Mental Health Bill [HL]

Earl Howe Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, I am right behind the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, in their Amendment 130. We know, and I believe that by and large we accept, that the Bill is not intended by the Government to hold out the prospect of instantaneous changes to the delivery of mental health care. It offers a series of measures that, over a period of years, should make a material difference to the well-being of a wide range of mentally ill people who require treatment, whether in a secure mental health setting or in the community.

The Minister has spoken of the need to view these measures in the broader context of the NHS 10-year plan and, certainly from the Government’s point of view, that is a perfectly reasonable position to take. However, if that is the Government’s policy, it begs a whole mass of questions around implementation and funding. For example, what do the Government see as the immediate high-priority measures that they wish to introduce? Which measures do they propose to defer, and for how long? What are the costs associated with these changes, both to the NHS and, as the noble Baroness, Lady Tyler, pointed out, to the justice system and local government? Bearing in mind Treasury constraints, when realistically do they believe a clear timeline for change will emerge? We have the impact assessment, but how far can we rely on that?

If those questions for the time being have to remain hanging in the air, as I suspect they will, I share the view of the noble Baroness, Lady Tyler, that Parliament, in the not-too-distant future, needs to be given an account of what the longer-term future looks like in a way that reflects not only the Government’s current thinking but, as time goes on, how their thinking evolves, as it surely will. There is therefore a strong case for a report to Parliament sometime in the next few months and on an annual basis thereafter, making clear both the timeline of ambition and the timeline of what in reality is being delivered.

I am conscious that we all need to keep our remarks succinct and to the point, so I will comment only briefly on the other amendments in this group. I am afraid I cannot support Amendment 153 in the name of the noble Baroness, Lady Bennett. I have always believed that what matters most in healthcare is not whether a service is delivered by a public or a private organisation but rather the quality of care to patients and whether good outcomes are achieved at acceptable cost.

Finally, my noble friend Lord Kamall has added his name to Amendments 163 and 164. These amendments stand absolutely four-square with the theme of Amendment 130, and on my noble friend’s behalf I express my warm support for them. The noble Lord, Lord Stevens, has said it all.

Just as we accept that we will not get any instant changes arising from the Bill, by a corresponding token, the Government cannot take that as a free pass from Parliament to defer implementing its provisions sine die. We cannot have a situation in which, prior to implementing the provisions, the principle of parity of esteem is quietly put to one side. I hope the Minister will have reassuring words to say on those very important points of principle.

[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 to this first debate today, and I start by saying how glad I am—I am sure other noble Lords will say this too—to see the noble Baroness, Lady Hollins, in her rightful place. I certainly heard her support for the amendments that we are discussing.

Before I turn to the amendments, it may be helpful to your Lordships’ Committee if I briefly set out some of the high-level plans for implementation of these reforms. I am grateful for the understanding—the noble Earl, Lord Howe, made this point—that time is required. I also understand the emphasis that noble Lords are putting on pace and, of course, we try to match those two things together, but I know we are all agreed on the need to get the Bill in the right place and the Act delivering.

The first priority after Royal Assent will be to draft and consult on the code of practice, and we will be engaging with people with lived experience and their families and carers, staff and professional groups, commissioners, providers and others to do this. The code will be laid before Parliament before final publication, and I am committed to working with noble Lords to ensure that we get this crucial piece of work absolutely right. We expect that this process will take at least a year.

Alongside the code, we will be developing secondary legislation, which will also be laid before Parliament, with more detail on areas such as statutory care and treatment plans. We will then need time to train the existing workforce on the new Act, the regulations and the code. This will likely be in 2026 and 2027, and we intend to commence the first major phase of reforms in 2027.

Of course, some reforms are going to take longer, as noble Lords will appreciate. The noble Baroness, Lady Neuberger, tempted me to go even further than five years, and I thank her for the temptation, but I know I will not be able to please her on this occasion. Of course, it takes time to train new second opinion appointed doctors, judges and approved clinicians, so, as set out in the impact assessment, we believe it will take 10 years to fully implement the reforms, but I emphasise that these timelines are indicative, and we will iterate these plans as we get more certainty on future funding and the wider workforce plans. Of course, I fully appreciate the importance of parliamentary scrutiny and accountability of this work, which is crucial, and I am committed to updating the House throughout the implementation period.

Turning to the amendments, I will start with Amendment 130 in the name of the noble Lord, Lord Scriven, kindly introduced by the noble Baroness, Lady Tyler. I say in response that any implementation plan, as proposed in the amendment, which would be published four months after Royal Assent, would be very unlikely to contain any more detail than is already in the impact assessment. It is important to prioritise drafting the new code and the secondary regulations after Royal Assent. I also confirm to your Lordships’ Committee that we will commission an independent evaluation of the reforms, alongside existing monitoring and reporting by the CQC.

As I have said, I fully expect to update the House during the planning and delivery of the reforms. However, a requirement in primary legislation to publish annually, and within four months of Royal Assent, would be premature.

Amendment 153, tabled by the noble Baroness, Lady Bennett, would prohibit for-profit companies from delivering provisions of the Act. I listened closely to the concerns raised by the noble Baroness, but I do not share the view that a ban on for-profit providers is the right approach, for the reasons that were set out by the noble Earl, Lord Howe, and the noble Baroness, Lady Fox. Our focus should indeed be on ensuring that we have high-quality and good value-for-money services. However, I assure the noble Baroness, Lady Bennett, that we are already investing in a significant quality transformation programme and piloting new models of care to ensure that care is focused on the individual, with maximum therapeutic benefit. That is where our priority lies and for that reason we are resisting this amendment.

Turning to Amendment 163, I am grateful to the noble Lords, Lord Stevens and Lord Kamall, and the noble Baronesses, Lady Tyler and Lady Neuberger, for bringing this issue before the Committee. As I said in my opening remarks, I too want to see the benefits of these reforms coming into play quickly and effectively. We intend to commence the reforms in phases, because some can be implemented more quickly than others, which need more time. This is not just about money but about building system and workforce capacity. For example, the impact assessment estimates that we need over 400 additional second opinion appointed doctors and over 300 additional approved clinicians. Many of these will be consultant psychiatrists, who would already need to have commenced training prior to the legislation for us to fully implement the Bill within five years, as required by this amendment. Rather than having a fixed deadline, as is proposed, we intend to monitor the impact of investment and test readiness to commence new powers on an ongoing basis, commencing each phase when we are confident that it is safe and effective to do so.

Finally, I turn to Amendment 164, tabled by the noble Lord, Lord Stevens, and supported by the noble Lord, Lord Kamall, and the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger. I associate myself with the comments about the commitment to treating physical and mental health equally, in line with this Government’s manifesto commitments. The mental health investment standard requires ICB spending on mental health to grow at least in line with overall recurrent funding allocations. Based on total planned spend for 2024-25, we expect all ICBs to meet the standard in this financial year.

There are already mechanisms to ensure that spending on mental health is prioritised. I refer noble Lords to Section 12F of the NHS Act 2006, which requires the Secretary of State for Health and Social Care to lay before Parliament an annual document setting out whether they expect NHS England and ICB spending on mental health to increase in the next year. The Secretary of State will publish this statement before the end of this financial year.

As several noble Lords said, funding for mental health spend goes beyond the scope of the Mental Health Act, which aims to improve the care and treatment of individuals who have a mental illness and need to be detained in hospital or subject to restrictions in the community. Therefore, I respectfully suggest that the Act is not the appropriate mechanism for holding the Government to account on mental health spend. I ask the noble Baroness to withdraw the amendment.

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Moved by

[Earl Howe]

142: After Clause 50, insert the following new Clause—
“Accessibility for children with physical disabilities(1) The Mental Health Act 1983 is amended as follows.(2) In section 131A (Accommodation etc for children), after subsection (4) insert—“(4A) Where a child who is accommodated under this section has needs arising from a physical disability, the managers, in determining the suitability of the environment in which the child is accommodated, must ensure that such reasonable adjustments to the environment are made as they consider necessary.”” Member’s explanatory statement
This amendment seeks to ensure improvements in accessibility for children with physical impairments who are accommodated in mental health inpatient units.

[Earl Howe (Con)]

My Lords, in moving Amendment 142, I will speak to Amendments 143 and 144 standing in my name and that of my noble friend Lord Kamall. These amendments are about one critical issue that has proved seemingly intractable despite best efforts for many years: the way the mental health system looks after child patients. I am not talking just about child patients who have been compulsorily detained under the Mental Health Act, although they are the subject of Amendment 143; I am referring also to children admitted to a mental health unit as in-patients for any reason at all. That is the subject of Amendment 144.

Noble Lords who are veterans of the last Mental Health Bill in 2007—I can see one or two—will remember that the late Lord Williamson of Horton, former Convener of the Cross Bench Peers, made this issue his crusade with, unfortunately, only limited success. We are still living with the problem. The current Mental Health Act code of practice says that it is government policy for under-16s not to be admitted to an adult ward, which is fine as far as it goes—although, in my book, when we talk about children, we should include young people aged 17 and 18.

The Government promised to eliminate the inappropriate use of beds in adult wards, but that has not happened. Last year, the CQC reported that 196 children were admitted to adult mental health units in 2022-23. This is not a trivial matter. The patient group Blooming Change, which I have mentioned before, has provided me with some first-hand accounts from children and young people who have been placed on adult mental health wards and who have been through some harrowing experiences. One has said:

“As a child I spent over 50 days in a mixed gender crisis unit … There was some very scary stuff that happened … During my first day on the unit, I witnessed a team of police dressed in riot gear with riot shields and dogs doing a drug search … At one point my bedroom was next door to a man who broke a student nurse’s nose and smeared his own bodily fluids over his bedroom wall … I was constantly scared and on edge and the ward was constantly unsettled. The staff on the ward were not trained on child restraint, so I often ended up really hurt … it would be, like, really big men who were used to going up to forensics to restrain people and then coming to restrain me, a little girl at the time, basically. It was horrific”.


That may be an extreme case, and one trusts that it is, but there are many cases that fall not far short of that level of emotional damage. It certainly is not that extreme as regards the complete absence for a child of any therapeutic benefit.

Another witness said:

“The worst thing about adult wards is you can’t access any intervention at all. No art therapy, no psychiatrist, because you’re under 18, so they say they don’t have the appropriate training to work with you. When I was on an adult ward, all my medication went unreviewed. I wasn’t allowed to ask for anything, not even allowed outside”.


What is the best way of solving this problem? The approach I have taken in these amendments is to say that, when a person aged under 18 is in desperate need of in-patient mental health treatment, the clinical decision-making around admitting that person to a mental health unit should be as rigorous as it can be to avoid, as far as humanly possible, admitting that patient into an adult ward. There surely to be a determination around best interests. There also need to be procedural safeguards so that, if it is decided that an adult ward is the only available option in a particular case, there is appropriate transparency around that decision, such that the local authority is informed of the fact and the hospital itself publishes statistics in its annual report recording the number of instances during the year when this has occurred.

I also suggest that a report to the local authority is equally appropriate in a situation where a child is accommodated in a hospital or mental health unit situated outside the local authority area in which the child is ordinarily resident. In one of our earlier debates, we talked about the particular vulnerability of children who are treated in a hospital far away from home. Alerting the child protection officer working nearby would go some way at least to mitigating the risk of the child self-harming.

There may be some Members of the Committee who think I have been far too lily-livered in tabling these amendments and who feel I should have tabled much stronger amendments proposing the outright abolition of placements involving children on adult wards. I quite deliberately have not done that for the reason we touched on in earlier debates: we have to work with the world as we find it, not as we would ideally like it to be. We have to recognise that, in a few cases—sometimes desperate cases—a temporary stay on an adult mental health ward could be the only way of saving a child from death or serious injury and, in those cases, I suggest that it is not for us in Parliament to prohibit the practice outright.

On Amendment 142, a child being treated in a mental health in-patient unit who also has a physical disability can sometimes get a very raw deal. If the unit they are on has areas that are, in practice, inaccessible to that child, that simple fact can have a huge impact on their access to treatment. One member of Blooming Change has said:

“I am physically disabled, and for me, the room to speak to the psychologist was upstairs in the unit, and there was no way for me to access that space. I kept being told she would come down to see me somewhere else during my stay, but it didn’t happen, so for me, my physical impairments meant that I didn’t get equal access to the support”.


This is not the sort of amendment I would choose, in the normal way, to bring back on Report, but the questions it raises are important enough for me to ask the Minister whether the department and NHS England are sufficiently aware of that kind of problem and what, if anything, is being done to address it. I beg to move.

[Baroness Berridge (Con)]

My Lords, I rise to speak to Amendments 159 and 160. Amendment 159 is similar to Amendment 143. It merely proposes a different notification procedure where a child has been present on an adult ward, but it also requires notification to the local authority and applies to out-of-area placements, which were mentioned by my noble friend Lord Howe. It is important that that information is given to the local authority, as it has the duties to safeguard—particularly children in need. I will speak to this on Amendment 160.

I join with my noble friend’s comments on how the Bill treats those who are 16 and 17. We have raised the issue in relation to other areas of the Bill that, in law, they are children, and they are treated as children by the professionals, as outlined in the example of the psychiatrist saying, “I don’t have the training to do this”. Under-18s are treated as vulnerable young people and children. One can also draw attention to the fact that under-18s are no longer allowed to marry in our country. We are increasingly coming into line with the fact that you are a child, and have the protection of the law as one, until you are 18.

Amendment 160 relates to “children in need” under Section 17 of the Children Act. Recommendation 117 of the Wessely review said:

“Section 17 of the Children Act 1989 should be amended to clarify that any child or young person admitted to a mental health facility is regarded as a ‘child in need’ so that parents can ask for services from their local authority”.


That will, obviously, be particularly important if the child has been placed out of area.

That recommendation was rejected by the Government in their published response to the review, but I note that the review also asked for this provision to be if the child is admitted—that means as a voluntary patient, of course, as well as just being admitted under the Act. I have laid this amendment to clarify the Government’s response to this. That response stated that, basically, it is not necessary to amend the Children Act because disabled children, which includes children suffering from a mental disorder, are already deemed to be “children in need”, so there is no need for this recommendation.

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With these reasons, I hope that noble Lords feel able not to press their amendments.

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who spoke in this short debate and grateful for the support that they have expressed for the amendments, both mine and the others in this group. My noble friend Lady Berridge drew my attention to an inadvertent slip of the tongue that I committed in my earlier contribution. When I sought to define a child, I meant of course to say that we should include young people aged 16 and 17. In that regard, I was particularly grateful for the powerful interventions from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Berkeley of Knighton, citing their own experiences.

I much appreciate the Minister’s comments in response to these amendments, particularly Amendments 143 and 144. I believe, from what she said, that she and I are on the same page when it comes to age-appropriate settings for child patients. It was reassuring to hear from her what is contained in the current code of practice and what is intended to be included in the revised service specification. I am also pleased to hear that the CQC has it as part of its role to report on these very important issues.

I will study what she has said in Hansard and consider what is best to do between now and Report, but, for now, I beg leave to withdraw the amendment.

Amendment 142 withdrawn.

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Moved by

[Earl Howe]

146: After Clause 50, insert the following new Clause—
“Recording of use of force on mental health patients(1) Each NHS facility must keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder, by staff who work in that facility and in relation to the patient’s diagnosed or suspected mental disorder, in accordance with this section.(2) Subsection (1) does not apply in cases where the use of force is negligible.(3) Whether the use of force is “negligible” for the purposes of subsection (1) is to be determined in accordance with guidance published by the Secretary of State. (4) The record must include the following information—(a) the reason for the use of force;(b) the place, date and duration of the use of force;(c) the type or types of force used on the patient;(d) whether the type or types of force used on the patient formed part of the patient’s care plan;(e) name of the patient on whom force was used;(f) a description of how force was used;(g) the patient’s consistent identifier;(h) the name and job title of any member of staff who used force on the patient;(i) the reason any person who was not a member of staff in the facility was involved in the use of force on the patient;(j) the patient’s diagnosed or suspected mental disorder;(k) the relevant characteristics of the patient (if known);(l) whether the patient has a learning disability or autistic spectrum disorders;(m) a description of the outcome of the use of force;(n) whether the patient died or suffered any serious injury as a result of the use of force;(o) any efforts made to avoid the need to use force on the patient;(p) whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan.(5) The facility must keep the record for 3 years from the date on which it was made.(6) In subsection (4)(g) the “patient’s consistent identifier” means the consistent identifier specified under section 251A of the Health and Social Care Act 2012.(7) This section does not permit the facility to do anything which, but for this section, would be inconsistent with—(a) any provision of the data protection legislation, or(b) a common law duty of care or confidence.(8) In subsection (7) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).(9) In subsection (4)(k) the “relevant characteristics” in relation to a patient mean—(a) the patient’s age;(b) whether the patient has a disability, and if so, the nature of that disability;(c) the patient’s status regarding marriage or civil partnership;(d) whether the patient is pregnant;(e) the patient’s race;(f) the patient’s religion or belief;(g) the patient’s sex;(h) the patient’s sexual orientation.(10) Expressions used in subsection (9) and Chapter 2 of Part 1 of the Equality Act 2010 have the same meaning in that subsection as in that Chapter.”Member’s explanatory statement
This amendment would require NHS facilities to keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder.

[Earl Howe (Con)]

My Lords, I beg to move Amendment 146 standing in my name and that of my noble friend Lord Kamall. On the previous group of amendments, I cited the experience of a child held on an adult mental health ward being subject to restraint, where undue force was applied by the staff involved, causing unnecessary pain and distress to the patient.

In fact, the incidence of restraint being used on children being treated in mental health settings—and, indeed, general hospitals—is alarmingly high. This fact was recognised in the Mental Health Units (Use of Force) Act 2018, which came into effect in 2022. However, despite the provisions of that Act, not only has there been no drop in the number of restrictive interventions that children are subject to but there has been an increase.

In 2023-24, a total of 84,626 restrictive interventions were carried out on children, which is a 51% increase on the year before. That is the highest number of restrictive interventions recorded since figures were made available in 2019, despite what appears to be a drop in the number children being treated in mental health units. It is not only that restraint is being applied in these cases; all too often, because there is a physical struggle involved in the process of restraining someone, that patient ends up with an injury.

What lies at the root of this? Blooming Change believes that restraint amounting to abuse is entrenched in the system. Unfortunately, that rather depressing view was borne out last August by the Independent newspaper, which reported that children in a mental health in-patient unit in Coventry were captured on CCTV

“being dragged across the floor”

by the staff. There surely has to be something here about the need for staff in all mental health settings to receive training in the different techniques for de-escalating a crisis, with physical restraint being regarded as a last resort.

In fact, with the two very welcome principles set out in Clause 1, “least restriction” and “therapeutic benefit”, the training of staff in appropriate techniques of control will, one hopes, become an even more important priority than before. I hope the Minister can let me have some reassurance on this very troubling set of issues. I beg to move.

[Baroness Hollins (CB)]

My Lords, I declare my interest and my experience as a retired psychiatrist, working for the majority of my career with people with learning disabilities and autistic people.

In 2019, the then Secretary of State for Health asked me to oversee an important review of the use of another restrictive intervention, long-term segregation, known as LTS, for people with learning disabilities and autistic people. The Government published the oversight panel’s report of that review simultaneously with their quite positive response to its recommendations in November 2023.

Amendments 155 and 156 in this group address critical issues highlighted in the report about the use of LTS and the measures needed to eliminate its use for people detained under mental health legislation. The amendments aim to improve oversight and accountability in its use, while pointing to the urgent need for appropriate community services to prevent delayed discharges. The proposed changes are not merely administrative; they are a necessary response to urgent human rights questions raised by the use of LTS, and indeed these other restrictive interventions covered by the noble Earl, Lord Howe, whose amendment I support.

The report, aptly titled My Heart Breaks, found that the mental and physical health of children and young people and adults detained in long-term segregation deteriorates as a direct consequence of enforced isolation. In medicine, we call this iatrogenic harm, and it is unacceptable. LTS is often used in association with other restrictive practices. There is substantial research evidence pointing to the harms of such enforced social isolation, including in conditions of solitary confinement. Nor does it have therapeutic benefit. Oversight panel members considered that LTS should actually be renamed “solitary confinement” to avoid the normalisation of the practice in healthcare settings. Currently, rather less clear terminology is used, perhaps to disguise what is really happening in practice.

It is interesting to note that not all psychiatric hospitals have rooms in which to detain people. The type of accommodation used is sometimes totally unacceptable, with people being detained in rooms with no natural light, with a mattress on the floor and no toilet facilities.

Amendment 155 would require notification of LTS to the CQC within 72 hours of its commencement. It would require that the CQC must initiate an investigation if LTS was used for more than 15 days within any 30-day period, and if it were used for a person under the age of 18, or for a disabled person whose condition would be exacerbated by its use—for example, an already psychologically traumatised person who would be further traumatised by the sensory and social deprivation caused by its use, which is probably most people.

The amendment would require that the code of practice introduced minimum standards for LTS, including access to natural light, outdoor space and meaningful human contact. As I am sure most noble Lords would agree, these are basic necessities for dignity and well-being. Psychiatric hospitals still using LTS would be required to appoint a responsible officer to review and report on its use to the CQC. They would also be required to comply with recommendations from independent care (education) and treatment reviews, known as ICETRs, as they relate to LTS.

Amendment 156 seeks to ensure that therapeutic alternatives to LTS have been properly considered by requiring independently chaired reviews for any person detained in LTS. Since the end of the Department of Health’s programme of ICETRs in 2023, which reviewed 191 cases between 2020 and 2023, the CQC was commissioned to restart the programme. The new programme includes that the independent chairs must follow up to see whether the recommendations have been implemented, but funding has been committed only to the end of this current year, while LTS continues. These reviews must be kept in place until the use of LTS comes to an end, or for as long as it is in existence, so the amendment would require ICETRs to be continued, and it outlines the role, responsibilities and authority of the independent reviewer. I hope the Minister will be able to assure the Committee that the continuation of these independent reviews will be funded.

By limiting the duration of LTS, mandating independent oversight and requiring therapeutic alternatives, we could protect people’s rights and lay the groundwork for effective rehabilitation and reintegration back into their communities. Meeting minimum standards and reclassifying such segregation as “solitary confinement” would rightly underscore its appalling and often inhumane nature. I know many clinicians dislike that term because it is equated with punishment, but it describes the conditions that we sometimes saw.

The excuse is often given that LTS is the last resort for a person, but in fact it is usually the first resort and the first response, because no appropriate care and support have been provided. I have seen systemic failures that are leaving individuals in restrictive settings due to insufficient community-based support. While commissioners and clinicians often act with good intentions, they lack the co-ordination, resources and expertise needed to deliver the care that is needed to keep people safe.

The amendments simply aim to ensure therapeutic care close to home. They require that, by monitoring the continuing use of LTS and understanding the barriers to eliminating its use, the CQC would be able to identify the themes, trends and changes that are taking place over time in the use of this restrictive intervention. I urge the Minister to support the amendments.

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[Baroness Merron (Lab)]

I understand that point, and the noble Baroness makes it very well. I simply refer her to the points that I made about needing to look at evidence, the outcomes and the value of those reviews, and whether that is the right approach for everyone. I take on board her point, but my comments probably tell the Committee that we feel that there is more work to be done in this area.

[Earl Howe (Con)]

My Lords, once again, I express my appreciation to all noble Lords who have contributed to this debate. I highlight in particular the speech of the noble Baroness, Lady Hollins, which I found extremely powerful and persuasive, as did other noble Lords.

It strikes me that this is an especially appropriate grouping of amendments. The overuse of restraint in mental health settings and the use of completely untherapeutic long-term segregation are equally pressing and emotive concerns.

The noble Baroness, Lady Barker, pulled me up slightly on the issue of protection for those undergoing gender reassignment. The concern that I had in drafting the amendment was to cover protected characteristics across the piece, but she has drawn my attention to a lacuna, and I am very grateful.

I was somewhat disappointed with the Minister’s reply on the issue of restraint applied to mental health patients, which, as the noble Baroness, Lady Barker, pointed out, is an issue affecting adult patients as well as children. The amendment was drafted with precisely that in mind. The point that I sought to make was that, despite the statute law to which the Minister referred, the incidence of restraint on children in particular has rocketed, which raises questions about clinical practice, staffing and training around the code of practice. To my mind, it was a pity that the Minister had little to say about those possible areas for practical follow-up.

I shall read again what the Minister said about my amendment between now and Report. For now, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

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[Baroness Butler-Sloss (CB)]

My Lords, I came in today particularly to support Amendment 149, as others, including the noble Lord, Lord Pannick, have clearly done. What we are asking for is either for the loophole to be closed or for clarification. I share with the noble Baroness, Lady Keeley, the view that the judges produced a somewhat narrow definition of the situation. I agree with everything that has been said, and I do not want to repeat it, but with a narrow interpretation by the courts and with some lawyers here in Parliament and others who have put things so beautifully, Parliament can put right what is happening. That is what I am here to support: Parliament putting right what at the moment is not clear, is a loophole and needs to be put right.

[Earl Howe (Con)]

My Lords, I should like first to speak to Amendment 160BC standing in my name. Although it may not look like it, this is a probing amendment. I have tabled it because I have been made aware of concerns that there is a serious lack of clarity around one aspect of the Mental Health Act 1983 that would greatly benefit from a clarifying statement from the Minister.

Let us imagine a patient who is detained in a mental health hospital under the Act and who requires urgent treatment in another NHS setting, such as a general hospital. The treatment, let us further imagine, is kidney dialysis—that is just a random example. Unfortunately, in this case, the patient is deemed to lack decision-making capacity for his own health and well-being, and the doctors therefore agree that if he is transferred to the other hospital, he will need to be restrained during the time that he is receiving the treatment, because if he is not, there is a likelihood that the treatment will not be deliverable.

The question then arises: in that particular situation, does the Mental Health Act 1983 allow for the patient to be deprived of his liberty in a setting other than a mental health hospital in order for necessary life-saving treatment to be administered? I am aware that there are contrary opinions among lawyers and clinicians as to the answer to that question. Some believe that, in that example, it would be necessary for the managers of the mental health hospital to apply to the court for a deprivation of liberty order under the Mental Capacity Act, which the court could grant under its inherent jurisdiction. I understand that this is standard procedure in a number of mental health hospitals. By contrast, other experts are clear that Section 17(3) of the Act already provides authority to place the mental health patient into the custody of the managers of the acute hospital and that there is therefore no need to apply for a DoL order under the Mental Capacity Act in order to achieve this.

Section 17(3) of the Mental Health Act says:

“Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital”.


Those words appear to confirm the opinion that I have just set out—that the responsible clinician can authorise “leave of absence” in another hospital, with the patient being kept in custody so long as this is seen to be in the patient’s best interests.

Unfortunately, it also appears that there is more than one way of interpreting Section 17(3). There are those who maintain that what one might call the carte-blanche interpretation is too broad a reading of Section 17(3), which they insist needs to be read with Section 63 of the Act. Section 63 says:

“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment”.


Taken together, those two sections say that the Mental Health Act authorises treatment only for mental disorders and physical disorders that are part and parcel of the treatment for the mental disorder; in other words, for treatment of physical disorders that are not directly connected to the mental disorder, a court would need to make the appropriate order under the Mental Capacity Act. Who is right? I should be very grateful if the Minister would use this opportunity to bring some clarity to bear on this area of the law, around which there appears to be a veil of fog. Whatever the answer, will she ask NHS England to examine the guidance contained in the relevant part of the code of practice to ensure that it is as clear as possible about what the current law permits?

Finally, I shall comment briefly on Amendment 149, which the noble Baroness, Lady Keeley, has tabled jointly with the noble Baroness, Lady Barker. I fully support this amendment. At the same time, I regret that it appears to be necessary, and I say that with some personal feeling. The issue addressed by this amendment is precisely the same as the one which in 2014, as a Health Minister, I endeavoured to close down by means of a government amendment to the Care Bill, which now forms Section 73 of that Act.