Mental Health Bill [HL]

Lord Stevens of Birmingham Excerpts

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Murphy (CB)]

I agree with everything that the noble Baroness, Lady Barker, has said. She is absolutely right that professions should be challenged, and that is partly what legislation can do, particularly in debates such as this. But we are losing the very important amendments from the noble Earl, Lord Howe, about young people and what we can do to improve circumstances through the Bill, and I want not to lose them, because they are very important.

[Lord Stevens of Birmingham (CB)]

Very briefly on the question that the noble Baroness, Lady Fox, raised, the notion of supply-induced demand is a well-known phenomenon across health services. However, I have to say to her that I think that we are a long way off that being the problem that is principally confronting children and young people’s mental health services. We have a massive gap between the need for effective therapies for children and young people and their availability.

When the process of trying to expand children and young people’s mental health services kicked off several years ago, the goal was that we would get to a situation where one in three children and young people with a diagnosable mental health condition would get some form of specialist mental health support. That number has now been exceeded. I was just looking at the stats published last week and, although I do not see the most up-to-date number for it, I would be surprised if more than one in two are currently getting specialist mental health support for a diagnosable mental health disorder, not just distress. So, we are a long way off confronting this problem of supply-induced demand, whatever broader cultural or therapeutic labelling questions that she rightly points to may be in the ether. Fundamentally, we are going to need more services to benefit the children and young people who need them, not pretend that this is somehow all vapourware, imaginary or a cultural deformity, unlike our predecessors in the Victorian era.

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

I thank noble Lords for their contributions on this important set of amendments. I say at the outset that I note the various observations that are outside the Bill, as the noble Baroness, Lady Barker, pointed out, but I have noted them and I am sure we will discuss them on a number of occasions.

First, I turn to Amendments 46 and 47, tabled by the noble Lord, Lord Kamall, and the noble Earl, Lord Howe. I have heard how many noble Lords are in support not just of those two amendments but all the amendments in the group. I am sure noble Lords will not be surprised to know that I understand where people are coming from and I will be pleased to go through the response to them.

The noble Earl, Lord Howe, spoke about “troubling and sensitive matters” and about being inspired by testimonies that came through the charity Blooming Change—I express my thanks to that organisation for the work it does. Officials in the department have met the group and it made a very helpful contribution. Hearing from those with lived experience is crucial to making sure that this is the best Bill, and I know that many noble Lords have done that, so I thank the noble Earl for bringing that into these amendments.

Amendments 46 and 47 would change the definition of appropriate medical treatment to include treatment which

“seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma”.

Childhood trauma can of course have a devastating impact on psychological well-being. Effective and compassionate in-patient care must be informed, as I have said, in co-production with people with lived experience and be trauma informed. NHS England’s Culture of Care Standards for Mental Health Inpatient Services certainly underlines this.

The noble Earl, Lord Howe, and other noble Lords raised concerns around in-patient settings and how appropriate they are, which I understand. I hope it will be helpful to say in answer that the new definition of “appropriate medical treatment” introduces the requirement that treatment has to have a reasonable prospect of benefiting the patient. We would expect the setting in which someone is going to be detained to be considered as part of this. Of course, I am more than aware—without wanting to go into the generics in this group or any other group—that the place in which we start, in terms of the suitability and availability of the right settings, is not where I am sure any of us would want to be.

We also know that the sensory environments in settings can cause difficulties for people with sensory sensitivities. To support NHS services to address sensory aspects of the environment, which the noble Baroness, Lady Bennett, referred to, NHS England has published a sensory-friendly resource pack, which outlines 10 principles to improve the sensory environment and signposts other resources.

The clause in the Bill that defines “appropriate medical treatment” already requires decision-makers to take into account the nature and degree of the disorder and all other circumstances, which could include childhood trauma, when considering whether medical treatment has a reasonable prospect of therapeutic benefit. The definition of medical treatment is unchanged and is indeed broad, including nursing care, psychological therapy and medication. All these interventions could include an overall aim to minimise distress and promote psychological well-being.

Amendments 50 and 51, tabled by the noble Baronesses, Lady Tyler and Lady Bennett, aim to ensure that the clinician considers non-drug-based interventions as part of the new “clinical checklist”. The checklist requires clinicians to identify and evaluate alternative forms of medical treatment when deciding whether to give a particular medical treatment to a patient. As I have already mentioned, the definition of medical treatment under the Act is broad. As well as non-drug-based interventions, it includes specialist mental health rehabilitation and care. On the point raised by the noble Baroness, Lady Bennett, which is an important one, it does include the therapeutic environment or setting. This requirement, as outlined, would apply to all patients falling under Part IV of the Act. It includes patients with a learning disability and autistic patients who are detained for assessment under Section 2 and patients detained for treatment under Part III.

With specific regard to those with a learning disability and autistic people, I recognise the concern that they are more likely to be prescribed an antipsychotic than the general population. I emphasise that psychotropic medication should only be given for the right reasons, in the lowest dose, for the shortest time. NHS England has a national programme of work to stop overmedication and the inappropriate prescribing of these medications, which is aimed in particular at people with a learning disability and autistic people. Noble Lords will be aware of the STOMP programme. Alongside it is a national supporting treatment and appropriate medication in paediatrics programme called STAMP—the two are not to be confused. These programmes work particularly closely with those with lived experience, families and carers organisations, and a wide range of health and social care professional bodies.

Amendment 53, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, would require the approved clinician to offer a patient any treatment that is appropriate, having applied the new clinical checklist. The reference to medical treatment in that checklist should already be read in accordance with Clause 8, which inserts a new definition of appropriate medical treatment to enact the principle of therapeutic benefit.

The clinician must also support the patient to participate in decision-making to make sure that they do not simply offer their preferred treatment to the patient, with no discussion or consideration of alternatives. The Bill also requires clinicians and, where relevant, the second opinion appointed doctor to provide a written record that the treatment being administered meets the definition of appropriate medical treatment. Therefore, it is felt that the Bill already meets the intention of this amendment. Furthermore, if the intention is to ensure that a range of treatments is being considered by the responsible clinician, I can reassure noble Lords that this is already the case, because, as I have said, the definition of medical treatment is broad.

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[Lord Meston (CB)]

My Lords, I understand the dilemma. The point I emphasise is that, in deciding this, one has to be clear that the child has a proper explanation of the ultimate decision that has to be made. It is to that end that the competence has to be assessed.

[Lord Stevens of Birmingham (CB)]

For those of us who are not anywhere near as legally expert as the noble Lord whose wise deliberations we have just heard, could he clarify the amendment that talks specifically about ring-fencing this new test for the Mental Health Bill? To what extent would that be consistent or not with, for example, the ruling of the Court of Appeal in Bell v Tavistock—the NHS trust—in the case of puberty blockers, which concerned the interpretation that the High Court had given to the Gillick test?

[Lord Meston (CB)]

I am tempted to say that I really do not know. That was a faster ball than I expected to receive. I think the answer is that the case law would be consistently applied, even as it stands now, but would undoubtedly be aided by a statutory test. Whether it would apply in cases such as that which the noble Lord just mentioned, I do not know. The purpose of the amendment is to provide a test for decisions that have to be made consequential upon this legislation, not other situations.

Mental Health Bill [HL]

Lord Stevens of Birmingham Excerpts

Committee stage
Tuesday 14th January 2025 Lords Chamber

[Baroness Murphy (CB)]

I would say that all mental disorders are different but that they cannot all have their own Acts of Parliament. I do not accept that autism is different. Of course, it is different in the way that it manifests—

[Lord Stevens of Birmingham (CB)]

I will make a slightly cheeky intervention, if I may, on the noble Baroness. I am not weighing into the debate that is taking place but simply make this point. Does she accept that the fact that a condition is listed in the DSM or the ICD is not itself definitive? Until 1973, homosexuality was listed as a psychiatric condition in the DSM and until 1990 it was, I believe, included as a psychiatric diagnosis in the ICD. Therefore, that is not the strongest evidential basis for her claims.

[Baroness Murphy (CB)]

I agree with the noble Lord, but the reality is that we use DSM-3 and ICD-11 in the international classification of disorders. If we in Britain are to go outside that, for reasons of our own, then we had better have some pretty good ideas why that should be. I am not so sure that we have them.

The Wessely review rejected the notion because, as the noble Baroness, Lady Berridge, said, it carried serious risks that individuals would be extruded and neglected, the opposite of what is intended. Similar anxieties were expressed in the development and creation of other Acts—I am sorry that I am going to go on longer than the advisory—so as not to exclude anybody from this group, because we want mental disorder to be an inclusive thing and not to exclude whole groups of people. Their protections are gone if we exclude them.

I accept that almost all the developments for autism and learning disabilities in the Bill are very positive. They will really improve the way that people think about autism and will have an extremely beneficial effect on trying to develop services and improve training, but there is no evidence that changing the criteria under the Act will do anything to improve it. Getting money into services and service design is what we need and not a change in the legislation for criteria. As the Royal College of Psychiatrists’ group of specialists in learning disabilities have pointed out, the vast majority of them do not want this change in legislation. We should think very carefully before we submit people to something when we do not know what will be unleashed as a result.

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[Baroness Watkins of Tavistock (CB)]

My Lords, I support the amendment in the name of the noble Baroness, Lady Barker, with relation to housing. I do not want to go back 20 years for any reason except to say that, when we were closing the vast majority of mental health in-patient beds, the main aim of many of us doing those change programmes was to ensure that people had somewhere to live when they had been living in hospital for 10, 20 or, in some cases, 30 years, and that the housing had to be appropriate to their level of ability. Spending 30 years in a hospital does not exactly teach you self-reliance. There are some real challenges about that, so housing must be considered in any discharge planning.

On Amendments 19 and 20, the noble Baroness, Lady Hollins, has sent me a copy of her speeches in her absence. Like others, I think that it shows her commitment to this House that at this point in her life she is trying to make sure that her voice is heard. I add my condolences to those of others in the Committee. Her point is that you would not discharge people from acute hospital without some proper care and treatment plan. I want to use my own words rather than hers, but when you say that somebody needs dialysis or that they need regular checking of their heart monitor, we automatically do it. Elective care is still getting a huge amount of focus, but elective care in this country is defined as acute hospital care, not elective care for mental health patients and people with learning disabilities. I want to rest it there, but that is why I support Amendments 19 and 20 so strongly.

[Lord Stevens of Birmingham (CB)]

I too am supportive of the spirit and intention behind Amendments 19 and 20, but I want to raise two textual questions relating to whether they would give effect as was intended.

In respect of Amendment 19, I am not sure that the explanatory statement accurately characterises what the amendment proposes. It says that the amendment ensures that ICBs and local authorities would

“have a duty to carry out”,

whereas at the point at which those words would be inserted it appears that the duty would also then fall to the patient’s responsible clinician. Amendment 19 by itself would essentially see CETRs overriding the judgment of the responsible clinician, which I think is quite a significant step to take.

In any event, I wonder whether Amendment 20 undoes any of the good work that Amendment 19 proposes in the first place. It says that you can ignore the exhortations of Amendment 19 if there is a “compelling reason” to do so. My question to the drafters of Amendment 20 would be: what statutory interpretation should be placed on “compelling reason” and how might the courts be expected to adjudicate in the event of judicial review?

[Lord Bradley (Lab)]

I support and have added my name to Amendment 13, tabled by the noble Baroness, Lady Tyler, around communication issues. As she rightly pointed out, this could have been linked to Amendment 2, which has already been debated at some length. I will not repeat the same arguments, but they apply to this amendment, which is why I support it.

I also very strongly support the amendment on housing tabled by the noble Baroness, Lady Barker. I am chair of NHS England’s health and justice advisory board and have worked on the development of RECONNECT, the service to support people coming out of prison back into the community, which is very much a health-based initiative. Unless their housing needs are met at that point, their treatment, their support and their care plan can fall apart very quickly. Consequently, they are very quickly back in the criminal justice system. The same comparison can be made with this amendment. I strongly support housing being at the core of all issues relating to health and social care.

Mental Health Bill [HL]

Lord Stevens of Birmingham Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Lord Stevens of Birmingham (CB)]

I am very pleased to follow that very powerful speech from the noble Baroness, Lady Ramsey, which reminded us all of the personal stakes that we are debating, as did many other such speeches today. I started my NHS career 30-odd years ago running a large psychiatric hospital outside Newcastle, where in some respects the quality of care was high but in others, frankly, far too many people with long-term mental health problems had been warehoused, in effect, for decades. That was a point in time when there was a big shift to re-provide services in less restrictive community settings.

I mention that simply to remind us that it was not the Mental Health Act 1983 per se that triggered all that; it was a combination of better therapies, alternative services and, frankly, greater power and influence for the voice of users of mental health services that together constituted that initial shift in services. So, as we think about the Bill before us, of course we must attend principally to the content of the legislation but we must also think about how quickly it will be implemented and the context in which it will land.

As we have heard, this is a very well-vetted piece of legislation. We will want to pay attention to the unintended consequences that various noble Lords have raised and I agree with others that some components are seriously underpowered. The advance choice documents provision, I am afraid, will not cut it as currently described. We heard that from the noble Baronesses, Lady Buscombe and Lady Barker, the noble Earl, Lord Howe, and many others. Unlike the clinician checklists set out as a requirement in Clause 11, the care and treatment plans that are a statutory requirement in Clause 20, or the new rights for voluntary in-patients to access independent advocacy set out in Clause 38, when it comes to the advance choice documents all we have is a fairly vague, subjective responsibility on the NHS and integrated care boards to give it their best shot. I am paraphrasing, but only slightly. In effect, they are asked to provide information and help to the extent that they consider appropriate. Frankly, a notice on a noticeboard with a phone number to call would constitute progress as far as the Bill is concerned. We need to address this fundamentally. Based on the comments this evening, it sounds as if there may be a latent majority for an amendment when we get to Report, depending on how our debate in Committee has gone.

That is just one example of the Bill’s content. The related question is the one the noble Lord, Lord Scriven, very powerfully raised: however good this is, when will it actually see the light of day? When will it be implemented? Actually, the most salient piece of this legislation is lurking right at the end, at Clause 53(3), which says that most of this stuff will spring into life only through the fiat of the Secretary of State at a date yet TBD. As the impact assessment—which, again, as the noble Lord said, is a very important and revealing document—says, a lot of these measures are seriously back-loaded. Even the ones that are supposedly front-loaded are highly dependent on a set of resourcing which may or may not occur.

For example, the new detention criteria for people with learning disabilities and autistic people may start in 2026-27, but next to a little asterisk is written:

“This timeline is highly indicative as an illustration for modelling purposes. This reform will commence once systems are able to demonstrate sufficient levels of community support for people with a learning disability and autistic people as an alternative to hospital-based care”.


As we have heard from the noble Baroness, Lady Keeley, and others, we have been waiting for that for some long years. My concern is that we run the same risk here as we saw with, say, the implementation of the Dilnot reforms: something sits on the statute book but never actually comes to life because it is always, “Mañana, mañana”, given the chicken and egg problem of resourcing and alternative services to allow the thing to come about. There is an implementation timescale question that I am sure we will want to pay attention to.

Related to that is the extent to which the Bill interacts with the real-world state of mental health services, social care, housing, the criminal justice system and so forth. Two of the four principles in Clause 1—“Choice and autonomy” and “Least restriction” of care—are intrinsically tied to the availability of alternative services. Therefore, you cannot divorce the Bill from decisions that this Government and future Governments will make on its resourcing.

If we want a moment of legislative humility, let us cast our minds back to the Health and Social Care Act 2012, where parity of esteem was legislated from the rooftops. Frankly, we did not see parity of esteem begin to kick in on the back of that declaration. In fact, between 2010 and 2016—a time of rising mental health need—the mental health workforce was cut by 9.4%. I took the decision—with the support of the now noble Baroness, Lady May, as Prime Minister—that, from 2016 onwards, we would introduce the mental health investment standard. This required that, each year, the share of NHS funding going on mental health could not fall—it had to be at least constant and should be rising—to stop the squeeze that was otherwise taking place. As a result, in contrast to that 9.4% reduction, we have seen a 26.5% increase since then. In his review for the new Government, the noble Lord, Lord Darzi, said:

“This important intervention has … enabled much of the mental health capacity that was cut in the first part of the 2010s to be rebuilt”.


That is why this House was good enough to support my amendment to the 2022 health Act, which was then adopted by the Government. This ensured that, prospectively, before the start of each financial year, the Government of the day have to set out their stall and declare whether they intend that mental health spending will grow as a share of the overall pie in the year ahead. The reason that is so important is not just history: at a time when, understandably, there will be great political focus on waiting times for physical health and routine operations, the most likely outcome, absent that mental health investment standard, would be that mental health services would get screwed at a time when other things are prioritised.

We will want a renewed commitment by the new Government to that mental health investment standard, perhaps as early as the planning guidance for the coming year, 2025-26. We will be able to take stock of that before Committee to make a judgment about whether we should recommend a strengthening of that mental health investment standard in the statute, because it is inconceivable that the good measures laid out in the Bill can actually be implemented while mental health services are squeezed as a share of the growing NHS budget.

In the western movie “The Magnificent Seven”, Steve McQueen said that, as gunslingers, “We deal in lead”. Clearly, here in Parliament, we deal in law, but my underlying point is that law gets you only so far. The question is not just the content of the law but how it is implemented, how fast and in what context. We need to keep our eyes on all those as the Bill proceeds.