Mental Health Bill [HL]

Earl Howe Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, with this group of amendments, the noble Baroness, Lady Bennett, my noble friend Lady Berridge, the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, have exposed a crucial set of issues: in my judgment, one of the two or three most important issues that we shall be dealing with during our debates on the Bill. At their heart, I suggest, is the conflict, or perhaps I should say the high risk of a conflict if nothing is done, between the arrangements that the Bill seeks to put in place for the creation of nominated persons on the one hand and, on the other, the law of the land as set out in the Children Act 1989.

Both this group of amendments and those in the next group in the name of my noble friend Lady Berridge focus on matters of the highest significance for child protection and child safety in all its aspects. The assumption inherent in the Bill’s provisions for nominated persons is that the process for appointing a nominated person is rigorous enough to ensure that someone unfit to be appointed to that role will not in practice be appointed, or that, if they are, the system will find them out. I believe that it is evident from what we have heard in this debate that that assumption is a highly dangerous one.

A nominated person will be someone in a position of considerable power. They will be able to exercise all the functions exercised currently by a nearest relative, as well as availing of additional powers as set out in the Bill. Children and young people under 18 will be able to appoint a nominated person. That person will be someone of their own choosing. It could be a parent or someone other than a parent, but the principal qualification for such a person is that they must have the child’s best interests at heart.

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[Baroness Butler-Sloss (CB)]

My Lords, for the reasons that have been given I also support the amendments of the noble Baroness, Lady Berridge. Just to add to what the noble Lord, Lord Meston, said, I respectfully point out to the Minister that if she does get in touch with the Judicial College, which I think would be a very sensible move, she should also let the President of the Family Division know.

[Earl Howe (Con)]

My Lords, in this group of amendments my noble friend Lady Berridge has raised an armada of issues which I think it is clear to all of us cannot be ducked. These issues, as she said, were examined at length both during the independent review and by the Joint Committee, but it has to be said that in both instances it proved too much of a challenge to identify a satisfactory resolution to them. For that reason, as we observed in our debate on the previous group, the weight of these matters now rests on the shoulders of this Committee and of the Government.

In summary, we need arrangements that are robust enough to ensure that a nominated person’s appointment can be effectively challenged, and that, in certain circumstances, where necessary, the exercise of their powers can be legally contested and blocked. Without those measures, we shall leave an unacceptable lacuna in the law and, more pertinently, run a high risk of exposing children to personal danger.

My noble friend is to be thanked for assisting this Committee’s deliberations with the clear way in which she has set out the challenge, and I hope and trust that the Minister will wish to grip the challenge with her usual vigour.

[Baroness Merron (Lab)]

My Lords, like the noble Earl, Lord Howe, I am most grateful to the noble Baroness, Lady Berridge, for introducing an appropriately wide range of scenarios, questions and testing. That is important for the Committee but also for our ongoing work. As the noble Baroness, Lady Tyler, said, to describe this area as complex is to use too small a word, and I think we are all wrestling with that to get it in the right place. I know that noble Lords are aware that the work is ongoing, and I thank them for their engagement and interest in this issue. As I said previously, I very much understand the need for a robust process to keep children and young people safe and ensure that only appropriate individuals can take on the role of nominated person, while giving children and young people that right to choose.

I will respond collectively to the amendments put forward in this group. As I set out earlier, we agree that in the vast majority of cases there is an expectation that a parent or whoever has parental responsibility would take on this role, and that would include consideration of special guardians and child arrangement orders. We also agree that, where parental responsibility has been removed due to care proceedings, in the vast majority of cases it is unlikely to be appropriate for such a person to take up this role. My reference to this being a complicated area—

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Moved by

[Earl Howe]

115: Clause 42, page 54, leave out lines 9 to 15 and insert—
“(1) An eligible patient shall have a right to create an advance choice document.(1A) For the purposes of this section, an “eligible patient” is a patient who—(a) has previously been detained under Part 2 or Part 3 of this Act, or(b) has been diagnosed with a mental disorder which may lead to the possibility they will be detained under this Act in the future.(1B) NHS England and each integrated care board must make such arrangements as it considers appropriate for—(a) ensuring that all eligible patients for whom it is responsible for the purposes of this section are informed of their right to create an advance choice document, and(b) helping an eligible patient to create an advance choice document.”Member's explanatory statement
This amendment gives all eligible patients the statutory right to create an advance choice document if they so wish.

[Earl Howe (Con)]

My Lords, Amendment 115 takes us to one of the features of this Bill which has been universally welcomed: the creation of advance choice documents or ACDs. An ACD is a means by which a person can record in writing their decisions, wishes and feelings about their treatment, should they be admitted to a hospital or a mental health unit as an in-patient, whether informally or detained compulsorily.

On that account, ACDs are a major component part of one of the Bill’s key strands, which is to give mental health patients better control over their own care—which, of itself, carries a therapeutic value. Giving that element of extra control also reduces the risk of discrimination creeping into any decisions about care and treatment.

The Explanatory Notes say that the people most likely to benefit from an ACD are those who may be detained in a mental health unit or who are likely to be hospitalised at some point in the future. This is because research has shown that ACDs have the potential to reduce time spent in hospital and, significantly, to reduce compulsory detention rates by up to 25%. So the creation of ACDs carries enormous potential.

Clause 42 sets out the duties of NHS England and integrated care boards in making the necessary arrangements for facilitating ACDs. Each of them is required to make information about ACDs available to the people for whom it is responsible, as defined in the clause, and to help such of those people as it considers appropriate to create advance choice documents.

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[Baroness Merron (Lab)]

I would be very glad to share the date if I could put a date on it. It will be after Royal Assent, and I will keep noble Lords updated.

[Earl Howe (Con)]

My Lords, I very much appreciate the support from around the Committee for my Amendment 115. I support all the other amendments in this group, each of which is designed to bolster the rigour and thoroughness of the advance choice document process.

It is good to hear from the Minister that the code of practice will include guidance on how information on ACDs will be made known to relevant would-be patients. I shall need to reflect on this, but I confess I retain a worry in this area. The CQC in its annual report of 2020-21 on monitoring the Mental Health Act reported that many patients do not have their rights explained to them during their treatment. This is despite the existing requirement in the Mental Health Act code of practice for hospital managers to provide information both orally and in writing. Clearly, if someone without an existing ACD is admitted to a mental health unit for treatment, it will be too late for them to execute a valid ACD during that episode of care. The time to be informed that an ACD could be an appropriate thing for them to draw up is once they are discharged, to cater for possible future contingencies.

I suggest that the CQCs finding is still relevant, its point being that the NHS is not all that good at providing information to patients in a timely or appropriate way. Therefore, I think that creating a duty to do so would add value—perhaps not in the precise terms I have used in the amendment, but in similar language. That could, incidentally, be achieved quite easily if mental health patients were automatically invited to complete a debriefing report following discharge from hospital in the way that I suggested in an earlier amendment.

The prize, let us remember, could be significant. I refer noble Lords back to remarks by the noble Baroness, Lady Murphy, in an earlier debate, where she indicated that independent advocates have been proved as central to the success of advance choice documents—a facilitator, in other words. She referred to a study in North Carolina that showed that providing a facilitator in the form of an independent advocate increased the number of people making a psychiatric advance directive from 3% to 60%. That is a very powerful set of figures.

I hope the Minister will be open to further discussion on this and the other amendments in the group between now and Report. Meanwhile, I beg leave to withdraw my Amendment 115.

Amendment 115 withdrawn.

Mental Health Bill [HL]

Earl Howe Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

[Baroness Browning (Con)]

My Lords, Amendment 128 is in my name. A person with autistic spectrum disorder or a learning disability may be stuck in hospital for years; we know that they often are. We sincerely hope that matters will improve dramatically when this Bill is enacted, but we should not be so optimistic as to think that will happen in the near future. However, when somebody is in hospital that long and no longer needs clinical supervision—some in the autistic and learning disability community, for example, never needed to be in there at all—parents become extremely stressed and frustrated. There may be long periods when a close relative, often their adult child or a younger child, is stuck in these hospitals and the parents cannot get them out.

We heard in debate earlier this evening of the differences between the county courts and the mental health tribunals; of course, there are also people who sometimes resort to the Court of Protection. Although I heard noble and learned Lords giving their different views on these, most seemed not to regard the county courts as the most appropriate course. It is a fact, though, that the Court of Protection has had some success in getting out people who have been unduly held in mental health hospitals.

Amendment 128 proposes that mental health tribunals are strengthened to give them the same opportunity as the Court of Protection to make progress in releasing people from long stays in hospitals. If they are to do that, the mental health tribunals need to have more powers, particularly to require local authorities and the NHS to provide a report to enable discharge for a person who no longer clinically needs to be in hospital. This would give tribunals the same powers that the Court of Protection has under Section 49 of the Mental Capacity Act, because there has been some success.

The Court of Protection has been able to secure discharges because it is able to call for reports from local authorities and health services to put the case that it feels confident that it would be safe to discharge somebody. Parents who do this very often have to fund it themselves. Strengthening the tribunal cases, in line with the sort of powers that the Court of Protection has in getting information collated, to make sure the discharge package is sound is very important. This approach would be stronger and more effective than the Government’s proposal that tribunals make recommendations on Section 117.

That is what the Government propose, but I hope that the Minister will look carefully at this amendment. It would enhance mental health tribunals, increasing the number of people who have proper discharge packages through these tribunals. I do not see this as a competition between the Court of Protection and tribunals. Both have a place, and this will be important if we are to achieve what this Bill wants to achieve: to make sure that people do not stay in health mental hospitals a moment longer than they absolutely have to. I beg to move.

[Earl Howe (Con)]

My Lords, I believe we would all accept—and, personally, I am in no doubt—that my noble friend Lady Browning possesses a breadth and depth of experience in matters relating to autism and learning disability. By that, I mean that she has not just a familiarity with the day-to-day challenges of life for individuals with one or more of these conditions but a knowledge of the practical frustrations and hurdles that often have to be overcome if the best interests of such individuals are to be properly defended.

It is amply clear from what my noble friend has said that, if this amendment were inserted into the Bill, it would have the potential to make a material and beneficial difference to the process of discharging certain patients from a secure mental health unit in particular types of situations. As my noble friend said, and as we all know, there have been many instances where autistic patients have been detained inappropriately and for long periods under the Mental Health Act and where families have struggled to secure their relatives’ release.

I cannot see a logical reason why a mental health tribunal should not be placed on an equal legal footing with the Court of Protection in this very limited respect. I hope the Minister will agree.

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

My Lords, I am most grateful to the noble Baroness, Lady Browning, for tabling Amendment 128 and for her contribution, along with that of the noble Earl, Lord Howe.

On the proposals in Amendment 128, I can tell your Lordships that, under the current tribunal procedure rules, the tribunal can direct responsible authorities, which could be a local authority or an NHS body, to provide evidence. The practice directions that apply in mental health cases place a requirement on the responsible authority to provide reports and records relating to the patient’s detention treatment and any after-care plans. The tribunal can use these reports to decide whether the detention criteria are being met. Therefore, it appears that the tribunal has extensive powers to require responsible authorities to provide the information to support its decision on whether to discharge a patient. I hope that the noble Baroness will be satisfied with this response and will withdraw her amendment.

Mental Health Bill [HL]

Earl Howe Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

Moved by

[Earl Howe]

46: Clause 8, page 14, line 17, at end insert—
“(iii) seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma;”

[Earl Howe (Con)]

My Lords, as well as moving Amendment 46, I will speak also to Amendments 47, 53, 54 and 95 in this group. These amendments have one central aim in common, which is that of maximising the therapeutic benefit of being cared for in a secure mental health unit. That aim should be common to all mental health patients, young or not so young, but it is largely the concerns of younger mental health patients which have prompted these amendments.

Blooming Change is a small independent charity whose membership is comprised of children and young people who have experienced detention in mental health in-patient units in England as children. It is at their urging that I have tabled Amendments 46 and 47. I have done so after hearing some first-hand accounts of incidents in which children in mental health settings have been treated in a fashion that is the very opposite of therapeutic, by which I mean treated with a lack of understanding, with an obvious vindictiveness, sometimes, and sometimes even with outright cruelty.

It is perhaps hard to imagine this happening when we know how professional and caring most staff in mental health units are, but I am absolutely persuaded that it does happen, and not just rarely. Medical interventions such as nasogastric feeding or sedation are threatened and used as punishments. Patients who have raised concerns with their parents have been silenced by their parents being told by staff that they should take no notice of the concerns, because the child was either unwell or lying.

One young person reported as follows: “Young people on section were essentially incarcerated, yet still not able to voice views or share how they felt or generally engage with their treatment. This would lead to overuse of medical interventions or the threat of this, leading to young people living in fear and not having a way to raise concerns. Many of these things had a long-lasting impact on me. Had this coercion not occurred and medicalisation not been used as punishment, I would have been able to access treatment and recover, instead of the treatment compounding my illness and in many ways contributing to me being stuck in the cycle”.

Blooming Change has pointed out the significance of childhood trauma as a factor underlying a large number of mental health admissions involving young people and the challenging behaviour that they then exhibit. The problem is that, all too often, the link between childhood trauma and the way that a patient behaves is not recognised or understood. As a result, someone with autism or a severely troubled and traumatised young people person going into meltdown —as was well described, incidentally, by my noble friend Lady Browning during our first day in Committee —is simply viewed as wilfully disruptive or downright disobedient, with punishments doled out in response.

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[Baroness Merron (Lab)]

I would be very pleased to look into it further, but, as I have described, this is a rolling programme. I emphasise that the CQC has that duty both to monitor but also to make the relevant bodies subject to sanctions if needed—in other words, more immediately. So I am concerned that through this amendment we could be creating a structure which is actually less flexible and responsive than the one we have now.

Amendment 148, tabled by the noble Lord, Lord Crisp, and the noble Baroness, Lady Hollins, would impose on integrated care boards—ICBs—a legally binding duty to provide local, in-person, specialist withdrawal treatments for patients on psychiatric medication prescribed during the course of their treatment by services under the Mental Health Act. In addition, there would be a duty on each ICB to send to the Secretary of State an annual report on the availability, uptake and outcomes of this support. Under this amendment, the Secretary of State would be obliged to lay these reports before Parliament. ICBs would also be subject to a requirement to provide a 24-hour helpline and online platform to support patients to receive withdrawal treatment.

Let me say at the outset that I recognise the difficulties that withdrawal can pose. I recall that the noble Lord, Lord Crisp, spoke on this very point in the Chamber last month and was also good enough to speak directly to me. It is, I agree, an issue that will not go away and, per the noble Lord’s request, I would be happy to arrange a meeting. I feel there is a whole area here to which we today, considering amendments, cannot do justice, so I would be pleased to do that. To the noble Lord, Lord Mawson, who has tabled Written Questions, I say that I look forward to answering them, and I hope that he will look forward to reading my Answers.

Where relevant, we would expect the patient’s statutory care and treatment plan to include a tapering plan and put in place whatever additional support is needed to enable a patient’s recovery and effective discharge. On the requirement to provide support in the community and report on availability, this is the responsibility of local health commissioners. In 2023, NHSE published a framework for ICBs and primary care boards on how to optimise personalised care for patients prescribed medicines associated with dependence or withdrawal symptoms. With regard to the requirement in the amendment for a 24-hour helpline, this would not seem proportionate, given the relatively low numbers of people who might need this service, who should already have a support plan in place, including access to relevant local support services.

Finally, Amendment 154, tabled by the noble Baroness, Lady Bennett, would allow the Secretary of State to make regulations giving people detained in hospital and those subject to community treatment or guardianship orders the ability to have certain care and treatment matters considered by a mental health tribunal.

This is a very complex area, as I am sure the noble Baroness is aware. The amendment seems to draw on the recommendation made by the independent review to give patients a new right of appeal to a single judge of the mental health tribunal regarding compulsory treatment. I recall that the previous Government publicly consulted on this new right, and the majority of respondents raised major concerns in this regard. The consultation was followed by further long and careful consideration with stakeholders, which led the then Government to the conclusion that this safeguard is just not viable. A solution could not be found that provided an efficient and effective route of appeal for patients while avoiding the risks of the tribunal intervening in clinical decision-making, alongside significant resource burdens. Many of these concerns were reflected in the report of the pre-legislative scrutiny committee, which also acknowledged the complexity of the issue.

We believe that the other provisions in the Bill will better achieve the same objectives of providing patient choice and autonomy, so while we do not support introducing a new role for the tribunal, I assure your Lordships that the emphasis on therapeutic benefit within the detention criteria will mean that whether care and treatment are proving effective will play a role in the tribunal’s consideration of whether or not detention should continue to be upheld. With these explanations, I hope that the noble Earl feels able to withdraw his amendment.

[Earl Howe (Con)]

My Lords, I am very grateful to all noble Lords who have contributed to this debate in such compelling ways, and I think we can see that when it comes to the experiences of children and young people in mental health units, we are dealing with a story that is a lot more substantial than mere anecdote. From briefing I have received, I am afraid I have been left in no doubt that the therapeutic environment in a number of mental health hospitals around the country—not all, of course—is, to put it mildly, a lot less than optimal.

Clearly, it is unacceptable for any patient, of whatever age, to be detained compulsorily without being offered treatment. It is unacceptable that drugs or restraint should be used as punishments. Challenging behaviour can be difficult to deal with, but staff should be trained to deal with it in a way that demonstrates that they understand the root causes of the behaviour. Those causes can be extremely complex.

To pick up another strand of the debate, I am in no doubt that medication has a place in mental health therapy. It can often be the treatment of choice. It is one tool in the toolbox. However, I very much agree with what the noble Lord, Lord Crisp, and the noble Baroness, Lady Tyler, had to say about social prescribing. It can not only be clinically effective but save costs if it is delivered, for example, by local charities that work in the fields of music, drama or art. Incidentally, it can help budding musicians, actors and artists in their downtime to train as music, art or drama therapists, which is an added bonus.

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[Baroness Barker (LD)]

My Lords, I make two specific points in response to what the noble and learned Baroness, Lady Butler-Sloss, said. The amendments refer to Section 24 of the Mental Capacity Act, but if one goes on to Section 25 of that Act, there are a number of conditions that have to be fulfilled in order for a record of an advanced decision to be deemed valid. I think it is worth pointing out subsection (5) to noble Lords, which states:

“An advance decision is not applicable to life-sustaining treatment unless … (a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and (b) the decision and statement comply with subsection (6).


Subsection (6) states that it must be,

“in writing … it is signed by P or by another person in P's presence and by P's direction … the signature is made or acknowledged by P in the presence of a witness, and … the witness signs it, or acknowledges”

it to be true.

I am trying to convey to the noble and learned Baroness that these are very formal procedures. They are not taken lightly. That applies to somebody who is 18 and one day, and I think it should be applied to somebody who is younger than that with as much seriousness.

Noble Lords and others have referred to these decisions as advance decisions to refuse treatment. Advance decisions can also be for treatment. People can say in an advance decision, “I know that when I am in an episode of illness, I may be saying that I do not want medication. At this moment in time, when I have capacity, I wish it to be put down in writing that if I do that, you are to ignore it”.

I would like us to have a fuller appreciation of what it is we are talking about, although I do not detract from any of the considerations that people want to bring in about young people.

[Earl Howe (Con)]

My Lords, I venture to say that all the amendments in this group approach similar issues in not dissimilar ways. The most compelling point that perhaps should be underlined in relation to them all is that implied by the amendments in the name of the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston: that there is no earthly reason why the law should prohibit a young person with sufficient decision-making competence recording a valid expression of their wishes and preferences around their own mental health care, and the logical consequence of that is the need for a competence test, or a capacity test for child patients.

My Amendment 56 seeks to address an issue allied to those addressed by the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston. As it stands, the Bill does not permit a 16 or 17 year-old to make a valid advance decision about their mental health care. An advance decision has the same effect in practice as a capacity decision to refuse a particular treatment. It is important to understand that under the Mental Health Act, making an advance decision does not give someone an unfettered right to refuse that treatment. Treatment can still be administered notwithstanding the advance decision, albeit only if certain strict conditions are met. Nevertheless, an advance decision made by an adult patient carries a huge amount of weight, and placed within or alongside an advance choice document, which enables a patient to outline their treatment preferences, it does a great deal to ensure that the patient is placed genuinely in the driving seat when it comes to their mental health care and treatment.

Under the terms of the Bill, young persons aged 16 and 17 will be able to execute an advance choice document, but what they cannot do is to make an advance decision to sit alongside it. That means that an advance choice document that purports to include an advance decision made by an under 18 year-old is likely to carry a good deal less weight than such a document executed by an adult. My amendment invites the Government to put this right.

An associated but distinct issue arises in relation to children under the age of 16. I will not repeat the excellent arguments for a competency test put forward by the noble Lord, Lord Meston, and the noble Baroness, Lady Tyler, but I agree entirely with what they have said. The point that resonates most with me in the context of a Bill that places great emphasis on patient empowerment is that in the absence of a statutory competence test to determine a child’s decision-making ability, it will, in practice, be impossible for someone under 16 to execute an advance choice document and then expect professionals to take due notice of it.

Amendment 147, tabled by the noble Lord, Lord Meston, seems to me to be as good as it gets in articulating the key requirements necessary to establish decision-making competence in a child. My only hesitation about his amendment is that it invites us to place the terms of a competency test in the Bill without further ado. For a measure of this significance, I tend to feel that any final formula for a competence test merits a prior consultation exercise, and then encapsulation in regulations approved by Parliament. I fully agree with my noble friend Lady Berridge that relying on a code of practice in this context would be wholly unsatisfactory. For what it is worth, I suspect that a consultation would be likely to throw up some further considerations that would need to be factored in to the formula. That aside, I very much hope that the Minister will be receptive to the arguments she has heard. If we can deliver this added empowerment to children and, as regards advance decisions, to 16 and 17 year-olds, the prize will be very great, and I hope she agrees that the challenge is one we must address.

[Baroness Butler-Sloss (CB)]

My Lords, if the noble Earl is suggesting that the provisions in the amendment of the noble Lord, Lord Meston, should go either to consultation or to further consideration, will we not end up in a situation where this Bill becomes law and nothing is done to advise anyone, on the face of the legislation, how to deal with those under 16, although it is there for those over 16? Why should, in this particular instance, those under 16 basically be discriminated against? Whether or not they have capacity is the point of the amendment.

[Earl Howe (Con)]

I am grateful to the noble and learned Baroness. I hope it was implicit in what I said that I would look to this Bill to include an order-making power that would enable regulations to be laid in due course that would cover not only 16 or 17 year-olds but also those under 16, and Parliament would then approve them. No doubt this is a matter that we can discuss further after this, but I hope that the point of principle is clear, which I fully support, that this issue needs to be sorted through this Bill.

[Lord Scriven (LD)]

I have listened to the noble Earl’s argument carefully, and in principle I support what he is trying to do. The only problem with leaving the matter to a statutory instrument, rather than putting it on the face of the Bill, is that it is far easier for the Secretary of State to change that, even despite the will of Parliament, based on the way that Parliament works. Why could it not be on the face of the Bill, to give absolute certainty, rather than in a statutory instrument, which normally gives flexibility and powers to a Minister?

[Earl Howe (Con)]

There are two answers to that. First, it is generally unthinkable for a Government to lay regulations without first having consulted the relevant parties. Secondly, if we are honest, putting something on the face of a Bill is not the whole story; there would need to be proper clinical guidance published alongside that for practical purposes for hospitals and elsewhere.

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for examining the important issues that have been raised in this group of amendments.

Amendment 55, in the name of the noble Baroness, Lady Tyler, supported by the noble Lord, Lord Scriven, seeks to change the Mental Capacity Act to allow young people aged 16 or 17 the ability to make a binding advance decision to refuse medical treatment for mental disorder. I shall set out some concerns about the amendment that may be helpful.

First, the amendment would mean that a young person who is not detained under the Mental Health Act could refuse a mental health treatment, even if it was life-sustaining. While the Mental Health Act and the Bill currently provide safeguards that enable a person’s advance decision to be overruled, detention under the Act may not always be appropriate. For example, if a 16 year-old is left very unwell following an attempted suicide, then currently they may be given treatment on the basis of what is in their best interests, under the Mental Capacity Act, if they lack capacity to consent at the time. However, under the amendment, if the 16 year-old had made an advance decision to refuse treatment necessary for their recovery or to sustain their life, then they might need to be detained under the Mental Health Act simply so that their advance decision could be overruled. This is important in terms of timely access to treatment and to avoid loss of life, of course.

Mental Health Bill [HL]

Earl Howe Excerpts

Committee stage
Monday 20th January 2025 Lords Chamber

Moved by

[Earl Howe]

23: Clause 4, page 9, leave out lines 9 to 13
Member’s explanatory statement
This probing amendment seeks to clarify the Government’s intended definition of “specified risk factors for detention” under Part 2 of the 1983 Act.

[Earl Howe (Con)]

My Lords, in moving Amendment 23 I shall speak also to the other amendments in this group, Amendments 139 and 141. These amendments, although they may not look it, are all of a piece, because they bear upon the fulcrum for any decision to detain a patient under the Mental Health Act, which is the concept of “serious harm” and what we mean by it. My noble friend Lord Kamall’s Amendment 141 offers such a definition, but we have tabled the amendment more as an Aunt Sally than anything else, because what matters is how we want the phrase to be interpreted in real-life situations by clinicians and others on the ground.

The concept of serious harm as a determining factor for detention is introduced by Clause 5. Clause 5(2)(b) replaces Section 2(2)(b) of the Act, which refers instead to detention in the interests of a person’s own health or safety, or with a view to the protection of other persons. The new wording is undoubtedly tighter than the old wording and, on that account, it is to be welcomed. However, it is not, as far as I can see, fleshed out by any definition. That could, of course, be deliberate, because, in the end, a decision to detain someone will always be a matter of clinical judgment. Such judgments, though, ought surely to rest on established understandings. Serious harm, as applied to the health or safety of the patient themselves, may be a relatively straightforward clinical judgment to make in many, if not most, circumstances. But what about serious harm as applied to the health or safety of another individual? Do we mean just physical harm or are we talking also about psychological harm? If so, of what kind and to what degree? Detaining someone on the grounds that serious psychological harm may be caused to another person raises all sorts of issues that fall outside a standard clinical judgment about the health and/or safety of a prospective in-patient.

The threshold of serious harm being caused, or at risk of being caused, is of huge significance for different types of patients. One of the really good things that this Bill seeks to do is to keep individuals with autism or a learning disability out of a mental health unit, unless they present with other behavioural symptoms that are treatable. That is because we recognise that not only is there no point in detaining such individuals when they display no treatable symptoms, it is also positively harmful to them to do so. In the same way, I think it is accepted that to detain a child or a young person forcibly in a mental health unit is a very big decision indeed, because what is meant to constitute a therapeutic environment is all too often no such thing. On the contrary, a mental health ward or even an A&E department can often seem both alien and frightening to a young patient, in a way that can exacerbate their acute disturbance of mind.

Nobody wants to see people detained forcibly in a mental health unit unless it is essential and right, but so often the choice is a binary one: to detain in hospital or not to detain in hospital. How much better it would be if, in particularly sensitive cases, there were another option, a place of safety and comfort close by in the community.

That is why I tabled Amendment 139. We know that community-based services can be a significantly positive alternative to treatment in mental health hospitals and secure units. We need to look at affordable ways of creating more, especially for those with autism and learning disabilities and for children where the alternative may indeed be forcible detention under the Mental Health Act.

The King’s Fund reported in July 2024 that

“community health services have about 200,000 patient contacts”

every day. Anxious Minds argues that community-based mental health services provide three key benefits:

“Geographical convenience of mental health facilities”,


the relative affordability of such services and, importantly, culturally sensitive approaches to care

“that appeal to diverse populations”.

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We very much appreciate the desire for accountability and scrutiny, and I want to give that assurance to Parliament as we progress these reforms. I say that as a general point, because I understand that noble Lords will have heard my responses to a number of the amendments. For those reasons, I hope that the noble Earl feels able to withdraw his amendment.

[Earl Howe (Con)]

My Lords, I thank all noble Lords who have taken part in the debate on this group of amendments. As I trust was clear from my opening speech, all three are intended as probing amendments designed to tease out some key definitions. It was actually Amendment 141, regarding the definition, that I described as an Aunt Sally.

I was particularly grateful for noble Lords’ support for Amendment 139 and for the Minister’s helpful comments. There is very little doubt that, as I think is generally accepted, community services delivered in partnership by local charities and civil society both reduce the cost to the state and carry the benefits I articulated earlier. Without implying any criticism of the NHS, those sorts of organisations will of course know their own communities better than an NHS hospital will.

I am grateful to the Minister for what she was able to say about the definition of “serious harm”. The Explanatory Notes state that a test of serious harm has been introduced

“to provide greater clarity as to the level of risk of harm that a person must present in order to be detained”.

They then state that further guidance on what constitutes serious harm will be set out in the code of practice. So far, so good, and it is welcome that that will be clarified in the code of practice, but one of the issues here is that that will come later. Serious harm is included as one of the two key tests for detention in Clause 5, so what is meant by serious harm will impact on all future decisions made within the scope of the legislation. Therefore, we need maximum clarity from the Government as we debate the Bill.

As regards the “specified risk factors”, I am again grateful to the Minister. I slightly worry that a person’s past history of admission to hospital could constitute a specific a priori risk factor for detention. There is a danger that that may turn into a directly determining factor for detention, rather than a factor to be taken into account in assessing an individual set of circumstances.

As regards drug and alcohol misuse, we need to be careful not to encourage a circumvention of the Mental Health Act, which explicitly excludes drug and alcohol addiction as grounds for detention.

I am once again grateful for the support that noble Lords were able to give to my amendments. I beg leave to withdraw Amendment 23.

Amendment 23 withdrawn.

--- Later in debate ---

[Lord Kakkar (CB)]

My Lords, I support Amendment 42A in the name of the noble Baroness, Lady Browning, and I ask the Minister what justification there could be for refuting the amendment. It seems entirely appropriate, and indeed essential, that in taking such an important, far-reaching decision, one of the two registered medical practitioners who is responsible for that decision, taken at one point in the management of the natural history of disease in that individual, has the specialist skills and training to be able to make an appropriate assessment, one that will affect interventions on all future occasions for that individual.

I hope that, in addition to accepting this important principle, the noble Baroness might outline how His Majesty’s Government will go about ensuring that the development of such medical practitioners and their training is adequately resourced to ensure that, in future, as a result of the Bill being enacted, what we have seen in the past, regrettably on repeated occasions, does not remain the norm for managing patients with autism and learning disabilities.

[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.

--- Later in debate ---

[Lord Meston (CB)]

My Lords, I hesitate to interrupt, but I want to make much the same point that the noble Baroness has made based on my experience of a trip to A&E last year. I mentioned it anecdotally at Second Reading. There was a very disturbed person in A&E when I was having to wait there for some three hours. The hospital staff were struggling to contain the person in one room, as he kept leaving. He was not violent, but he was obviously distracting the hospital staff and worrying the other people present, who included children. As soon as anybody asked the staff what they were going to do, they said that they had to wait for the police. I have no doubt that the whole episode that I witnessed was prolonged by the need to wait for the police. Clearly, if this amendment or something like it is approved, it will widen the range of those who could be called upon to deal with such a crisis.

[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.

Mental Health Bill [HL]

Earl Howe Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Earl Howe (Con)]

My Lords, I begin by extending my gratitude to the noble Baroness, Lady Merron, for introducing the Bill into your Lordships’ House and for her very clear exposition of its contents. It is a Bill that we on these Benches warmly welcome. That welcome should not come as a surprise because, as the noble Baroness said, the Bill before us is the successor to a draft Bill prepared by the previous Government, a draft that owed its origin to my noble friend Lady May, on whose watch a review of the 1983 Act was initiated some seven years ago during her time as Prime Minister. Much of what we see laid out here is the product of diligent work carried out by Professor Sir Simon Wessely and his review committee, as well as the Joint Committee of both Houses, so ably chaired by my noble friend Lady Buscombe.

The passage of the Bill presents us with a golden opportunity to address both the current state of mental health provision and the law that governs it. The last major update of the Act took place in 2007 under the previous Labour Government. That may not sound like a long time ago but, as we shall no doubt hear from others, experience gained in the intervening years has taught us that a further update is indeed warranted if we are to ensure that the Act remains relevant and appropriate, and that its powers are proportionate.

Wherever the state uses its powers to deprive an individual of their liberty, the necessary safeguards must be in place so that those powers are used sparingly, proportionately and with the highest regard for human dignity and autonomy. That is why the Bill is so important. Since the last set of changes to mental health legislation in 2007, the number of people being detained under the Mental Health Act has grown exponentially. In fact, since 1983, the numbers have nearly doubled to a total of over 52,000 new recorded detentions between 2023 and 2024.

Within that total, we have also seen a stark disparity in the classifications of those being detained. Black people are 3.5 times more likely to face detention under the Act. Shockingly, to my mind, there are currently over 2,000 people with autism and learning disabilities detained in mental health hospitals across the country. I was equally shocked by the realisation that people with autism can be detained even if they do not have a mental health condition, leading to disproportionate, burdensome and wholly inappropriate treatment.

These issues occupied centre stage in the Wessely review, which proposed the formal recognition of four key principles that should from now on govern both theory and practice in this area of the law. The principles are: choice and autonomy; least restriction on liberty; therapeutic benefit; and the person as an individual. The previous Government fully accepted these four principles and—giving life, as it were, to those principles—the draft Bill set out to make a number of important changes. It strengthened the rights of patients with a learning disability, it gave patients greater autonomy in choosing how they wish to be treated, it introduced duties on commissioners to better understand and support people with a learning disability or autism, who may be at risk of crisis, and it sought to update community treatment orders, which are one of the key drivers of racial disparities in the numbers of people subject to restrictions under the Act.

It is therefore very pleasing indeed to see this Government’s firm commitment to enacting exactly these reforms, and I, for one, hope that as the Bill proceeds, we can come together as a House to implement and, where necessary, improve this hugely beneficial set of changes.

With consensus as the thread that, happily, we expect to run through our consideration of the Bill, there are nevertheless certain themes within it that are likely to require our particular attention. The first of these is community treatment orders. CTOs were first introduced in the Mental Health Act 2007. The Joint Committee on the earlier draft Bill was very clear that CTOs had been widely overused and that they are one of the leading causes of the racial disparities that I referred to a minute ago. The Bill before us makes a number of changes to the criteria governing the use of CTOs, all of them designed to support two of the key principles in the Bill: those of least restriction and therapeutic benefit.

As far as they go, these changes are desirable. However, the Bill stops short of including the full suite of recommendations made by the Wessely review. The Centre for Mental Health has raised this as a key concern. It points out that there is still no persuasive evidence of the benefits of CTOs. Against that background, it argues that a number of checks and balances are needed on the use of CTOs in future, over and above those already in the Bill. In particular, it notes that the committee recommended a full statutory review of the use of CTOs to report within a fixed timeline, which, on the face of it, is the least that we should be doing. I think we will want to debate in Committee why the Government have not felt it appropriate to go as far as the Joint Committee and the independent review recommended in this area.

The next important theme is children and young people. According to NHS data—and this was highlighted by the noble Lord, Lord Darzi, in his recent review—932 children in mental health units were subject to restrictive interventions in 2023-24. In total, more than 84,000 restrictive interventions were carried out on these children, which is a 51% increase from the year before. This is the highest number of restrictive interventions recorded since figures were made available in 2019, and that is despite the number of children in mental health units appearing to decrease.

We have a duty to use the Bill as an opportunity to identify ways of reducing such restrictive interventions and using them more humanely and more proportionately. Two years ago, the Government launched the Oliver McGowan training for NHS staff to help them better deal with young patients with autism. Noble Lords may remember that this was in response to a truly harrowing and appalling set of occurrences that ended with the death of a young man. It is fair to say that the case shook the health service to its core. I believe we have in the Bill the opportunity to take forward those lessons so as to protect children who may be at risk from unwarranted detentions.

The independent review and the Joint Committee had much to say about how treatment of children under the Mental Health Act could be improved. Unfortunately, by no means all those recommendations have found their way into the Bill. One such omission relates to the inappropriate placement of under-18s into adult wards or facilities that can sometimes be miles away from their home. The Joint Committee found that in each of the years 2016-17, 2017-18 and 2018-19, over 1,000 children were placed out of area, and that in 2020, 21% of children and young people were placed as in-patients more than 50 miles from their home.

It is perfectly obvious that being taken to an unfamiliar environment in a place far away from friends and family is almost guaranteed to exacerbate the issues young people face when experiencing a mental health crisis. On top of this, data from the Care Quality Commission showed that in 2021, 249 children and young people admitted for mental health treatments were housed on adult wards for more than 48 hours, some for a good deal longer than that. These are uncomfortable figures; I hope noble Lords on all sides of the House will want to ensure that, through this Bill, we take all possible steps to bear down on the scale of these problems and strengthen the protections afforded to children and young people.

One of the core themes that has remained prominent throughout the process that has led to this Bill is that of choice: giving patients as great a degree of autonomy as possible in how they are treated and maximising their ability to determine what happens to them if they are detained. In that regard, I think the Bill succeeds on many counts, but one measure recommended by the Joint Committee was that there should be a statutory right to an advance care document for every patient who has been or may be detained under the Mental Health Act. The Bill, as it stands, does not follow up on this recommendation. Instead, it places a duty on NHS England and integrated care boards to make information regarding such documents available to patients. I do not doubt that this is a beneficial reform, but we should debate whether it goes quite as far as it usefully might. Guaranteeing patients and service users the chance to state and record their preferences for care and treatment plays directly into the key principles of choice, autonomy and treating every person as a rounded individual—so what are the barriers to doing that?

There are a whole host of detailed issues which we will need to cover in Committee. The final, major area I want to touch on is that of the role played by the police. Inevitably, circumstances arise in which the police are required to become involved with people who may be a risk to themselves or to others. There is a strong feeling that encounters with the police are far too common for people with mental health conditions. As the independent review and the National Police Chiefs’ Council have pointed out, the presence of the police in situations where a mental health issue poses a risk of serious injury or death can be counterproductive. In its written submission to the Joint Committee, the Metropolitan Police stated that:

“Our officers simply cannot provide the specialist care needed, exposing both patients and officers to extreme risks”.


The NPCC has also expressed its concern that the role of the police in mental health pathways must be reduced.

It is welcome that the Bill goes some way to addressing this. Clause 46 removes police stations and prisons as places of safety, thereby preventing patients experiencing mental health crises from being locked up inappropriately. However, there is a potential knock-on effect that we should talk about in Committee. Well-intentioned as the provision is, it could well lead to a rise in people being admitted to accident and emergency departments, escorted by the police, and having to wait in crowded spaces with the lack of the necessary, specialised facilities until they can be assessed by clinicians. In this environment, the risk of harm could well be multiplied. We need to ask how this risk can best be mitigated. I fear that any realistic answer will need to involve resources, by which I mean taking steps to ensure that the requisite arrangements are made for NHS trusts to deal with an increase in the number of mental health patients being admitted to hospitals as places of safety. This is not an easy set of issues, but it is a subject that we cannot duck.

Parliament must see to it that wrongful, inappropriate and untherapeutic detentions of those undergoing a mental health crisis are brought to an end. The Bill provides us with a necessary and welcome opportunity to transform the treatment of those with mental health conditions and to bring both doctrine and practice well and truly into the 21st century. Along with my noble friend Lord Kamall, I look forward to working with the Minister and with noble Lords on all sides of the House to scrutinise and—where we can—improve the Bill’s provisions. Many thousands of the most vulnerable members of our society are depending on us to do so.

NHS: Independent Investigation

Earl Howe Excerpts

Tuesday 8th October 2024 Lords Chamber

[Earl Howe (Con)]

My Lords, I am glad we are having this debate on the report by the noble Lord, Lord Darzi, even if the tone set by the Statement—which I am sure noble Lords have read—is, as far as I am concerned, rather regrettable. It is regrettable because the noble Lord, as one would expect of that most distinguished man, has produced a thoughtful and carefully argued diagnosis and set of prescriptions for the NHS. It would have been better to treat those findings on their own terms rather than as an excuse for a highly charged political rant. Having said that, I hope that, in this House at least, we can maintain debate on a rational and civilised level.

There are indeed problems in the health service that are there for all to see and others that are less immediately visible. These problems are real and indeed require sustained remedial effort. The noble Lord, Lord Darzi, attributes them to a mixture of causes, one being inadequate central government funding. I do not expect the noble Lord to be an apologist for the previous Government, but it would have been nice if he had acknowledged more fully that, despite so-called austerity, health service funding rose in real terms in every year since 2010 and in the last five years by nearly 3% in real terms per annum. The problem, as Sir John Bell has pointed out, is not a lack of money: it is that too much of the money has been sucked, suboptimally, into acute care settings and not enough into the community. The noble Lord goes on to say that very thing. But let no one conclude from that that community funding has been neglected. The last Government oversaw the opening of 160 community diagnostic centres. As my right honourable friend said in the other place, this is the largest central cash investment in MRI and CT scanning capacity in the history of the NHS.

Is there more to be done? Yes—but the results are there and proving their worth. The NHS is currently treating 25% more people than it did in 2010. It is delivering tens of millions more out-patient appointments, diagnostic tests and procedures than it did when the coalition Government came into office. Some of the community services are being delivered by staff employed by acute trusts—the statistics tend to hide those numbers. Yes, we can talk about the need for greater productivity, but this progress—it is indeed progress—is all down to the efforts of the dedicated clinical staff across the health service on whom we all rely, and who are more in number than at any time in the service’s history.

Please do not criticise the last Government for focusing on the numbers. The imperative of planning ahead to train the right number of staff for the right care settings was amply fulfilled in the last Government’s workforce plan—a publication heralded by the NHS chief executive as

“one of the most seminal moments”

in the NHS’s history.

Can the Minister nevertheless say, despite the fact that the report is not mentioned by the noble Lord, Lord Darzi, whether the Government will embrace the workforce plan and take it forward as the NHS clearly wants and needs? Can she also say whether the Government will adopt the productivity plan announced in the last Government’s Spring Budget? That plan—again, unaccountably not mentioned in the report—would deliver the “tilt towards technology” that the noble Lord rightly advocates, with a big productivity gain to boot.

I said that the noble Lord, Lord Darzi’s report was carefully argued, but not all of it is well argued. I cannot allow his colourful statements about the 2012 Health and Social Care Act to go unchallenged. To attribute the NHS’s current difficulties and challenges in large part to that Act is, frankly, ridiculous. What that Act did was to complete the process that the noble Lord himself started, which was to ingrain quality into the commissioning and delivery of healthcare based on clearly defined standards and outcomes, meaning that providers would be competing with each other based on the quality of care and treatment that they delivered to patients.

The noble Lord, Lord Darzi, now says that we need to move away from the whole idea of competition, but I suspect he has misled himself, because he goes on to say:

“The framework of national standards … incentives and earned autonomy … needs to be reinvigorated”,


along with patient choice. What is that framework if it is not a framework of healthy competition between providers based on quality? Therefore, what role does the Minister see for competition alongside collaboration —I do not think the two are mutually exclusive—in driving up the quality of NHS care?

I have a few final questions. We are told that a 10-year plan will be produced based on the findings of the noble Lord, Lord Darzi. Whose plan will that be? Will it be the Government’s plan, and if so, how will the Government avoid what might look like a prescriptive top-down set of instructions to the health service? Does the Minister think it important that the NHS takes ownership of the plan and, if so, how will that be achieved?

In essence, the noble Lord, Lord Darzi, believes that we need to get from point A to point B—in other words, from acute settings to community settings; from tired old premises to brand new ones; et cetera. Does the Minister agree that we cannot transition from point A without first finding the money to create a functioning point B? In other words, will she and her fellow Ministers urge the Chancellor to commit to the capital expenditure necessary to achieve that?

Lastly, I quote the noble Lord, Lord Darzi:

“The vast array of good practice that already exists in the health service should be the starting point for the plan to reform it”.


Does the Minister agree with that and, if so, how does she reconcile those sentiments with the Government’s mantra—which is so discouraging to the men and women of the health service—that the NHS is “broken”?

[Lord Scriven (LD)]

My Lords, I thank the Minister for bringing the Statement to the House. You do not have to be a mastermind to realise that the NHS is straining at its seams. It is only down to the great work of the many thousands of people who work in the NHS that millions of people get great care, even though some fall between the cracks.

The Darzi report is a very good medical history and it gives a diagnosis, but we all know that the treatment plan is going to be the important point if we are to deal with a reformed, new and productive NHS. There are some welcome themes in the report that are not new. Those who know the previous Darzi report will see have seen some of them before: prevention; moving resources from hospital care to primary and community care; dealing with the wider determinants of health; improvements in and parity for mental health; and a bigger role for public health.

I understand that the Minister will answer many questions by saying that we need to wait for the 10-year treatment plan, and probably the Budget, before such specific questions can be answered, but I have a few general questions for the Minister, to get at least a sense of the direction that the Government wish to take.

Is it the Government’s intention to restore the public health grant back its 2014 levels? Are there any general views about looking at changing the structure of public health, nationally or locally? On capital, what is the Government’s thinking about the general theme of allocation to hospital and non-hospital services, and how will this be managed and monitored? On data, what is the Government’s thinking on the workforce plan, particularly when there is a huge imbalance when it comes to digital and data between the private sector and skills within the NHS? That is not to say that there are not some good skills within the NHS, but there is clearly an imbalance.

Welcome as it is that the report talks about moving resources from hospital to non-hospital settings, I was a manager in the health service in the early 1990s and I know that this has been said since at least the 1970s. What are the Government going to do to be able to move resources from sunk costs in the acute sector into other sectors? What mechanisms will be put in place? How will this be monitored? More importantly, who will be held accountable for making sure that it actually happens? How will the new neighbourhood approach affect the existing workforce plan? If a new health service is anticipated, what will the effect be on the workforce plan and the implications for capital allocation?

We all want to see a productive and effective healthcare system that improves peoples’ health and independence, but that cannot be brought about if we do not have a strong, effective, well-funded social care system. I do not understand why social care has been kicked down to the next Parliament, or how we are going to solve the health and well-being of the population without that being done. If the major reforms of social care are in the next Parliament, what steps are the Government going to take in this Parliament to deal with the social care crisis?

I look forward to the Minister’s answers, but, more importantly, to the 10-year treatment plan’s arrival in the next few months.