Mental Health Bill [HL]

Baroness Murphy Excerpts

Tuesday 14th January 2025 Lords Chamber

So the need for identifying a deficit in communication, in various areas, and the need for therapists to address this issue are obviously important. The Bill goes some of the way, certainly in the Explanatory Notes, but I agree with the noble Lord, Lord Bradley, that it needs to go further. I hope the Minister will be receptive to that idea, either in the Bill or certainly in the code of practice.

[Baroness Murphy (CB)]

My Lords, I shall speak to Amendment 49 on this issue. I do not disagree with anything that has been said about the vital need for communication and to ensure that the patient understands what is happening and has access to specialist help. But I particularly want to comment on the proposal that speech and language therapists should become responsible clinicians.

The role of responsible clinician under the Mental Health Act is really quite onerous. Of the 50,000 or so clinicians who take on the role and are appointed the responsible clinician when somebody is detained, the vast majority are consultant doctors. Fewer than 100—0.002%—have been psychologists or nurses. The appetite for taking on this role is low and, of all the members of the team who could take it on, it would be appropriate only in a very small minority of cases for it to be speech and language therapists. I do not want to rule them out because I know how valuable these people are, but we must see that, in practice, this will probably not fly very far. It is important that we concentrate on how we get proper communications, but this particular amendment would probably not find favour. I do not think that profession is yet trained to the full extent of what would be required for that role. Although I hope that it will be one day, this Bill is maybe too early for it.

[Lord Patel (CB)]

My Lords, with the greatest respect to the noble Baroness, I did not suggest—and I did not hear any other noble Lord suggest—for a minute that language and speech therapists would become clinicians in their own respect. I said that they would be part of a team that would help to establish appropriate communication. As doctors, we are not the best people for that—so I do not see how the amendment cannot fly, when there is a need for such people.

[Baroness Murphy (CB)]

I entirely agree with the noble Lord. However, the reality is that the responsible clinician, as mentioned in Amendment 49 to Clause 10, has a wide range of roles. It is very onerous and specific, so this is not likely to be a good idea for a speech and language therapist. I agree with the rest of what everybody has said.

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest as an honorary fellow of the Royal College of Psychiatrists, but without any qualifications, unlike the noble Baroness, Lady Murphy. For the reasons that have already been given, I entirely agree with the whole group of amendments, which have been proposed so much better than I could do—so I do not propose to say any more.

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[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 Berridge (Con)]

I pay tribute to the work that the noble Baroness, Lady Browning, has done in relation to this matter. This is a matter that we considered in great detail in the Joint Committee. I am grateful that that gives us the opportunity to discuss in the round the legal basis on which people are detained. The independent review did not recommend what is currently in the Bill, which is the removal of learning disabilities and autism from the Act. The Joint Committee’s report quotes it saying,

“the risk of completely removing learning disabilities and autism from the Act is too high”.

The noble Baroness, Lady Browning, outlined one of the reasons for that, which is that if you remove the legal basis for detention under the Mental Health Act, then the bucket that these individuals and patients would fall into without Amendment 5 would be the Mental Capacity Act.

In the consideration by the Joint Committee, there is the other danger that—when there is no co-occurring mental health condition—you end up with people coming through the criminal justice system, instead of being detained under the Mental Health Act. That is the worst of all the evils we could be discussing here today and would be completely inappropriate.

I would be grateful if the Minister will ensure two things when we know that these are dangers: first, an increase in diagnoses of co-occurring mental health conditions to use the Mental Health Act; and, secondly, an increase in the use of the Part III criminal justice provisions. It is important that we know the exact statistics for the group with learning disabilities and autism before implementation of the Act. Then we would know whether the Act has caused an increase in diagnoses of co-occurring mental health disorders and an increase in the use of the criminal justice system.

I believe that currently 39% of people detained with learning disabilities and autism are detained under Part III of the Act. I see the noble Baroness, Lady Browning, nodding. It is important that we remember that New Zealand tried this, removing learning disabilities and autism from its mental health legislation. I cannot remember whether it had the co-occurring mental health diagnosis provision, but, only a few years later, it had to amend the law, as it had caused an increased number of learning disabilities and autism patients to come in through the criminal justice system.

What would be the position if the Bill were amended in accordance with Amendment 5? The evidence that we received in Joint Committee was that there would be no patients—that community facilities would be at a level where they could not think of anybody who would need to be detained. I wish the world were thus, but the ideal world portrayed in that way does not exist. Even with the community facilities that we all wish to exist, it seems clear to me that there would be circumstances in which there would still be a need to detain.

I recognise that, in reality, we may see that increase in diagnoses of co-occurring disorders. Physicians may reach for that to protect someone—to detain them to get them treatment. However, it was made clear to us that 28 days is a relatively short time. You can be detained for assessment, but it can take many days to get the level of distress down—I do not want or like to use the word “meltdown”—to assess the mental health of the person and whether there is a co-occurring disorder.

The Joint Committee came up with a special exceptional tribunal that would still allow the Mental Health Act to be used in that small number of cases—once community facilities are as we would like them to be—to continue detention. Why? For the reasons outlined by the noble Baroness, Lady Browning: the protections under the Mental Health Act are much greater. You have the nominated person, you can go to the Mental Health Act tribunal, and—ker-ching—you get Section 117 aftercare, which, of course, is not available under the Mental Capacity Act.

If Amendment 5 were accepted, we would have no Mental Health Act, no co-occurring diagnoses, no criminal justice system—I hope—and no Mental Capacity Act to refer to. If a clinician is in that circumstance where someone is so distressed and they do not have that diagnosis in the 28 days, where is the law? We are not talking about the practicalities here. Where is the law?

In any event, the Mental Capacity Act does not apply to under-16s. So the risk would be an increased use of what we now know as High Court DoLS. These are not DoLS under the Mental Capacity Act. They are DoLS under the inherent jurisdiction of the High Court. They are a most unsatisfactory way of restraining the liberty of under-16s.

Only two or three weeks ago, the Children’s Commissioner issued a report outlining the problem, and outlining that, already, some children with learning disabilities and autism are under a High Court DoLS. It is a matter that your Lordships’ House needs to consider. Nearly a thousand children are detained under a High Court DoLS.

Obviously, the Mental Capacity Act would have applied to 16 and 17 year-olds and adults so where does that leave those vulnerable adults? Where is there a power to detain them? The Mental Health Act and the Mental Capacity Act will both have gone. If clinicians are in that circumstance where there is no co-occurring mental health disorder, there is a vacuum which may end up being filled by the inherent jurisdiction of the High Court using vulnerable adults. We will have created another little bucket of people. I accept the criticism made by the noble Baroness, Lady Browning, about DoLS under the Mental Capacity Act. They are supposed to be replaced by protection of liberty safeguards, but those are not in force yet.

If we accept Amendment 5, are we going to create more work for the High Court with clinicians in that situation because the law will not have provided any means for them to detain? I recognise and repeat that the practicality will probably be a co-occurring mental health disorder but, as far as I understand it, that is where the law will be left if Amendment 5 is accepted.

Although the Mental Capacity Act is far from ideal, I hope the Minister can help us understand what the situation would be if we were to accept the amendment. As I say, for the under-16s it would be more cases under High Court DoLS, as far I understand it.

[Baroness Murphy (CB)]

My Lords, I have an amendment in this group but I want to speak particularly to the amendment from the noble Baroness, Lady Bennett, and to thank the noble Baroness, Lady Berridge, for her good sense. I agree with every word she has said.

I had earlier tabled amendments to Clause 3 and Schedule 1 to give effect to opposing any change in the definition of mental disorder for the meaning of the Act in the same way as Sir Simon Wessely’s committee recommended and I withdrew them in favour of a compromise amendment because I was not sure, to be honest, that I would get here at all today. I have. I am not quite sure how many more I will be able to get to but for the moment I am here so I will speak to this one.

I want to make it clear right from the start that if we had changed our legislation to be a hybrid Bill that was a fusion of a mental capacity and a mental health Bill we would not be in this pickle because we would have capacity-based legislation and therefore we could have proceeded without any of these silly criteria for what is this diagnosis and what is another. As the legislation is at the moment, I believe the move to remove autism and learning disabilities from what is a mental disorder is frankly bizarre, akin to having Parliament establish that for the purposes of legislation, the earth is flat and the sun goes round the earth. Galileo had the same problem. I want to ensure that Hansard will record that not everyone is in agreement with the notion that autism and learning disabilities are somehow separate and different from other mental disorders.

Neurodiversity, which, of course, exists, is the term used to describe statistical outliers from the norm and, of course, as for many other mental states, there can be many positive and interesting aspects of alternative ways of thinking about and responding emotionally to the world that enrich society. I understand that many people with autism and learning disabilities do just that and that is where neurodiversity has been so supported by people who want to ensure that they are recognised as individuals and citizens just as the rest of us are. But that does not change the fundamentals.

I know noble Lords know that I was a professor of psychiatry for many years at the University of London but I ought to mention at this point that I also have a special interest in mental health legislation because I was for six years vice-chair of the Mental Health Act Commission. I co-authored this now much revered code of practice for the 1983 Act. It is actually my only bestseller—if only it did not say Secretary of State on it—and I know first-hand how the Acts and codes are used. That is why I do not get involved in the principles of where this should be. The code does have statutory effect, by the way—I am sorry that the noble and learned Baroness, Lady Butler-Sloss, has left, because I can reassure her it does have statutory force. I was also UK advisor to the WHO on mental health and older people and was exposed to the developments in mental health legislation in other jurisdictions, not only in the UK, with the Scottish and Northern Ireland Acts as they were being developed, but in the Republic of Ireland when it introduced its new Act, and abroad in English-speaking legislatures.

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[Baroness Browning (Con)]

The noble Baroness asked me a question. Was it rhetorical? I wonder whether she could accept that autism is different. From the time that Kanner first identified autism, which is what a lot of psychiatric bases are based on—we then had Asperger and others, and the very good, more recent documentation from Lorna Wing, with whom I am sure she is familiar—autism has been different. If people doubt that, it is important to note that, apart from the Mental Health Act, the only other condition, however you label it, to have its own Act of Parliament is autism. In the Autism Act 2009, this Parliament unanimously agreed—in both Houses—that autism is different and deserved its own Act of Parliament.

[Baroness Murphy (CB)]

I would say that all mental disorders are different but that they cannot all have their own Acts of Parliament. I do not accept that autism is different. Of course, it is different in the way that it manifests—

[Lord Stevens of Birmingham (CB)]

I will make a slightly cheeky intervention, if I may, on the noble Baroness. I am not weighing into the debate that is taking place but simply make this point. Does she accept that the fact that a condition is listed in the DSM or the ICD is not itself definitive? Until 1973, homosexuality was listed as a psychiatric condition in the DSM and until 1990 it was, I believe, included as a psychiatric diagnosis in the ICD. Therefore, that is not the strongest evidential basis for her claims.

[Baroness Murphy (CB)]

I agree with the noble Lord, but the reality is that we use DSM-3 and ICD-11 in the international classification of disorders. If we in Britain are to go outside that, for reasons of our own, then we had better have some pretty good ideas why that should be. I am not so sure that we have them.

The Wessely review rejected the notion because, as the noble Baroness, Lady Berridge, said, it carried serious risks that individuals would be extruded and neglected, the opposite of what is intended. Similar anxieties were expressed in the development and creation of other Acts—I am sorry that I am going to go on longer than the advisory—so as not to exclude anybody from this group, because we want mental disorder to be an inclusive thing and not to exclude whole groups of people. Their protections are gone if we exclude them.

I accept that almost all the developments for autism and learning disabilities in the Bill are very positive. They will really improve the way that people think about autism and will have an extremely beneficial effect on trying to develop services and improve training, but there is no evidence that changing the criteria under the Act will do anything to improve it. Getting money into services and service design is what we need and not a change in the legislation for criteria. As the Royal College of Psychiatrists’ group of specialists in learning disabilities have pointed out, the vast majority of them do not want this change in legislation. We should think very carefully before we submit people to something when we do not know what will be unleashed as a result.

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I accept that there is a gap, but I do not believe it is best filled by detaining people or assuming that detention is the first step. I look forward to the Minister exploring with the Committee exactly what the Government’s intention will be if this provision in the Bill is enacted and what provision will be put in place to ensure that there is not a backdoor and that people with learning disabilities and autism who are clearly at the end of the 28 days would have appropriate provision for their needs to be met. It is absolutely vital to understand this in Committee to determine exactly how we go forward without detention being the automatic assumption of what is required when this gap needs to be filled.

[Baroness Murphy (CB)]

What does the noble Lord think will happen to the people in the gap?

[Lord Scriven (LD)]

As I said, the noble Baroness, Lady Bennett, pointed out what happens internationally, in Trieste in Italy, for example, and I therefore suggest that good international comparisons and practice could be enacted in legislation to ensure that the needs of as many people as possible are met in the community, rather than them being held in detention because the provision is not there. That is exactly what will happen unless this gap is dealt with by looking at what is required rather than looking at the gap and continuing detention.

[Lord Hardie (CB)]

My Lords, I apologise that I did not speak at Second Reading, but I have been listening to this interesting debate and it seems to me that Clause 5 is introducing the concept of detention in extreme cases, where there is a risk of serious harm to the health or safety of the patient or another person unless the patient is detained. That is the reason for the detention: to protect the patient from serious harm to himself or herself, or to protect others from serious harm.

As I read the amendment from the noble Baroness, Lady Browning, it simply seeks to suggest, or to put on the statute book, that someone suffering from autism or a learning disability would not satisfy the test in Clause 5. But the amendment permits the admission to hospital of someone with a learning disability for the purpose of assessing whether he or she has a mental disorder. I am not sure that this amendment by the noble Baroness, Lady Browning, would result in people slipping through the net.

[Baroness Murphy (CB)]

I wrote the amendment in a terrible hurry as a compromise amendment when I could not table the amendment that I really wished to table, which was seeking to get back to having clarity about the diagnostic criteria. I apologise if that was not the provision that the noble Lord wanted in the Bill—I am not sure that I want it very much either. I do not have any great devotion to the proposed new clause; it was just a way of trying to address this leaving of the gap. We used to do that, by the way. After the 1983 Act, noble Lords will remember that we dropped alcohol addictions and drug misuse from the Act, saying that we could not detain people for those reasons alone. What happened was that there was total neglect for the next 20 years until voluntary organisations and local authorities got moving and said, “This won’t do—we must do something”.

Noble Lords should remember that that is what happens. If you leave somebody out of protective legislation, they will not be included; they will be neglected and they will end up in prison. That is what Sir Simon Wessely thought and it is what the noble Baroness, Lady Berridge, has been talking about. I can guarantee that nobody will be interested in autistic meltdowns if there is no way in which to intervene to save a family from having that person with them, seven days a week and 24 hours a day, during the period of this terrible disturbance.

Community services are great. I urge noble Lords to visit Trieste, as it has brilliant services in a tiny area; it is one of the very few in Italy, and it continues to work very well. It is cited all over the world, and that is very good. But this is Britain, with 80 million people and massively underfunded services, and it ain’t going to happen. I want to know what will happen to those people noble Lords would like to see neglected until such time as the Government produce some alternative provision.

[Lord Scriven (LD)]

I do not think that I or anybody else who has a different opinion from the noble Baroness wants to see those people being neglected. We have a different view. The issue I have with her stance is that the evidence is that putting people with learning disabilities and autism in a psychiatric hospital—and that is where they will go if there is no provision, because that is where they go at present—is damaging. It is not the correct provision. I believe that what she is arguing for—to continue the neglect of provision by putting them somewhere—is significantly not in their best interests and causes damage.

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[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 Murphy (CB)]

Does the noble Baroness accept that, in talking about treatment, we are talking about care, education and training in social circumstances? Treatment is not about medication, which may be totally inappropriate, but about looking at the individual’s developmental needs as a whole, which include a whole raft of things. I agree that it is not just about psychiatrists or psychologists; it can be about teachers, people with a special understanding of speech and language, and so on. I would never deny that you have to encompass the whole thing—I would promote it.

[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?