Mental Health Bill [HL]

Lord Scriven Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

[Lord Crisp (CB)]

My Lords, I have added my name to one of my noble friend Lady Hollins’s amendments on community services and to four of those on long-term seclusion. I will speak very briefly to each topic.

On community services—I also support my noble friend Lord Adebowale’s amendment on this issue—I understand the Government’s concerns about timing and, presumably, costs, but I believe nevertheless that the Bill should provide legislative pressure to deliver community services for autistic people and people with learning disabilities. There is little point in using the Bill to set out a new legislative framework for this group if this does not include some notion of a plan or timetable, and it is highly likely that the service will simply fall back into the established patterns of non-therapeutic containment if this is not included.

I fully endorse the point made by the noble Baroness, Lady Browning, about the Autism Act. As one of the witnesses to the autism committee recently said, this is a pretty good law, but where is the action? Where is the implementation? That is the point, and we need some reassurance on a plan being forthcoming within a reasonable timeframe.

On long-term seclusion, I suspect that most members of the public would be surprised to know that what amounts to, in some cases, solitary confinement—I use that pejorative phrase deliberately—is used for such long periods in our institutions. We are talking about 15 days at a time and potentially more than that, over the course of a month, if there is a break between the 15 days and the next 14 days, for example. We should be particularly concerned about what happens out of sight in these institutions, where what should be a very rare occurrence at best can become all too easily routine.

These amendments open this long-term seclusion to greater scrutiny and control. They may not prevent it happening altogether, but they will help to make it a rarer occurrence. I refer in particular to two amendments, neither of which I have my name against—that is my mistake rather than anything else. Amendments 3 and 53 both refer to the code of practice and require that if people are kept in long-term seclusion for 15 days, or indeed the majority of 30 days, there will be clear monitoring and subsequent active intervention to take account of that. They are entirely reasonable amendments and do not raise funding, timing or any other issues. They are about ensuring proper scrutiny of what is happening to vulnerable people in some of our institutions.

In saying that, I am reminded of reading the report from Blooming Change, a young people’s organisation. I quoted the report at Second Reading, and it describes problems with safety and quality. There are descriptions of being injured during restraint, being drugged and restrained, and being scared all the time. It includes the terribly sad quotation:

“‘hospital makes you worse’… going into hospital with one problem and then leaving with trauma, new behaviours, new diagnoses, assaults, PTSD – it’s awful.”

We ought to be able to ensure that the code of practice for long-term seclusion is adhered to and that where it is not, it is properly investigated.

[Lord Scriven (LD)]

My Lords, I rise to speak to a number of amendments that I have added my name to, particularly those in the name of the noble Baroness, Lady Hollins. In Committee, the whole issue of people with learning disabilities and autism caused a number of concerns. I note that the Minister has gone some way towards dealing with some of those concerns, and it is a tribute to her listening and enaction skills that progress has been made.

I think it would be fair to say that there are still some concerns on Benches across the House about potential unintended consequences for people with learning disabilities and autism if the Bill goes through in its present form. In some areas, I would describe the statement from the Minister as, “It’ll be all right on the night”—but we know that, sometimes, it is not all right on the night, and things will happen.

The noble Baroness, Lady Hollins, puts forward quite an important base for long-term segregation. There is no evidence that it has a long-term therapeutic benefit for people who have learning disabilities and autism, and so the provision for it still being there, without laser-focused monitoring and intervention, is a weakness. The Minister really has to convince the House that the Government have a plan to deal with this.

The worry about having too much faith in the code of practice, as we found out in Committee, is that simple words such as “should” and “must” have very different meanings for whether or not there is a statutory obligation on an organisation. It would be interesting to hear the Minister’s view on the focus in the code of practice and on strengthening the words used.

Amendment 4, to which I have added my name, is something that the House should focus on and understand. Throughout the history of implementation of improvements in mental health and other areas where community carers come in, they have always fallen down on implementation, due to a lack of either funding or resources. Amendment 4 focuses on implementation. As the noble Lord, Lord Crisp, has just said, in the Autism Act 2009 Committee, we heard from two witnesses who said there is a plethora of policy but it is always the plan on implementation that fails. The amendment in the name of the noble Baroness, Lady Hollins, focuses on that implementation and asks that the Government have a real plan to do that.

It was worrying as we went through Committee, particularly when issues were raised about the numbers in the impact assessment, that the Minister pointed out that they are indicative. The amendment in the name of the noble Baroness, Lady Hollins, is required because, if we take a look at the trend of the percentage of total healthcare spend that has been allocated to mental health, including the Government’s announcement last week, we find that there have now been two years in which the total spend will be reduced. That means that some of the good ideas that the Government have mentioned with regard to the implementation of this Bill and community services are potentially at risk.

I do not know whether the noble Baroness will press her amendment, but, if she does, she will have the support of these Benches. We think this is vital, and we are not quite convinced, unless the Minister says something to that effect from the Dispatch Box, that that crack—that real weakness—has been dealt with.

[Lord Kamall (Con)]

My Lords, before I begin my remarks, I express my gratitude to the Minister and to officials for their engagement with not only me but other noble Lords between Committee and now. I know I am not alone in appreciating the amount of time and work that the Minister and officials have put into meeting with us, addressing our concerns, and even having follow-up meetings; that was very much appreciated.

I will speak to Amendment 1, in the name of my noble friend Lady Browning, and briefly address some of the other amendments in this group. We supported my noble friend Lady Browning’s intention to retable this amendment, which seeks to address the loophole which could lead to the use of the Mental Capacity Act to detain patients with learning disabilities but without a recurring condition.

As noble Lords have acknowledged, both in Committee and today, once the legal basis for detention under the Mental Health Act is removed for these patients, there was always a profound risk of them falling under the deprivation of liberty safeguards. Nobody wishes to see extra safeguards introduced into the Mental Health Act for that to be simply replaced with detention by another Act. My noble friend said today that she has received further assurances from the Minister—we are grateful for those assurances—and that she is no longer minded to test the opinion of the House. Had she been minded to test the opinion of the House, she would have had our full support, but I am grateful for the assurances that the Minister has given to my noble friend.

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Moved by

[Lord Scriven]

11: Clause 6, page 12, line 40, at end insert—
“(2A) In section 17B (conditions) after subsection (7) insert—“(8) The responsible clinician must ensure that community treatment orders align with the code of practice as set out in section 118(2B).(9) A community treatment order shall have a maximum duration of 12 months, subject to the following provisions— (a) the responsible clinician may extend the duration of a community treatment order beyond 12 months only after— (i) consulting the patient, the patient’s nominated persons, and any relevant mental health care professional involved in the patient’s treatment or care planning;(ii) undertaking a review process to evaluate the ongoing necessity and therapeutic benefit of the community treatment order;(iii) consulting a General Medical Council registered psychiatrist regarding the conditions of the community treatment order and obtaining their written agreement that an extension is necessary and in accordance with the principles set out in section 118(2B);(b) community treatment orders with a duration of less than 12 months are not subject to the review process set out in subsection (9)(a)(ii);(c) a tribunal may recommend that the responsible clinician consider whether to extend, vary, or terminate the duration and conditions of a community treatment order.(10) Where a community treatment order is extended beyond a period of 12 months, the order shall be subject to review at intervals not exceeding six months, in accordance with the procedure set out in subsection 9(a).(11) At the conclusion of the default period or any extended period, the responsible clinician must undertake a review to assess the effectiveness of the community treatment order in aligning with the code of practice stipulated in section 118(2B).””Member’s explanatory statement
This amendment ensures that community treatment orders align with the code of practice, limits their default duration to 12 months, requires a structured review process for extensions, mandates six-monthly reviews for extended orders, and reinforces patient consultation and oversight by mental health professionals.

[Lord Scriven (LD)]

My Lords, I start this group on community treatment orders by thanking the Minister and her team of officials for dealing not just with this issue but with most issues in the Bill on a collaborative basis, which should be a blueprint for how Ministers should deal with people with different opinions to those of the Government. It is genuine thanks from these Benches.

I also thank my noble friend Lady Parminter for giving her lived experience of community treatment orders. In Committee, there was a huge divide in this House about whether they should continue rather than pragmatism on how we deal with the problem. My noble friend Lady Parminter focused our minds on that.

My amendment tries to deal with what I see as the major flaw of community treatment orders, whether or not we have a review of them, and that is their potentially indefinite nature. As for the way that these community treatment orders are implemented, whether they are effective or not, there seems to be a revolving door which some people find impossible to get out of. This has led to a number of issues about whether they have therapeutic benefit and whether the treatment is actually effective. There have also been huge issues to do with racial disparities in their use and the length of time that people are on a community treatment order.

Even if we agree Amendment 23, in the name of the noble Baroness, Lady Bennett, and Amendment 62, in the name of the noble Lord, Lord Kamall, to have a review of their effectiveness, something needs to be done now to ensure that the initial community treatment order is time-limited—I suggest 12 months—then if it is to be reviewed, it has to be reviewed by not just the consultant who is treating the individual but also by another GMC psychiatrist who has to agree in writing that there is therapeutic benefit for the community treatment order to continue. That review should take place every six months. That would not stop community treatment orders, but it gives an absolute, firm process, which needs to be in the Bill—not in the code of practice—to ensure that individuals who are on a community treatment order have certainty about the length of time and review. It would also require a second doctor’s written agreement about the therapeutic benefit of reviewing and continuing the treatment order.

I understand that the Minister will probably and quite rightly say that the Bill has moved forward and that there are certain elements which help with the review of treatment orders and the people being put on them. For example, the community doctor has to be consulted. However, there is a difference between being consulted and giving agreement. That is why my amendment talks about the agreement of a second doctor. Consultation in itself does not mean that community treatment orders cannot be indefinite, as they are in some cases. My amendment is practical and solves this problem. As my noble friend Lady Barker said, we tend to get legislation about the Mental Health Act once every 15 years, and we cannot wait another 15 years to deal with this anomaly.

I and others on these Benches would be supportive of a review of community treatment orders and of the evidence about whether they are effective in the grand sense. However, the practical pragmatism is that people will continue to be put on community treatment orders, that, even with the changes that the Government have put in the Bill, people would still be there indefinitely and that the second doctor’s opinion would not necessarily have to be taken into consideration if the order were to continue to ensure that there was therapeutic benefit.

I will not say much more, but I believe that my amendment is practical, needed and will get the correct balance both for service providers and for those who are on a community treatment order to deal with some of the unintended consequences we have found since they were introduced. It is a practical step to ensure that we get them right, if reviews take place. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Scriven, and to agree, in essence, with everything he said. Amendment 11 is truly important; it would immediately affect the well-being of some very vulnerable people in our community. Should the noble Lord decide to divide the House, the Green Party will support his amendment.

I will chiefly speak to my Amendment 23, which also relates to community treatment orders and calls for a statutory periodic review of them. I can see quite a few noble Lords in the House, so it is worth very briefly going back a little over what we discussed in Committee. The Joint Committee on the draft Bill concluded that CTOs should be abolished for people under Part II, the civil sections. For people under Part III, the Joint Committee recommended a statutory review of CTOs with a provision to abolish them unless the Government legislated to keep them.

My amendment does not go that far, but it starts from the point that the noble Lord, Lord Scriven, mentioned, citing the noble Baroness, Lady Barker: it is likely to be at least 15 years before legislative attention returns to the Mental Health Act. That is a very long time—especially for the health of people who are going through certain experiences. I stress that it is not my own initiative that brought this amendment forward; the organisation Mind encouraged me to do so. I will quote from a couple of people who Mind has spoken to about CTOs, because we have to consider what the actual lived experience is like. One person said:

“Being on a CTO is like being cornered … It is good that you are out of hospital but only a little better because it is so intrusive”.


Another person who had been on a CTO said that it can feel like:

“A tag that nobody can see but you know it’s around your mind”.


Throughout the debate on this Bill, we have considered getting rid of CTOs entirely. As the noble Lord, Lord Scriven, said, the noble Baroness, Lady Parminter, made the very powerful case that there may be circumstances and conditions where they are indeed appropriate. However, my amendment simply calls for a statutory review, so that we do not wait 15 years and then say, as we have been saying about so many aspects of what we are trying to fix now, “This has been terrible for so long. We really need to do something about this”.

I say to the noble Lord, Lord Kamall, that I am still planning to arrange the Trieste meeting; I am afraid I have not got there yet. Looking at community alternatives has to be the way forward. There are models around the world where that is achieved. If we were to have a review, as my amendment would require, then everything in proposed new subsection (3)—which looks at

“the impact … on people from different ethnic minority backgrounds”,

preventing readmissions and whether CTOs provide “therapeutic benefits”—would be considered within a reasonable period. We could affect and improve people’s treatments within a foreseeable period and not sentence them to another 15 years.

It is not my intention to divide the House. I very much hope that the Bill will continue to work on this, and that the arguments for including a statutory review will become evident as the Bill progresses. On that basis, I urge noble Lords, particularly the Minister, to consider that, and I echo the points that the noble Lord, Lord Scriven, made. My engagement between different stages of the Bill tends to be limited by the fact that I am juggling a great many Bills at the same time. However, I have heard reports of how the Minister has been engaging with noble Lords, and I hope that she and the department will bring an open mind to the idea that we should not sentence people to another 15 years of CTOs without a statutory review, because there have been so many questions and concerns about them. On that basis, I hope that we can move forward as the Bill progresses.

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[Baroness Merron (Lab)]

I thank the noble Lord, Lord Scriven, for tabling and speaking to Amendment 11, along with the noble Baroness, Lady Tyler. At the outset, I can say that it is already the case that community treatment orders can be renewed only under specific conditions, which aligns with the intent and direct requests of the noble Lord, Lord Scriven.

Alignment with the code and the four principles is already achieved by new Section 118(2D) of the Mental Health Act, which requires clinicians, before placing someone on a community treatment order, to have regard to the statement of principles in the code. Clause 6 ensures that a patient can be put on a community treatment order only if there is a risk of serious harm without it and a reasonable prospect of it having therapeutic benefit for the patient.

I assure your Lordships’ House that a responsible clinician cannot extend a community treatment order beyond six months, unless the conditions, including therapeutic benefit, continue to be met. A community treatment order can be extended for a further six months and then a subsequent 12 months, but only if these conditions continue to be met.

The current code of practice states that, before renewal, the responsible clinician should consult with the multidisciplinary team, the patient, the nearest relative—which in future will be the nominated person—and an advocate. I put it to the House that we are going further than the request from the noble Lord, Lord Scriven, by introducing a new requirement for the patient’s community clinician—who must be an approved clinician, overseeing the patient’s care as a community patient—to be consulted before a community treatment order is renewed beyond six months.

I have heard the concerns of the noble Lord, Lord Scriven, that the Bill requires just the second-opinion appointed doctor to be consulted, whereas the amendment requires the extension to be agreed with them. In response to that, I assure the noble Lord that, in addition, the community clinician must provide a statement that it appears to them that the community treatment order criteria continue to be satisfied.

We are increasing the frequency of automatic referrals to the tribunal to ensure that patients can come off community treatment orders when they are no longer benefiting them. The tribunal will have a power to recommend that the responsible clinician reconsiders whether a CTO condition is necessary. To elaborate further in view of the points raised, this means that, following an initial tribunal referral at six months, another referral is required after a further six months, followed by a mandatory referral 12 months after that, if the patient has not made an appeal themselves. The tribunal will have to agree the CTO criteria, including the requirement that a therapeutic benefit continues to be met. We are therefore already meeting the requests that the noble Lord, Lord Scriven, has rightly made and, in some places, going further than we have been asked to do.

I turn to Amendment 23, tabled by the noble Baroness, Lady Bennett. As I said on the similar amendment tabled by noble Lords on the Opposition Front Bench in Committee, CTOs remain a valuable intervention, albeit they need reform—as I more than acknowledge and accept. We will review these changes as part of our ongoing monitoring of the implementation and impact of the reforms. A review after two years would be premature, as it would be based on data from before any reforms were commenced. I say to the noble Baroness and your Lordships’ House that we will instead commit to review the impact our reforms have as part of our wider monitoring and evaluation of the Bill as it is implemented.

Amendment 62 is in the name of the noble Lord, Lord Kamall, and the noble Earl, Lord Howe. We are, as the noble Lord acknowledged, committed to addressing racial disparities under the Act—something I know the noble Baroness, Lady Tyler, was concerned about. I was very pleased to host a session a couple of weeks ago with leading academics, a number of officials from the department and Members of this House. We discussed in detail what is known and what further evidence is required. I give the assurance that work—as the noble Lord, Lord Kamall, has kindly acknowledged—is already under way, and we will continue to explore this issue. I am therefore happy to commit to undertake further investigation into racial inequalities under the Act.

The scope is to be developed further, but may involve synthesising findings of existing research, conducting a review of recent literature, and exploration of potential evidence gaps that require future research with experts and academics. Further research will receive sufficiently high-quality research applications and will be subject to the outcome of the spending review. I hope noble Lords will understand that we therefore prefer not to commit to a timescale in primary legislation but to allow time to develop and deliver research to ensure the best-quality evidence in this extremely important area. I hope noble Lords will not press their amendments.

[Lord Scriven (LD)]

I thank the Minister for that helpful explanation and description of community treatment orders. Despite all the words, whenever independent research is done, whether by the CQC, the Joint Committee or mental health organisations, the same answer keeps coming back. Something is fundamentally flawed, maybe not with the policy but with the implementation of CTOs. I note the Minister quoted the rule in the code of practice but, as we know, the code of practice does not necessarily have the legal status of something in the Bill. Therefore, for that reason and because there is an issue with community treatment orders, I believe that putting this in the Bill will not just change the practice but get the correct safeguards for people who are put on them. I would like to test the opinion of the House.

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Further guidance will be provided in the code of practice and, as my noble friend the Minister announced, we are committed to establishing an expert task force to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated persons appointment process for children and young people. This would include the witness process. For these reasons, I hope noble Lords will feel able to support these amendments.

[Lord Scriven (LD)]

My Lords, I thank the noble Baroness for detailing very clearly the Government’s amendments. I also thank the Minister, who I see in her place, for, again, a very collaborative approach and for, on this occasion, implementing exactly not just what was in my previous amendment, so ably moved by my noble friend Lady Tyler, but what came from the Delegated Powers and Regulatory Reform Committee.

On the use of ECT, the powers in the government amendments before the House mean that the balance is absolutely correct on not having the second doctor’s signature and consent, as well as on the need to save life and the use of ECT. I thank the Government sincerely for not just listening but acting on the concerns that were around.

[Earl Howe (Con)]

My Lords, the House will be grateful to the Minister for these government amendments, which, as the noble Baroness made clear, cover two principal policy issues. Accordingly, I have two sets of queries.

On the changes for the rules for authorising electroconvulsive therapy, I am sure it is not the Government’s intention in any way to water down the safeguards surrounding the administering of ECT. However, in relation to Amendments 16 and 17, taken together, can the Minister reassure me? The Bill, as modified by the proposed amendments, will posit that there could be circumstances in which a patient who has the capacity to consent to ECT but who has not consented to it could nevertheless find their refusal to treatment overridden by the decision of a single treating clinician. Even in a situation where the judgment of the clinician was that ECT was necessary to save the patient’s life, it seems to me a significant change from the current rule whereby the decision of a second opinion appointed doctor is required in all cases where it is proposed to administer ECT to a non-consenting patient who has the capacity to consent.

Amendment 17 makes it clear that the regulatory authority—the CQC, in other words—may give permission for ECT to be administered only on the say-so of a single doctor where a SOAD is not available and “exceptional circumstances” apply. I will not ask the Minister to define what “exceptional circumstances” might consist of, but it is to be assumed that a primary example of such circumstances might be when time was of the essence and no SOAD could be located soon enough to avoid exacerbating the risk of harm or death.

So my questions are, firstly, has this proposed change been prompted by a general awareness across the mental health sector that the availability of SOADs can frequently prove a problem in circumstances where urgent decisions are needed? In other words, to put it bluntly, are we being asked to change the law because of habitual shortcomings in NHS communication arrangements? I would be concerned if that were the case.

Secondly, what guidance, if any, will the CQC formulate for itself to ensure that, when its decision is sought to temporarily waive the requirement for a SOAD, it will not do so just on the basis of a SOAD being unavailable? Will it also commit itself to a standard procedure whereby it will seek at least some background detail from the treating clinician of the case before him or her, such as the reasons why they consider that administering ECT to that particular patient carries particular urgency? In other words, can we be reassured that the treating clinician’s opinion will be subject to at least a modicum of testing and cross-questioning before the CQC issues the go-ahead for ECT to be administered? I hope so, because anything short of that could turn into a tick-box exercise.

The other government amendment on which I would appreciate further clarity is Amendment 26, which

“changes the process for appointing a nominated person”.

One of the changes proposed is that the various statements and signatures required for appointing the nominated person no longer have to be contained in the same instrument. The other is that the nominated person’s signature no longer has to be witnessed. I was grateful for the Minister’s explanation, but it implies that the written instrument that appoints the nominated person and is signed by the patient in the presence of a witness can be executed without the nominated person themselves being in the room, or indeed anywhere near. At the moment, the Bill says:

“The instrument appointing the nominated person must … contain a statement, signed by the nominated person in the presence of”


the same person who witnesses the signature of the patient.

I previously assumed that the reason for that provision was the responsibility that the Bill places on the witness—quite a serious responsibility—to ensure, as far as possible, that the nominated person, whoever they are, is a fit and proper person to act in that capacity. It would appear now, with this amendment, that there is no need for the witness even to clap eyes on the individual who is nominated. How can that be right? Without at least meeting the nominated person, how can any self-respecting witness certify, hand on heart, that, in the words of the Bill, they have

“no reason to think that the nominated person lacks capacity or competence to act as a nominated person,”

or that they have

“no reason to think that the nominated person is unsuitable to act as a nominated person”.

Are they simply meant to take the patient’s word for it?

This alteration in the wording raises all sorts of question marks in my mind, given the concerns expressed by noble Lords in Committee about misplaced loyalty towards a particular individual, a naivety on the part of a child or young person, or even some degree of psychological manipulation of a young person—for example, someone who makes it their business to set a child against their own parents.

In Committee, the Minister herself emphasised the need for the law to prevent exploitation and manipulation. While I did not at the time think that her response was completely reassuring, I saw it at least as an acknowledgement that the role of the witness could not be fulfilled properly without some sort of contact with the nominated person. Was I right or wrong on that? It would be helpful if the Minister could explain how my misgivings in this area, about the way in which the nominated person procedure comes to be implemented in practice, might be allayed.