Mental Health Bill [ Lords ] (Sixth sitting)

Chris Bloore Excerpts

Committee stage
Tuesday 17th June 2025 Public Bill Committees

[Dr Evans]

I rise to speak to clause 41 and schedule 3, which introduce the independent mental health advocate system under the Mental Health Act 1983. I recognise the positive intentions behind the reforms. The proposals respond to long-standing concerns about access to advocacy for people receiving mental health treatment, especially for those who are not detained, but are nevertheless vulnerable, and may struggle to understand the challenges within their care.

Currently, IMHA services are guaranteed only to a relatively narrow group—namely, patients detained under the Act, those under community treatment orders or guardianship, and certain patients undergoing serious medical treatments under sections 57 or 58A. As the explanatory notes make clear in paragraph 313, that excludes a substantial number of informal or voluntary patients, many of whom may be experiencing significant distress or coercion, even if they are technically not detained.

The clause expands eligibility to a new category of English qualifying informal patients, bringing England more in line with a system already used in places such as Wales. This welcome and overdue development reflects the principle that the right to advocacy should be grounded not in a legal status alone, but in need and vulnerability. The introduction of the opt-out referral system for detained patients is also a step forward. Concerns have been raised that eligible patients never access IMHA, often because they are unaware, overwhelmed or too unwell for self-referral. Making the referral automatic is likely to increase the uptake and strengthen patient voices in critical decisions about care, treatment and discharge.

Although the direction of travel is right, I want to raise several probing questions in areas of concern, particularly relating to implementation, scope and safe- guarding. On resource and workforce readiness, the Government are significantly expanding both the pool of eligible patients and the responsibility of advocacy providers. That is welcome, but it inevitably raises the question of capacity. Can the Minister confirm whether additional funding will be made available to local authorities, or is it up to the NHS and IMHA providers to ensure the expansion is deliverable? Are the new roles of the IMHAs explicitly addressed in the new workforce plan that he is introducing? What assessment has been done of the number of new IMHAs that will be required to meet the duties, particularly now we are using an opt-out model? Without the workforce and training in place, there is a risk that the rights introduced in the legislation will not be fully realised in practice.

My second point is about capacity, consent and best-interest decisions. I would like to clarify a couple of points on schedule 3. It would appear, as drafted, that IMHA providers will be required to assess whether a patient has the capacity to decide whether to receive advocacy, and if not, whether it is in their best interests to do so. That gives providers a significant and quasi-clinical responsibility.

Proposed new section 130B(2C) states:

“Arrangements under section 130A must require a provider of advocacy services, on becoming aware of an English qualifying compulsory patient for whom they are responsible, to arrange for an independent mental health advocate to visit and interview the patient (if possible) with a view to determining”,

first,

“whether the patient has the capacity or is competent to take a decision about whether to receive help from an independent mental health advocate”;

secondly,

“if the patient does have that capacity or competence, whether the patient wishes to receive such help”;

and thirdly,

“if the patient does not have that capacity or competence, whether it is nonetheless in the patient’s best interests to receive such help (which, if so, is to be provided under the arrangements).”

On the first point about whether the patient has the capacity or is competent to take a decision about receiving help from an IMHA, my understanding is as follows. The role of independent mental health advocates is to support people detained under the Mental Health Act, to understand their rights and to be involved in decisions about their care and treatment. IMHAs do not, I believe, have the legal authority to assess mental capacity. The assessment of mental capacity is typically carried out by a qualified healthcare professional such as a doctor, psychiatrist or specially trained nurse, following guidance under the Mental Capacity Act 2005. IMHAs are there to help patients understand the information about their treatment and their rights, and can support them in expressing their views, but they do not perform capacity assessments. So is this a change in professional scope? Is it an oversight? Is it an update? Or is it simply what is happening in practice, which now has legal backing?

[Chris Bloore (Redditch) (Lab)]

The hon. Gentleman makes an interesting point, but is not the point of an IMHA to ensure that the patient understands their rights under the previous Act and the Bill? That is how they participate in taking decisions about what is available to the patient. Although they might not be clinically trained, they know the legislation inside out, and that gives power and advocacy to the patient.

[Dr Evans]

The hon. Gentleman identifies exactly what the point of an IMHA is. The way the Bill is written, the IMHA determines whether a patient has capacity or competence to make a decision. That determining means that they are making the choice, which is quasi-clinical. According to the definition that the hon. Gentleman has just given, that would fall out of the IMHA’s scope, because that would involve the ability to make decisions about capacity.

My concern is whether we have scope creep here. If so, we should be explicit about it—perhaps it is something we want to consider—but the way it is written, IMHAs will make capacity-based decisions about whether a person has the capacity to decide whether they need help. I would argue that that should be done by someone who is qualified as a doctor, a psychiatrist or community psychiatric nurse, as currently happens. That is the clarification that I am looking for from the Government. If I have the wrong end of the stick, I will happily back down, but this area of the Bill needs clarifying.

To that end, and if the Bill is written as I fear, I would welcome it if the Minister can tell us how IMHA providers will be supported to make best interest decisions appropriately, especially in cases involving fluctuating capacity or complex presentations. Will there be clinical oversight or statutory guidance to avoid inconsistency or overreach in these assessments? Although I support the principle of proactively offering advocacy, we must ensure that the decisions made on a person’s behalf are done with the appropriate checks and accountability, and by the right people.

My third point is about the exclusion of emergency section patients. The welcome change in the clause and the schedule expands the pool of support, but we should also pay attention to those who are, by definition, excluded. Paragraph 317 of the explanatory notes make it clear that individuals detained under sections 4, 5, 135 and 136 will not benefit from IMHA support. Those are often people detained in crisis situations, sometimes in police custody, or brought in under emergency powers.

For completeness, will the Minister clarify why that group is being left out, given their heightened vulnerability and the likelihood of distress or disorientation? Are the Government satisfied that patients under these emergency powers are receiving adequate information and support at the most critical moments of intervention? Is there a mechanism to support the nominated person if the patient does not have capacity, so that the nominated person receives the information they need to make a fully informed decision? If the answer is that the duration of detention is too short to justify IMHA involvement, I ask the Minister: how short is too short when a person’s liberty and medical autonomy are in question?

It may be that Government amendments 42 and 43 address some of those points, so I will return to this in a second before moving on to my fourth point. In terms of information sharing and patient autonomy, I welcome the retention of the duty to inform patients, especially informal patients, of their right to advocacy, and for that provision to be given both orally and in writing. However, I note that the responsible person must also—except where the patient requests otherwise—be provided with written information to the nominated person. What safeguards are in place to ensure that that does not inadvertently breach the patient’s privacy, such as in situations involving estranged family members, controlling relationships or very personal health issues, which could be disclosed but are not relevant to mental health? It is essential that the nominated person framework enhances advocacy and support and does not undermine the person’s right to control who knows about their care.

Finally, I would welcome clarity from the Minister about how the uptake and impact of expanding the IMHA system will be monitored. Will there be reporting requirements on providers? If so, will that be through the integrated care boards, or is that part of the CQC? Will patients have the opportunity to feed back on the effectiveness of the support they receive?

Before I turn to the amendments, I reiterate that the Opposition support the principle of strengthening advocacy in mental health services. Clause 41 is an important step towards a more rights-based and person-centred system, but the detail of the implementation is key.

I note that proposed Government amendments 42 and 43 to schedule 3 specifically change the definition of “English qualifying informal patient” and “Welsh qualifying informal patient” to exclude patients detained under any

“legislation or by virtue of a court order”,

rather than limiting exclusion to those detained solely under the Mental Health Act. That important clarification partly improves on one of the problems I mentioned when discussing clause 41.

In simple terms, those amendments try to address the issue of clarity and coverage for patients detained under other laws, and I believe that this is how they do that. Originally, the Bill excluded only patients detained under the Mental Health Act from being classified as informal patients eligible for IMHA services, but some patients might be detained under other laws or court orders, such as criminal justice laws, which the original wording did not cover. The amendments change the definition to exclude anyone detained under any legislation or by a court, not just the Mental Health Act. In practice, this means that patients detained under other laws will not mistakenly be considered informal patients eligible for IMHA services under this part of the Bill.

The proposals close a gap so that the right groups get advocacy services, and there is less confusion for hospitals and advocates about who qualifies. In essence, by broadening and bettering the definition and defining the exclusion, this will ensure that patients detained under other legislation, such as the Criminal Justice Act, or other court-mandated detention powers, are not mistakenly classified as informal patients eligible for IMHA services under those provisions. That reflects a more comprehensive and legally coherent approach to defining eligibility.

This clarity is welcome, as it reduces potential ambiguity in respect of providers. That said, will the Minister comment further on how these changes will interact with existing IMHA provisions or advocacy entitlements for those detained under other legislation? Are there parallel safeguards or advocacy rights for those groups? What guidance will be provided to practitioners and IMHA providers to navigate the complexities of overlapping detention regimes, especially when a patient’s status might shift rapidly between voluntary Mental Health Act detention and court orders? Will this amendment necessitate any further changes in regulations or operational policies to ensure smooth implementation and clarity for patients, families and service providers? Ensuring that no patient falls through the cracks due to definitional nuances is crucial for integrity in our mental health advocacy services.

Finally, Lib Dem amendment 19 would insert after “patient”, in schedule 3, page 91, line 13,

“or English qualifying informal patient under 18”.

As the hon. Member for Hertford and Stortford and Opposition Members rightly pointed out, it is quite hard to see why the Government would not want to put that in place. The explanatory statement says that it aims to extend

“the provision of opt-out advocacy services in England to informal inpatients under 18.”

It seems clear in what it does and is a well-defined amendment to that end. I am keen to understand why the Government do not want to support it. Do they believe that this is currently balanced elsewhere in the system? Are there already provisions elsewhere? If not, why—if it is good for adults and we are strengthening their opportunities—should it not be the same for our children?

I will finish on that point. I would be grateful for answers on the clause, the schedule, the Government amendments and the Lib Dem amendment.