Mental Health Bill [ Lords ] (Ninth sitting)

Debate between Neil Shastri-Hurst and Luke Evans

Committee stage
Tuesday 24th June 2025 Public Bill Committees

[Dr Evans]

I beg to move, That the clause be read a Second time.

I rise to speak in support of the new clause, which was tabled by the Conservative party. It would place a duty on the Secretary of State to review the effectiveness of the regulatory authority’s role under the Mental Health Act 1983 within one year of the Act’s passage.

Allow me to provide the current legal and regulatory context. Under the framework in the Mental Health Act 1983, the Care Quality Commission, which is the regulatory authority in England, is tasked with monitoring and regulating providers of mental health services. We have debated some of this, and there are issues still to be addressed.

The CQC inspects hospitals, community mental health teams, and other relevant services to ensure compliance with statutory safeguards and standards. It publishes reports on providers and issues recommendations where it identifies failings. Additionally, there is an existing reporting framework under the Act whereby the Secretary of State is expected to oversee and ensure the Act’s proper implementation, with periodic ministerial reports to Parliament and CQC inspection outcomes made publicly available. However, there is currently no statutory requirement to review the CQC’s own role and effectiveness in carrying out these specific mental health functions. The gap means that although providers are scrutinised, the regulator itself escapes similar structured accountability and review.

This question was debated in the other place and I welcome the comments from the Minister in the Lords, Baroness Merron, who, in a letter, rightly highlights existing transparency measures. She states that,

“findings from CQC’s monitoring activity are reported annually in their Monitoring the Mental Health Act report, which is laid before Parliament and published publicly.”

That is true. She also notes the annual quality account reports produced by NHS healthcare providers under the Health Act 2009, which cover patient safety, treatment effectiveness, and patient feedback. True. Those are indeed important components of the current oversight framework, and we support the continuation and strengthening of those transparency mechanisms.

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

My hon. Friend makes a powerful point about transparency, but it is not just about that. Does he agree that it is also about having an evidence base that allows reform and improvement of the regulator?

[Dr Evans]

I do, and to expand the point, this is about understanding the performance of CQC as well. We know from the Dash report and from Mike Richards that there are, and have been, concerns about CQC performance. That is at the heart of this new clause—to try to make sure we actually look at the performance and regulation of the regulator. Those reports focus on the performance of mental health services and providers, but they do not amount to a dedicated statutory review of the regulator itself—specifically, the CQC’s role, effectiveness, and capacity under the Mental Health Act.

Annual reports primarily reflect the CQC’s monitoring outcomes rather than a comprehensive, independent evaluation of whether its regulatory functions are being discharged optimally, or whether it is adequately equipped to meet the new challenges posed by the legislation. In other words, reporting on what the regulator monitors is not the same as reviewing how well the regulator performs its duties.

The new clause would address that distinct gap by mandating a focused review with a parliamentary report and a Government response, thereby strengthening accountability at the regulatory level. The new clause aims to establish an additional layer of scrutiny, not duplicative reporting. It would require the Government, within 12 months of the Bill becoming law, to conduct a formal review of the CQC’s effectiveness, specifically in regulating mental health services under the 1983 Act. It mandates an assessment of whether the CQC is adequately fulfilling its duties, including monitoring, inspection, and enforcement responsibilities, as well as whether it will be capable of carrying out its duties under the new legislation. Given the well-documented problems in mental health, it seems entirely appropriate to address the key point: is the regulator regulating effectively?

[Dr Shastri-Hurst]

My hon. Friend makes a strong point about having a review to ensure that the regulator is operating effectively. Does he share some of my concerns that a one-off review may not demonstrate ongoing oversight and scrutiny of the performance of the regulator?

[Dr Evans]

We do not want to introduce too much bureaucracy, but ensuring an accountable statutory mechanism to ensure adequate oversight is incredibly important. Much of the debate about the Bill has been about whether we put things in primary legislation or in policy, or whether we allow policy and legislation to be done at a secondary level—or even leave them for the organisation to deal with. My concern with the CQC is that we have not seen the organisation step up in the way that it should do. That does not mean that it is not making progress, but we need to see further progress.

Mental Health Bill [ Lords ] (Eighth sitting)

Debate between Neil Shastri-Hurst and Luke Evans

Committee stage
Thursday 19th June 2025 Public Bill Committees

[Dr Shastri-Hurst]

The hon. Gentleman speaks with a huge amount of experience and knowledge in this area. Of course, what he describes would be the default setting, but there may be scenarios in which a qualified healthcare worker is in the vicinity and can provide the support that that individual needs before the police can get there. The clause seeks to provide that flexibility. I acknowledge the split in the Committee on this, but the clause has some significant advantages: reducing police involvement in mental health crises, where that is most appropriate; improving response times, as I have just touched on; and supporting de-escalation.

I accept that there are operational and legal questions to be addressed, but we are here to look at all the potential scenarios. The Minister has clearly set out the consequences of removing the clause from the Bill, but it is perfectly possible that a Government Member on the Committee will choose to support it, and I therefore seek some clarification from the Minister on the operational and legal challenges around training, oversight and the uniformity of authorised roles were the clause to remain part of the Bill. How would training standards be mandated for authorised persons and who would accredit them? How would consistency in practice be ensured across NHS trusts and ambulance services? Will the Minister also clarify the liability position in a case in which an authorised person used force or restraint during a removal?

[Dr Evans]

I am pleased that the Minister has clarified that the Government intend to take out clause 50, because that allows me to take out some of my speech. It would not be appropriate for me to retread the entirety of the argument—we have been through it, and I am aware of the numbers on the Committee—but I will address a few points, because the clause is important.

The clause would keep the role of authorised persons for the purposes of sections 135 and 136. Hon. Members will know that this is not a new issue, as we debated the removal of the definition of authorised person in relation to clause 5. On that occasion, I expressed my concerns about the risk of doing so, which were shared by Baroness May, who rightly argued that we must stop treating mental health as a policing issue and start enabling care to be delivered by the right person in the right way at the right time. This clause gives us a chance to make that principle real.

Clause 50 allows certain non-police professionals, defined as authorised persons, to use existing powers under section 135 to enter premises under a warrant and remove a person in a mental health crisis to a place of safety or assessment of care. It also allows those professionals to use powers under section 136, which is even more sensitive, permitting the removal and detention of a person from a public place without a warrant if they appear to be suffering from a mental health disorder.

The clause is not about weakening safeguards. It is about strengthening the frontline and moving away from a model where the police are the default responders to every mental health crisis, which is often not because they are best placed, but because no one else has the authority. As modelling has shown, 95% of mental health-related police calls do not require a criminal justice response. Officers are spending hours, even days, sitting in A&E with patients in distress, because no one else is trained and empowered to act.

Clause 50 helps to break that cycle. It creates a legal basis for trained health professionals—mental health nurses, paramedics and approved mental health practitioners —to intervene in crisis situations, rather than relying solely on the police.

The hon. Member for Ashford asked how we decide, but we already triage people when they ring 999 or 111. How do we decide who gets an ambulance for what sounds like a heart attack or stroke? That decision is made by clinicians. We have the ability to make those triaging decisions, and I think it is completely appropriate to try to empower the health services to find a better way of dealing with these people.

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[Dr Shastri-Hurst]

I ask for a series of clarifications from the Minister about all three clauses. On clause 51, how will the courts be supported in identifying community-based alternatives to remand? What training or guidance will be provided to judges in applying the provisions effectively? What assurances can the Minister give that support pathways will be available before and after the changes have taken effect?

I accept that clause 52 is a technical a change to the legislation, but it is an important clarification none the less. It will require some robust co-ordination between jurisdictions and clearer procedural safeguards. How will the Government monitor the implementation of proposed new schedule A2 to ensure that patients’ rights are preserved during transfers? Will guidance be issued to courts and practitioners in the UK and the Crown dependencies about the new procedures, particularly their cross-jurisdictional nature? What consultation has taken place, and will continue to take place, with authorities in Jersey, Guernsey and the Isle of Man before the measures are implemented in law?

Finally, I recognise that clause 53 is arguably a sensible safeguard. The challenge will be to ensure compliance on the frontline, especially where legal duties to share information and duties to protect confidentiality can butt against some degree of tension. With that in mind, what support or training will be given to health and care professionals to navigate overlapping legal duties? Will the Minister publish sector-specific guidance on data sharing as a consequence of the Bill? How will the Government assess whether the legal framework strikes the right balance between patient safety and privacy?

[Dr Evans]

Clause 51 amends the Bail Act 1976 to restrict the court’s ability to remand individuals in custody for their own protection or, in the case of children, for their welfare, where the sole concern is mental health. Under existing law, the court may refuse bail to a defendant if it is satisfied that the individual should be kept in custody for their own protection. For those under 18, the relevant test is whether custody is required for their own welfare. Those provisions are found in schedule 1 to the Bail Act.

There is currently nothing in statute that precludes the court from remanding someone entirely on the basis of their mental health conditions—for example, if the defendant appears to pose a danger to themselves but no suitable mental health provision is immediately available. Clause 51 aims to change that. It amends all three parts of schedule 1 to the Bail Act—those dealing with imprisonment and non-imprisonment offences—so that the adult defendant, aged 18 or over, may not be remanded in custody for their own protection if the only concern is mental health.

Paragraph 360 of the Government’s explanatory notes states:

“Evidence suggests that in some cases this power is being used by the courts to remand defendants into custody where they would otherwise have been bailed were it not for the court’s concern for their mental health.”

The intent here is good: to end the inappropriate use of custody—especially in prison, as we have been discussing—as a place of safety for people with acute mental health needs. The clause is consistent with the wider direction of the Bill, which seeks to ensure that people in crisis are met with healthcare and not handcuffs. Although I support the clause, I have a few questions and concerns about how it will operate in practice, and invite the Minister to consider further safeguards.

Where is the alternative provision? That is a question we will keep asking, not in the form of an attack, but as something helpful for our consideration. We are told that instead of custody, courts may impose bail conditions under section 3(6) of the Bail Act, such as requirements to engage with mental health services or, where the statutory criteria are met, remand the person to hospital under the Mental Health Act. That sounds reasonable, but the reality on the ground is often different. We know from NHS data, and from countless reports by inspectors and charities, that community mental health services are stretched, beds are scarce and out-of-hours support can be lacking.

What assessment has been made of local mental health capacity to absorb those individuals who, under clause 51, will no longer be eligible for a custodial remand? Do the Government know, for example, how many are currently in that position? If the law changes overnight, how much extra provision will be needed for these specific patients? How will the Government, specifically on remand patients, ensure that there are places? What are the requirements, if any, on NHS integrated care boards to ensure that a place of safety or support is available in every local area? Without that, there is a real risk that the courts will be left with no safe options, particularly when a person presents in crisis late at night, in distress and with nowhere else to go.

Are the bail and hospital powers workable substitutes? The explanatory note refers to courts using the power to remand for mental health reports or treatment, but the orders depend on medical evidence, the availability of beds and local agreement. They are not always available at the moment when bail is being considered. Meanwhile, bail conditions, however well-meaning, cannot guarantee care or prevent harm if services are not responsive. Has the Department considered issuing new statutory guidance to accompany the clause, outlining what courts should do when no hospital or community support is available, but the defendant is clearly at risk? Further to that, will there be a formal route for courts to escalate concerns to NHS bodies where no safe custodial options exist?

We also need to consider children and young people. As I read it, the clause applies only to adults. The Government are arguing that section 98 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 already prevents the remand of children solely for mental health reasons. Does that not potentially leave a loophole? I am no lawyer, but the Bail Act still allows for remand for the child’s own welfare, and the revised wording in clause 51(2) and (4) does nothing to prevent that being interpreted in practice as the mental health concern that we have been discussing. Why have the Government not taken the opportunity to clarify in statute the status of children? They must not be remanded to custody solely on the basis of mental health-related welfare concerns.

Finally, how will we track the effects of the changes? I suggest that there must be ongoing scrutiny of how the clause operates. To that end, will the Minister commit to releasing annual statistics on the number of people refused bail under the provisions, to reporting on incidences where a safe, non-custodial alternative was not available, and to monitoring outcomes for those affected by the changes? Does the data fall under NHS or Ministry of Justice datasets? It is important that we understand who is responsible.

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[Dr Shastri-Hurst]

That is an invitation that I will remember as we go on in this Committee. On this occasion, I have just two questions. First, will any interim guidance be issued while the review is ongoing? Secondly, can the Minister commit that the consultation will be undertaken on a wide basis, and include patient advocates, child psychologists and safeguarding boards?

Because I cannot count, I will add a third question: did the Government consider an alternative to a two-year review period, either through an immediate extension of regulation 18 or perhaps a shorter period, so that these important changes can be put in place without delay?

[Dr Evans]

I will first speak to clause 54, to give context to my comments about new clause 12, which is in my name, and new clauses 17 and 20, tabled by the Liberal Democrats.

Currently, under regulation 18 of the Care Quality Commission (Registration) Regulations 2009, registered providers must notify the CQC if a child under 18 is placed in an adult psychiatric unit for longer than 48 continuous hours. The notification duty enables the CQC to monitor such placements and take appropriate action to protect young people.

The clause places a statutory duty on the Secretary of State to review whether the duty to notify should be extended to other cases when a child is admitted to a hospital or registered establishment for treatment or assessment of a mental disorder—that bit is really important. It also requires a review of whether the current 48-hour notification timeframe remains appropriate. As the explanatory notes make clear, the purpose of the review is

“to ensure that where a child is admitted...notifications are made to the CQC in appropriate circumstances”,

so that the regulator can respond effectively. That is a welcome and sensible provision. It recognises that safe-guarding in mental health settings must be comprehensive and responsive in changing circumstances. For example, children placed in settings other than adult psychiatric units, such as specialist units or community hospitals, may also face risks that warrant timely CQC oversight.

However, I have a few questions for the Minister. Given the potential risks to children placed even briefly in adult psychiatric units or other settings, is the 48-hour threshold for notification too long? Would early notification—perhaps on admission—provide better protection for young people? Are there known gaps in the current notification system? For instance, how often do incidents involving children in mental health treatment go unreported under the existing framework?

The review is to be completed within two years of Royal Assent. Given the urgency of safeguarding children’s mental health and wellbeing, would it be possible to provide interim updates to Parliament to maintain transparency? Will that be part of the written statement, or stand alone? Will the review consider notifications from private and third sector providers, as well as NHS trusts, to ensure that no setting is overlooked?

We must look at the role of the CQC. In another letter from Baroness Merron, the Minister in the House of Lords, she addressed some of the issues raised and laid out the rationale for her confidence in the CQC as it stands. The letter emphasises the CQC’s “multiple roles” under the Mental Health Act as an independent regulator of services, an investigator of complaints and part of the national preventive mechanism to safeguard human rights. It points out that in 2022-23, the CQC carried out 860 monitoring visits and spoke to over 4,500 patients and 1,200 carers. Those impressive figures speak to a considerable degree of activity and reach.

However, as we have debated, the Bill puts significantly more requirements on the CQC, and clause 54 is a further one. The letter also stresses the CQC’s evolving role and notes that the creation of a new chief inspector of mental health is under way—a recommendation from Professor Sir Mike Richards. The aim, we are told, is to

“put mental health on an equal footing with physical health in CQC”

and to ensure “better information sharing” and

“stronger focus on Mental Health Act compliance.”

All that is welcome, but we also need to scrutinise what is not said. While the letter asserts that

“we will have a regulator that all of us can trust”,

it concedes that that

“will take time to achieve.”

That is a fair admission, but it weakens the case for relying on the status quo while reforms are still being bedded in. If the CQC’s systems are currently being rebuilt or recalibrated, can we be confident that they are robust enough right now to identify and respond to safeguarding concerns, especially when they are about children?

Then, there is the 48-hour threshold for notification when children are placed in adult units, which clause 54 seeks to address. Do we really believe that a child being in an inappropriate or unsafe environment for 47 hours is acceptable? Should the default not be real-time notification on admission, with durations used only to prioritise the level of scrutiny? We should aim for real-time notification in the 21st century—after all, we can track a bus on our phones anywhere in the world. Should we not aim for real-time data to spring services into action? Forty-eight hours is a long time in a young person’s life.

The clause rightly instructs the Secretary of State to review those questions, but I urge the Government to approach the review with openness—not just to minor procedural tweaks, but to the possibility that more fundamental changes might be necessary. On that point, does the Minister envisage the review as a desktop-type data review, or will it engage with children and families who have experienced these placements? Will it examine how well the notifications currently translate into timely action by the CQC? Seeing the data is important, but acting on it is more so. How will Parliament be kept informed before the two-year deadline for reporting? Will that be part of the written statement?

All that leads me to our new clause 12, which aims to address a lot of the background I have set out. At present, the Mental Health Act provides for the detention of patients who require treatment for mental health disorders, including children. Section 131A of that Act governs the accommodation of patients in hospital wards, but lacks explicit safeguards preventing children from being placed in adult wards, except in limited circumstances. That has led to troubling examples across the country, where children have been admitted to adult wards because of a lack of appropriate CAMHS beds.

Mental Health Bill [ Lords ] (Fourth sitting)

Debate between Neil Shastri-Hurst and Luke Evans

Committee stage
Thursday 12th June 2025 Public Bill Committees

[Dr Luke Evans]

I rise to speak on an essential aspect of our mental health system: the role of mental health tribunals, and the proposed changes to the grounds upon which they can discharge individuals detained under the Mental Health Act 1983. Each year in England and Wales, about 20,000 people come before a mental health tribunal. These individuals are not criminals, but patients—often vulnerable, often voiceless—detained in hospital or living under community treatment orders, sometimes against their will.

The function of the tribunals is clear: to act as an independent safeguard, to scrutinise the legality of detention, to test whether the continued deprivation of liberty is justified, and to ensure that care is being given within the bounds of both clinical necessity and human rights. Each tribunal consists of a legal judge, a psychiatrist, and a specialist lay member. Together, they form a check on the powers granted by the state to detain and treat people on mental health grounds. Therefore, tribunals are independent bodies that review whether a person should remain detained under the Mental Health Act.

Historically, while an imperative, there have been concerns that modernisation is needed. The criteria they used were broad and inconsistent with modern principles of least restriction and patient rights. The 2018 independent review of the Act recommended aligning tribunal powers with clear risk-based criteria to ensure the detention is only maintained when absolutely necessary.

The clause seeks to change the criteria that these tribunals apply when making decisions about discharge. Specifically, it would align the discharge tests used by tribunals with the statutory conditions for detentions—those found in section 2(2) in the 1983 Act for assessment, section 20(4) for treatment and section 17A(5) for community treatment. On one level, this is pragmatic reform. It simplifies the legal framework and avoids confusion caused by duplicative or overlapping tests. It creates consistency between the reasons someone can be detained and the reasons their tribunal must use to determine whether they should remain so.

I would, however, caution the Committee not to treat simplification as neutral. While the administrative clarity is welcome, legal clarity can also narrow discretion. In tightening the grounds for discharge to mirror the detention criteria exactly, the clause may reduce the tribunal’s ability to consider the broader context, including, for example, the patient’s progress, their lived experience or the factors not strictly enumerated in statute. There is a risk that tribunals become passive reviewers of statutory boxes, rather than active assessors of individual liberty and clinical justification. Tribunals may ask whether the criteria are still met, rather than whether continued detention is truly necessary or proportionate.

Moreover, I believe—although the Minister may have to correct me—that the clause applies retrospectively, including to individuals detained under forensic sections or already living under CTOs. We must ask whether it is right to shift the legal test midway through someone’s treatment or tribunal process, potentially raising the bar for their discharge. I welcome the intent behind the clause to create coherence to improve the legal precision of our mental health law, but will the Minister reflect on its practical effects? Will it make discharges harder? Will it reduce the tribunal’s role to tick-boxing? Will it truly serve the interests of the patient?

Mental health tribunals are not merely administrative bodies; they are guardians of liberty for people who are often too unwell to speak for themselves. Any change that touches their powers must be approached with care, compassion and rigorous scrutiny. I ask the Minister to clarify how the clause will affect discharge rates in practice. Will tribunal members retain discretion to consider the individual circumstances of the patient beyond the bare statutory criteria? How will that be monitored? Has an impact assessment been carried out on the proposed change?

Finally, in the Minister’s speech on clause 6, he said that he expects more people to be automatically referred. How many more does he expect the Government to see? I believe in his answer he said that 129 out of 4,000 were overturned. Is there any work to be done to see how many more automatic referrals would come in, how many more would be challenged, and what the impact of that would be? We must be mindful that mental health law is about not only treatment, but trust, autonomy and justice, so let us ensure that these reforms reflect that.

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

It is a pleasure to serve under your chairmanship, Mr Vickers. I rise to speak briefly to clause 7, which in many ways is a tidying up of the other changes in the Bill to ensure alignment. In that sense, it is a necessary part of this legislation.

For too long, mental health tribunals, which have an important function, have been operating under criteria that are too broad. As my hon. Friend the Member for Hinckley and Bosworth pointed out, that can lead to inconsistencies with modern clinical practice. It is therefore right that we move to clearer, more risk-based criteria to ensure that detention is maintained only where absolutely necessary. There are obvious reasons behind that, such as to ensure greater consistency in tribunal decision making and strong safeguards to ensure that patients are only detained or kept under community treatment orders when absolutely necessary.

I want to pick up some of the arguments my hon. Friend the Member for Hinckley and Bosworth was developing around the demands on the tribunal service. The Minister will be well aware of the challenges facing the court and tribunal system in this country. If, as anticipated, this will lead to an increase in the number of hearings—both in first instance and potentially in appeal—what assessment has been made as to the number of not only judges, but wing members that will be required to facilitate this process?

What has been determined regarding the capacity of the resources of His Majesty’s Courts and Tribunals Service—in terms of not only physical hard standing, but the vital role that clerks and tribunal staff play in ensuring that hearings are done in a timely manner and the paperwork is completed consistently? Thirdly, what is the expectation of the sustainability of that workload as the Bill comes into fruition? I pick up on that in particular, because, given the transition arrangements that appear to be within the legislation, this will be a retrospective as well as a prospective change. I would be grateful if the Minister in summing up could address those issues.

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[Dr Evans]

I welcome the Government’s recognition that modern technology can play a valuable role in improving care in the mental health system. The move to allow remote interviews and examinations for second opinion appointed doctors, through live audio or video links, reflects the realities of healthcare today and the potential for greater flexibility and efficiency. In particular, the so-called hybrid model, as set out in the explanatory note, could help speed up access to important second opinions and reduce delays in treatment decisions. That is especially welcome given the well documented pressures on mental health services and the vital role of second opinions in safeguarding patient rights.

While the intention is laudable, however, I have a number of concerns to go through, because I believe that the House must consider them carefully. First, the clause leaves the clinician significant discretion to decide whether a remote assessment is appropriate, but it does not set out clear criteria or safeguards for how that decision should be made. Given the serious nature of second opinion assessments, which often authorise treatment without consent, we must ensure that the discretion does not lead to inconsistent or inappropriate use of remote methods.

Secondly, mental health patients are a diverse group, and many face particular communication challenges. For example, a patient who has experienced a stroke may have speech impediments or difficulty understanding complex questions. Others may have conditions such as autism or dementia that make remote communication difficult or distressing.

This was a really big topic in the other place, particularly as there are several esteemed colleagues who are part of the speech and language therapy fraternity, so it warrants a bit of attention. For example, we need to look at access to speech and language therapists. We also think about how these important communications needs will be assessed and accommodated. Will there be a statutory requirement for a clinician to consider patients’ communications abilities and preferences before opting for a remote interview? I am concerned that, without such safeguards, patients may be subjected to assessments that do not fully capture their conditions or views, undermining the quality and fairness of the process. The Minister—I think—hinted that this may be covered in the code of practice. I hope it is.

Thirdly, the clause does not specify the role of patient consent or objection to remote access. Should patients have the right to request an in-person interview if they find remote contact unsuitable? This is not simply a matter of convenience; it is a question of whether we ensure the dignity, respect and meaningful participation in decisions about their own care. There is much debate in primary care about the role of video calls versus seeing a person face to face, and I would be interested to understand where the Government sit on that point.

The Bill lacks any specific provision for regulatory oversight or standards to govern the use of remote assessments. How will the regulator—presumably the CQC, but I would be grateful for clarification on that point—monitor whether remote assessments are being used appropriately, given the vulnerability of these types of patients? What mechanisms will patients or their advocates have to raise concerns or complaints if they feel remote assessment was not adequate or, even worse, harmful?

Finally, while technology can bring great benefits, it should never become a default substitute for face-to-face contact in mental health treatment decisions, especially where the stakes are so high. I assume the Minister appreciates that. Will this be set out clearly in the code of practice? Whose job is it to enforce that? Will there be a right to request an in-person interview, should the patient choose to? Has an equality impact assessment been undertaken to ensure that remote access does not disproportionately disadvantage those who suffer with communications difficulties or other vulnerabilities, or is that something that the Minister will implement in the code of practice? I would be grateful for some clarifications on those points, because it is really important to get it right when it comes to difficulties in communication, especially in this patient cohort.

[Dr Shastri-Hurst]

I rise to address three broad points on clause 19. I entirely understand where this is coming from—it is to improve accessibility, efficiency and flexibility in delivering assessments. It reflects the broader observations from the independent review and aligns with the NHS digital transformation goals. However, I have three specific concerns.

My first concern is about the risks around the assessment quality. I suspect we have all experienced virtual meetings or consultations with clinicians. Subtle cues can often be missed in a virtual hearing, particularly when it is on the sensitive issues we are dealing with in the Bill. I am concerned that we will miss those subtle signs that doctors would pick up on in a face-to-face assessment; they can easily be lost through the medium of a virtual assessment.

My second concern is about the consistency in clinical judgment of when to use these virtual assessments. I suspect we all have experience through constituency or personal work of general practitioners who, since the covid-19 pandemic, have moved to more online and virtual assessments. Some patients enjoy that and like the flexibility; others would rather see a clinician face to face, but are not always offered that option. We must ensure a consistent approach to these assessments across the country.

My third concern is about digital exclusion. The assumption is that individuals will be able to access this readily and be comfortable with the technology. Many will be able to, but a significant number will struggle with it. We must ensure that those individuals are not forced down a route of having a virtual appointment or assessment, when that would not allow them the satisfaction of the consultation they sought. It is important that patients are put at the front and centre, and that any change to the assessment process is made with them in mind.

Mental Health Bill [ Lords ] (Third sitting)

Debate between Neil Shastri-Hurst and Luke Evans

Committee stage
Thursday 12th June 2025 Public Bill Committees

[Dr Luke Evans (Hinckley and Bosworth) (Con)]

It is a pleasure to be here on day two in Committee. I will first address clause 5 and then the Government amendments.

The clause marks significant reform to the legal foundations of mental health detention in this country. At its core, the clause seeks to update the grounds for detaining individuals under the Mental Health Act. It will amend several critical sections—sections 2, 3, 5, 20 and 145—to ensure that detention is used only when absolutely necessary and in line with the principle of least restriction, which was put forward in the Wessely review and is now in the Bill.

Let me outline what the changes will do in practical terms, as the Opposition see it. Under section 2 of the Mental Health Act, “Admission for assessment”, detention will now be justified only if “serious harm” may occur to the “health or safety” of patients or others. The decision must weigh the “nature, degree and likelihood” of that harm, a much more structured and risk-based framework than previously existed. Under section 3, “Admission for treatment”, we will see a clearer threshold. Detention will be permitted only if “serious harm” may occur without treatment, if the treatment is necessary, if the treatment cannot be provided unless the individual is detained and, crucially, if appropriate treatment is available.

Section 5(4), on emergency hospital detention, will be updated to align with the same “serious harm” test, recognising that even urgent situations demand clear legal justification. Section 20, which governs the renewal of detention process, will be brought in line with the same standards, such that they apply not just once but every time detention is extended. That is an important safeguard. A statutory definition of “authorised person”, those empowered to detain, will be introduced in section 145, ensuring that such persons are appropriately trained and regulated.

Those changes respond to real and long-standing concerns. The 2018 independent review of the Mental Health Act warned that our current criteria are too broad and that they allow for detention that is often unnecessary, sometimes prolonged and, in too many cases, distressing for patients and families. Clause 5 seeks to change that by grounding detentions in a clear, evidence-based assessment of risk and necessity.

The clause has significant advantages. It will introduce stronger safeguards against inappropriate detention and will shift the focus away from diagnosis alone and towards the actual risk of serious harm. It will offer greater clarity for professionals, giving them structured criteria for making decisions that are ethically and legally sound. It will enhance patients’ rights by aligning the law more closely with the principles of autonomy and proportionate care.

However, with every reform there are challenges, and we must not ignore them. The terms “serious harm” and “likelihood”, although essential, remain open to interpretation. We must ensure that the forthcoming code of practice offers clear, detailed guidance that minimises subjectivity and inconsistency in their application.

Furthermore, there is a question mark over public safety, which the Minister seemed to point to but which I want to explore a bit further. We have not tabled an amendment, but I am keen to understand how this works. Given that the definition is potentially ambiguous and in practice quite difficult to judge, has the Minister considered inserting the words “cumulative” or “escalating”? To be clear, this is a call not to water down those safeguards, but to shore them up with a safety net, so that this reform does not inadvertently trade off liberty against safety, especially in communities.

We need to ensure that we are not inadvertently introducing a real risk that someone, particularly someone on the margins of eligibility, may fall through the cracks. There are individuals whose behaviour is escalating and whose pattern of deterioration is known to services, but who do not yet meet the “serious harm” threshold at the time of assessment. I have seen this at first hand as a clinician—a picture that goes round and round. These are some of the most complex situations that one will ever have to deal with in one’s clinical career. The words “escalating” or “cumulative” may help to give further clarification to clinicians on the frontline.

For those on the margins, what consideration have the Government given to the notion of a duty for professionals to produce a risk management plan in any case in which detention is considered but not authorised, so that we do not simply assess and walk away, but assess and act in a community setting? That would not lower the threshold, but contextualise it. It would ensure that detention remains a measure of last resort, but not too late a resort.

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

My hon. Friend is making a powerful point about some of the challenges around the interpretation of the Bill. Does he agree that there needs to be a clear plan for the training of professionals so that there is consistency across the board?

[Dr Evans]

My hon. Friend is spot on about training. It is one thing to enshrine these measures in primary legislation; it is another thing to have the training and interpretation that go with them. One of the reasons that we have not tabled an amendment on the matter, as yet, is that there could be some concerns about what “cumulative” or “escalating” behaviour looks like. Ask any clinician and they will say that they have seen patients who are on the borderline and are struggling. It can be unclear whether they are within or outside the definition; they could be wavering between the two, given the state of their mental health. That is a real concern, but the broader pattern of identifying the picture of what is happening could be helpful and important.

One way to address the issue would be to review the data and legislation. Would the Government consider carrying out a review two years after the implementation of the Bill, specifically to look at the working of the legislation through the lens of public safety? I hope that there will be no concerns, but that would provide a backstop and a legal safety net. We do not want to wait another 40 years if there are changes that need to be made.

Mental Health Bill [ Lords ] (Second sitting)

Debate between Neil Shastri-Hurst and Luke Evans

Committee stage
Tuesday 10th June 2025 Public Bill Committees

[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.