Mental Health Act 1983: Detention of People with Autism and other Lifelong Conditions

Robert Buckland Excerpts

Thursday 20th January 2022 Commons Chamber

[Sir Robert Buckland (South Swindon) (Con)]

It is a pleasure to address the House in a debate on an issue that has great resonance with and importance to many people and families across the country—the continued detention of autistic people and people with learning disabilities under the civil provisions of the Mental Health Act 1983. I am grateful to the National Autistic Society and Mencap for working with me in the run-up to the debate.

Remember, these are people who have committed no offence. They are not even alleged to have committed offences. They have been detained for what is still defined as a mental disorder. They have done nothing wrong. Here are some bald statistics relating to the use of powers under the 1983 Act. At the end of November 2021, there were 2,085 people with autism or a learning disability in in-patient units; 1,234 of them were autistic people, 200 of whom were under 18—they were children. The average length of detention is 5.4 years, some people having been detained for more than 20 years. In September 2021 there were 3,620 reported instances of restrictive interventions, and 595 of them involved children. Those interventions involved physical and, very often, chemical restraint. Those are not the complete figures, because there was data for only 31 out of 55 NHS providers and four of 16 private providers, so the real figure will be higher.

[Jim Shannon (Strangford) (DUP)]

I congratulate the right hon. and learned Gentleman on bringing forward this debate on an issue that is massive in his constituency and mine. The number of detentions under the 1983 Act seems to decline with age, but there seem to be significantly higher numbers of cases among children and young adults. Does he agree that there is a better chance of rehabilitation and wellness when mental health issues are dealt with properly from as young an age as possible than when there is long-term detention with no counselling or rehabilitation?

[Sir Robert Buckland]

I am grateful to the hon. Gentleman for his intervention. He has a long-standing interest in autism issues, in Northern Ireland in particular. He is right that if there is early intervention, more can be done to prevent a lifelong condition such as autism becoming a co-morbid mental health condition. I will explain that in a little while.

Behind the statistics are real-life stories of people whose lifelong conditions have led to the system, however well-intentioned it might be, ascribing a lower value to their quality of life. That implicit judgment, I believe, runs through everything from the continued lumping together of autism and learning disabilities with mental health conditions, which in many cases is wholly out of date and inappropriate, to the discriminatory and unjust application of “do not resuscitate” guidance to people with these conditions. Those are abuses in plain sight.

Furthermore, the profound sense that the system is, in effect, making assumptions about the life of people with learning disabilities in particular has been exacerbated by the use of DNRs during the covid pandemic. Not only do we need to stop new orders being issued inappropriately to people with learning difficulties, but existing inappropriate DNRs need to be retracted. I ask the Minister: when will the Government act on the Care Quality Commission review recommendations about better staff training and family involvement in decision making about care and treatment?

It is no longer good enough for people with learning disabilities to be discharged from hospital with a form in the bottom of their bag, effectively having signed away their rights about the end of their own life. That is what we are talking about; I cannot put it more bluntly than that.

[Darren Henry (Broxtowe) (Con)]

I thank my right hon. and learned Friend for securing this debate. We are heavily relying on hospitals to manage individuals with complex needs, which costs the NHS thousands of pounds per individual per week. If we invested more in care in the community, perhaps using the coming health and social care levy, we could prevent hurt or trauma to individuals and save money for the NHS.

[Sir Robert Buckland]

My hon. Friend is absolutely right about the waste of resources that I am afraid underlies much of this. I shall come to some of the figures, which are pretty shocking. He is right to highlight the levy that is being introduced in April. It is imperative that the £12 billion that we are told is being earmarked as part of the £36 billion to be raised from the levy is actually used on social care.

The worry we all have is that the money will be eaten up by spending on the health backlog, and that there will be no audit trail at all to make it possible to ensure that it is, in effect, ring-fenced and used in social care. I put that big challenge to Ministers. The Health Secretary knows my strong view; I was writing about it in the national media on Sunday. We have to really laser in on these issues.

The horror of Winterbourne View is still seared into my mind 11 years on, together with other instances of abuse. But in general, we are not in this position because of malice or hostility towards people with autism or a learning disability; we are here because of indifference, frankly. It is all too easy to make the assumption that because the person has been detained for their own safety, the letter of the law has been followed and the clinicians have given their opinion, that will just have to do. That really is not good enough in this day and age.

Recent news coverage of the cases of Tony Hickmott and Patient A has brought these issues into stark relief. I will briefly mention Mr Hickmott’s case, which was highlighted by the media just before Christmas. Ongoing legal proceedings mean that I must limit my remarks, but I read reports that this gentleman has been detained for more than 20 years under this system—nearly half his entire life. That is deeply distressing for his family and should be of grave concern to the rest of us.

Patient A’s case was reported in The Sunday Times just after new year, the result of some excellent investigative journalism. He has been confined for over four years so far in a secure apartment at the Priory Hospital Cheadle Royal. That apartment—I use the word advisedly—is the size of a large living room. He is monitored by CCTV. His food and medication are passed through a hatch. He is now 24 years of age. The story of his life leading up to this incarceration is heartbreaking in itself but also emblematic of failure. The interventions made exacerbated his existing anxiety, creating a descending spiral of deterioration in his health that has resulted in over-medication, more restrictions and even poorer mental and physical health. We are spending money on harming people rather than saving them.

[Tim Loughton (East Worthing and Shoreham) (Con)]

It is so good to have my right hon. and learned Friend on the Back Benches in some respects; he is such a champion of this cause and is making a very important contribution. Does he agree that it is a completely false economy not to be thinking smarter, and lazy not to be able to let people out of NHS facilities where there may be better community facilities and better working with the families? It would, of course, mean a much better life for the person involved as well. The chemical cosh that he just referred to and the use of restraint, which in some places is disproportionate, is a sign of failure, and that the person is not being looked after appropriately. That is what needs to change.

I should have declared my entry in the Register of Members’ Financial Interests at the beginning of this intervention.

[Sir Robert Buckland]

My hon. Friend, who has long experience of this matter, having served with distinction as Children’s Minister and as a long-standing campaigner on these issues, makes a hugely important point about the chemical cosh that is medication. I think he and I agree that we are not here to single out or criticise many dedicated care staff and NHS workers who do their very best to care for and support in-patients. They deserve our thanks; they are doing the day-to-day work. I am talking about the system that allows this to happen—that allows, in effect, a standing reproach to us all. This is 2022, not 1922.

There are two strands to the approach that we need. First, as the hon. Member for Strangford (Jim Shannon) said, earlier and better interventions are needed to prevent cases spiralling into crisis in the first place. Secondly, better community-based alternatives to the continued detention of in-patients are needed. It is my firm belief that with the better commissioning of community support, the need for recourse to detention would inevitably fall. That would create a virtuous—rather than vicious—circle, which would benefit all.

There is not only a social, health or moral price being paid for this failure, but a financial one. In 2015 the National Audit Office estimated that, in the year 2012-13, the NHS spent £557 million on in-patient services for people with learning disabilities whose behaviour could be challenging. More than half a billion pounds was spent on services that harm people, and that figure is from nearly 10 years ago. The cost now will be considerably more. That speaks volumes about the failure of the present system.

Although the Mental Health Act was reformed in 1983, it is, in essence, a replication of a regime that was created under the Mental Health Act 1959. That is a 60-year-old framework; to say that it is out of date understates the argument.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I am grateful to my right hon. and learned Friend for giving way, and for the passion and knowledge that he brings to this topic. He refers to out-of-date legislation and how things have moved on. He will know from his experience as Justice Secretary that if we thought that we were applying the same regimes in terms of detention and use of restraint to people who had been convicted of offences after the passing of 60 years, we would rightly be outraged. Should we not be rightly outraged now that this is being done to people who have committed no offence and have not had the protection of due process that those going through the justice system have?

[Sir Robert Buckland]

I have good news, because it is Government policy to update the Mental Health Act. That is the plan that I and others, when I was in Cabinet, agreed on and I know that it is what the Minister will speak about. Reforming the Mental Health Act is Government policy because, goodness me, we have work to do. Between 2006 and 2016, the number of detentions rose by a staggering 40%. We owe thanks to the work of people such as the outstanding Sir Simon Wessely, whose independent review in 2018 gave the Government the clear course that I know they are adopting and following.

I particularly welcome the disaggregation of autism and learning disability from mental health in law and the end to their being classed as a mental disorder under section 3 of the existing Act. According to the Government’s policy, there has to be a clinically established concurrent mental health condition before detention can be allowed, and there will be a 28-day limit. All that makes immense sense, and I particularly look forward to the Government’s introducing a statutory duty to provide adequate community-based services, such as supported housing. In the White Paper that the Minister introduced before Christmas, we saw really healthy and useful reference to supported housing. It is my belief that, without that, we cannot create effective community-based services.

We still do not have a fully clear picture of the current commissioning landscape across England, but we know that people are being left in NHS-funded detention, because the lack of resources for local government means there just are not enough local government-commissioned community services for people to go home, back to their families and back to their local areas. Legislative change cannot come soon enough, so I would be extremely grateful if my hon. Friend the Minister could confirm the Government’s intention to bring forward that legislation, whether it will be first via the pre-legislative scrutiny process and, if so, when we can expect its introduction.

As time is short, I want to speak briefly about the Transforming Care agenda. We know that, when all agencies work together at the same pace, it is excellent, but the trouble is that we still have agencies dragging their heels or causing problems that mean people are spending longer in detention than they need to. The readmission of patients who are being discharged is another depressing example of our failure to break the vicious cycle in many cases.

We know what “good” looks like; we have the NHS England “Building the Right Support” service model and National Institute for Health and Care Excellence guidance. We know that there are pockets of good practice that the Government are actively promoting and supporting, but more needs to be done to join that up. If we are to see these figures starting to come down, consistent with the Government’s own priorities, the time for action is now.

There are, therefore, two things that the Government can do. They can not only bring forward the legislation, but fulfil their pledge to add more substance to the strategies they have outlined. The £74 million, pledged in the 2020 Budget to help with what are known as the double running costs when people with a learning disability or autism are discharged into the community, is extremely welcome. I know there are funding commitments in the NHS long-term plan to help the development of community support. However, as the recent Health and Social Care Committee inquiry noted, we still are not in the place we need to be. We still do not have that level of support that will make the discharge of patients a much more seamless and successful process. I know that ending those perverse incentives and this artificial division between the NHS and local government is part of the integration agenda, and I look forward to the White Paper that my hon. Friend will be publishing very soon, but I want everything to be joined up, in a way I was acutely conscious of when I was Justice Secretary.

I will end on this note: I was acutely conscious of the need for greater speed when it came, for example, to the approval of the recommendation of clinicians, which was the responsibility of my Department. Prior to the onset of covid, I collaborated directly with the then Health Secretary to jointly pursue the Mental Health Act reform agenda. My abiding regret is that I was not able to do more, and I want to say that I am sorry that I was not able to do more, but here I am in my place asking my friends to carry on the work, to pick up the ball and to take it further for all the people we represent and their families. By calling this debate and by making that direct request to Government to act, I hope that together we can make the necessary changes and save lives.