Mental Health Units (Use of Force) Bill

Kevin Foster Excerpts

Report stage: House of Commons
Friday 15th June 2018 Commons Chamber

[Kevin Foster (Torbay) (Con)]

I am listening with some interest to my hon. Friend’s speech. The purpose of his amendments, as he has said, is to replace the word “force” with “restraint”, and he has just given quite a strong list of things that could be restraint. However, surely the whole purpose of this Bill is to focus on force as we see it defined in other legislation. I know from his doughtiness on issues such as nanny state and cotton wool-style politics that the prospect of talking to people with smiles, which he says could be restraint, is the last thing that we want in this type of Bill.

[Philip Davies]

I understand the points that my hon. Friend makes, and I will come on to some of them later on, as they probably sit better with other amendments that have been tabled. I certainly accept his point, and as always, he makes it well.

I am also concerned that using the word “force” might worry people who are thinking about seeking treatment for mental health conditions. If they see that, it might scare them into wondering what may happen to them in some mental health settings. My view is that the word “force” in this case is not appropriate, not sensible and not actually what is generally used. Of course an element of force is used at times to carry out some methods of restraint, but common sense would suggest that the terminology used in the Bill should be what the sector uses.

--- Later in debate ---

My point is that varying factors need to be taken into account in relation to the absence of a police video. I do not feel that they have been taken into account in the Bill. Stating that officers “must” take a video does not factor in the possibility of a scenario in which it is simply not possible to do that, or that there could be mitigating circumstances that will prevent them from doing it. Body-worn video has resulted in a marked improvement in reporting crime, and it has been rolled out to other services. Further to this, simple technology failures could make it difficult to produce a video. Making a police officer liable to criminal proceedings because they have not taken a video is excessive and absurd.

[Kevin Foster]

I thank my hon. Friend for giving way. It is always a pleasure to have an extended opportunity to hear him speak on a Bill. His amendment proposes to replace “must take” with “should consider taking”, when the words “if reasonably practical” are already in the Bill. Similarly, his amendment 19 would introduce the rather vague concept of trying to do something. Hon. Members are usually rather doughty in wanting to take vague provisions out of legislation, but in this case my hon. Friend wants to put some in.

[Philip Davies]

I understand the point that my hon. Friend is making. Equally, I am not keen on unnecessarily criminalising decent police officers. My fear, which I know my hon. Friend does not share, is that that could well happen. It could also be the case that the officer would be acquitted following a long disciplinary process and trial. That often happens to police officers, but we should not underestimate the hurt that results from their having to go through all that. I am trying to prevent unnecessary disciplinary and criminal proceedings being taken against police officers.

[Kevin Foster]

I thank my hon. Friend for giving way again. He gave the example of the pilot schemes, and body-worn cameras have led to a reduction in complaints against police of over 90%, which deals with the point he makes.

[Philip Davies]

I made it clear that I support and encourage the use of such cameras, but there may be occasions when, for whatever reason, they cannot be used, and the wording says “must”.

--- Later in debate ---

[Jackie Doyle-Price]

I am grateful to my hon. Friend for making that point. As he says, the longer the answers take, the more distressing and dehumanising it is for the bereaved. I will come to the timescales later in my remarks, but one of the real achievements of the Bill is that it places clear expectations on the authorities in regard to investigations.

As I was saying, a police investigation could be carried out at the same time, depending on the type of incident involved. That was the case when Seni died. NHS guidance now clearly states that, whenever feasible, serious incident investigations must continue in parallel with police investigations. That is an important point, because what happened in Seni’s case was that the police investigation basically put a brake on the NHS investigation. We are clear that these investigations should take place in parallel. That is possible because the terms of reference for the investigations are quite different, and where this eventuality arises, it should be considered in close consultation with the police so that they can be clear about the purpose of the healthcare-led investigation and how it will be managed.

If, following discussions or a formal request by the police, coroner or judge, an application is made to suspend the NHS investigation, it could be put on hold. However, the family must be very much involved in that decision, and the commissioner must ensure that they can agree a date for completion once the investigation can recommence. It is very much down to the commissioner to establish that timeframe. Whether an investigation is put on hold or not, it is absolutely central to our proposals that families should be kept engaged and informed of when the investigation will start up again, and when it will be completed. We also have national guidance on learning from deaths, which was published in March 2017. That now sets out clear expectations of NHS organisations for engaging with carers and families in these circumstances. Dialogue is absolutely central and underpins everything we are doing in this space.

I want to provide some details about what happens if a death follows police contact, when that contact may have caused or contributed to the death, as this is particularly relevant to the events that followed Seni’s death. In such circumstances, the police are under a duty to refer the matter as soon as possible to the Independent Office for Police Conduct. Following an investigation, a report is sent to the police force. The report provides the IOPC’s opinion about what should happen to those involved in the incident. For example, it might recommend further training, a misconduct meeting or a gross misconduct hearing. The police force will then provide its own view about what should happen. If the IOPC disagrees with the force, it has the power to recommend that it should take appropriate action, such as holding a misconduct meeting or hearing. Ultimately, the IOPC can direct the force to do that.

Under the scheduled reforms, this process will be further streamlined so that the IOPC will make the decision on whether there is a case to answer for misconduct or gross misconduct, and decide what form the disciplinary proceeding should take. The IOPC will provide a copy of the investigation report to the relevant police force, and to the complainants and the family of the person involved, as well as to the coroner and the Crown Prosecution Service, which will consider whether any further action should be undertaken.

I want to return to concerns about the quality of investigations, and to briefly explain the role of the Healthcare Safety Investigation Branch. The Lord Chancellor is looking at how we support people going through an investigation, and the hon. Member for Croydon North has also raised the issue of legal aid. It is important that we ensure that families have appropriate support as they navigate this process. This is not just about the process of walking through the contacts with the NHS investigating bodies, which can be quite formal; they could end up in a situation involving legal action or criminal proceedings, at which point they would need that support.

Much reference has been made this morning to the Dame Elish Angiolini review, in which she was clear that all deaths in custody should be treated on an equivalent basis, and I can confirm to the House that the Lord Chancellor’s review into legal aid for deaths in custody will consider deaths in mental health settings on the same basis as deaths in prisons and other forms of custody. I can also advise the House that the ministerial board on deaths in custody constantly reviews what we are doing and how we are implementing the recommendations of the Angiolini review, so the review of legal aid for inquests will consider how it can be applied to deaths in mental health settings, too.

[Kevin Foster]

The Minister is making some interesting points about the legal aid review. Will she confirm what groups she is considering talking to? I am thinking of third-sector groups, community groups and, potentially, law centres.

[Jackie Doyle-Price]

I thank my hon. Friend for that intervention. I hope that we will continue to consider everything that we can do to support people, and I welcome those suggestions. Ultimately, such people are facing massive injustice at the hands of the state, and we should never stop looking at what we can do to support people in those circumstances. The simple truth is that those people have put their trust in the institutes of the state, so there is double pain when they are failed by them, and we must ensure that we do everything possible.

I hope that what I have said about legal aid and the investigation process satisfies the hon. Member for Croydon North, so I hope that he will not press his amendments to a Division so that we can get the Bill into the other place and deliver the objectives that he and I both want.

To clarify something that I was saying about the Government amendments, we unwittingly included a loophole that would allow institutions not to provide patients with information, and I might have suggested that that was a matter of discretion. However, it is actually in the Bill that they must provide information unless “the patient refuses” to accept it. I just wanted to make that clear in case there was any misunderstanding. The remaining Government amendments are largely technical, linking the Bill with the Data Protection Act 2018, for example, and providing clearer definitions regarding mental health units. Those are very much drafting changes, and I hope that the House will approve them.

Turning to the amendments tabled by my hon. Friends the Member for Christchurch and for Shipley and the right hon. Member for North Norfolk, I have already discussed the Government’s view on such matters, but I will refer first to the right hon. Gentleman’s amendments in relation to threats and coercion. The Government’s main concern is that putting the use of threats of force and coercion on the face of the Bill might cause confusion for staff working in mental health units when we are trying to encourage them to use de-escalation techniques. We have the same objective as the right hon. Gentleman, which is to minimise restraint, but we are concerned that the amendments might act as an impediment to what we are trying to achieve.