has is exactly what we welcome, and I am glad she is pleased that people listened— indeed we did.

The amendment would ensure that CTOs aligned with the statement of principles in the code of practice and could be extended beyond 12 months only under certain conditions, with a review of the ongoing necessity and the therapeutic benefit of the CTO. I strongly agree with the intention behind the noble Lord’s amendment but it is fully supported by existing provisions in the Bill. Alignment with the code and the four principles is already achieved by new Section 118(2D), which requires clinicians before placing someone on a CTO to have regard to the statement of principles in the code. Under Clause 6, the patient can be put on a CTO only if there is a reasonable prospect of it having therapeutic benefit for the patient, and the Bill will mean that a responsible clinician cannot extend a CTO beyond six months unless the conditions, including therapeutic benefit, continue to be met.

The current code of practice states that, before renewal, the responsible clinician should consult the multidisciplinary team, the patient, the nearest relative—or, in future, the nominated person—and an advocate. The Bill adds that the patient’s community clinician must be consulted before renewal. We are therefore increasing the frequency of automatic referrals to the tribunal to ensure that patients can come off CTOs when they are no longer benefiting. Under the new system, a CTO cannot be extended past the 12-month point without a referral to the tribunal. In the current system, the patient can go for three years before a further referral is required.

[Lord Scriven (LD)]

That is pleasing to hear from the Minister. So what would stop that going in the Bill?

[Baroness Merron (Lab)]

As we have discussed before, it is about ensuring that we are able to update in line with good practice, and that can be nimbly—if I may use that word—outlined if it is not in the Bill. We are trying to future-proof it, as the noble Lord is aware, and to ensure that our reviews of our practice and so on are continually updated. That is how I would put it to the noble Lord.

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[Baroness Merron (Lab)]

I can understand the frustration that the noble Baroness outlines. It is hard for me to comment on a number of those 20 years. My feeling is that that is why we are here today updating the Bill. Indeed, at the risk of repeating myself—I will try not to—I take the point that she is making, yet I feel there is a need, under the updated Bill, which I hope will become an Act, to review the overall impact of the new provisions. I understand that we cannot be on a hope and a wing and a prayer. That is not the intention. We will keep CTOs under review as we implement changes. I certainly want to keep a very close eye on their impact, as I know your Lordships’ House will. I know that noble Lords will not be shy to raise any concerns that they have.

Amendment 66, in the name of the noble Lord, Lord Kamall, and supported by the noble Earl, Lord Howe, would require the use of community treatment orders to be reviewed within two years of the Act being passed. As a number of noble Lords have said, we believe that CTOs can be valuable for certain patients—indeed, as we have referred to, the noble Baroness, Lady Parminter, spoke about their benefit for eating disorder patients, as she did at Second Reading—but reform is needed so that they are used only when appropriate and for the shortest possible time.

The noble Lord, Lord Kamall, made a couple of points, which I am happy to write to him about, about concerns about resources. He asked about the role of mental health nurses—an important point—and the effectiveness of CTOs. I will write further on those points.

[Lord Kamall (Con)]

If the Minister and the officials look at Amendment 66, they will see it asks four specific questions. It could include more, but I wonder whether we can understand what the Government understand about each of those four things, including the impact of community treatment orders on people from different ethnic minorities and the effectiveness of the continued use of community treatment orders. I think it would be interesting for noble Lords to understand what the Government currently understand, if that makes sense.

[Baroness Merron (Lab)]

Yes, it does. I thank the noble Lord for the clarification. I will come to some of those points, particularly on racial disparity, but I just wanted to ensure that I did not miss the points that he made.

The noble Baroness, Lady Parminter, raised how people with eating disorders will be supported on CTOs. To elaborate a bit on what I said previously, for some people CTOs allow them to be cared for in the community with the least restriction, but with the safeguard that they can be recalled for treatment if necessary. That is a very necessary aspect.

I hope noble Lords are aware that I certainly would agree about the importance of the right data being used to inform decisions, trends and reviews. Data on community treatment orders are published as part of the annual Mental Health Act statistics. My officials are working with NHS England and others to understand what additional data should be collected to understand the impact of the reforms—this relates to the points made by the noble Lord, Lord Kamall.

I know that noble Lords more than understand that gathering new data takes time. Therefore, it is felt that a review after two years would be somewhat premature, as it would be based on data from before the reforms were commenced. So, rather than committing to a review in legislation at a fixed date, the Government are committed to ongoing monitoring of CTOs as we implement the changes. This will form part of our overall commitment to evaluate the impact of reform and to consider next steps. I am sure that your Lordships’ House would wish to continue to be involved in this.

I turn to Amendment 67, tabled by the noble Baroness, Lady Bennett, requiring a review of economic and social disparities in relation to CTOs. I agree, as I have many times, that there are significant disparities in the use of community treatment orders, particularly between different minority ethnic groups. This was spoken to by not just the noble Baroness, Lady Bennett, but the noble Baroness, Lady Berridge, and the noble Lord, Lord Scriven. I will make a few points about this. Those who are black are currently seven times more likely to be detained on a CTO—we have discussed this in your Lordships’ House a number of times, and rightly so, in my view. For CTOs, we are strengthening decision-making in three ways: first, by requiring that an individual must be at risk of serious harm to be made subject to a CTO; secondly, by requiring that the community clinician be involved in all community treatment order decisions; and, thirdly, by increasing the frequency of automatic reviews of patient cases by the tribunal. We will work closely to ensure that the Bill’s provisions are effectively implemented, because a main plank of this legislation is to reduce racial disparities in decision-making under the Act. I am sure we will return to this point many times, and rightly so.

[Baroness Bennett of Manor Castle (GP)]

I have two questions about data, and I entirely understand if this could perhaps be included in a letter. The racial disparities are well known and well canvassed, but I am wondering about disparities of people living in relatively deprived communities—those that used to be described as “left behind”. There seems to be some evidence of disparity between people in those poorer communities and wealthier communities. Also, on individuals living in poverty versus individuals not living in poverty, what difference is there in CTOs—and more broadly, but CTOs might be a particular area of concern? I am interested in what information the Minister can give—not necessarily now—because we need to focus on that as well.

[Baroness Merron (Lab)]

The noble Baroness makes a fair point. We will certainly cover CTOs in the planned evaluation of the reforms, including consideration of economic and social disparities. I hope that reassures her.

I turn to the noble Baroness’s Amendment 86. The intended effect given in the explanatory statement provided by the noble Baroness is to retain the requirement for

“an automatic referral to the tribunal when a patient’s Community Treatment Order is revoked”.

The amendment as drafted does not achieve this because it amends a different part of Clause 30—

[Baroness Bennett of Manor Castle (GP)]

I tried.

[Baroness Merron (Lab)]

Indeed the noble Baroness did try, and I have therefore taken its intention at face value.

The Bill removes the requirement for an automatic referral following the revocation of a CTO. This was a recommendation of the independent review which found that, in practice, the automatic referral was an ineffective safeguard, as often the patient is back in the community or back in hospital as a Section 3 patient before the tribunal has had the opportunity to review their case. Therefore, the current process creates a burden on tribunals but does not protect the patient. The Bill improves other safeguards for patients on a CTO, including increased access to tribunals. For these reasons, I hope that the noble Baroness feels able to withdraw her amendment.

[Baroness Browning (Con)]

My Lords, I am grateful to everybody who has contributed on this group of amendments. Everybody has bought something different to the table. There have been some good things. I think we are all grateful to the noble Baroness, Lady Parminter, who led us at Second Reading to have a better understanding of how CTOs can help with eating disorders. I just think back to 2006 and the pre-legislative scrutiny committee of the previous amendment of the 1983 Act. I think there are three of us in the Chamber tonight who were part of that pre-legislative scrutiny. I think that the noble Baronesses, Lady Murphy and Lady Barker, and I were members and I recall the debate on community treatment orders at that time, 20 years ago, when we had quite a lot of strong reservations about how they would work in practice.

Despite some of the good things we heard tonight on this group, I still sense that reservation. I think that if what we had before us was 20 years of lived experience—practical examples of where CTOs have been good, where they have been bad, where they needed to be amended and where they have been amended—we would feel a lot more confident. Too many parts of this jigsaw still seem to be missing to make what I feel is a substantial change to the 1983 Act 20 years later and know that we have got it right. I always think that when we are in doubt about legislation, there is that old, hackneyed thing: “Suppose this was something in a court. What would they say about this? What was Parliament’s intention at the time?” Can I actually define Parliament’s intention at the time? I am not sure that I can define it in as much detail as I would like, in order to feel we are doing the right thing as far as this legislation is concerned.

I thank the Minister. She has, as always, been as helpful and courteous as she can be with this very difficult issue, but I do not quite feel that we have got there yet. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Kamall (Con)]

I would not want to upset any people from South Carolina. In fact, I did some work in Raleigh and Durham a few years, so I should get this right. Is the department aware of that study, and has there been any analysis of what could be learned from that study which could be relevant to the United Kingdom, especially given one of the main reasons we are here tonight is to reduce the disproportionate detention of people from black communities? I look forward to the Minister’s responses.

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords who have spoken to and tabled amendments for this important discussion, which, I am sure my Whip will tell me, will be the last one of the evening.

[Lord in Waiting/Government Whip (Lord Cryer) (Lab)]

It will be.

[Baroness Merron (Lab)]

I have had that confirmed.

I will first address Amendment 43A, tabled by the noble Baroness, Lady Barker. Patients on CTOs already have the right to independent mental health advocate services. Community treatment order patients will be informed of their right to an independent mental health advocate when they are under Section 3, as part of the opt-out approach for all detained patients, as a patient cannot be placed on a CTO without having been detained first in hospital. They will be aware of this right. In addition, the revised code of practice provides opportunities for further guidance on how to improve the uptake of services for CTO patients, and we will consult on this.

Amendment 102, in the name of the noble Baroness, Lady Tyler, was also spoken to by the noble Baroness, Lady Berridge. We appreciate that advocacy plays a vital role in supporting choice and the person as an individual, and that under-18s are a vulnerable group who would benefit from independent mental health advocate representation. I am pleased to say that the Bill already extends the right to an independent mental health advocate to informal patients, and this includes children and young people. It places a new duty on hospital managers to inform them of this right. As we seek to revise the code of practice, we plan to provide further clarity on how to meet the needs of children and young people, including through this increased access to advocacy, so the point is well made.

I thank the noble Baroness, Lady Murphy, for bringing Amendments 100, 103, 104, 108, 109, 110 and 111 before the Committee today, which were also spoken to by the noble Lord, Lord Kamall. Currently, independent mental health advocacy support is available only to detained patients. We want to extend this support to all in-patients, as we believe it is important for all patients to understand their rights and legal status, not just those who are detained under the Mental Health Act. This is in line with the approach already taken in Wales, where both detained and informal patients are eligible.

The noble Baroness, Lady Murphy, and the noble Lord, Lord Kamall, raised points about expanding advocacy and the use of resources. The figures suggested by the noble Baroness, Lady Murphy, overstate the costs that are set out in the impact assessment. Table 7 in the impact assessment shows that the estimated annual cost of informal advocacy would be between £6 million and £7 million a year. I hope that clarifies things for noble Lords.

[Baroness Murphy (CB)]

I apologise. Obviously, I was looking at another figure from a different bit of the impact assessment.

[Lord Scriven (LD)]

I think the noble Baroness, Lady Murphy, added up all the years and got to the final cost, and then described it as an annual cost. I think it was a genuine mistake.

[Baroness Merron (Lab)]

I am sure that what the noble Lord, Lord Scriven, said is absolutely right—and the noble Baroness has absolutely no need to apologise.

We intend to implement these reforms in phases, when funding and system capacity allow, prioritising an opt-out approach for detained patients. We will expand eligibility for independent mental health advocates to informal patients only when we are sure that doing so will not impact on the resource available to detained patients.

Turning to Amendments 105 and 106, tabled by noble Baroness, Lady Tyler, and supported by the noble Lord, Lord Scriven, as I mentioned, the extension in the Bill of the right to an independent mental health advocate to inform all patients does include children and young people. With regards to an opt-out approach to advocacy, we believe that detained patients have a particular need, given that they are subject to greater restrictions and are potentially more vulnerable compared with informal patients. The Mental Health Act, its code of practice and the regulations relating to the independent mental health advocate services set out that local authorities should ensure that independent mental health advocates understand equality issues and that there are enough independent advocates with a specialised understanding of the specific needs of particular groups—for example, children and young people. As we revise the code of practice, we plan to provide further clarity on how to meet the needs of children and young people, including through this increased access to advocacy. I hope that this reassurance will be welcome.

The noble Lord, Lord Kamall, asked whether the department was aware of the North Carolina or South Carolina study. As we have all agreed, it is in respect of the North Carolina study. We are running culturally appropriate advocacy pilots in Manchester and Birmingham which are testing the approaches to delivering improved culturally competent advocacy services that support specific preferences and needs of people from minority ethnic groups. We have also commissioned an independent evaluation of these pilots and will be looking at that alongside the international evidence that has been discussed this evening. I am most grateful to the noble Lord, Lord Kamall, for raising this.

For all those reasons, I hope that the noble Baroness will withdraw her amendment.

Prisons: Health Services

Baroness Merron Excerpts

Tuesday 14th January 2025 Lords Chamber

[Baroness Morgan of Drefelin]

To ask His Majesty’s Government what assessment they have made of the provision of health services in prisons.

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

My Lords, a full health needs assessment for every prisoner is undertaken at least every three years by NHS England, which then updates service specifications and commissions appropriate services to ensure that the health needs of offenders are being met. All 19 health service specifications for prisons and other detention environments are currently being updated to ensure that they remain fit for purpose and are expected to be published by March 2026.

[Baroness Morgan of Drefelin (Lab)]

My Lords, I thank my noble friend for her Answer. I have heard first hand, through the work of the charities the Prison Reform Trust and Revolving Doors, about the challenging and degrading experience that some prisoners have had trying to access healthcare. Does the Minister agree that there is a huge opportunity to make progress here with the development of better facilities in new prisons? Does she also agree that it be would a positive thing to include prison healthcare services in ICBs’ commissioning to ensure that people in secure settings have access to the advances and developments that are available in the community?

[Baroness Merron (Lab)]

I certainly agree with my noble friend that there are huge opportunities to improve healthcare for prisoners. On new prison design, I reassure her that all prison design will be fit for purpose because medical architects will be commissioned. That new design includes, for example, medical cells so that as many healthcare needs as possible can be met in prison. On my noble friend’s point about ICBs, it is a retained service, so it is not currently delegated to ICBs. It is the responsibility of health and justice commissioners to collaborate closely with ICBs to ensure continuity of care. The electronic referral service means that patients in prison can have access to the developments to which others in the community have access.

[Baroness Finlay of Llandaff (CB)]

My Lords, a quarter of a century ago, I worked with the then Minister for Prisons following the difficulty we had releasing a shackled remand prisoner. The recommendation was that every prison should have a link with a hospice service in their area to ensure appropriate care, particularly for prisoners who cannot be transferred out of prison and who may wish to die in their cell, with their cellmate providing some of the support for them as they are dying. Can the Minister tell us how many prisons actually have such links?

[Baroness Merron (Lab)]

I thank the noble Baroness for raising such an important point and for having worked on this in the past. I will need to write her with the exact figures, but we do know that more needs to be done to address health issues. However, we are keen to ensure, and are working towards making sure, that healthcare for prisoners, whether at the end of their lives or earlier, is appropriate and meets their needs, whichever is the right way to do it. Great strides have been made in that regard.

[Baroness Manzoor (Con)]

My Lords, the Minister will know that the most common diseases in prisons are diabetes, high blood pressure, HIV and mental illnesses. What are the Government doing to ensure that psychosis resulting from the use of illicit drugs is being controlled effectively, so that there are not more cases of psychosis and mental illness in our prisons?

[Baroness Merron (Lab)]

Substance misuse in prison, to which the noble Baroness refers, is of course a major issue, and prison security has a crucial role to play in reducing it. I should also say that the use of illegal drugs can impact on routine healthcare for all prisoners, as resources have to be directed to the more immediate cases. Noble Lords may remember that we recently had delegated legislation to ensure that nasal Naloxone could be administered, including by prison staff, to prevent opioid-induced emergencies. All these things will help, and substance misuse support is available in all prisons in line with the national service specifications, but we are working across government to see what more we can do. It is a big issue.

[Baroness Burt of Solihull (LD)]

My Lords, many of the issues preventing prisoners getting equivalence of care with non-prisoners clearly relate to access to hospitals and health specialists. As we know, delays can exacerbate conditions. Will the Government ensure that the Nuffield Trust recommendations on improving transparency, prisoner escort numbers, reviewing the supply of prison escorts and increasing access to out-patient services via telemedical services are implemented as fully as possible?

[Baroness Merron (Lab)]

The use of technology is hugely important in all areas, particularly in respect of prison services, as the noble Baroness says. There is a policy specifying that escorts must consist of at least two prison officers, with at least one being of the same gender as the prisoner unless there are exceptional circumstances. I take this opportunity to say that every effort is made to ensure that female staff support women, particularly where appointments are specifically related to services such as gynaecology. It is very important that we are aware of the possibility of retraumatising women prisoners, and we have been particularly mindful of that in relation to escorts.

[Lord Kamall (Con)]

I start by thanking the noble Baroness, Lady Morgan, for sending me a briefing in advance of this Question. She rightly and importantly highlights that cancer outcomes for prisoners are poorer than for the rest of the population, while the cost of services is greater. However, given that we will be debating the Mental Health Bill later today, I want to ask a related question. Over 30% of prisoners have a learning disability, so what steps are the Government, the NHS and the Prison Service taking to protect and care for prisoners with learning disabilities? They may be there partly as a result of their learning disability, and while in prison are often at their most vulnerable. What care is there for prisoners with learning difficulties in order to protect the public and reduce the risk of reoffending when they are released?

[Baroness Merron (Lab)]

As the noble Lord rightly says, the Mental Health Bill is in Committee this afternoon and I know we will refer to that. Certainly, the reforms in the Bill will speed up access to specialist in-patient care and treatment, in particular by introducing a statutory 28-day time limit for the transfer of patients from prison and other places of detention to hospital. On particular needs, which may be learning disability and autism, as I know noble Lords are aware, the Mental Health Bill is very focused on ensuring that people are being cared for in the right places in the right way, and that in places of detention people are being not just held but supported and their healthcare needs met.

[The Lord Bishop of Gloucester]

My Lords, women in prison have very specific health needs. Will the new women’s justice board look at ensuring that health and social care services across the women’s estate are consistently gender-specific and sensitive to women’s protected characteristics?

[Baroness Merron (Lab)]

I can give that assurance to the right reverend Prelate, and I certainly agree about the particular needs of women in prisons. It is perhaps helpful to tell your Lordships’ House that new women’s health and well-being hubs will begin in all 12 female prisons from 1 April.

[Lord Woodley (Lab)]

My Lords, it is very well known that IPP sentences have broken the mental health of hundreds of prisoners. Does the Minister agree that it is the responsibility of the state to help fix the damage caused by these torture sentences, and that greater resources are needed for medical treatment for and support of IPP prisoners?

[Baroness Merron (Lab)]

I know that the Ministry of Justice is also looking at this, and my noble friend is certainly right to make that point.

Mental Health Bill [HL]

Baroness Merron Excerpts

Committee stage
Tuesday 14th January 2025 Lords Chamber

[Lord Kamall (Con)]

I begin by thanking all noble Lords who spoke to this first group of amendments in Committee. Before I comment, I refer noble Lords to my interests as set out in the register. I am not an honorary fellow of the Royal College of Psychiatrists, noble Lords will be relieved to know, but I should mention my previous work with a couple of think tanks—the Institute of Economic Affairs and Politeia, which have both published on health and social care issues. There is also my work at St Mary’s University, where I am a professor of politics and international relations, and which has recently applied to open a new medical school. I also sit unpaid on the advisory board of a start-up coalition, and I know that there are a number of start-up companies helping people with mental health conditions. I just wanted to cover those interests, in case anyone made any accusations.

This group addresses the principles that will guide the application of the Mental Health Act, as set out in the Wessely review. Sir Simon pointed out, rightly, that there are already guiding principles in the code of practice, but that

“there is limited awareness of these, and it seems very likely that they do not inform practice in the way they should”.

Clearly, as noble Lords said at Second Reading, the important aim of including the four principles is to improve their application and ensure the highest level of care and therapeutic benefit for patients, while ensuring that all patients are treated as individuals.

I thank the noble Baroness, Lady Tyler, for her Amendment 1. Of course, equity is at the heart of the Bill, as my noble friend Lady Berridge just said. The Wessely review was commissioned by my noble friend Lady May of Maidenhead with the intention of understanding why a disproportionate number of black people were being detained and receiving community treatment orders under the Mental Health Act. I think all noble Lords welcome the idea of including equity in principle, as long as it then feeds through into practice. That is the key here, and my question for the Minister is: would putting the principle in the Bill make a difference to practice? How do we make sure that it makes a difference to practice, rather than simply adding the words or adding the principle? One of the values in the NHS constitution is that “everyone counts”. Does this equality duty go further than that, and would it have a greater practical significance? That is one of the questions we need to dig out and probe the Government on.

The noble Baroness, Lady Tyler, makes an interesting observation with her Amendment 3. The principles were included in the Bill, as the Wessely review argued, to improve clinical practice. This is vital, because we know that the Mental Health Act is the legislation that is used to compel detention in hospital for treatment. This may very well raise awareness of the principles, but once again, how do we make sure that this is applied? We have to keep pushing this point, although I will not repeat it again, of making sure that this gets fed in to practice in the clinical setting.

I also note the amendments in this group of the noble Baroness, Lady Whitaker. I will not repeat the statistics that she read out about the impact of the lack of or inappropriate support for people with mental health issues or learning difficulties. Of course, it is not difficult to appreciate the complexities. Someone in my close family worked with speech and language therapists in his youth, and I could see the difference it made. It is almost too obvious to say, but how do you get your needs across if you cannot communicate them, or your needs are not understood by the person who is supposed to be offering treatment? As the noble Lord, Lord Patel, mentioned, this is included in the Explanatory Notes, but how do we make sure that it gets into the Bill and into practice? Obviously, it is a problem that is acknowledged by the Government, or it would not be in the Explanatory Notes, but why have the Government chosen not to go any further on this issue?

I was very struck by what the noble Baroness, Lady Murphy, said about Amendment 49 and her concerns. Will the Minister address that debate? Of course, we all want to make sure that patients feel that they are understood. We know that patients have to be supported as much as possible to make sure they get their point across and that they are understood, in order to give them adequate treatment, but I noted the concerns of the noble Baroness, Lady Murphy, even though the noble Lord, Lord Patel, intervened. Have the Government taken a view on this or does the Minister need to write to us? I look forward to her comments.

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

My Lords, I feel it necessary to start, instead of talking about the Bill, by offering our condolences to the noble Baroness, Lady Hollins, on the very recent loss of her dear husband, and to thank her, as I know all noble Lords will do, for her close engagement on these reforms over many years. I say to the noble Baroness, who said she would be watching if she could, that we absolutely understand why she cannot be with us today. We miss her and I know that the thoughts of all noble Lords will be with her at this very sad time.

If I may make a few general points, as we know, this legislation has been in development for many years. I put on record my thanks for the collaborative and constructive nature of that work and the discussions I have held in my post over the past few months with Peers on all sides of the House. I extend my appreciation to the former Prime Minister, the noble Baroness, Lady May of Maidenhead, for her highly significant role in commissioning the independent review which informed this Bill and to Sir Simon Wessely and all those who worked on this landmark review, which provided a blueprint for this Bill. Like other noble Lords, I am very pleased to have got to this point.

--- Later in debate ---

[Baroness Merron (Lab)]

I am grateful for my noble friend’s intervention. I will later make specific points about speech and language therapists.

The revised code of practice will give guidance for decision-makers and those involved in care and treatment on how to support individuals with communication needs to make sure that their voices are heard. Following Royal Assent, we will draft, and consult on, a code of practice, and it will be laid before Parliament. In addition to the code, we will lay secondary legislation to support the reforms set out in the delegated powers memorandum. I am committed to sharing papers setting out further details on this, including what we expect the content of care and treatment plans to cover, some of which is highly relevant to this debate.

Amendment 3, in the name of the noble Baroness, Lady Tyler, and also spoken to by the noble Lord, Lord Kamall, would mean that the individuals and organisations referenced in Section 118(1) of the Mental Health Act 1983 must have regard to the code of practice when making decisions. It seeks to probe whether the principles set out in the table in Clause 1 of this Bill—under new Section 118(2B) of the 1983 Act —will be statutorily binding. Practitioners are already under a statutory obligation to take account of the code when making decisions under the Act. Anyone who must have regard to the code of practice under Section 118(2D) must therefore also have regard to the statement of principles that the Secretary of State must include in the code when carrying out specified functions under the Act. That includes all those referenced in Section 118(1).

The Government expect practitioners to follow the code. Anyone seeking to depart from it must have compelling reasons for doing so. Reasons for any departure must be recorded clearly, as courts have the power to scrutinise such reasons to ensure that there is sufficiently convincing justification for not following the code.

I believe that this is the right approach, because relevant individuals and organisations must have regard to the code and, in turn, the principles. But the system is not so inflexible that a principle must be followed irrespective of the circumstances, because there could be very rare cases whereby it could create a risk that an individual is not being treated according to their own particular needs, which is not the intention of the Bill.

[Lord Scriven (LD)]

I think the Committee would understand that if it was to do with a therapeutic intervention. This is about the principles according to which clinicians and others have to work when dealing with the Act. First, can the Minister enlighten the Committee as to which principles, as a framework, would not be suitable for a particular patient? It is a principle. Secondly, my noble friend tabled this amendment because case law on codes of practice in the public sector goes back to 1998 and Regina v Islington Borough Council, in which the court made it very clear that public bodies have the right to deviate on admissible grounds where there is good reason. I can see no reason, unless the Minister can give one, why deviating from a principle is acceptable. That is why my noble friend wants the principles to be in the Bill. I could understand if it was a restrictive practice, but it is not; it is a principle.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

To add to what the noble Lord, Lord Scriven, has said, I am having a problem understanding why the code is not statutory.

[Baroness Merron (Lab)]

I thank noble Lords for their interventions, for which I am grateful. They give me the opportunity to say now what perhaps I should have said at the outset: I will of course reflect on all the points that are raised as we move forward. I will be honest and say that I am not sure that what I am about to say will do justice to the points that have been raised. Overall, the real concern is about making very complex legislation even more complex. We are wrestling with our attempt to update the Mental Health Act—we are not starting from scratch. That is the point I would like to like to move on to.

The noble Baroness, Lady Tyler, raised a comparative point about the Mental Capacity Act and asked why, if that could include principles, it is not possible for the Mental Health Bill to. To extend what I have just said, it is because the Mental Capacity Act was structured around principles from the outset when it was drafted and did not have to meet the challenge that we are trying to debate today. As I said, we are currently looking at amending the existing Mental Health Act, which has not been designed or structured around statutory principles. In my language, I would say that we are starting from an entirely different place.

[Baroness Berridge (Con)]

I hate to interrupt the Minister’s flow, but we are going to come back to the code of practice again and again. Can she outline whether we will get to see a draft of that code? If the argument from the Government is that it needs to be in the code and not on the statute, it would be very helpful to see a draft code of practice before Report, at the very latest.

--- Later in debate ---

We should bear in mind that some of us are very worried that aspects of the Equality Act are currently under attack, sometimes from members of the medical profession. Does the Minister accept that that is therefore not an adequate protection and that the evidence before us says as much? In answering, will she perhaps respond to my noble friend Lord Scriven’s point and give us examples where people have been able to take action by reference not to the law but to a code of practice being ignored, because I am not aware of one?

[Baroness Merron (Lab)]

I thank noble Lords for their interventions. I will take the point from the noble Baroness, Lady Berridge, first. Following Royal Assent, we will be drafting and consulting on a revised code of practice, which will be laid before Parliament. We will be working with key partners to ensure that everyone is trained in the new Act before the first major phase of reforms. I hope that that will be helpful.

I hear the disappointment in the comments of the noble Baroness, Lady Barker. On her request for specific examples, I will need to write to noble Lords on that. I hope noble Lords realise that not having the principles in the Bill, as the amendment refers to, does not mean that there is less intention that they apply. For me, it is about the way of getting there, rather than the commitment to it. However, I hear the question about that point.

Amendment 49, on the matter of speech and language therapists, is in the name of my noble friend Lady Whitaker, supported by the noble Lord, Lord Patel, and my noble friend Lord Bradley. I turn first to the question raised by my noble friend Lady Whitaker. It is true that not all speech and language difficulties or differences would count as a disability under the Equality Act 2010, so my noble friend makes a relevant point.

The definition of who can and cannot be approved as an approved clinician was spoken to by the noble Baroness, Lady Murphy, and the noble and learned Baroness, Lady Butler-Sloss. That definition is set out not in primary legislation but in instructions issued by the Secretary of State, under the power in Section 12ZA of the current Mental Health Act. These instructions have the same status as secondary legislation, so it is our belief that it would not be appropriate to specify in primary legislation that speech and language therapists can be approved clinicians, because all other professional groups are covered only in the instructions.

For that reason alone—but noble Lords should bear with me—we will seek to reject this amendment. However, I can commit that we will be revising the statutory instructions under Section 12ZA following the passage of the Bill, and we are very happy to consider extending the criteria to include speech and language therapists. I offer an invitation to the royal college to discuss this matter with the department and to consider how it can work to support and encourage those of its members who may be interested in this role.

I am aware that time is not on my side. However, a number of amendments in this area have been tabled—

[Lord Kamall (Con)]

I wonder whether I can be of help to the Minister. The timing is advisory so, if there are important points that the Minister wishes to make, she should please go ahead.

[Baroness Merron (Lab)]

I have never had so much encouragement to carry on speaking. Noble Lords will be glad to know that the flashing clock always makes me very nervous. I thank the noble Lord, Lord Kamall.

[Baroness Murphy (CB)]

Can I just add to what the noble Lord, Lord Kamall, just said? I have never before sat through a Committee where the Minister has been restricted in going beyond any advisory time. She should say what she darn well likes. She may have to respond to an awful lot of complicated spots in this; there is no reason at all why she should not carry on, in my view—and that of everyone else in the Committee, I think.

[Baroness Merron (Lab)]

I am extremely grateful to the noble Baroness for helping me out there.

I referred to my invitation to the royal college. Given this commitment to pursue these changes, that will be subject to agreement with the royal college. I hope that will be of assistance to noble Lords.

I turn now to Amendment 52 in the name of my noble friend Lady Whitaker, supported by the noble Lord, Lord Patel, and my noble friend Lord Bradley. It seeks to ensure that clinicians consider a patient’s communication needs and make reasonable adjustments as part of the new clinical checklist; this requires clinicians to consider a number of matters when deciding on a patient’s treatment, with the aim of making treatment more patient-centred.

We share the goals of this amendment. However, the checklist already requires the clinician to take steps to assist and encourage the patient to participate as fully as possible in the decision-making process. We consider assistance to include making reasonable adjustments to account for a patient’s communication needs, which is something that noble Lords have rightly raised as being of concern. We very much intend to make this clear in the code of practice, which will already provide specific guidance on the need to make reasonable adjustments under the Equality Act. For example, the clinician should provide information in an accessible form, perhaps by involving an interpreter, a signer or someone who can communicate via the person’s preferred communication method.

My noble friend Lady Whitaker has also tabled Amendment 60, supported by the noble Lord, Lord Patel, and my noble friend Lord Bradley. It seeks to ensure that the new statutory care and treatment plan introduced by the Bill covers

“information about a patient’s communication disability, difficulty, or difference”,

and how these might be identified and supported. The Bill makes it clear that a statutory care and treatment plan is a plan made in accordance with regulations, so we intend to set out in regulations that a patient’s plan must include, among other things, information that is important for the treating clinical team to be made aware of during the patient’s detention. This is to encourage the treating clinician, as noble Lords have spoken about, to consider the individual needs of patients—including communication needs—so that the appropriate reasonable adjustments can be made. A record of how their needs will be supported should be evident throughout their plan, which should, as far as possible, be developed in consultation with the patient and others, such as their family members.

Regarding the identification of any communication needs, as already set out in the Mental Health Act code of practice under the Equality Act, mental health professionals should already be identifying and making any reasonable adjustments to account for a person’s communication needs. Where applicable, a patient’s care (education) and treatment review may also identify and make recommendations about a patient’s communication needs. We intend to set out in regulations that these recommendations must be attached to the patient’s statutory care and treatment plan, so that they can inform planning and delivery of care. I hope that this will reassure noble Lords that the patient’s statutory care and treatment plan should cover any communication needs and how they will be met, but in reflecting on this debate I will ensure that the actions we are proposing take account of this.

Amendments 112 and 114, tabled by my noble friend Lady Whitaker, would require managers of hospitals or registered establishments to provide information in an accessible format when discharging duties under Clauses 39 and 41 to give information on complaints to detained and conditionally discharged patients. I agree that it is important that all patients can access information about their detention, including the complaints process, and in a format that is accessible to them. However, the clauses are already drafted with the overriding obligation that the patient is helped in whatever manner is practical to understand the information being given to them. Therefore, it is unnecessary to add the words in the amendment proposed by my noble friend. Additionally, hospital managers have an existing duty under the Equality Act to make reasonable adjustments based on disability, which is the legal basis for ensuring that information for patients is accessible.

I reiterate that I understand that communication needs will not always be related to the letter of the Equality Act. There is already guidance in the mental health code of practice on how a patient’s communication needs should be considered when providing information on complaints. When we come to revise the code, we will engage with stakeholders to explore whether further guidance on the complaints process, including how information on complaints should be provided, is required.

Amendment 118 in the name of my noble friend, supported by my noble friend Lord Bradley and the noble Lords, Lord Patel and Lord Bourne, seeks to ensure that the advance choice document template is available in a format that the service user can understand. We strongly agree with the principles of this amendment and are committed to mitigating any barriers that people may face to creating an advance choice document or making their wishes and feelings known in advance. Where a person wishes to make an advance choice document, our intention is that they are given a standard template to complete, alongside supporting guidance and, where the individual wishes to receive it, the support of mental health practitioners. The template should prompt the individual to think about the sort of things they may wish to consider and decide in advance of becoming unwell. We will work to develop these resources.

We also plan to set out in guidance to health commissioners that these resources and the support provided by mental health practitioners must be delivered in a way that is accessible to individuals and that responds to their needs. That will be in line with the Equality Act and the public sector equality duty. Of course, if a person wishes to create a record of their wishes and feelings in another format that is easier, they absolutely may do so. We have purposefully made it that individuals do not need to complete a prescribed form in order for their advance wishes and feelings to be considered at a later stage. I agree with the need and hope that this will provide maximum accessibility and increase patient voice and autonomy.

Finally, Amendments 119 and 126, tabled by my noble friend Lady Whitaker and supported by my noble friend Lord Bradley and the noble Lord, Lord Patel, seek to ensure that the support provided to people to create an advance choice document is responsive to the needs of people with a

“communication disability, difficulty or difference”.

I agree that is important. To achieve this, it is important that support and information around advance choice documents respond to people’s needs individually, so that no one is unfairly disadvantaged. That includes communication needs.

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[Baroness Merron (Lab)]

My Lords, I am most grateful to noble Lords across the Committee for their contributions. I will start by referring to the points raised by the noble Lord, Lord Scriven. A range of views has been expressed today on the matter of detention. The noble Lord asked what provision will be in place to ensure that we are not using some kind of backdoor, and that is a very good general question for us to hold in our heads. It is a very important matter, given the very poor outcomes we have seen for those with a learning disability and for autistic people under the current Act. I know this is something that has really exercised noble Lords—rightly so, in my view.

The noble Lord, Lord Kamall, is quite right to remind me of comments I made from that Dispatch Box, which I still stand by. I have concerns, as I know he does too. The proposals here are intended to address the matter of improving outcomes. The debate today has been extremely helpful and will allow me to reflect on where we need to go in respect of these. I am also grateful for the range of wider topics raised in this group—for example, on the importance of the community sector—and I look forward to moving on to these when we come to subsequent groups later today.

Let me first address Amendment 4 and the notice to oppose Schedule 1, tabled by the noble Baroness, Lady Bennett of Manor Castle. Currently, a person with a learning disability can be detained for treatment under Part II, Section 3 of the Mental Health Act when their learning disability

“is associated with abnormally aggressive or seriously irresponsible conduct”.

I heard what the noble Baronesses, Lady Browning and Lady Berridge, said. The noble Baroness, Lady Browning, used the word “meltdown”, and she has spoken to me about this before. I know that not all noble Lords like that word, which is why I put it in quotes, but the point is well made and the noble Baroness has explained to me about understanding a person’s conduct. It is also the case that an autistic person can be detained under Section 3 on the basis of mental disorder.

While the independent review found examples where use of the Act can deliver therapeutic benefit, it also found that hospital detention—a number of noble Lords spoke about this—can be detrimental for people with a learning disability and autistic people, due to exposure to environments or experiences that are completely insensitive to what I would call reasonable adjustments. This obviously causes stress and leads to behaviour considered to be challenging. We have heard that it is too often the case that people with a learning disability and autistic people are being inappropriately detained due to a crisis—which may be a better word in this instance—that has arisen due to a lack of community support, rather than for treatment of a mental health condition. That is unacceptable and the point has been extremely well made, both in the Chamber today and on earlier occasions.

The Government are committed to ensuring that hospital detention happens only when an individual has a mental disorder that warrants hospital treatment that has a reasonable prospect of providing a therapeutic benefit. It should not be some form of punishment. Schedule 1 and Clause 3 will change how the Act applies to people with a learning disability and autistic people by introducing new definitions for “psychiatric disorder”, “learning disability” and “autism” in the Act, and making amendments using those definitions throughout the Act. These amendments remove, for the purposes of Part II of the Act, learning disability and autism from the scope of conditions for which a person can be detained for compulsory treatment under Section 3. I hope that will be of reassurance to the noble Lord, Lord Kamall, and other noble Lords.

The noble Baroness, Lady Bennett, argued that the Bill is non-compliant with the UN Convention on the Rights of Persons with Disabilities. The measures in the Bill give patients greater choice, enhanced rights and support, and seek to ensure—I know that noble Lords want to probe this—that everyone is treated with dignity and respect throughout their treatment, and that the treatment is appropriate to the situation. It is the view of the Government that the Bill is compatible with the convention. Detention under the Act is not based merely on the existence of disability: that is something I really want to emphasise. Detention is risk-based. Detention and other compulsory measures are permitted only where they are justified by the risk posed by a person’s mental disorder and, through the Bill, I hope that we are very much strengthening the criteria for detention. We will come back to this later in Committee.

Amendment 4, tabled by the noble Baroness, would leave out Clause 3 and put in a new definition of mental disorder to remove learning disability and autism from the scope of the Mental Health Act entirely. This would mean that a person could not be dealt with under any section of the Act on the grounds of learning disability or autism alone. We very much recognise the arguments for removing these conditions from the scope of the Act, but there could be unintended consequences in the removal of critical safeguards. I know that the noble Baroness does not wish to cause that effect.

For example, the Bill retains the ability to detain people under Part II, Section 2, for a maximum of 28 days, for the purpose of assessment. That can be necessary both for the safety of the individual and the public, and for a clinician to understand fully whether a treatable mental health condition is the cause of the behaviour. I suggest that this is particularly important when considering conditions associated with high rates of co-occurring mental health conditions. Without these powers, there is a risk that the mental health needs of these groups of people are not identified or met appropriately, leading to further health inequalities for this group of people. I know that is not something that noble Lords would wish.

[Baroness Barker (LD)]

I have not spoken in this debate so far, but I have listened intently to everything that everybody has said, including the noble Baroness, Lady Murphy. Members of the Select Committee will remember—they could not forget—the evidence given to us by particular witnesses who have autism and have been through the trauma of being detained. They made to us, unforgettably, the point that there are some people with autism and learning disabilities for whom detention is an aggravating factor.

I happen not to agree completely with the noble Baroness, Lady Bennett, that there should be an end to all detention, although I have some sympathy with her arguments. I believe there are people for whom detention is necessary—both for them and for the safety of others—but they should be held in mental health facilities and not the criminal justice system.

I listened intently to the noble Baroness, Lady Murphy. I understand that it may be absolutely correct to define people with autism and learning disabilities as having a disorder, but we have moved on over 20 or 30 years to understanding that their manifestations and treatment are different from those of other mental health conditions. There is therefore a problem in having the diagnosis and treatment carried out by the same people. I hoped that she would explain, but she did not, why keeping people within the definition would improve their care.

[Baroness Barker (LD)]

I am sure that the noble Baroness would. Does she accept that for some people, particularly those with autism and learning disabilities, being held in conditions that are noisy, filled with light and full of people they do not know—in which they are made to feel completely powerless and do not know what will happen to them next—will be a contributory factor to their illness? I make that point to the noble Baroness, Lady Merron. She talks about choice, but what increased protections are there in this Bill for people with autism or learning disabilities who find themselves in detention, which is an aggravating factor causing them to be wrongly diagnosed?

[Baroness Merron (Lab)]

I will be pleased to come back to that point. I think agreement broke out for a moment, which I would share, on the fact that detention takes many forms. It is about getting the right form and being sensitive to the needs of the individual, which is what the Bill is all about. I am grateful for those comments.

To pick up my point about the expert consultation that has taken place, a decision was taken to retain the ability to divert people who are autistic or have a learning disability, who have committed a crime, from prison to hospital under Part III of the Act. Without this safeguard, the only alternative to detention in hospital is detention in prison. Noble Lords have referred in this group to how, often, this would be inappropriate in meeting those people’s needs and would exacerbate and manifest distress. On balance, we believe it is right to retain the ability to divert such patients to hospital, where they are much more likely to access the right kind of support and care that they need.

The noble Baroness, Lady Bennett, raised concern about resourcing implications for local authorities. I refer her to the impact assessment, which sets out anticipated costs, including a breakdown of costs for councils. I assure her that we will do further work with MHCLG to assess any new burdens on local authorities created by the Bill. We are very alive to that situation.

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[Baroness Browning (Con)]

The Minister will not be surprised to hear that I like what she just said. Is there no way she can put that in the Bill under a government amendment?

[Baroness Merron (Lab)]

I am grateful for the invitation, as always. Government amendments will be considered as we progress through Committee, but I say that as a broad point, as I know the noble Baroness understands.

The intention of the provisions in the Bill on registers and commissioning is that people with a learning disability and autistic people are not detained but supported in the right way. The proposed changes to Part II, Section 3 will be commenced only where there are strong community services in place.

[Baroness Berridge (Con)]

I am aware of how much time the Minister has given and how generous she has been in allowing interventions. If she is minded on Amendment 5, can she outline whether she is proposing that there would be the special tribunal that the Joint Committee outlined? If so, how would she then deal with these issues for under-16s in respect of DoLS and for vulnerable adults? When there is no legal basis at all, it is then left for clinicians to detain anybody after the 28 days.

[Baroness Merron (Lab)]

I became a little worried, listening to the noble Baroness, Lady Berridge, that perhaps I had been a bit too generous.

[Noble Lords]

No.

[Baroness Merron (Lab)]

I am sure that I have not been generous enough. I cannot give a commitment to government amendments on any of these areas. As noble Lords will be aware, that is the purpose of the kind of debate that we are having in Committee. However, we will certainly return to these matters.

The Mental Capacity Act protects people subject to arrangements that may amount to a deprivation of liberty in hospitals, care homes and other settings, by allowing a deprivation of liberty only when it is necessary and proportionate. There are instances when it is important that the Mental Capacity Act can be used to protect and to safeguard people where appropriate, and we do not want to lose that aspect.

The concern about the amendment is that it might have the effect of undermining decision-making, or of denying a specified group of people the right to protections under the Mental Capacity Act—although I know that this is not intended. I will give an example. Where a person lacks capacity but does not have a psychiatric disorder that requires treatment, there may be elements of that person’s care plan and arrangements that require deprivation of liberty safeguards to ensure that they can access the community safely and maintain a safe home environment. Similarly, certain specialist community placements are also registered hospitals, so the proposed amendment could unintentionally—I stress “unintentionally”—remove such provision as a viable community-based option, where the individual lacks capacity but would benefit from this placement as an alternative to in-patient care.

The noble Baroness, Lady Berridge, rightly made some comments about the statistics for LDA detention rates. I assure your Lordships that the data and statistics being referred to are absolutely key. They are collected and published, and they will continue to be monitored. If there are any matters where the noble Baroness or other noble Lords feel that we should go further, I would be very pleased to receive their comments.

On the point raised by the noble Baroness, Lady Berridge, about the use of High Court deprivation of liberty safeguards for children, I will refer to the action of the previous Government, which I hope will be seen as very helpful. In 2023, a task and finish group was established called “Improving cross-sector support for children in complex situations with multiple needs”. It was made up of a number of central government departments, operational local agencies and representative bodies, the NHSE and the Youth Custody Service to represent the voice of children and young people, as well as the Children’s Commissioner. This group has been developing a cross-sector response to help ensure that there is suitable provision in place for children and young people with complex needs who are at risk of being deprived of their liberty. To that point, I will take a particular interest in the task and finish group and its work, and we may come back to it.

[Baroness Barker (LD)]

I thank the Minister for giving way again. Listening to the noble Baroness, Lady Browning, set out and explain her amendments, it seems to me that they require the people making the decisions about whether to detain somebody to be clearer about which law they are using to decide to detain at a particular point for a particular person. As I understand it, they are not excluding or preventing the use of either bit of legislation for an individual; they seek just to have greater clarity about which legislation is being used and why, and therefore what protections the person will have. The Minister said that, if these amendments go through, some people will, somehow, be excluded from the correct treatment. Is there a particular group of patients or conditions that are at risk if the amendments tabled by the noble Baroness, Lady Browning, are implemented? Can the Minister give us some examples? Otherwise, I fail to see the logic of what she is saying, given the explanation that the noble Baroness, Lady Browning, gave the Committee.

[Baroness Browning (Con)]

I agree. The amendment seeks to strengthen and to clarify, rather than to make changes that would be completely different to what is intended in the Mental Capacity Act.

[Baroness Merron (Lab)]

I am grateful for the noble Baronesses’ comments. I will come back with some examples before I sit down, because that is a very good suggestion. If I fail to do so, I will gladly provide them in writing.

Amendment 35, tabled by the noble Baroness, Lady Murphy, intends to provide a route to detain people with a learning disability and autistic people who do not have a diagnosed psychiatric disorder. Detention could be authorised only with the approval of the tribunal in “exceptional circumstances”, with power to provide guidance on what those circumstances will be in the code of practice. The amendment seeks to address the needs of those with a learning disability and autistic people, with whom I know the noble Baroness is concerned, where a considerable risk is being posed in the community, but who do not also have a diagnosed psychiatric disorder warranting detention for treatment under Part II, Section 3.

Our clear intent throughout the Bill is that people should be detained beyond Section 2 only when they have a psychiatric disorder that requires hospital treatment. It is our feeling that this amendment runs contrary to that intent. I am also grateful to the noble and learned Lord, Lord Hardie, for his comments on Amendment 35.

We also have some concerns about the scope of the “exceptional circumstances”, which would potentially result in a position no different to the current effect of the Act. It is unclear, in advance of the code of practice being developed, how broadly this might be defined. There would be considerable scope for different, divergent approaches in comparable cases, which, again, I know is not the intent of noble Lords.

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[Interruption.]

[Baroness Merron (Lab)]

I am sure that the noble and learned Baroness’s yawn speaks for many.

[Baroness Butler-Sloss (CB)]

I apologise.

[Baroness Merron (Lab)]

There is no need to apologise.

I am pleased to provide the reassurance that the proposed changes to the Section 3 detention criteria mean that it would no longer be possible to detain someone with a learning disability or an autistic person under Section 3, unless they have a psychiatric disorder. Additionally, the Act already requires a statement of rationale for detention and statutory forms. The registered medical practitioner will have to confirm that the patient meets the criteria for detention, including that they are suffering from a psychiatric disorder requiring hospital treatment and not just that the patient has a learning disability or is autistic. I hope that will be of reassurance to the noble Baroness.

For the reasons I have set out in respect of all the amendments—I thank noble Lords for them—I ask the noble Baroness to withdraw hers.

[Baroness Bennett of Manor Castle (GP)]

I thank the Minister for her rich and full response, and indeed all noble Lords who have taken part in this important debate. It has been long but that has been quite necessary. I thank the Minister particularly for responding directly to my question about the UN Convention on the Rights of Persons with Disabilities. I do not agree with her response but I appreciate that she engaged fully with it, so I thank her for that.

I will not go through and summarise all the contributions, but I just want to make two points, which are perhaps specifically directed to the noble Lord, Lord Kamall, and the noble Baroness, Lady Murphy. A phrase which has been missing from our whole debate is the “social model of disability”. That is the idea that society is discriminatory, and that people are disabled by the barriers in society, not by their difference. That position was endorsed by the Government Equalities Office in 2014, and so far as I know, that still holds, and it is preferred by most disability charities.

I invite noble Lords to consider another phrase in this healthcare space, which is “parity of esteem”. I think that when we come to the social model of disability and physical disabilities, most people have now accepted that if there are only steps and not a ramp, that is a failure of society, not the failure of the person in the wheelchair. However, we have not heard in this debate an acknowledgement of the same parity of esteem—the same approach to mental disability as we have accepted towards physical disability—and we should consider and think about that.

In that context, just to pick up a couple of points from the Minister, she talked about how people with autism or learning difficulties can be detained for aggressive or irresponsible conduct. The Trieste model—if I can call it that—which is being adopted by many countries around the world, asks: “Can we intervene before that point and ask what has provoked that person? Can we intervene before we need to detain someone?” That needs to be very carefully considered.

The other point that the Minister addressed, which I confronted myself with, asking why I did not table the broader amendment that I might have done, is what happens when people get to the point of being a danger to themselves or—I stress that this is extraordinarily rare—a danger to others as a result of a mental disorder. Again, how did people get to that point, and should there not be services and support and community wraparound in the Trieste style? I do not think that any nation or area is saying that it has totally got to that point, but surely we should be aiming at that.

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[The Earl of Effingham (Con)]

My Lords, this group of amendments aim to strengthen provisions for care (education) and treatment reviews—CETRs, as we have heard—for individuals with autism or a learning disability. These amendments collectively aim to address gaps in the current drafting and ensure that the needs and rights of these individuals are fully considered and respected.

This reflects the dignity, respect and patient-centred care principles that strengthen the Bill. Amendments 6 and 12, in the name of the noble Baroness, Lady Barker, highlight the importance of considering housing needs during care (education) and treatment review meetings. A stable, safe and appropriate home environment is a critical determinant of mental health and well-being. Failure to address housing can undermine the effectiveness of care plans, leading to avoidable crises, as the Minister put it earlier, and setbacks that can risk damaging the long-term success of these care plans. Can the Minister please clarify how housing needs will be integrated into the CETRs under the current provisions of the Bill?

Amendments 8 to 10 and 15 to 17 focus on ensuring that the CETR process is inclusive and transparent. These amendments expand the list of those who should receive CETR reports to include the patient, their nominated person, independent mental health advocates and, where relevant, their parent or guardian. These measures should help foster trust and collaboration in the care process and create a more holistic approach to care planning by ensuring that all key individuals are kept informed. Can the Minister please confirm whether the current drafting of Clause 4 sufficiently addresses these inclusivity concerns or whether these amendments are necessary to achieve that goal?

Amendments 19 and 20 address the issue of ensuring that recommendations from CETRs are acted upon. It is not enough for reviews to generate reports and recommendations: there must be a clear and enforceable duty on integrated care boards and local authorities to act on them. Amendment 19 would strengthen this by replacing the current requirement to “have regard to” recommendations with a “duty” to carry them out; while Amendment 20 ensures that “a compelling reason” must justify any deviation from these recommendations.

These amendments reflect the frustration often experienced by patients and families when well-intentioned recommendations are not implemented. A stronger duty to implement recommendations would not only improve outcomes but restore trust in the system. Can the Minister outline how the Government intend to ensure that recommendations from CETRs are indeed implemented effectively?

Amendment 13 highlights the importance of addressing communication needs during the CETR meetings. It is highly welcome that the issue of communication and language has been addressed by so many noble Lords. Effective communication is essential for patient-centred care, ensuring that patients can meaningfully participate in that very care. Ensuring that individuals’ additional or alternative communication needs are met is not merely a courtesy, it is a necessity and a must-have. This group of amendments highlights the importance of a holistic, inclusive and accountable approach to care and treatment reviews. They seek to ensure that the needs of patients, including those related to housing, communication or support networks, are fully recognised and addressed. They also emphasise the need for timely reviews and actionable recommendations backed by clear accountability mechanisms.

His Majesty’s Official Opposition are broadly supportive of the aims of these amendments, and we look forward to the response from the Minister.

[Baroness Merron (Lab)]

My Lords, I am grateful to noble Lords for their amendments and contributions today. It seems a while ago that the noble Baroness, Lady Barker, originally spoke, but I put on record that I hear her frustration about having been here before. I certainly acknowledge that; and I am grateful for the contribution and time that noble Lords have given to this really important matter, so that perhaps, finally, we will not have to keep going where we have been before.

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[Baroness Butler-Sloss (CB)]

I entirely understand what the Minister has just said, although I do not agree with her, but the point she made about other persons is not contained in the clause that I was complaining about.

[Baroness Merron (Lab)]

I am grateful to the noble and learned Baroness for making that point, and I will gladly review this in the light of it.

To return to the specific amendments, they would ensure that the patient, the patient’s nominated person, the independent mental health advocate and the parent, guardian or other person with parental responsibility receive in all cases a copy of the report following a care and treatment review meeting—or a care (education) and treatment review meeting for children and young people. The current drafting of the Bill is intended to make clear that a copy of the review report must be provided to those who have a legal duty to have regard to the review recommendations, so that any recommendations are implemented as appropriate.

We recognise that there may be individual circumstances that mean it is appropriate for the report to be provided to other people, including the patient themselves. For children and young people, this report is most likely to be shared with a parent, guardian or other person with parental responsibility, but it is important that the legislation does not inadvertently create a legal requirement that must be complied with, which would not be appropriate for every person.

A longer list of people with whom the report must be shared, in every case, may increase the chance of an individual withdrawing the consent for a review to be held if they do not wish for some or all the people to see the report. There may also be circumstances in which the report should reasonably be shared with other people in addition to those set out in the amendments—for example, a family member who has been part of the review process with the patient’s consent but is not the patient’s nominated person or someone with parental responsibility.

We have tabled a government amendment to make it clear that the arrangements may include provision authorising or requiring a copy of the report to be given to other persons, so that the patient may also ask that a copy be provided to others or decide to provide it to others. Statutory guidance will help assist the responsible commissioner when exercising its functions, including when considering other persons who are to receive the report. We wish to allow flexibility for this, so that individual circumstances can be taken into account based on the needs of the patient and their wishes, rather than by providing a prescriptive list of people to whom the report is to be sent in every circumstance.

[Lord Scriven (LD)]

For clarification, is the Minister therefore saying that the Government’s amendment will lead to some statutory instrument, or will it be just at the discretion of the Minister to determine a list and change it without any scrutiny?

[Baroness Merron (Lab)]

I am approaching this without going down the amendments’ route of having a fully prescriptive list, which might have unintended consequences.

[Lord Scriven (LD)]

I really need to understand the intent of the Minister’s Amendment 17

“authorising … a copy of the report to be given to other persons”.

How do the Government intend to draw up that list, to change it and to make it public, so that people know that they are appropriate persons and might be able to get the report?

[Baroness Merron (Lab)]

I hope it helps to advise that the responsible commissioner will be key to all that. I emphasise the need to design around the patient and their needs. If there are further points that I need to look at on this, I would be very pleased to. I am grateful to the noble Lord for raising it.

Amendments 10 and 17 are technical and minor government amendments that make it clear, for the avoidance of doubt, that the responsible commissioner may make arrangements for a care and treatment review report—or a care (education) and treatment review report for children and young people—to be provided to persons other than those listed in the clause. They could, for example, be those who have an interest in the recommendations because they are involved in the review process, such as an independent mental health advocate, a nominated person or a professional involved in the patient’s care and treatment. This would be subject to the patient’s consent. We believe that this is important to clarify, since the review process is likely to involve more people than those who are listed in the legislation, although this will vary according to the individual and their needs and circumstances.

In addition, the Bill makes specific provision to clarify which persons and bodies are to receive the report in every case to ensure that they can comply with their duty to have regard to the review recommendations. I hope that these government amendments find favour with noble Lords.

Amendments 11 and 18 were tabled by the noble Lord, Lord Scriven, who raised the point that around a third of people have no CETR or CTR. My response is perhaps to provide the assurance that that is exactly why we are putting them on a statutory basis. It seems that Amendments 11 and 18 are intended to reduce the maximum amount of time between CTRs for adults and CETRs for children and young people from 12 months to six months following a patient’s initial review meeting. These amendments would apply to children and adults.

I listened closely, as I have listened closely to all comments from noble Lords, but we believe that these amendments are somewhat unnecessary. Current drafting provides that review meetings take place at least once in a 12-month period, in line with the maximum timeframe within NHS England’s policy and guidance. This is in addition to the requirement that arrangements must be made for everyone to have a review promptly upon admission, within 14 days for children and 28 days for adults. Commissioners should use their judgment to determine the frequency of subsequent reviews, in line with the specific needs of the patient. Patients, their families and advocates can also request a review meeting at any point.

There will be statutory guidance to provide commissioners with further information on factors to consider when determining whether more frequent reviews should take place. I understand the noble Lord’s point, but I hope that helps. For example, it is current practice that children under 18 have a review meeting every three months, and this would be articulated in the guidance. We consider it preferable to set out this information in statutory guidance, which can provide detailed case studies. That would not be possible if we set it out in the same way as primary legislation, not least because guidance can be readily updated in line with emerging best practice, including on frequency and considering particular circumstances.

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[Lord Scriven (LD)]

I have listened very carefully to the Minister about flexibility. Why is 12 months in the Bill? All I am trying to do is to change a statutory timeframe that the Government have put in the Bill to six months. That flexibility is not there because 12 months is in the Bill. I am trying to move that fixed point from 12 months to six months, regardless of what guidance says.

[Baroness Merron (Lab)]

Yes, I understand the intention, but I refer back, perhaps usefully, to the point I made earlier that review meetings would take place at least once in a 12-month period; it is not a maximum—I think I have got it the right way round. It will be at least once in a 12-month period; it is not that it can be only once in a 12-month period. That is, as I said, in line with the maximum timeframe in NHS England’s policy and guidance.

Amendment 13 tabled by the noble Baroness, Lady Tyler, relates to care and treatment reviews. The amendment seeks to ensure that a patient’s review makes recommendations about ensuring communication needs are met where there are additional or alternative communication needs. That is something we discussed very constructively in the first group and it was referred to by the noble Earl, Lord Effingham. We believe that current drafting already provides for that in the Bill.

As set out in the clause, those meetings are to review any needs of the patient for social care or medical treatment and can make recommendations about whether and how those needs can be met. This should include recommendations about the patient’s communication needs, which may be important in ensuring that their treatment is effective and to support their discharge from hospital. As set out in the clause, a number of named persons and bodies are to have regard to the recommendations of the review. That will give them the appropriate legal weight to ensure that they are considered and that there must be clear reasons if they are not taken forward.

The Bill also introduces statutory care and treatment plans for all patients detained under the Act, excluding those under short-term sections. We plan to set out the required contents of the statutory care and treatment plan in regulations. It is our intention that this includes information about communication needs to enable the treating clinician to consider the protected characteristics and individual needs of the patient, which speaks to the point I made in the first group to my noble friend Lady Whitaker, and to make reasonable adjustments. Regulations will also require that the report from a patient’s care (education) and treatment review is attached to the care and treatment plan so that recommendations are included as part of this.

Finally, I turn to Amendments 19 and 20, tabled and supported by the noble Lord, Lord Scriven, and the noble Baronesses, Lady Hollins and Lady Bennett. These amendments seek to ensure that there is a duty on integrated care boards and local authorities to carry out recommendations from a patient’s CTR, or CETR if the patient is a child or young person, unless there is a compelling reason provided for why a recommendation cannot be carried out. I thank the noble Baroness, Lady Watkins, and the noble Lord, Lord Stevens, for their differing but nevertheless significant contributions.

These review recommendations should be given the appropriate legal weight to ensure that they are given serious consideration. We have decided to include these provisions in the Bill to put the existing NHS England policy on a statutory footing.

The duty to “have regard” is a well-established duty that clinicians, ICBs and other public bodies are used to applying and it already exists within the Act. The noble Earl, Lord Effingham, asked how the Government will ensure that these recommendations are implemented effectively. I hope that my comments will assist the noble Earl. Where effective care and treatment is the central aim, we would expect careful consideration of all recommendations. Where those bodies decide not to accept a relevant recommendation, we would expect them to have very good reasons for making that decision. It is an appropriate duty in this context because we do not intend to place an absolute duty on a body to follow recommendations in every case—that would be incompatible with understanding the individual needs and requirements of the person concerned.

The legislation must not impose unreasonable duties on relevant bodies that they cannot fulfil or where it would be inappropriate for them to do so; for example, if a recommendation was made that was outside of their purview. The Bill already requires that certain named persons or bodies carefully consider the recommendations and give them appropriate weight.

In view of all those comments, I thank noble Lords and ask that they do not press their amendments.

[Baroness Barker (LD)]

My Lords, I thank everybody who has taken part in the debate on this group of amendments. We were, in essence, trying to get answers to the following questions. Who is responsible for drawing up the care plans and for reviewing the care (education) and treatment reviews? Who is responsible for ensuring that what is in those plans is compliant with the law? Who is responsible for making sure that it actually happens? Who is responsible for finding out whether it has not happened? Who carries the can if it has not happened?

At various points in the Minister’s answer, I was quite hopeful, then, towards the end, we went down the slope quite badly, because it turns out that, apparently, duties will not be put on people, and that is highly regrettable. The Minister does not need to explain to the Committee the difference between a statutory code of practice and a statutory instrument; the issue my noble friend was trying to get to is the extent to which Members of this House will see that these plans reflect what was intended in the law and what scope they will have to call it out if they do not.

I am pleased that it will be a statutory code of practice. That is one step up from nothing—it is not great, but it is better. I am also glad that the Minister said that care and treatment plans will be put in regulations. Will those regulations be done under the affirmative or the negative procedure? That is quite important. In light of all our discussions, we in this House should have the chance to examine that at considerable length and, if it is not right, to have a second go at it.

It is always salutary to sit and listen to the noble and learned Baroness, Lady Butler-Sloss, on the subject on which she is quite rightly famous, not just in the House but outside it. I listened to her strong statement. She will know from other discussions that we have had on the wider subject of health that I have said many times, and I believe it to be true, that we have a health and social care system that is openly predicated on people’s families doing much of the work, and that is never more so than when it comes to discharge. She will have heard me bang on about this before, but I have a considerable degree of concern about what happens to people who do not have families or children. We have never done research on hospital discharge, but I suspect that, if people do not have a relative standing by the bed saying, “No. You are not discharging this person because they are not fit to go home”, they end up being discharged far too early, and I suspect they then go back into hospital as acute admissions a result of that.

That said, I understand what the noble and learned Baroness says about the involvement of parents. However, in 10% of cases, the parent is not the right person. We have heard that in evidence before, which she may recall, where young people who have been subject to mental health treatment have talked about problems within their families. Similarly, people under the Mental Capacity Act have sometimes been the subject of overbearing, overprotective parenting that they have found to be detrimental to them. I am not being anti-parent or asking that parents be excluded. Nobody knows better than the noble and learned Baroness that families are complex, and, as the Minister said, we must make sure that there is the scope to do the right thing for a child.

--- Later in debate ---

[Baroness Barker (LD)]

It is getting late, and people wish to have their dinner because they been here a long time. I think we have had a partial response from the Minister. I believe that care and treatment plans and reviewing them are sufficiently important that some of us will want to go away to see whether, on issues that we may not have got technically right, we can come back, perhaps in discussion with the Minister, to satisfy ourselves.

[Baroness Merron (Lab)]

When I review all of the debates, particularly where there are areas where we need further discussion or information, I will be glad to pursue that. I give that assurance to the Committee.

[Baroness Barker (LD)]

I thank the Minister and welcome that. I beg leave to withdraw the amendment.

Mental Health Bill [HL]

Baroness Merron Excerpts

Committee stage
Tuesday 14th January 2025 Lords Chamber

[The Earl of Effingham (Con)]

My Lords, I thank the noble Baroness, Lady Tyler, my noble friend Lady Browning, the noble Lord, Lord Scriven, and the noble Baroness, Lady Hollins—who sadly is not in her place today—for their amendments in this group.

Given that it is now widely accepted that we should be moving towards a system of health and care focused on prevention, these all appear to be sensible amendments. They seek to understand how integrated care boards and local authorities are identifying those with autism or learning disabilities, the risk of them being detained and, if appropriate, the risk to the community, as well as ensuring that those with autism and learning disabilities receive the appropriate level of care.

Amendment 28, in the name of my noble friend Lady Browning, specifies that local authorities must seek to ensure the needs of people with autism and learning disabilities can be met without detention when they are exercising not only their market function but their commissioning functions. This acknowledges the roles that local authorities play in commissioning health and social care. Local authorities commission publicly funded social and healthcare services, many of which interact with mental health service provision, such as authorised mental health professionals and addiction services. By explicitly mentioning the commissioning functions of local authorities and not just the market functions which arise out of the Care Act 2014, this amendment gives the Bill greater clarity.

The noble Baroness, Lady Hollins, has tabled Amendments 36 and 37 in this group, which relate to the provision of community services for autistic people. These amendments are in a similar vein to Amendment 139 in the name of my noble friend Lord Kamall, which will be discussed in the next group and which seeks to ensure a greater availability of community services. Amendments 36 and 37 expand the duties on integrated care boards and local authorities to provide better and more responsive care to those on dynamic support registers.

Of particular interest is subsection (3)(a) of the new Section 125I proposed in Amendment 37. That new provision states that integrated care boards must

“establish digital systems to … assess, monitor, and address sources of inequality”

arising out of the current provision of mental health care. As my noble friend Lord Kamall has been keen to stress, digitalisation in health and social care is the way forward for improving productivity and ensuring the best possible care outcomes.

I know the Minister believes in the value of the expanded use of technology and digital systems, and it would be welcome if she could give some commitment here. When we hear from her, we would be interested in whether there are any legal reasons for not being able to accept what these amendments seek to do, such as around issues of privacy, or whether the barriers are financial. We very much look forward to the response of the Minister.

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

My Lords, I am most grateful to the noble Lords present for their contributions this evening. Perhaps I can make a general point to the noble Baroness, Lady Tyler, and the noble Earl, Lord Effingham, about the main pillars of change which we look forward to in the 10 year-plan. The noble Earl has just referred to one of them, which is the move from analogue to digital. In that context—the noble Baroness raised a point about parity between mental health and physical health—the moves from sickness to prevention, from hospital to community and from analogue to digital apply at least as much to mental health as they do to physical health. That is our way forward. I am looking forward to the 10 year-plan to really give structure to that.

Let me turn to Amendment 21, tabled by the noble Baroness, Lady Tyler. This amendment seeks to ensure that the register under new Section 125D includes autistic children and children with a learning disability who have risk factors for detention, so that they can be supported in the community. We absolutely agree with the intention behind the amendment, although I have to say that it is regarded as unnecessary because the current drafting does not limit the duty to adults; it includes anyone who meets the other criteria, including children, which I know the noble Baroness is rightly looking for. The register is designed to provide health and care bodies with additional information about the needs of those with a learning disability and autistic people who have risk factors for detention under Part II of the Act. That is to ensure there is a particular focus on their needs, so that they can be better supported in the community.

The noble Baroness, Lady Tyler, made the observation, which I understand, about too many children being left to reach crisis point and the increase in the number of children in need of mental health services, particularly over the last three years. I very much recognise this concern. We have seen an increase in referrals and access across children’s and young people’s mental health services, including crisis services. This is due to an expansion of the services to meet need but also to an increase in prevalence and intensity. It might be helpful if I indicate that NHS England is in the process of developing proposals for a new model of specialised children’s and young persons’ mental health services, supported by a new service specification and quality standards. This new approach would support delivery of specialised services in the community, as well as in appropriate in-patient settings close to the child’s or young person’s family and home. That is a matter that has been raised many times in this Chamber and one that I am very sympathetic to.

Amendment 22 was tabled by the noble Lord, Lord Scriven, and supported by the noble Baroness, Lady Browning. If taken forward, this amendment would require each local authority to assist the integrated care board in its duties in respect of support registers for people with a learning disability and autistic people. We certainly agree with the intent of this, and I am pleased to be able to provide reassurance that the clause already provides the Secretary of State with the general power to make further provision about the register in regulations. We expect this to include detail on how relevant information is to be obtained and from whom. This is to include the role of local authorities, alongside other relevant health and care bodies, in providing further relevant information.

We believe that it is most appropriate to include this detail in regulations rather than in primary legislation, since the way in which information is obtained, what information is obtained and who might be involved may change with emerging best practice. As noble Lords will realise, that point has been made in respect of a number of these amendments. Returning this to Parliament at every instance would be disproportionate.

However, it is important that the process actively involves health and care system partners. We are clear that the integrated care board must retain overall responsibility for the register. Providing a list of named bodies that have a role in providing information in the legislation may create an unintended diffusion of responsibility, which could negate the benefits of putting these registers on a statutory footing.

[Lord Scriven (LD)]

I am sorry to interrupt the Minister in mid-flow. She has just explained why it would be wrong to put the process for collecting the data in the Bill, with which I completely agree, but my amendment does not seek to do that. It seeks to make it a legislative requirement of local authorities to be part of the process.

The reason I have tabled the amendment—and I am sure it is the same for the noble Baroness, Lady Browning, in putting her name to it—is that NHS England’s figures say that a lot of people who are admitted to hospital, 52%, are not on the register, but many will have come into contact with the local authority. That is why it is important for the Bill to make local authorities part of the process of identifying who should be on the register. That would subsequently allow the Government to provide statutory guidance about the collection of the data, but it is important that there is a statutory duty in the Bill to do that.

[Baroness Merron (Lab)]

I thank the noble Lord for adding to the points that he made in response to my comments and the assurances that I have just given, and I am happy to review them. I understand the intent.

Amendments 24 and 29, tabled also by the noble Lord, Lord Scriven, seek to impose a duty on integrated care boards and local authorities to consider information in the register, or obtained by virtue of this clause, when exercising certain existing functions. I strongly agree with the principles behind these amendments, although it is considered that the current drafting in the clause, which requires both integrated care boards and local authorities to “have regard to” the relevant information, already achieves the intended effect. The common duty to have regard is one that both integrated care boards and local authorities are familiar with and used to applying. In this context, we expect this duty to result in careful consideration being given to the information.

Departing from the wording of a well-established duty could create ambiguity, leaving it to the interpretation of individual integrated care boards and local authorities. As I can see the noble Lord agrees, that would be a very undesirable outcome. It may inadvertently create a weaker duty than that set out in the Bill or lead to variation in interpretation and response to the duties.

If Amendments 25, 26, 30 and 31, tabled by the noble Lord, Lord Scriven, were taken forward, they would put a duty on integrated care boards and local authorities to ensure that the needs of people with a learning disability and those who are autistic could be met without detaining them, unless there was a compelling reason why that was not possible. A point was raised, including by the noble Lord, Lord Crisp, about difficulties in enrolment on dynamic support registers and the need to address that in the Bill. DSRs are part of existing NHS England policy and we have heard that they can be effective in preventing hospital admissions. That is why we propose putting these important registers on a statutory footing and making them a requirement.

The Bill already places duties on integrated care boards and local authorities to seek to ensure that the needs of those with a learning disability and of autistic people can be met without detaining them under Part II. This is a legal requirement to ensure that particular attention is paid to the needs of people with a learning disability and of autistic people, and that services should be commissioned accordingly.

Adult Social Care: Long-term Workforce Plan

Baroness Merron Excerpts

Monday 13th January 2025 Lords Chamber

[Baroness Pitkeathley]

To ask His Majesty’s Government what steps they are taking to develop a long-term workforce plan for adult social care, similar to the NHS workforce plan.

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

My Lords, as the social care system in this country is failing, we are therefore launching an independent commission into social care to gain cross-party consensus and lay the foundations for a national care service. The commission will look at how we recruit, retain and recognise the workforce, building on work that is already under way to provide a career structure, to give care professionals greater skills and to legislate for the first ever fair pay agreements.

[Baroness Pitkeathley (Lab)]

I thank my noble friend the Minister for that response and remind her that, when it comes to social care, time really is of the essence. Does she agree that one of the real problems we face is the great difference in status between those who are employed in the NHS and those who are employed in social care? Could next steps, therefore, including the work of the commission, include looking towards developing a workforce that is much more flexible, so that it can actually work across both disciplines—for example, working with a patient in hospital and following them when they are discharged into social care—for the benefit of patients, users and their families?

[Baroness Merron (Lab)]

My noble friend is right that it is important that we have a workforce built around the needs of patients, rather than patients having to be worked around the needs of the workforce. I certainly hope and intend that, as we go forward, we will see much more of this flexibility. I share her view that time is of the essence and I also know that my noble friend and your Lordships’ House also understand that it is very important that we get this right.

[Lord Scriven (LD)]

My Lords, the turnaround rate for social care staff was about 30% last year, so retention is clearly an important issue. However, the Government have not helped the situation since July by cutting £115 million from the adult social care training budget. What will the Government do to mitigate this cut and try to help retention within such a vital service?

[Baroness Merron (Lab)]

Retention is absolutely crucial. I was looking—as I know the noble Lord also does—at the vacancy rates and they are currently running at some 131,000. However, I was interested to note that they are not actually the best measure of capacity, or lack of it, because those vacancies can reflect new roles and short-term vacancies because of anticipated staff turnover. So I have had to rein myself in when looking at the relevance of vacancy rates.

On retention, there is a whole range of factors. In the immediate, I say to the noble Lord that we are professionalising the workforce by expanding the national career structure and have developed and launched a level 2 adult social care certificate qualification.

[Lord Kamall (Con)]

My Lords, as the Government and the NHS introduce new workforce patterns to take account of changes, surely they should also take account of advances in technology. Recent years have seen the successful testing of virtual wards in the NHS to treat and monitor patients who can be discharged from hospital but who require further care. They can be monitored in their home, freeing up capacity in hospitals. Given this, what are the Government and NHS doing to extend virtual social care to monitor care for social care patients? It would allow them to remain in their home for longer, where they are more comfortable, and it could be one of the many ways to alleviate workforce shortages in the social care sector.

[Baroness Merron (Lab)]

I myself have seen some tremendous examples of the use of technology in allowing people to be in the right environment for themselves and their situation. I assure the noble Lord that we are continuing to work to develop medical technology, not just getting it rolled out and applicable but developing new medtech where necessary.

Perhaps I could use this opportunity to make an allied point. We have also published new guidance on safe delegation to care staff, which I hope will also help professionalise the workforce. We are working to support that across the country. That includes, for example, having care staff taking blood pressure. These are simple but obvious measures that I think work for everybody.

[Lord Laming (CB)]

My Lords, the Minister will realise that the workforce in social care is not as varied as in the National Health Service. However, that is not to underestimate the fact that there are staff working in clients’ homes, day centres, residential units and office-based organisations. Will she ensure that, when the workforce is being considered in social care, it will be considered in the round and not just in a narrow way?

[Baroness Merron (Lab)]

I can give that assurance to the noble Lord, and I am glad he has identified to your Lordships’ House the wide range of circumstances in which the workforce might be. For the benefit of your Lordships’ House, I should add that, in their manifesto, the Government made a commitment to

“ensure the publication of regular, independent workforce planning, across health and social care”.

We are currently developing advice on the options about how to fulfil this commitment for adult social care, which will take account of the point the noble Lord made.

[Lord Turnberg (Lab)]

My Lords, one of the major problems is that most care workers are employed by privately owned care homes, both large and small. Many of these employees are on zero-hour contracts—it is a mess. How does one ensure that we have a national workforce plan if we have all these workers in various organisations? We must bring them all together and have a centrally regulated qualification that is nationally recognised. I hope I am not boring my noble friend by asking the same question: when are we going to get a nationally recognised qualification and registration?

[Baroness Merron (Lab)]

My noble friend is never boring and certainly does not bore this Minister. I very much take the point about the difference between the social care workforce and the NHS workforce, because the majority of the jobs in social care, as my noble friend says, are in the independent sector and the Department of Health and Social Care does not have the levers to ensure a development pipeline. However, this is a challenge for us to meet, not something to turn away from: it is a matter of working across the whole of the workforce, no matter where they are from.

On professionalisation, I agree that we need to enhance skills, because care needs to be of the right quality. I mentioned earlier the development of the care workforce pathway, which is a new career structure, and also that the level 2 adult social care certificate qualification has been confirmed.

[Lord Evans of Rainow (Con)]

My Lords, will the long-term workforce plan include the voluntary sector and the army of unpaid carers, such as family, friends and neighbours—in other words, care in the community rather than in care homes?

[Baroness Merron (Lab)]

The workforce plan will be about employed members of staff. On unpaid carers, I am glad to remind your Lordships’ House that, from April, we will be increasing the carer’s allowance weekly earnings limit from £151 to £196, which is the largest increase in the earnings limit since the carer’s allowance was introduced in 1976. I hope that gives some indication of the mode of direction of this Government in respect of unpaid carers.

[Lord Palmer of Childs Hill (LD)]

My Lords, was the Minister listening to the answers to the previous question on the problems with the charity sector? Does she believe that the restrictions on revenue in the charity sector will have an effect on her department as well?

[Baroness Merron (Lab)]

I was indeed listening very closely to the questions put to my noble friend, and have been asked them myself on a number of occasions in this House. On national insurance contributions, the Chancellor did take that into account when deciding the funding for the Department of Health and Social Care, and made available up to £3.7 billion of additional funding for social care authorities in 2025-26. In addition to other further uplifts, I want to identify the £86 million uplift in disabled facility grants that will promote independence and allow some 7,800 adaptations to be made to homes in the very near future.

NHS: Single-sex Provision for Staff and Patients

Baroness Merron Excerpts

Wednesday 8th January 2025 Lords Chamber

[Baroness Fox of Buckley]

To ask His Majesty’s Government whether they plan to issue guidance relating to single-sex provision for NHS staff as well as patients.

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

My Lords, all employers, including the NHS, are required to comply with existing law on single-sex facilities. In these cases, a common-sense and empathetic approach is needed. It is important that service providers have clear guidance about the Equality Act. We will consider whether further guidance is needed, including on how lawfully to apply its single-sex exemptions.

[Baroness Fox of Buckley (Non-Afl)]

I thank the Minister for that reply. I know that the Government value front-line health workers and I am sure that they are concerned to hear that NHS trusts are allowing ideology to deny nurses safety, privacy and respect at work. I am disappointed, however, that action is not more immediate. The Secretary of State, Wes Streeting, said that he was horrified by the case of the Darlington nurses being forced to share their changing facilities with a male colleague who identifies as female. Does the Minister agree that trusts need urgent guidance on this issue? I know that the Darlington nurses have submitted draft guidance to the department—

[Baroness Fox of Buckley (Non-Afl)]

Okay, the question is: can that guidance be brought forward, because nurses are being bullied and harassed at work around this issue?

[Baroness Merron (Lab)]

I am not sure that I can agree with the noble Baroness about trusts being driven by NHS ideology. All staff should be and must be treated with dignity, with their safety and privacy respected. Much of this is about practicalities and working with staff in the same way that other policies are worked with, and I would expect a common-sense and sensitive approach to prevail. The Secretary of State did indeed meet with the five nurses from Darlington regarding their concerns about single-sex spaces. We have indeed received a draft version of the guidance that they have produced and will reply to them at the earliest opportunity. However, the guidance that I would focus on is from the Government. We are looking at how we can assist all employers in complying with legislative requirements.

--- Later in debate ---

[Baroness Thornton (Lab)]

My Lords, would the Minister agree that once again we must reinforce the need to treat everyone with compassion, dignity and respect, especially in media reports that discuss protected characteristics and cases of alleged discrimination?

[Baroness Merron (Lab)]

I would indeed agree with the comments of my noble friend.

[Baroness Hunt of Bethnal Green (CB)]

My Lords, is the Minister considering any possible unintended consequences of this guidance? As a lesbian who is frequently told she is in the wrong toilets and who is addressed as “my Lord” and “sir” frequently around this place—which is always cute—does the Minister think there might be some unintended consequences for those who are not trans but perhaps do not fit the immediate, on-first-glance version of what a woman might look like? Perhaps we should let women determine their own sense of identity in these situations.

[Baroness Merron (Lab)]

I am sorry to hear of the noble Baroness’s experience, which I have heard her speak of before. To me, as I said earlier, it points to the need to treat people with respect, with dignity and without making assumptions. I cannot emphasise enough the need for sensitivity and respect, which applies to everybody.

While we are talking about changing facilities, we should think about the huge difference in shops over the years. There used to be communal changing rooms, but you would be hard pushed to find them now. People have private spaces for changing and this again applies to everybody. I recognise the challenge of the NHS estate, of course, but I am talking about creative solutions and working with staff to get to where we need to be.

[Lord Kamall (Con)]

My Lords, the noble Baroness is absolutely right to talk about dealing with this issue very sensitively, by respecting people’s dignity and acting with compassion. However, some NHS staff and patients—the noble Baroness, Lady Fox, referred to this—have asked for single-sex provisions to protect their privacy and dignity. If the Government are planning further guidance, how do they intend to achieve that difficult trade-off and balance in potential conflicts between single-sex provisions for NHS staff and patients and the rights of individuals under the Equality Act 2010, while respecting their dignity and acting with compassion?

[Baroness Merron (Lab)]

The noble Lord raises an interesting point. In all cases with guidance, that is always the balance we seek to reach. I am also interested in the history of this, and I am sure the noble Lord will remember that the 2019 guidance on trans patients in single-sex spaces proved somewhat controversial, if I might put it that way. The guidance was meant to be updated under the last Government, but this did not happen. I am advised that it was delayed by a dispute between the previous Government and NHS England, which also delayed proposed updates to the NHS constitution. These again were consulted on under the last Government—which was a good thing—but nothing actually happened. So all these come to us as a new Government and will be given full consideration to get us into the right place.

[Baroness Burt of Solihull (LD)]

In the last few weeks alone, we have heard about the range of challenges facing our NHS: physically collapsing hospitals, extensive waiting lists and a social care review, to name but a few. More guidance in areas of uncertainty is to be encouraged. However, given that only 0.55% of the English population is trans, where does the Minister think that this should come in the order of priorities?

[Baroness Merron (Lab)]

I know that everybody in your Lordships’ House will take the view that the NHS is there both as an employer—as all employers are; this is not specific to the NHS—and in its service to patients. It is there to treat all with the right dignity and respect. We have a legislative framework to which reference can always be made. We will see what further guidance is needed—and that may be to all employers, not just the NHS. Again, I cannot emphasise enough the need for careful consideration and the involvement of all staff, on what has to be a trust-wide basis, because everybody is different in terms of their estate and what their challenges may be. It is not as simple as numbers: it is about fairness and dignity for all.

[Baroness Hayter of Kentish Town (Lab)]

My Lords—

--- Later in debate ---

[Baroness Hayter of Kentish Town (Lab)]

NHS England wrote to me to confirm that any patient can choose the sex of a chaperone. Will the new guidance define what is meant by “sex” in that case?

[Baroness Merron (Lab)]

There is, of course, already a definition in legislation of what that means. I know my noble friend will understand that I cannot predict what the guidance will be, but I will certainly pick up the point she has made.

[Lord Cashman (Non-Afl)]

My Lords, I remind your Lordships that I sit as a non-affiliated Member of this House. I encourage the Minister and the department to proceed with the utmost caution. Trans women and trans men pose a threat to no one. In relation to single- sex space, this House has debated the issue frequently. Therefore, does the Minister agree that the Equality Act works, with any measures for exclusion being on a case-by-case basis, proportionate and evidence-based? Will the Minister give the House an assurance that the Government will continue that sensible and humane approach?

[Baroness Merron (Lab)]

I agree with the noble Lord that the legislation provides a clear framework to all employers, but I also accept that some employers may wish to have further guidance on the existing legislation to enable them to make the right local decisions as employers, and it is that that we will consider.

Health: Obesity

Baroness Merron Excerpts

Tuesday 7th January 2025 Lords Chamber

[Baroness Boycott]

To ask His Majesty’s Government what assessment they have made of the obstacles presented by industry to delivering policies to prevent obesity, and what steps they plan to avoid such obstacles.

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

My Lords, we will make the shift from sickness to prevention to tackle the obesity crisis, working with industry where necessary and finding the most effective approach between mandatory and voluntary action. Since July, we have implemented our manifesto commitment to limit advertising of junk food to children, uprated the soft drinks industry levy and given councils clearer powers to block fast food outlets near schools, and we will continue this momentum.

[Baroness Boycott (CB)]

My Lords, I thank the Minister for that reply, and it is great to hear the steps that the Government are taking, but when we held our recent inquiry into ultra-processed food, we found a considerable conflict of interest. Although this is a legal and declared conflict of interest, it happens between the scientists advising the Government on food policy and the food industry. As we and, indeed, The BMJ magazine, revealed, the majority of the members of the Scientific Advisory Committee on Nutrition are either directly or indirectly in receipt of food industry money. Given that obesity rates continue to rise and, on the whole, government policies have either failed or been abandoned—there have been over 700 of them—do the Government think it is now time to insist that bodies such as SACN have no declared or otherwise financial links to food companies, which, after all, are the only ones to profit from the obesity epidemic?

[Baroness Merron (Lab)]

The noble Baroness refers to the report of the Food, Diet and Obesity Committee. I am grateful to her and the noble Baroness, Lady Walmsley, for chairing that committee and for the report. We are looking forward to responding by the end of this month. On the very specific question, I will look into the matter that she raised. I emphasise that our work with industry is to seek the most effective way forward between mandatory and voluntary action. What matters to us is successful outcomes in tackling what we regard to be an obesity crisis in this country.

[Lord Rennard (LD)]

My Lords, does the Minister agree that one of the major problems with tackling obesity in the UK is that we are second only to the United States in our consumption of ultra-processed foods? While the steps she announced are welcome, do we not need further measures, such as providing free, healthy, nutritious school meals as an alternative to the unhealthy fast food shops close to many schools?

[Baroness Merron (Lab)]

I certainly agree with the noble Lord about the need for favourable alternatives, and to educate people, particularly at a young age, about what healthy eating can look like, but it is also important to create the right environment and circumstances, and not everybody has that to hand. The provision of free school meals in the way the noble Lord referred to is of course a matter for local government to decide. I can say that the Scientific Advisory Committee on Nutrition has reviewed the evidence about ultra-processed foods and believes that further research is needed, which we have commissioned. Importantly, the committee has added UPFs to its watching brief and many are covered by existing legislation, because there are regulations on foods high in fat, salt and sugar which are applicable to ultra-processed foods.

[Lord Patel (CB)]

My Lords, I am delighted to hear the Minister say that the department has commissioned some more research. The small amount of research that is available suggests that processed, and particularly ultra-processed, food causes addiction, stimulating some dopamine centres, and that people who consume ultra-processed food want more food. In a small study of two groups of people, one consuming ultra-processed food and the other not, it was found that far more calories were consumed by those eating ultra-processed food. I would be glad to hear what research the department has commissioned to address this issue.

[Baroness Merron (Lab)]

The noble Lord raises a very interesting point. It is certainly the case that those who consume ultra-processed food have around 50% of their calorific intake through that matter. Where there is not clarity is on whether the foods are unhealthy due to processing or to their nutritional content. On that, the jury is out. We need to establish that. That is the why the Government’s Scientific Advisory Committee on Nutrition has concluded that the association between UPFs and health is concerning. We need to get to the bottom of why that is.

[Lord Kamall (Con)]

My Lords, the Minister rightly talked about the importance of creating the right environment for people to eat healthily. Some noble Lords may have seen daytime television programmes that help families to eat healthily on a budget. The challenge has always been how we take these lessons into people’s homes. I recently spoke to BRITE Box, a local community charity which gives families the ingredients and a recipe card with instructions to help them to cook healthy meals together. This helps with not only budgeting but addressing obesity. Rather than a top-down approach from the Government, what steps are they and the NHS taking to work with existing projects such as BRITE Box to take a bottom-up, community-led approach to tackling obesity?

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[Baroness Merron (Lab)]

I thank the noble Lord and commend the organisation that he refers to—there are a number which are working very hard on this. We take a great interest in and seek to learn from such groups. This is a matter not just for the Department for Health and Social Care; it crosses government. We collaborate across government, particularly in pursuit of our health mission.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, does the Minister agree that alcohol is a substantial contributor to obesity and a range of related diseases? Is she aware that, notwithstanding promises given, the previous Government did not force the drinks industry to show calorific effects of their products on labels and consistently opposed doing it? Would our new Government be prepared to look at that and introduce such changes?

[Baroness Merron (Lab)]

I thank my noble friend for raising that point. We are in the process of reviewing the evidence on front-of-pack nutrition labelling, which can include bottles as well as foods. We will consider whether any further action is needed to support healthier choices.

[Baroness Jenkin of Kennington (Con)]

My Lords, I was a member of the Select Committee and I remind the Minister that the industry was reluctant to come and give us evidence. However, in the evidence that we took from young campaigners—the average UPF intake of some young people is 80% of their diet—they told us that they are overwhelmed with targeted advertising on social media, both from the food industry, particularly the UPF and HFSS industry, and local food chains. Do the Government have any plans to reduce that or encourage the industry to bombard them less on social media?

[Baroness Merron (Lab)]

I accept the noble Baroness’s point about the influences on young people, in particular. It is exactly why, in December, we laid secondary legislation to implement a 9 pm TV watershed for the advertising of less healthy food. The noble Baroness referred to social media, and we are looking into that to see what may be necessary, but I accept the link she made.

[Lord Bird (CB)]

My Lords, nowhere do I see a declaration by this Government or the former Government that up to 50% of people who present themselves to our A&E and medical services are suffering from food poverty. If we threw that around more often, we might decide to do something significant about the role of poverty.

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[Lord Bird (CB)]

My question is: when are we going to get rid of poverty?

[Baroness Merron (Lab)]

As soon as possible.

[Lord Beamish (Lab)]

My Lords, the Mental Health Foundation produced an excellent report on body image, which is about how not just younger people are affected by it but an increasing number of older people as well. It leads to people undertaking cosmetic surgery, some of whom go abroad because it is billed as being cheaper. What is the Minister doing to track this surgical tourism? What is the cost to the NHS?

[Baroness Merron (Lab)]

My noble friend is right that there is certainly an increased cost to the NHS. I do not have the exact figures available, but I would be pleased to look into it. We are very mindful of this and advise in particular that people should not go to areas where healthcare services are not properly regulated. They do so at their own risk, and it often comes back to the NHS to put that right. This is an increasing problem and one we are seeking to tackle.