Mental Health Bill [ Lords ] (Sixth sitting)

Neil Shastri-Hurst Excerpts

Committee stage
Tuesday 17th June 2025 Public Bill Committees

[Aphra Brandreth (Chester South and Eddisbury) (Con)]

It is a pleasure to serve under your chairmanship, Mrs Harris. I rise to make some brief comments on amendment 49.

I am sympathetic to aims of the hon. Member for Winchester in tabling the amendment. A patient who is being discharged from hospital may indeed require specific, targeted support. The overall success of their treatment and continued recovery can be greatly enhanced where the right structures are in place to support them in the community. The amendment rightly draws attention to social and financial stressors that may affect an individual at the point of discharge and in the weeks and months that follow. We all recognise that there is a pressing need for a more joined-up approach between in-patient services and community provision. Without that, we risk patients falling through the cracks and suffering unnecessary and distressing re-admissions. Better discharge planning must be at the heart of our efforts.

I have some concerns, however. Although I acknowledge the good intentions behind the amendment, it risks expanding the remit of independent mental health advocates beyond what might be appropriate. There is a delicate balance, but an important distinction, between advocacy and care co-ordination. Independent mental health advocates play a vital role, and it is essential that their independence and clarity of purpose be preserved. If we are not careful, we risk blurring that boundary. In doing so, we may undermine the very effectiveness of the independent mental health advocate in fulfilling their primary function.

The role of an IMHA is to support patients in understanding and exercising their rights under the Mental Health Act. They may already be involved in supporting an individual to prepare for discharge, including by contributing to plans for ongoing care and support. The amendment would significantly increase the breadth of that role and might shift the focus away from the core purpose of advocacy.

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

My hon. Friend makes a pressing point. Does she agree that if the amendment is accepted, there will be a requirement for additional training to deal with financial and social support, which goes outside the current scope of these important advocates?

[Aphra Brandreth]

My hon. Friend makes an important point. This is not a simple or straightforward addition; it would require potentially substantial training. We would not want somebody in a role that they were not adequately prepared for. With any amendment, we would need to ensure that training, and the time and expense of it, had been factored in.

Even with the best intentions, the success of any extended support role, such as that envisaged in the amendment, will ultimately rely on the availability and integration of local services. Where appropriate services are in place and are working well together, advocates can play a valuable role in signposting and supporting access. Rather than placing additional responsibilities on the IMHA, our focus should be on working with community providers to ensure that the necessary support, particularly for social and financial needs, is consistently available and is effectively joined up across the system.

Having said that, I recognise and welcome the emphasis placed by the hon. Member for Winchester on the role of carers and family members. Too often, they are overlooked in discharge planning, yet their involvement can make a critical difference to a patient’s successful transition from hospital to home. When carers feel informed, supported and prepared, it gives patients the reassurance and stability that they need to continue their recovery with confidence. The primary responsibility of the independent mental health advocate, however, must remain their responsibility to the patient. I am concerned that the drafting of the amendment could create ambiguity about who the IMHA is principally there to support.

Financial stress is undoubtedly a real and urgent concern. Mental ill health can severely affect an individual’s capacity to work, to manage their finances or even to engage with systems of support. Equally, financial instability can exacerbate mental health difficulties. Those are serious challenges that must be addressed, but I would question whether the IMHA is the right professional to take on that role directly. Instead, we should ensure that they are well placed to refer individuals to appropriate services without assuming responsibility for co-ordinating that support themselves.

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By making automatic referrals more frequent for restricted patients and introducing automatic referrals for conditionally discharged patients, we are improving access to the tribunal. That will ensure that patients who lack the ability or initiative to make an application to the tribunal can benefit from the safeguard of increased independent judicial scrutiny of their detention by the tribunal.

[Dr Shastri-Hurst]

It is a pleasure to serve under your chairmanship this afternoon, Mrs Harris. I rise to speak on clauses 30 to 33, which go to the core of the rights architecture that surrounds mental health law in this country—namely, the oversight and challenge mechanisms available to individuals subject to detention, supervision or conditional discharge. I think we are all aware that the 1983 Act, although fit for its time, has failed to keep pace with the evolving understanding of mental health illness and modern expectations of legal accountability or procedural fairness. The clauses, although technical in nature, seek to rectify a number of the long-standing shortcomings in the operation of the mental health tribunal system.

Clause 30 will extend and clarify the time period within which patients may apply to tribunals. Essentially, it will do two things. First, it will extend the application window for section 2 patients—those detained for assessment—from 14 to 21 days. Secondly, it will reduce the initial waiting period for section 3 patients and those under guardianship from six months to three months. Those are sensible and overdue changes, because 14 days is a narrow window for any legal action, let alone one initiated by an individual who may be experiencing acute psychological distress.

Extending the application window to 21 days provides a fairer opportunity to seek representation and prepare a meaningful application. Equally, the reduction of the initial period for section 3 and guardianship patients to three months offers an important safeguard against prolonged detention without scrutiny. It restores a measure of clarity between the gravity of the detention order and the speed with which it may be challenged.

The clause will also clarify the rights of conditionally discharged restricted patients who are subject to deprivation of liberty conditions—that is, those who are discharged from hospital but required to comply with supervisional residence requirements that are so restrictive that they cross the legal threshold for a deprivation of liberty. At present, those individuals occupy a legal grey zone: they are not formally detained, yet the liberty they enjoy is so curtailed that it raises significant questions as to their article 5 rights. Clause 30 will properly address that anomaly by creating a defined, regular route of appeal, initially between six and 12 months from the imposition of the deprivation of liberty conditions, and biannually thereafter. Those are measured and proportionate changes that enhance access to justice, improve compliance with human rights obligations and restore clarity to a field that has suffered, at times, from legal opacity.

The reforms are not without consequences. A wider cohort of eligible applicants and more frequent review periods will inevitably increase the burden on the tribunal service, on legal aid provision and on clinical teams who must prepare documents and attend hearings. That challenge is not to be dismissed lightly.

[Gregory Stafford]

Does my gallant and learned hon. Friend have any information on the current waiting times for tribunals? What does he expect the effect of the changes proposed in these clauses to be on waiting times?

[Dr Shastri-Hurst]

My hon. Friend makes a pertinent point. We all know, from our casework or personal experiences outside of this place, about the pressures on the Courts and Tribunals Service. Mental health tribunals are not exempt from that pressure. Changing the timeframe on which tribunals operate, and the frequency with which reviews take place, will inevitably increase the burden on the service. Therefore, although these changes are broadly welcome, it is important that we are cognisant of their impact on the resources that will be required, the number of judges and wing members that will be needed, and of course the hard standing of the court and tribunal infrastructure that will need to be made available. Other issues, such as those around the digitalisation of the service, will also need to be addressed.

Clause 31 will recast the regime for automatic tribunal referrals, replacing the prior six-month structure with the concept of “a relevant period”. For detained patients, referrals will now occur at three months, then 12 months, and annually thereafter. For community patients, they will occur at six months, then 12 months, then annually. Most significantly, hospital managers will be under a new duty to refer a case when no review has occurred in 12 months, regardless of whether an application has been made. That is a sound reform.

The clause will introduce coherence to a previously fragmented system, and establishes a minimum standard of legal oversight. The inclusion of a backstop provision—that no individual should go more than 12 months without review—is essential. In a system in which patients may not always have the means or capacity to apply for a review themselves, it offers a critical safety net. Clause 31 will also repeal section 68A of the 1983 Act, which has become unwieldy and duplicative. By streamlining the referral process, the Bill enhances legal clarity and administrative efficiency, but I would caution that the increased complexity of the new timeframes may require significant training of those responsible for their implementation.

Clause 32 will provide for restricted patients who are subject to deprivation of liberty conditions. It goes further than clause 30 by imposing mandatory referral duties on the Secretary of State. Under the clause, a tribunal must be convened after 12 months, every two years thereafter, and at four years if no review has occurred. Crucially, the clause also codifies the tribunal’s powers. It may now vary or impose conditions, including those that constitute a deprivation of liberty, provided that they are necessary to protect the public from serious harm and are no more restrictive than hospital detention. That clause introduces a principled, proportionate framework for balancing public protection with patient liberty, and avoids vague or discretionary use of such powers.

Finally, clause 33 will apply the same principles to restricted patients not subject to deprivation of liberty orders. Such individuals, although under fewer constraints, are none the less subject to significant legal orders. The new requirement for a tribunal review at two years, and every four years thereafter, ensures that oversight is regular and non-discriminatory.

All four clauses are united by a clear objective to rationalise tribunal access, enhance procedural safeguards and bring the Mental Health Act into alignment with modern standards of fairness and proportionality. However, I will close with a caveat: rights without resourcing are hollow. If we are to place greater demand on the tribunals service, and to rely on it as the guardian of liberty for thousands of individuals, it must be adequately funded, staffed and supported. Legal representation must be accessible. Tribunal members must be properly trained. Hospital managers must be equipped to meet their new responsibilities.

With those reservations, I broadly welcome clauses 30 to 33 as a necessary recalibration of our mental health law. They reflect the dignity of the individual, the demands of public safety, and the enduring principle that no one should be deprived of liberty without fair or timely review.

[Natasha Irons (Croydon East) (Lab)]

It is a pleasure to serve under your chairmanship, Mrs Harris. I rise to speak in support of clauses 30 to 33. I echo many of the remarks of the gallant and learned hon. Member for Solihull West and Shirley, but I will try not to go over too much of the same ground.

These clauses seek to provide clarity and improvement in access to the tribunal process, both for patients detained under the Mental Health Act and for those on conditional discharge, and seek to implement key recommendations from the independent review. Section 66 of the Act is amended to extend the period in which a patient detained under section 2 can apply to the tribunal from 14 days to 21 days. Clause 30 also allows for auto-enrolment in a hearing, reducing that time from six months to three months. It clarifies that conditional discharge patients are included in this package, so they also have the right to have their treatment reviewed at a tribunal. Providing for auto-enrolment simplifies the system for people who, as the hon. Member mentioned, are perhaps not in the best position to make administrative decisions and fill in the paperwork to apply to a tribunal.

Although this framework and these changes are necessary to bring clarity and autonomy back into people’s healthcare, it would be good to hear from the Minister about how we will support patients throughout these processes as we learn about the different timelines. How will we ensure people can access this change in the system and understand what they are entitled to under this new provision?

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[Anna Dixon]

It is a pleasure to serve under your chairship, Mrs Harris. I will briefly speak in support of clauses 36 to 40. These clauses reflect the principle of least restriction, albeit for people who are subject to part III, and who are therefore subject to the deprivation of liberty conditions. It is really important that there are frameworks around conditional discharge, and these clauses will do a lot to bring it in line with best practice, and to put the limit set out in the best practice guidelines on a statutory footing to ensure that there is a 28-day transfer. To be successful, that will require multidisciplinary working between the health and justice systems. With that in mind, will the Minister give an assurance that he is confident that the 28-day limit can be met? If there is already data on how many transfers are made within that time limit, in line with best practice guidelines, that would give some assurance that the new statutory time limit is likely to be met.

I am pleased to see that the time limit should be breached only in exceptional circumstances, and that the Bill specifies that a shortage of hospital beds or staff does not constitute exceptional circumstances. It is really important that that is not used as a reason not to transfer or discharge people later than the 28-day limit. Some of the discharge test rests not only on whether there is a risk of harm to another person, but on a public test. Can the Minister clarify how those two tests will work in tandem? Is that already being done in practice?

Finally, I note that the evidence that we have received from the Care Quality Commission says that it welcomes closing the legal gap following the High Court ruling, as set out in the explanatory notes. However, the CQC believes that supervised discharge should be used only “when strictly necessary”, and I know that there are ongoing discussions between the Department’s officials and the Care Quality Commission. Can the Minister give an update on those discussions and clarify what role, if any, the CQC will play in the oversight of these measures?

As the hon. Member for Farnham and Bordon said, clauses 67 to 70 bring the Bill in line with youth justice practices and terminology, and with immigration policy. It is important that we take the opportunity to make sure that the Bill is fully up to date and in line with other pieces of legislation, so I support the clauses.

[Dr Shastri-Hurst]

I rise to speak in support of clauses 36 to 40, which provide critical legal clarification and technical refinements to the 1993 Act. While differing in scope and impact, each of these provisions is underpinned by a clear shared commitment to enhance public protection, uphold patient rights, and ensure that the legal framework reflects both current clinical practice and developments in case law.

Let me begin with clause 36, which addresses a long-standing lacuna in the legislative architecture governing conditionally discharged restricted patients. It follows the 2018 Supreme Court ruling in the case of Secretary of State of Justice v. MM, where it became clear that the existing Mental Health Act did not permit the imposition of conditions amounting to a deprivation of liberty as part of conditional discharge. The decision created uncertainty for clinicians, tribunals and, most crucially, risk-managed patients living in the community. It is therefore pleasing to see that clause 36 seeks to address that gap. The clause introduces new statutory powers for both the Secretary of State and the first-tier tribunal, in respect of imposing deprivation of liberty conditions in the community. It does so with some stringent safeguards.

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[Dr Shastri-Hurst]

I will speak briefly on schedule 3, which makes a number of important amendments to the 1983 Act concerning the role of independent mental health advocates. The schedule implements several practical reforms to provide consistent and accessible advocacy and support for individuals receiving mental health care. It builds upon existing statutory provisions by extending the right to advocacy beyond detained patients and setting out clearer expectations of how and when advocacy services should be made available.

One of the most notable changes is the extension of IMHA eligibility to include informal patients—individuals receiving voluntary treatment rather than under compulsion. This responds directly to the recommendations made in both the independent review and the 2021 White Paper, which identified disparities in support available to different patient groups. Under these reforms, access to advocacy is no longer limited to those detained under the Act. Instead, all qualifying patients, including informal ones, will be eligible for IMHA support where appropriate. This change reflects the recognition that voluntary status does not necessarily equate to full understanding or confidence in navigating care decisions.

To ensure that eligible individuals are aware of and able to use this support, hospital managers will now be required to notify advocacy services when a patient becomes eligible. This automatic referral mechanism removes the onus from patients themselves to initiate contact, many of whom may not be aware of their rights or may face barriers to asserting them. In turn, advocacy providers will have a duty to arrange an interview with each referred patient to establish whether they wish to use the service. This helps to close the loop between eligibility and engagement, and ensures that advocacy is offered in a timely and structured manner.

Schedule 3 also sets out clearer responsibilities on both hospital managers and advocacy providers. Clearly, that will improve co-ordination and ensure the consistent application of the policy across different care settings and regions. In practice, it should help to reduce gaps where eligible patients might otherwise miss out on support due to ambiguity around who holds the responsibility for initiating contact. It is worth noting that these reforms complement the broader set of changes proposed in clauses 41 to 44, which collectively aim to strengthen patient rights, increase transparency in decision making and improve the overall quality of patient experience in mental health services.

This approach has a number of potential benefits. First, it is likely to improve access to advocacy for groups who have historically been underserved. These include informal patients, individuals with communication difficulties and those less familiar with the mental health system. Secondly, it enhances procedural fairness by ensuring that patients are supported in understanding their options, raising their concerns, or appealing decisions where necessary. Thirdly, it brings the statutory framework into closer alignment with human rights principles and best practice standards, particularly in terms of informed participation and supported decision making.

There are, however, three specific practical challenges that I wish the Minister to acknowledge. First, these reforms will require sufficient resources for advocacy services, particularly as demand is likely to increase once eligibility is broadened. Secondly, effective implementation will depend upon robust co-ordination between hospital managers and external advocacy providers, which may vary in capacity and capability across regions. I would be interested to hear the Minister’s approach to ameliorating that. Thirdly, there is a risk of inconsistency in delivery without clear national guidance and adequate oversight mechanisms, so I would be grateful if the Minister could address the mechanisms that are intended to be put in place.

These are not insurmountable issues, but they highlight the importance of a carefully planned implementation strategy, supported by training, monitoring and adequate funding. Schedule 3 represents a targeted and proportionate set of amendments that support the underlying aims of the Bill to ensure that all individuals receiving mental health care, whether formally detained or not, are able to access independent support, understand their rights and participate more fully in decisions about their treatment. [Interruption.]

[The Chair]

My apologies for the noise in the corridor; there was meant to be a yoga event in here at 6 o’clock. I thank the Doorkeeper for trying very hard to keep everything under control.

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[Aphra Brandreth]

I rise to make a few brief remarks about clauses 42 to 44, which would amend the 1983 Act to place statutory duties on hospital managers to supply complaints information to both the patient and the nominated person in respect of detailed patients, patients subject to a CTO and conditionally discharged patients.

These are important clauses. The people concerned are potentially vulnerable individuals. They need to know that they have a voice in this process and feel empowered to speak out and complain, should they wish. There is a duty on hospital managers to ensure that detained patients understand how to make complaints. However, I ask the Minister how that duty will be checked and evaluated. We all agree that the ability to speak out to make a complaint is important, but we need to ensure that proper safeguards and parameters are in place on how that will happen.

I also welcome the provision requiring that the information must be provided as soon as is practicable. That is important to give patients confidence. The timing requirements will potentially make a huge difference. The journey of a patient may change rapidly over the course of their treatment, so not leaving it too long will potentially make a substantial difference to their ability to recover swiftly, and ensure that they have been able to speak out if they are concerned not just about their detainment but about the way that their treatment is being carried out, and the potential implications of that.

Like many of the measures that we have discussed, these clauses might have administrative implications. We need to ensure that we have fully considered and are able to put in place the necessary support for hospital managers to deal with complaints appropriately. It is important that if someone comes forward with a complaint, it can be dealt with swiftly.

As mentioned on some other matters, we need to ensure consistency for patients, so that they understand the information that they are being provided and that, whatever region they might live in or hospital they might be at, consistent information is provided. I would like the Minister’s reassurance on that point.

Overall, however, the clause improves patients’ awareness of their rights and how they can seek redress. I think we all agree that that is extremely important. It will promote accountability in mental health services by encouraging feedback and complaints. I would like reassurance of some oversight to ensure feedback on any complaints that come forward so that we identify where consistent issues come up, to provide better services not just to the individual but to future individuals. Overall, the clauses support better outcomes by addressing potential grievances and ensuring that they are addressed early and constructively, so I am supportive of them.

[Dr Shastri-Hurst]

You will be delighted to know that I will be mercifully brief, Mrs Harris, because I am broadly supportive of all three clauses. Having worked as a doctor in clinical practice, and as a barrister, I am cognisant of the importance of transparency, patient autonomy and procedural fairness, in particular with vulnerable patients who are often seen in a mental health care setting.

I welcome this trio of clauses, but I have some gentle challenges to put to the Minister for when he gets to his feet. First, how will data be captured on the information that is to be provided to patients and their families? What feedback mechanisms will be in place, not just for patients but for those who support them—their carers and families—and for clinicians, on the practicalities of how the system is working?

[Sojan Joseph]

I was a clinician and I practised on wards; patient records are electronic for staff. When staff complete the explanation of section 132 rights, they record that on the electronic patient records. Does the hon. Member agree that that would be a good place to get the data?

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[Dr Shastri-Hurst]

The hon. Member makes a very valid point. There is that mechanism, but this is also about ensuring that the quality of the information that has been imparted—not just the process of it being done—is recorded. An audit process must ensure that the important conversations and information are imparted in a way that the patient and their family understand, in sufficient detail and as part of a process whereby, if there are concerns or doubts, they can be addressed in a ready manner. I take his point that there are metrics by which to measure things, but it is not just about capturing data; it is about capturing quality data in order to ensure that that is being fulfilled.

To pick up on the point made by my hon. Friend the Member for Chester South and Eddisbury about regional variability, consistency across the board is important not only in the regions, but in the delivery methods and capacity that underpin this crucial service.

Finally, on potential confusion and legal information being communicated in inaccessible ways, it is important that legalese does not get in the way of clarity for individuals who will have to navigate the information. I am interested to hear the Minister’s views on how we can ensure that the information is imparted in an accessible way for all those concerned—importantly, not just for patients and their families, but for clinicians who have to impart the information. They need to feel comfortable navigating their way around what can often be a complex set of regulations and legislation.

Ordered, That the debate be now adjourned.—(Taiwo Owatemi.)