Mental Health Units (Use of Force) Bill

Lord Harris of Haringey Excerpts

2nd reading (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to my noble friend Lady Massey for bringing this Bill forward in your Lordships’ House. I am also grateful to my honourable friend Steve Reed for the work he did in bringing the Bill through the House of Commons following the death of Seni Lewis at Bethlem Royal Hospital in 2010. We should pay tribute to the persistence of the family of Seni Lewis in wanting to see positive change as a result of their truly traumatic experience. I talked to Steve Reed about what he wanted to achieve when he was at first successful in the ballot for Private Members’ Bills in the House of Commons and I am very pleased that we have reached this stage today.

This Bill is extremely important and valuable in its own right, but I am afraid that I do not want to talk about what is in the Bill itself, but about what is not in the Bill. I should also make it clear that I have no intention of moving amendments in Committee, because every effort should be made to get this Bill intact on to the statute book. I will raise in this speech issues that were raised in Committee in the House of Commons—along with a lot of other stuff, as it happens. I aim to get greater clarity from the Government and get the Minister to reflect on these points and take them back to his department.

I bring to this Bill my experience for a number of years as chair of the Independent Advisory Panel on Deaths in Custody. My panel was responsible for looking at deaths in the custody of the state and what more should be done to protect the lives of those to whom the state holds specific obligations in terms of Article 2 of the European Convention on Human Rights. Our remit covered deaths in prison and in police custody as well as the deaths of those detained under the Mental Health Act. If you die in prison, your death is automatically investigated by the Prisons and Probation Ombudsman, and the report of that ombudsman subsequently informs the inquest. If you die in police custody, the death is automatically referred to what is now the Independent Office for Police Conduct, formerly the IPCC, and again the report produced informs the inquest.

I am not pretending that either of those two processes—for prisons or for police custody—is in any way perfect. I certainly have many criticisms of them, and will continue to do so. But those are not a matter for today. The important issue of those processes is that they happened automatically and were both palpably independent of the institutions concerned. What is more, they were thorough enough to ensure that the coroners’ court had drawn to its attention the key issues of substance.

Another point is relevant to the Minister and the Department of Health and Social Care. Those two specialist bodies developed a level of expertise and experience through looking at those types of death that meant that not only could they be more effective in terms of their investigation, because they had seen similar things before and the investigators had worked on similar issues, but the Prisons and Probation Ombudsman or the IPCC could report thematic findings that could helpfully influence the practice across the police or prison services. Because of that expertise and the fact that they were looking repeatedly at similar types of incident, they could come back to the institutions as a whole or the relevant government departments and say, “This is a common theme. These are issues that need to be addressed across the system”. That is what is missing from the arrangements that we have at present, and even the arrangements that will exist after the passage of this Bill.

Like many noble Lords, I have received briefing from the charity Inquest, which I have known for many years and worked with in my work on the independent advisory panel. It has extensive casework involving families affected by deaths in state custody. Inquest believes that the current system of investigations following non-natural deaths in mental health settings is simply not sufficient. A system of truly independent, pre-inquest investigations, equivalent to others in detention settings, with a mechanism for national oversight and learning, is absolutely necessary to reduce the number of deaths and serious incidents such as those involving the use of force. But they will also illuminate other categories of death as well. Frankly, it is iniquitous that institutions that are responsible for the treatment and care of mental health patients should not be subject to the same scrutiny as other institutions of detention such as the police, prison and immigration detention. This risks leaving ongoing injustices for bereaved families.

I am sure that we will hear from the Minister about level 3 investigations as part of the 2015 serious incident framework. They are a step forward compared with what there was before, which I can—no doubt totally unfairly—characterise by saying that you would ask the guy sitting next to you in the office to investigate the failings of the service for which you were responsible. That was deemed a sufficient inquiry. Yes, there is an arrangement under the serious incident framework. It is the only mechanism for independent investigation and scrutiny prior to the coroner’s inquest. But the issues with the mechanism is that level 3 investigations are used inconsistently and rarely take place. Perhaps the Minister can do something about that. In many cases, given the seriousness of the death, you would have expected an independent investigation to take place within the framework, but there has been a failure to do so. This Bill looks specifically at restraint. I would have thought that any death involving restraint must automatically be one where serious questions are raised around wider issues of practice and should be subject to a full and proper level 3-type enhanced investigation.

While the serious incident framework may provide for an independent team to conduct an investigation, the commissioning and management of the independent process is not institutionally or practically independent as it continues to sit within the NHS management structures. There is also no oversight outside of the NHS on whether investigations should take place and no oversight or external assessment of the quality of those investigations. Moreover, the investigations that do take place under the serious incident framework are of varying quality. They are often deficient in terms of their scope, timeliness, quality, independence and family involvement. There are also concerns about the lack of publication of investigation reports and the methods of identifying learning beyond that of the individual trust or provider. That is a key point because we want to make sure that if there is relevant learning, it will almost certainly apply not just to the individual institution, but much more broadly than that. The internal nature of the investigations means that there is no visibility or oversight around the implementation of the recommendations or identification of common themes and issues which may be of relevance nationally.

I have heard it argued that such an investigation is not necessary because that is the job of the coroner’s court, but my experience of looking at coroners’ investigations is that they are always enhanced and facilitated by the receipt of an independent report setting out the key issues. That provides a scope for the coroner’s inquiry and investigations. This is something that has to be revisited in those terms. I would ask the Minister to take this aspect away and look at it again, although not in the context of this Bill. Is the Minister confident that he is really fulfilling his personal Article 2 obligations in the absence of a more robust and independent system? Can he say, hand on heart, that he believes that the systems which are currently in place will identify wider lessons and enable them to be disseminated throughout the mental health sector?

My second and final concern, for those who feel that I am going on for too long, is about the funding of the legal costs of inquests for the families of those who die in mental hospitals. One of my most vivid memories from the listening days that Inquest organised for my panel was an account of a family whose family member had died in a mental hospital. I do not know how many noble Lords have been to a coroner’s court, but they are often held in bleak environments without even the grandeur of a court setting. For a bereaved family, for whom the whole process is very emotional, the atmosphere is both bewildering and demoralising. This family found themselves having to share the rather small waiting area with not only those whom they felt might have been responsible for their loved one’s death but the large teams of lawyers, funded at public expense, representing each and every one of those people. The family described to me how they walked down the corridor, trying to get to this small waiting room first to get a seat, and heard the trundling of the lawyers with their wheelie suitcases full of papers coming down the corridor behind them. They had to walk faster and faster to make sure that they got three seats in the room. That is a graphic image and a reminder of how isolated the families concerned will feel.

The purpose of an inquest is to find out what happened and determine the cause of death, yet every person involved will be legally represented at our—the public’s—expense to put the position of the client’s actions in the best possible light. Only the family of the person who lost their life in such circumstances will not automatically be represented publicly. I have no problem with people engaged in the issue being funded and supported, but it is grotesquely inequitable and unfair that the family—unless they have substantial means—are not similarly represented to ensure that the coroner is able to pursue all the issues that need exploring. No doubt the Minister will have been briefed that families can obtain legal aid. In practice, this is unlikely and difficult. The income rules are onerous and the pot is already small.

At present, the legal costs of the trust, the commissioner, if it is a relevant party, the nurses, the doctors and the police—if they are involved—and so on are all covered by the public purse; all except the group of individuals who care the most about knowing what happened to their loved one. What is to stop the Minister saying today that in the interests of fairness, of justice and of making sure that lessons applicable elsewhere can be identified, he will instruct the trust responsible for the individual who has died to meet the legal representation costs of the bereaved family? In practice, this will only be a small proportion of the legal costs associated with the death. If he feels that this is too difficult and too onerous a burden on the trust concerned, perhaps those costs should be borne by his department or NHS England, which would incentivise both organisations to ensure that such deaths are minimised in future. I look forward to the Minister’s reply but in the meantime, I look forward to this valuable Bill passing through your Lordships’ House without amendment.