Mental Health Bill [ Lords ] (Second sitting)

Neil Shastri-Hurst Excerpts

Committee stage
Tuesday 10th June 2025 Public Bill Committees

[Gregory Stafford]

Thank you, Ms Furniss. I was coming to my closing remarks on amendment 47. Suffice it to say that some of the concerns that I raised on amendment 8 about the administrative burdens, the data sharing, and the potential safeguarding and privacy concerns transfer through. Again, perhaps the hon. Member for Winchester could give some reassurance on that when summing up.

Amendment 9, as far as I can tell, would extend the duty on integrated care boards and local authorities to exercise their marketing functions in a way that seeks to ensure that children and young people’s needs can be met without detaining them.

[Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)]

Does my hon. Friend agree that, although the intention behind the amendment may be worthy, there is a lack of clarity in the drafting? In particular, it is unclear what “seek to ensure” means and how that would be legally defined.

[Gregory Stafford]

My hon. Friend is right; although a number of the Liberal Democrats are entirely worthy, there are some concerns about the drafting, which could give rise to ambiguity, legal loopholes and definitional issues. In that example, I do not think that “seek to ensure” is helpful. When the hon. Member for Winchester is summing up, perhaps he might explain how “seek to ensure” can be robustly defined within the law, or if it cannot be, suggest a different form of wording that he may wish to use in a future amendment if this amendment fails to be agreed.

Part II of the Mental Health Act 1983 covers the powers to detain individuals for assessment and treatment. Detention can clearly be traumatic, especially for children and young people. Amendment 9 reflects a growing consensus that detention should be the last resort— I think hon. Members on both sides of the House agree with that—and that community-based preventive and therapeutic alternatives should be prioritised. Again, I think it would be very hard to disagree with that ambition.

On the positive side, community-based care is clearly better than detention in most cases, and, if we can get to a point where people are assessed earlier, as is the intention of some of the other amendments, clearly—hopefully—that would lead to community-based care and not detention. The amendment would also protect children’s rights and support the trauma-informed approaches to mental health that were raised previously regarding amendment 47.

The amendment could also reduce the long-term harm associated with institutionalisation and potentially coercive treatment. As we have heard from Members on both sides, that would align with best practice in child and adolescent mental health services and it would promote and encourage a system of accountability by making ICBs and local authorities responsible for proactive care planning. All of that is extraordinarily laudable.

On the potential downsides, there is an ambiguity about the enforcement of the amendment, as my hon. Friend the Member for Solihull West and Shirley said, because of the lack of legal force or clarity in some of the phraseology. There would be also resource implications and, if there are resource limitations at the ICB or local authority level, that might hinder their ability to provide adequate, community-based alternatives.

I do not say that as an excuse for not supporting the amendment, but the hon. Member for Winchester has to understand the reality of the world we live in. Although I want local authorities and ICBs in every area to be entirely fully funded and resourced—and frankly, I do not think the Government’s cut of 50%, or indeed more in some ICBs, will do anything to help community-based care—there would be resource challenges. There would also be implementation challenges in areas where mental health services are already underfunded or overstretched that could lead to delays in care.

This is the key question that I ask the hon. Member to respond to in his summing up. Members on both sides of the House want to ensure that all people of all ages get the best, most appropriate mental health care as early as possible. But in an imperfect world, if there are potential delays in care because community services are struggling to find alternatives to detention, the unintended consequence could be that someone may not be treated at all because of the onus on defined community-based care rather than detention. Will the hon. Member explain how that would work?

I draw my remarks to a close by saying I, certainly, and the Opposition, entirely agree with the ambitions of the amendments. However, some practical and legal issues would need to be ironed out before I could wholeheartedly support them.

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[Sojan Joseph]

I hope that Baroness Casey completes her commission work and gives us her report. It was promised in the Chamber that the initial report would be available within a year. Regardless of whether she is taking up another role, I hope there will not be any delay and that we get that report and a detailed report within three years. I am looking for a solid plan to fix this problem forever. I am not looking for sticking plasters or an immediate fix, but we need a plan, perhaps including a national care service. These are the people who are looking for a long-term solution to these problems.

The hon. Member asked about how I will vote; unfortunately, I will not be supporting new clause 11. The Government have already started some work, which is why I am specifically talking about the NHS 10-year plan to move care from hospitals to the community, along with the social care commission, which is looking into how we can get good progress on that. This is the answer; we need to get a long-term solution to this problem.

[Dr Shastri-Hurst]

It is a pleasure to serve under your chairmanship, Ms Furniss. I rise to speak to Liberal Democrat amendments 20, 10, 22, 24 and 21, and set out why, although I think they are honourable in their intent, I am unable to support them today.

I will start with amendment 20. The purpose of the amendment is to require ICBs to ensure the availability of specialist crisis accommodation for people with autism and learning disabilities. The aim is to provide a safe and therapeutic alternative to detention, which I think we would all agree is a sensible course of action. Section 136 of the Mental Health Act 1983 allows police to remove an individual who is experiencing a mental health crisis from a public place to a place of safety. That can, on unfortunate occasions, lead to detention in inappropriate settings, which may include police cells. That can obviously be deeply harmful, particularly to those with conditions such as autistic spectrum disorder or other learning difficulties.

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[Stephen Kinnock]

That is a valid question, and one that has probably been asked in pretty much every Bill Committee that has ever taken place. It is always a challenge to get the balance right, having the right level of steer to the system in primary legislation without tying the hands of the system. Everything is constantly evolving, particularly in the age of technology in which we live, so it would be foolish to tie our hands too tightly given the changing nature of the landscape we are working in.

My answer to the question—I say this personally and from the point of view of the Government—is that we are satisfied that we have the balance more or less right. That is in the eye of the beholder, and not everybody will agree, but we feel that clause 4 gets that balance right, and sends clear signals to the system through primary legislation. The proof of the pudding will then be in the eating, and that is for the code of practice, the regulations and the programme planning. On that basis, I commend the clause to the Committee.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Grounds for detention

[Dr Shastri-Hurst]

I beg to move amendment 52, in clause 5, page 11, leave out lines 20 to 22 and insert—

“(b) in the case of a patient who lacks capacity or competence to consent to admission for assessment (or for assessment followed by medical treatment), serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained by a constable or other authorised person, or in the case of a patient who does not lack capacity or competence to consent to admission for assessment (or for assessment followed by medical treatment) serious harm may be caused to the health or safety of another person unless the patient is so detained by a constable or other authorised person; and”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 53, in clause 5, page 11, leave out lines 27 to 29 and insert—

“(b) in the case of a patient who lacks capacity or competence to consent to admission for medical treatment, serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment, or in the case of a patient who does not lack capacity or competence to consent to admission for medical treatment, serious harm may be caused to the health or safety of another person unless the patient receives medical treatment,”

This amendment, along with Amendment 52, would add to the grounds for admission to hospital for assessment or treatment that the patient must lack the capacity to consent to that admission, if they would not be detained due to being a risk to others.

New clause 24—Application in respect of patient already on hospital grounds—

“(1) The Mental Health Act 1983 is amended as follows.

(2) In section 5(1) (Application in respect of a patient already in hospital), after ‘or,’ insert ‘that the patient has attended a hospital or been brought to a hospital to seek help or admission as a patient or,’”

This new clause would allow people who have attended or been brought to a hospital to seek help or admission as a patient to pursue an application for admission under the Mental Health Act.

[Dr Shastri-Hurst]

All the amendments in this group have been tabled in the name of my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer). Amendments 52 and 53 deal with grounds for detention and treatment—specifically, with how those grounds differ depending on whether a patient has the capacity or competence to consent.

At the heart of both amendments is the simple but vital proposition that capacity matters, not only ethically, but legally. The ability of an individual to make decisions about their own care must shape the basis on which the state may act against their will.

The revised wording introduces an important distinction between the two scenarios, where a patient lacks capacity and where they retain it. In the first case, where a patient cannot consent because they are unable to understand or weigh up the relevant information, then serious harm either to the patient or to others may justify detention or compulsory treatment. However, in the second case, where capacity is intact, the threshold for overriding a person’s autonomy is rightly higher. In such circumstances, the justification for intervention must rest solely on the risk of serious harm to other people.

This is more than legal tidiness; it is a matter of fundamental rights. The law should not permit the detention or forced treatment of a capacitated individual on the basis of a paternalistic judgment about their own safety—that is not a liberal mental health framework, but an arbitrary power. These amendments achieve something critical: they preserve the protective duty of the state, particularly to those who cannot protect themselves, but they do so without blurring the line between necessary intervention and justified intrusion. They are grounded in legal precedent, echoing the principles found in common law, the Mental Capacity Act and article 5 of the European convention on human rights. They introduce clarity where ambiguity once stood, and they ensure that the Bill reflects both compassion and constitutional restraint. [Interruption.]

[The Chair]

Order. We are now expecting three Divisions. I will therefore suspend the Committee for twenty-five minutes, until 5.30 pm—[Interruption.] Four Divisions? We have only been informed about three. [Interruption.] Yes—we would like you all back at 5.40 pm.

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[The Chair]

I call Dr Neil Shastri-Hurst to continue speaking to amendment 52 and the other amendments in that group.

[Dr Shastri-Hurst]

It seems a lifetime ago since I was last on my feet. I am sure the Minister was waiting in anticipation for the crescendo of my speech. He heard my observations on amendments 52 and 53, and I know he will be mindful of ensuring that the balance between intervention and detention is held in equilibrium. I would be grateful if he addressed the points I raised before the interlude in his response.

New clause 24 would amend section 5(1) of the Mental Health Act 1983 to clarify that a formal application for detention can be made not only for a patient already admitted to hospital, but for individuals who have attended or been brought to a hospital seeking help or admission. It would therefore expand the legal basis for initiating detention procedures under the Act.

The new clause makes an important distinction. While the Act currently allows for the detention of an individual who is already an in-patient, there is ambiguity about whether that applies to individuals who are on hospital grounds—who have attended A&E, for example—but have not yet been formally admitted as a patient. In those cases, the Act fails to capture people who arrive voluntarily or are brought to such an institution during a crisis.

New clause 24 seeks to close that gap by explicitly allowing an application for detention to be made in such circumstances, ensuring that a timely intervention can occur when necessary for safety or treatment. A number of significant benefits would arise from the new clause. It would provide firm legal clarity; remove any ambiguity about when detention procedures can begin; allow timely intervention, enabling quicker responses for an individual in crisis who is already at hospital but has not been admitted; reduce the risk of harm by allowing earlier application of safeguards; and align the legal framework with the reality of hospital procedures. The distinction between those who are in attendance at a hospital and those who have been admitted in a state of crisis is a false one.

[Dr Evans]

Like me, my hon. Friend has served as a clinician on the frontline. As this point is sometimes lost, can he explain the practicalities of what turning up at a hospital versus actually being admitted means? They are two distinct things. Can he walk us through what the process entails?

[Dr Shastri-Hurst]

My hon. Friend is right. An individual can attend an emergency department to be assessed and be seen by a doctor before a decision is made on whether that patient should be admitted to that hospital, transferred to a tertiary centre or discharged back into the community. New clause 24 seeks to provide clarity and certainty for practitioners on that grey area and, crucially, it seeks to provide a safeguard for patients who have yet to be formally admitted to an institution—a hospital, community placement or wherever—but need a crucial intervention.

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[Gregory Stafford]

I rise to speak to amendments 52 and 53, tabled by my hon. Friend the Member for Runnymede and Weybridge and moved by my hon. Friend the Member for Solihull West and Shirley. Clearly, both my hon. Friends have significant clinical experience, and I bow in many ways to their expertise. However, the amendments cause me some concerns.

Amendments 52 and 53

“would add to the grounds for admission to hospital for assessment or treatment that the patient must lack the capacity to consent to that admission, if they would not be detained due to being a risk to others.”

Clearly, both amendments would introduce a capacity-based distinction in the grounds for detaining a person for medical treatment under the Mental Health Act, as my hon. Friend the Member for Hinckley and Bosworth mentioned. That would ensure that, for patients who lack capacity or competence, detention is justified if serious harm may be caused to themselves or others unless they receive that treatment. For patients who have capacity or competence, detention is justified only if serious harm may be caused to others unless they received that treatment.

The amendments build on the principle of autonomous individuals, which we have talked about and which, as my hon. Friend said, is in the Bill. People should not be detained solely for their own protection if they are capable of making informed decisions about their care. As my hon. Friend said, that aligns with the Mental Capacity Act and broader human rights principles, aiming to ensure that detention is used proportionately and, most importantly, ethically.

Where the two amendments improve the current legislation is around the strengthening of patient autonomy by limiting the detention of capable individuals to cases where others are at risk. The amendments align the Bill with the human rights principles and the Mental Capacity Act, and clarify a number of legal thresholds for detention, reducing ambiguity in clinical decision making. That will help clinicians to make more sensible and consistent judgments when it comes to who should or should not be detained. Obviously, the amendments promote a proportionality element in the use of coercive powers, and support the person-centred care that we want.

However, I am concerned that the amendments may increase complexity when assessing capacity in applying the correct legal tests. It will absolutely require training and guidance. Government Members have been concerned about mandatory training, and I make no apologies for hoping there would be significant training on this for clinicians when acting in this role, to ensure consistent application of these services. While I accept that the provisions clarify the legal thresholds, I think there is a potential for legal challenges if the distinction is misapplied or misunderstood, hence the need to return to my point about having the correct training. I hope the Minister is able to address some of those concerns, rather than just dismissing the amendments outright.

New clause 24 was tabled by my hon. Friend the Member for Runnymede and Weybridge and moved by my hon. Friend the Member for Solihull and West Shirley—

[Dr Shastri-Hurst]

Solihull West and Shirley.

[Gregory Stafford]

I am doing my best—I will get it right by week three, I promise.

New clause 24 would allow people who have attended or been brought to hospital to seek help or admission as a patient to pursue an application for admission under the Mental Health Act. As other Members have mentioned, section 5(1) of the Mental Health Act allows for the detention of individuals who are already in-patients. However, there has been ambiguity about whether that applies to individuals who are on hospital grounds but not yet formally admitted; for example, those who arrive voluntarily or are being brought in during a crisis. New clause 24 seeks to close that gap by explicitly allowing applications for detention to be made in such circumstances, ensuring that a timely intervention can occur when necessary for safety or treatment, according to my hon. Friends the Members for Solihull West and Shirley and for Runnymede and Weybridge.

I listened carefully to my hon. Friends on the benefits of the new clause, and I accept some of them. However, I have some concerns about deterring people from turning up to a hospital setting, either for some other treatment or to visit friends or relations. I am worried that people would be concerned that they would be forcibly sectioned or detained without their consent by just turning up. There is a real risk of overreach in new clause 24. If we go back to the point about autonomy, people need to have assurance about when and where they will potentially be detained when they seek voluntary help.

The line between voluntary attendance and involuntary detention is the nub of the new clause. While I accept the arguments that have been made by my two hon. Friends, I am not thus far convinced that the balance in the clause is correct, but I am hopeful that the Minister can give some clarity.

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[Stephen Kinnock]

Yes, I think that is right. We have a commitment to creating—either building or repurposing—facilities for more acute mental health settings. We have also created the 111 mental health line. We have a commitment to 8,500 more mental health specialists. We are committed to having a mental health-trained person in every school in the country.

I hope that all those wraparound measures will help in the overall role that we play in the community, and identify people with challenges in a way that will help to support them and, one hopes, avoid them getting to the acute stage. My hon. Friend is absolutely right to point to some of the wraparound measures that the Government are pushing forward.

For the reasons that I have outlined, I ask the hon. Member for Solihull West and Shirley not to press amendments 52 and 53 and new clause 24 to a vote.

[Dr Shastri-Hurst]

I have listened carefully to the Minister, who has addressed the issue with his usual thoughtfulness. I ask that he looks into sharing that data, particularly around new clause 24, but on the basis of the reassurances that he has provided, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned.—(Taiwo Owatemi.)