Mental Health Bill [ Lords ] (Eighth sitting)

Stephen Kinnock Excerpts

Committee stage
Thursday 19th June 2025 Public Bill Committees

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

It is a pleasure to serve under your chairmanship, Mrs Harris. Having taken your clear instructions, I will be very brief in speaking to clauses 46 and 47.

Clause 46 is a positive step in principle, but there are concerns that the recommendations remain non-binary and may therefore lack the practical effect—or the teeth —without enforcement or review mechanisms. I have three questions that I hope the Minister will address. First, will he clarify whether there are any plans to give legal weight to tribunal recommendations, perhaps by requiring a written response or justification where those recommendations are not followed? Secondly, how will the Government ensure that resource-constrained local authorities can implement recommended aftercare plans promptly and fully? Thirdly, could he please provide data on the expected impact of this provision on readmission rates?

Clause 47 clearly sets out and improves on the legal clarity, which is welcome, but I have a couple of questions. What steps will be taken to ensure that frontline practitioners understand and consistently apply the revised ordinary residence test? Has the Department conducted an assessment of the administrative burdens or delays that may result from the implementation of the clause? Apart from those questions, I welcome the provision.

[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairship this afternoon, Mrs Harris. I will go through the questions that have been asked.

The shadow Minister, the hon. Member for Hinckley and Bosworth, asked whether there will be any duty on ICBs or local authorities to respond to recommendations. The tribunal will have the power to recommend that plans are put in place for a patient’s aftercare. To assist in ensuring that these recommendations are followed, the tribunal can reconvene if its recommendations are not acted on, ensuring accountability from aftercare bodies.

The shadow Minister asked what mechanisms are in place to resolve disputes between authorities. There is already a process in place under the Care Act 2014 for resolving disputes and an opportunity to escalate decisions to the Secretary of State and Welsh Ministers, if required. He also asked what the notice must contain. We will absolutely look at the guidance in the code on the process for ending aftercare and notifying the person.

The hon. Member for Solihull West and Shirley asked about plans for legal weight, resourcing and data. I will write to him on his questions about plans for legal weight and data. I think that resourcing will be a constant theme. Obviously, we have to assess all the resourcing implications once the Bill receives Royal Assent, and we will develop an implementation plan on that basis. The first annual written ministerial statement will be the hon. Gentleman’s opportunity to hold the Government to account on that.

Question put and agreed to.

Clause 46 accordingly ordered to stand part of the Bill.

Clause 47 ordered to stand part of the Bill.

Clause 48

Tribunal powers in guardianship cases: burden of proof

Question proposed, That the clause stand part of the Bill.

[Stephen Kinnock]

Currently, where an application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship, the patient can be discharged only if they can prove to the tribunal that they do not continue to meet the guardianship criteria. The burden of proof is on the patient. The clause will amend the Mental Health Act so that it will now be for the local authority responsible for the guardianship to prove to the tribunal that the patient continues to meet the guardianship criteria. As the independent review pointed out, the current burden of proof is “out of line” with all other applications to the tribunal. The Government consider that this should be remedied.

[Dr Shastri-Hurst]

I fear that I may test your patience a little further on this occasion, Mrs Harris, but I rise to address clause 48. Although much of the Bill aims to modernise and humanise our mental health framework, and in many ways it does so commendably, clause 47 presents not only an opportunity, but a challenge: to ensure that we get the balance right between liberty and protection.

The clause will make an amendment to section 72(4) of the Mental Health Act 1983. As the Minister said, it will shift the burden of proof in tribunal proceedings concerning patients who are subject to a guardianship order. Under the current legal framework, it is the patient who must demonstrate that the criteria for guardianship are no longer met, by showing either that they are no longer suffering from a mental disorder or that continued guardianship is no longer necessary for their welfare or the protection of others.

Clause 48 would reverse that burden. It would place the onus instead upon the local authority to demonstrate, in the mental health tribunal, that the individual still meets the statutory test. The tribunal would be required to direct a discharge unless the authority can prove otherwise.

Let me be clear: I am not opposed to the principle of this reform. On the contrary, I believe that there is a strong case for rebalancing the legal dynamics in favour of the individual, particularly when we reach situations in which their liberty and autonomy are at stake. The principle of least restriction is not, or should not be, merely aspirational; it should be foundational to any mental health regime in a liberal democracy.

I say with equal conviction that the practical operation of such a change requires careful thought and adequate resourcing. It must be done under clear legal parameters. Precisely on those fronts, I seek clarification from the Minister and, if I may be so bold, I seek some improvements to this aspect of the Bill.

First, we must consider the legal principle at play. A reversal of the burden of proof in this context is not technical or incidental; it marks a constitutional shift in the relationship between the citizen and the state. Traditionally, as the Minister well knows, the burden of proof lies on the party making an assertion that departs from the status quo. In this case, that would ordinarily be the patient applying for discharge from the guardianship. However, when the state exercises more coercive powers—particularly powers that have an impact on an individual’s liberty and private life—it is appropriate that the state be required to justify those powers afresh, especially when challenged. That is the logic that clause 48 seeks to embrace. In broad terms, as I say, I support it.

The approaches are reinforced by our obligations under article 5 of the European convention on human rights, which protects the right to liberty and security of the person. It is clear that any deprivation of liberty must be justified not just initially, but on an ongoing basis. Jurisprudence from Strasbourg has repeatedly emphasised that periodic review mechanisms must be substantive and not merely procedural in nature. The state must show continuing justification and must not rely on past assessments or presumptions in its favour.

Clause 48 helps us to move closer to compliance with those principles, but the legislation, as drafted, does leave some important questions unanswered. What, precisely, is the standard of proof that local authorities must meet? Is it the civil standard on the balance of probabilities, or is it something higher, given the gravity of what is at stake? If we are to take this shift seriously, we must also give tribunals clear statutory guidance on how to interpret the new burden. Otherwise, we will fall into the trap of risking inconsistency in decision making, confusion among professionals and a potential increase in appeals and legal challenges.

Secondly, and crucially, I would like to press the Minister on the question of practical implementation. Changing the legal burden is not merely a matter of legislative drafting; it requires a systematic adjustment in how evidence is gathered, how professionals prepare for tribunal hearings, and how decisions are reviewed internally within local authorities. As hon. Members will know, local authorities are already operating under intense financial and operational pressures. Mental health social workers are often working with caseloads that stretch the limits of what may be considered reasonable. Legal teams within councils are often overstretched and under-resourced; if we now place them under a legal obligation to present a comprehensive, evidentially sound case for continued guardianship—perhaps at multiple intervals across an individual’s care pathway—we must ensure that they are adequately supported to do so.

What assessment have the Government made of the financial and operational impact of clause 48? Will local authorities receive new funding to enable them to meet that duty? Will social care professionals receive specific training on the evidential requirements now expected of them? Without such support, we risk not only undermining the intent of the clause, but creating a perverse outcome in which discharges may occur not because the patient no longer meets the criteria, but because the local authority lacks the capacity to make the evidential case in time.

I also caution against the risk of overcorrection. Although I fully support the principle that individuals should not bear an unfair evidential burden, we must not move so far in the other direction that we weaken the legitimate protective mechanisms that should be in place. Guardianship is not detention; it is a community-based measure designed to provide oversight and structure for individuals who may struggle to live independently due to serious mental illness. It is used infrequently and only where strictly necessary.

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

It is a pleasure to follow my hon. Friend the Member for Solihull West and Shirley. I would expect nothing less from him than a fantastic canter through this important clause. I will not repeat a lot of what he said, but I will try to emphasise it.

Although clause 48 is short, it speaks to the much larger principle of the balance between public protection and individual liberty. I will not go through all the details, as the Minister laid out the changes, but the burden of proof is currently on the patient to convince the tribunal that they no longer meet the criteria for guardianship. The clause will change that. Instead, the burden will fall on the local authority or relevant public body to prove that guardianship remains justified. The Government’s explanatory notes put it plainly:

“the patient should be discharged by the Tribunal unless the local authority can prove that the patient continues to meet the guardianship criteria.”

The clause is not just a technical amendment; it is a fundamental realignment of legal principle. It reinforces the presumption of liberty. It aligns guardianship cases with the principle that when the state restricts an individual freedom, it is for the state to justify that restriction, not the individual to justify their freedom. It echoes the evolution of mental health law towards a less restrictive approach, a principle we put in place on the first day of our deliberations on the Bill. Although clause 48 amends only a few words, it reflects a big change in principle: liberty is the default, and restriction must be justified and not presumed.

There are some important questions that I want to echo and emphasise, again leading on from my hon. Friend the Member for Solihull West and Shirley. Are local authorities prepared for the reversal of burden? Have they been consulted? Do they have the legal resources, documentation, standards and evidential processes to meet the burden before the tribunal? On top of that, we have already agreed that there will be automatic referrals. We would therefore expect more referrals to the tribunal as well as a change in how they operate. This is a huge undertaking. If they fail through a lack of capacity organisation, we risk a situation in which patients are discharged not because they no longer meet the criteria, but because the case was poorly presented. How will the Government ensure that that does not happen?

Secondly, will the Government issue statutory guidance or regulations to ensure that consistency in how the burden is discharged? We do not want a postcode lottery in the quality of guardianship applications or tribunal evidence. Thirdly, we must always consider public protection. The guardianship regime is not designed for high-risk individuals, but it can still apply in cases where behaviour poses a serious risk to self or others—for example, individuals with profound learning difficulties who might place themselves in danger if not properly supported.

We also talked about cumulative or escalating behaviour in one of our first debates. The reason for doing so is that we are at the fringe of significant cases. What safeguards are in place to ensure that public safety considerations are given due weight in cases where the evidence might be incomplete or borderline? Finally, do the Government intend to monitor the impact of the clause? Will data be published on whether tribunal discharge rates increase following this reform, and whether that leads to any unintended consequences?

I want to be clear that His Majesty’s Opposition support the principle behind the clause. We support a mental health system that is rights-based, person-centred and built on the presumption of liberty. But that principle must be matched by a system capable of meeting the duties it imposes. Rights on paper are meaningful only if public authorities are resourced and able to support them and uphold them in practice. I look forward to the Minister addressing those points.

[Stephen Kinnock]

On the assessment of impact, it might be useful for the Committee to know, for context, that the use of guardianships under the Act is small: the number of new cases has declined from 470 in 2004-05 to just 40 in 2024-25. The number of open cases has also fallen in recent years. I think pretty much all the questions from the hon. Member for Solihull West and Shirley and the shadow Minister are addressed by that point. We are talking here about small numbers, so the cost would be relatively minor.

[Dr Evans]

That is a staggering drop in numbers. Is there a reason behind it? Is it that the burden of proof was always put on the patient, so they did not feel that they were in a position to do something? If we are inverting that, does the Minister expect the numbers to go back up?

[Stephen Kinnock]

I do not have any data to suggest that the numbers will go back up. That relates to the question that the hon. Member for Solihull West and Shirley asked about having a statutory review. We will be vigilant. As with all the changes in the Bill, we will closely monitor implementation and impact. That goes right across the board and, hopefully, addresses the Member’s questions.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

Clause 49

Removal of police stations and prisons as places of safety

Question proposed, That the clause stand part of the Bill.

[Stephen Kinnock]

Police stations are not appropriate places to hold people in need of mental health treatment. The Mental Health Act 1983 (Places of Safety) Regulations 2017 amended the 1983 Act to set a high threshold for using police stations as places of safety. Uses have reduced from over 8,000 in 2012-13 to just 322 in 2023-24 across England and Wales. While that number is mercifully low, the Bill will, under the principles of therapeutic benefit, end the use of police cells as places of safety. Instead, when police exercise powers to remove a person from a public space or private premises for the purpose of a mental health assessment, they will take them to a suitable place of safety, such as a hospital.

[Anna Dixon (Shipley) (Lab)]

I declare an interest: my sister practises as a psychiatrist within the NHS, as the Minister knows. She has seen the important shift away from the use of police stations as places of safety and towards making sure that all patients have access to a place of safety in a healthcare setting. I know from my local police that, while they do their best to support people in distress in a police station, it is not the right place. This is the right thing to do, and I support the Government’s move.

[Stephen Kinnock]

I ask my hon. Friend to pass on our thanks to her sister for the vital work that she does in what I know can often be a challenging environment—we appreciate it. My hon. Friend is absolutely right that this is an important principle. There has been a remarkable drop in the use of police cells, which is to be warmly welcomed. We think that now is the time to make it clear, on the face of the Bill, that a police cell is not an appropriate place for these purposes.

The clause’s amendment to sections 135 and 136 of the Mental Health Act will not change the police’s ability to intervene when someone is in a mental health crisis, nor their ability to detain someone in a cell when exercising their powers in relation to criminal, or suspected criminal, activity. The clause will prevent courts from temporarily detaining people with severe mental illness in prison as a place of safety while they are waiting to access a bed for treatment or assessment under the Mental Health Act. Under the reforms, a defendant or convicted person who meets the criteria for detention under the Mental Health Act for treatment or assessment must be transferred directly to hospital, or, in the case of children, to a hospital, surgery, community home or other place that the court considers suitable, ensuring that they receive swifter access to the care they need. I commend the clause to the Committee.

[Dr Shastri-Hurst]

You will be pleased to know that I will be briefer this time, Mrs Harris; I want to leave room for my Opposition colleagues. The intent of the clause is entirely sound: to treat mental health as a health issue, not a criminal one. However, the capacity of NHS services to provide timely and suitable alternatives remains in question.

With that in mind, I have three questions that I hope the Minister will be able to address. First, will the Government commit to publishing the implementation plan for ensuring adequate numbers of health-based places of safety across regions before the clause comes into force? Secondly, what contingency measures are currently in place or foreseen if no place of safety is available and police powers have been limited? Thirdly, can the Minister commit to an annual publication of data on hospital-based places of safety, their capacity and their use?

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[Dr Evans]

As we have heard, the proposals set out to remove police stations and prisons as places of safety. It does this in both relation to people detained under civil powers—sections 135 and 136—and in respect of certain part III patients involved in the criminal justice system, who may currently be held in such settings when a hospital bed is not available. The Government’s explanatory notes describe the rationale clearly:

“This is in response to evidence that suggests these settings are not suitable environments for individuals with a severe mental health, in crisis, awaiting assessment and treatment.”

As we have discussed in some of the earlier clauses, it is not just treatment, but the environment that plays a part in helping harbour a holistic care approach, so this is very much welcome. To that end, the Opposition can agree on this position in principle. A police station or prison cell is no place for someone with acute mental distress. They are not therapeutic environments; they can be frightening, disorientating and, in some cases, re-traumatising, particularly for children and young people. The clause aims to remove that contradiction in the law.

As the law stands, when police officers encounter someone in a public place who appears to be suffering from a mental disorder and is in immediate need of care or control, they can detain them under section 136 and take them to a place of safety. Under section 135, a magistrate can issue a warrant to remove a person from their home or another place to a place of safety. Currently, that place of safety includes a police station, although section 136A limits that to exceptional circumstances—for example, when the individual poses an imminent risk of serious injury to themselves. Similarly, under part III of the Act, a person appearing before a criminal court can be held in a place of safety, which can currently include a police station or prison, pending hospital admission.

Clause 49 will remove that. It amends section 55 to redefine “place of safety” and exclude police stations and prisons. It alters section 35, repeals section 136A, which has previously allowed police stations to be used in limited situations, and retains transitional protections for individuals already detained under early directions before the clause comes into place. That is a bold and principled legislative step, and I acknowledge that it builds on progress under the last Government. The 2017 Conservative Government, following public outcry and recommendations from the Care Quality Commission and the Wessely review, pledged to eliminate police cells as a place of safety for children. Since then, the numbers of such detentions have significantly decreased. Data from NHS Digital shows a downward trend in the use of police stations under section 136, which is evidence that change is possible with the right investment and inter-agency collaboration. That work deserves credit, so I thank the Minister for that.

Clause 49 must not only move the law forward, but ensure that the practice can be followed. I therefore want to raise a number of questions, which I hope the Minister will take in good faith. The classic one is “Where would people go instead?” The explanatory notes are right to say that hospitals and healthcare-based settings are more appropriate, but do those settings exist in sufficient numbers, with trained staff, beds and security protocols to receive safely all those who would otherwise have been taken to police stations? If they do not, we risk creating a gap between the law and the real world—a dangerous vacuum, whereby someone in crisis may end up in an ambulance bay, in a police car or in a general A&E without specialist support. It could have wider impact on the safety of not only the individual patient suffering, but other patients in healthcare settings such as A&E, interacting with an acutely ill mental patient. Without proper capacity, we risk many more police officers having to be at health settings to keep the mental unwell patients safe from themselves and others.

I appreciate that the Government have said that it will take 10 years to implement the Bill fully, but this clause will come into force immediately. What assurances can the Government give that there will be not only capacity, but capacity in the right places, so that, for example, people are not transferred to other areas of the country to ensure that the legal requirement is met? Although it is welcome not to be in a police station, being miles from family and support circles would be just as detrimental.

What provisions are being made for children and young people? The clause rightly states that for minors, the place of safety must now comply with the Children and Young Persons Act 1933, but excluding police stations. Are there sufficient CAMHS—child and adolescent mental health services—crisis beds and child-friendly places of safety in each region? What guarantees are there that children will not end up in adult settings, or worse, in informal or unlawful detention?

I turn to the transitional support given to the police. Officers may no longer be able to use their custody suites, but what training, resources and alternative pathways are being made? What happens in the middle of the night in a rural police force, where there is no mental health professional on call and the nearest hospital bed is 80 miles away? How would the Government monitor performance? Will the Government commit to publishing annual data on delays in finding a place of safety, the use of inappropriate settings post reform, and outcomes for those detained under sections 135 and 136? Will the CQC or another body be tasked with auditing local compliance?

Clause 49 reflects a consensus that mental healthcare belongs in health settings, not custodial ones. I urge the Minister to answer the questions in the good faith in which they were asked, because we all want to see this become a reality.

[Stephen Kinnock]

I think it is probably right to say that the questions asked by the hon. Members for Solihull West and Shirley and for Chester South and Eddisbury and the shadow Minister basically all relate to building capacity to ensure that we are ready to absorb this change. We have committed to lay an annual report on implementation, which will set out progress made and future plans for implementation. We are working closely with the Home Office, the police and NHS England to better understand the implementation requirement for switching on this change. There is considerable variation across the country in the way in which police stations are being used, so there is a need to target support.

I would add that the number and shape of dedicated health-based places of safety that are needed in a local authority will depend on the mental health needs of that population and the wider mental health crisis pathway provision. We are taking steps to ensure that people in crisis receive support and treatment sooner, so that fewer people need to be taken to a place of safety. It is worth noting that the Government have hit the ground running on this issue since we came into office last July. We are committing £26 million in capital investment to open new mental health crisis centres, which will aim to provide accessible and responsive care for individuals in mental health crisis.

Evidence from systems with established crisis centres indicates that they can help to streamline urgent mental health care pathways and reduce unnecessary conveyance to A&E by ambulance, health-based transport or the police. We have also selected six areas to trial a new approach to mental health support by providing 24-hour neighbourhood mental health centres, seven days a week, bringing together all aspects of community mental health services.

[Dr Evans]

The Minister has partially answered my question. He talked about the £26 million investment being targeted at certain areas of the country, but will that be based on the areas of highest priority? The danger is that if the highest priorities are all in the north, the south will be left out.

[Stephen Kinnock]

We have selected six areas, but off the cuff I cannot tell the shadow Minister exactly what they are or whether they have been announced yet. If they have not been announced, I will not be able to tell him, but if they have been, of course I can share that information. I suspect that the areas will primarily be based on assessed need, but they are trial pilots, so there is no reason to suspect that they will be limited to six. Let us see how much traction they get.

Question put and agreed to.

Clause 49 accordingly ordered to stand part of the Bill

Clause 50

Removal of patients by authorised persons

Question proposed, That the clause stand part of the Bill.

[Stephen Kinnock]

We have previously discussed Government amendments 26 to 29, which seek to overturn amendments tabled in the other place by Lord Kamall, Earl Howe and Baroness May, which added police and other authorised persons to sections 2, 3 and 5 of the Mental Health Act. As I said in the earlier debate, the police currently have no powers under those sections, and the decision makers on whether to use those sections are health and social care professionals. We do not support extending police powers to health and social care professionals in this way, and the police do not support such an extension either. We are therefore seeking to remove clause 50 from the Bill.

The clause extends legal powers currently held by the police under sections 135 and 136 to other professionals. That would enable other professionals to enter premises by force, if necessary, to remove a person believed to be suffering from a mental health disorder under section 135. Under section 136, other professionals would have the power to remove a person from a public space to a place of safety. Both those changes would represent a major shift in roles and responsibilities for health and care professionals.

Indeed, the co-chair of the approved mental health professional leads network has said that extending police powers in this way to health and care professionals would have

“disastrous unintended consequences for both individuals in crisis and those responding to mental health emergencies.”

Nine organisations, including the Royal College of Psychiatrists, the Royal College of Nursing, the Royal College of Emergency Medicine and the Association of Ambulance Chief Executives, have made a joint statement of concern about extending police powers to health and care professionals in this way.

[Anna Dixon]

It is clear from what the Minister is saying that there are widespread concerns among health professionals about the change that was proposed in the other place, which would effectively give police powers to health and care professionals. Can he reassure psychiatrists such as my sister, and others working in mental health services, that they will always be able to rely on and work closely with their police colleagues to have that back-up when they are entering somebody’s home to potentially detain them?

[Stephen Kinnock]

I absolutely can give my hon. Friend that assurance. There has to be a team-based approach to this work. In any successful team, it is about ensuring that everybody knows their role and that everybody’s role within that team is appropriate. There has to be good collaboration and co-ordination.

That is why I must say that I am quite taken aback by the attempts in the other place to insert these clauses; I do not think that is a safe way to make legislation. That is why it is so important that we remove the clause from the Bill.

The statement that I referred to earlier, by all those eminent organisations, called it a

“radical proposal with a number of serious and potentially dangerous consequences”.

It also says:

“Delegating police powers to professionals without consulting them, or patients would be a very damaging way to make policy.”

It is important to restate what I said in an earlier sitting, namely that the majority of assessments under the Mental Health Act happen without police involvement, and that action is already under way to further reduce the amount of police involvement. However, we of course recognise the pressures that the police are facing and that police involvement can be stigmatising for people who are detained. Almost all police forces in England and Wales are implementing the “right care, right person” approach, a police-led initiative to reduce inappropriate police involvement in cases where people have health or social care needs. There has already been a 10% decrease in section 136 detentions in the year ending March 2024.

There remain certain circumstances in which the police play a vital role in keeping particular people and the wider public safe. A blanket approach of extending powers in sections 135 and 136 to other professionals may not necessarily address the issues being faced by police officers and could create other unintended challenges. For example, while the current Act deliberately sets out who has what powers in what situations, a blanket extension of the police’s powers under sections 135 and 136 to other professionals—giving multiple agencies the same powers—risks confusion over who should respond in an emergency situation and could lead to delays in action as services try to decide who should act. That would be counter to our shared aim of ensuring that people in a mental health crisis get the right support as rapidly as possible.

We are also concerned that giving health and social care staff statutory powers that increase the number of situations in which they may have to use reasonable force could have unintended risks for the safety of staff, patients and the public.

[Dr Shastri-Hurst]

I rise to speak briefly to clause 50, which expands the authority to remove individuals under Mental Health Act powers by allowing trained and authorised non-police personnel to carry out removals that previously could be carried out only by police constables. A couple of key changes arise from the clause.

First, the clause provides for the inclusion of authorised persons by amending sections 135 and 136 of the 1983 Act. That will allow individuals other than police officers, if they are authorised—“authorised” is the important word—to remove and transport people under Mental Health Act powers. That provides wider operational flexibility, and includes removals under warrant, by virtue of section 135, and without a warrant in public places. It is predicated on the fact that those authorised persons are appropriately trained and designated. Prior to the clause being inserted into the Bill, only police officers could carry out removals.

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[Stephen Kinnock]

Extending the police powers in section 135 and 136 to other authorised persons would represent a major shift in the roles and responsibilities of health and social care professionals. Our key health and social care stakeholders have warned us that extending the powers could have dangerous consequences, and that making changes to them without proper consultation is not the right way to go about making policy. I again extend my thanks to those stakeholders for their efforts to share their views on the role of police in mental health-related incidents.

We of course recognise the pressures that police face. However, I must emphasise that the majority of assessment under the Mental Health Act already happen without police involvement. Action under the “right care, right person” approach is already reducing that further: there was a 10% decrease in section 136 detentions in the year ending March 2024.

Simply taking the blanket approach of extending the powers may not actually address the issues the police face and could have unintended negative consequences, such as risks for staff, patients and the public, and delays in response. The Government are profoundly concerned about making such a change without proper engagement with the groups that would be impacted. I therefore do not commend clause 50 to the Committee.

Question put, That the clause stand part of the Bill.

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[The Chair]

With this it will be convenient to discuss clauses 52 and 53 stand part.

[Stephen Kinnock]

Clause 51 will reform the Bail Act 1976 to prevent courts from remanding a defendant for their own protection where the only concern relates to their mental health.In response to the independent review, a commitment was made to end the use of prison as a place of safety. Those reforms were welcomed, but concerns were raised about the use of a similar power under the Bail Act 1976 to remand a defendant to prison for their “own protection”. That power can sometimes be used when the court is concerned that the defendant’s mental health presents a risk to their own safety.

Nobody should be sent to prison because they are struggling with their mental health, so the clause will amend the Bail Act to prevent the remand of a defendant for their own protection solely on mental health grounds. Instead, courts will be directed to bail the defendant and work with local health services to put in place appropriate support and care to address risks to their safety.

The clause does not amend the court’s power to refuse bail in respect of a child or young person for their own welfare, because it is already the case that youths cannot be subject to a custodial remand solely for mental health reasons. However, in exceptional circumstances it may still be necessary for a court to remand a child to local authority accommodation for their mental wellbeing, and for that reason the power is preserved.

On clause 52, patients from the Crown dependencies—the Channel Islands and the Isle of Man—currently cannot be transferred to England and Wales under sections 35, 36 and 38 of the Mental Health Act. The clause will introduce new powers to enable the Crown dependencies’ courts to send patients who are subject to their equivalent of remand under sections 35 or 36, or an interim hospital order under section 38, to suitably secure hospitals in England and Wales for treatment and assessment. The changes will ensure that that vulnerable cohort of patients can receive appropriate and secure treatment in England and Wales, while enabling the Crown dependencies’ courts to maintain control of the criminal proceedings, so that justice can be done swiftly and efficiently.

Finally, clause 53 will ensure that where provisions in the Mental Health Act provide for the processing of personal data, any such processing, including the sharing of data, is subject to data protection legislation, including the Data Protection Act 2018 and the UK general data protection regulation principles. For example, personal data—including special category data such as health data—is likely to be contained in a report produced under clause 4, which inserts clauses specific to people with a learning disability and autistic people, so that their care, treatment and differing support needs are identified, and recommendations are made to ensure that those needs can be met. That report will be shared with the bodies set out in the clause, including the patient’s responsible clinician, the relevant integrated care board and the local authority.

Clause 53 will ensure that such processing of personal data must comply with the controls and safeguards in the legal framework that governs the use of personal data. That includes compliance with key principles such as lawfulness and fairness, and adherence to high standards of information security, privacy and transparency.

In essence, the provision means that where there is a duty or power under the Mental Health Act to process personal data, the processing—including the sharing—of the information must be done in a way that will not contravene data protection legislation, including the UK GDPR and the Data Protection Act 2018. In turn, among other things, that requires personal data to be processed lawfully, fairly and transparently, and confers certain rights on data subjects to access that data and have any errors rectified. That gives vital reassurance to patients about the processing of their personal data under the Mental Health Act. For those reasons, I commend clauses 51 to 53 to the Committee.

[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?

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Clause 52 is a sensible and overdue reform to an obscure but important part of the Mental Health Act. It will allow for humane, clinically appropriate and legally managed transfers of individuals caught between criminal justice and serious mental illness. However, it raises important operational and ethical questions about legal safeguards, court oversight and administrative accountability.

[Stephen Kinnock]

The hon. Member for Solihull West and Shirley asked how the courts would be supported in training for judges and so on. To safely enact that reform, it is vital that the appropriate pathways are in place from first contact with the criminal justice system into the right care and support, whether that is community mental health services or receiving treatment in hospital under the Mental Health Act, where appropriate. We will work with courts, health service commissioners and clinicians to ensure that sentencers have the confidence to bail vulnerable defendants into the community, with the appropriate package of support and smooth pathways into treatment in a healthcare setting for those who need it. We will confirm the timelines for commencement in due course.

The shadow Minister, the hon. Member for Hinckley and Bosworth, asked about people who are under 18. Custody should be a last resort for children, and the legislative threshold for remanding a child to custody is already very high. Under-18s are not included in this provision, as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 already precludes the remand of children to custody solely for mental health reasons. When the court’s concerns relate only to the child’s welfare, the preferred option would usually be bail. In exceptional circumstances, a court might remand a child to local authority accommodation, such as a children’s home or foster care, for their own mental wellbeing. Including children in this provision would remove that important safeguard.

On the question of legal limbo, courts in England and Wales will not be able to exercise any criminal jurisdictional powers in relation to these patients. Their powers are restricted to renewal of the remand or interim order, ancillary powers and recommendations for the patient’s return, as well as obligations to inform the Secretary of State. We have included additional provisions in the Bill to allow courts in England and Wales to order a section 36 for treatment for a patient who has previously been transferred from the Crown dependencies on the equivalent of a section 35 for assessment. That is aimed at enabling access to treatment for the patient and preventing the need for the patient to be required to travel back and forth between jurisdictions.

Question put and agreed to. 

Clause 51 accordingly ordered to stand part of the Bill. 

Clauses 52 and 53 ordered to stand part of the Bill. 

Clause 54

Review of duty to notify incidents

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

New clause 12—Age-appropriate treatment for children—

“(1) Section 131A of the Mental Health Act 1983 is amended as follows.

(2) After subsection (1), insert—

‘(1A) A patient to whom this section applies must not be detained in, or admitted to, an adult ward unless the managers of the hospital consider that—

(a) there are exceptional circumstances which justify the patient’s detention in, or admission to, an adult ward; and

(b) the decision is in accordance with the best interests of the child.’

(3) After subsection (3) insert—

‘(3A) Where a patient has been detained in, or admitted to, an adult ward, the managers of the hospital must record in writing the reasons for the admission, including—

(a) the reason, or reasons, why other options for accommodation were not available or suitable for the patient;

(b) details of the measures to be taken by the hospital to ensure that, while the patient is detained or otherwise accommodated in the adult ward, the patient is provided with care in a safe environment; and

(c) unless it has been determined that an adult ward is the most appropriate environment for the patient in accordance with subsection (1A), the steps being taken by the hospital to transfer the patient to more appropriate accommodation.

(3B) Where a patient to whom this section applies is—

(a) detained in, or admitted to, an adult ward or placed out of area; and

(b) the detention or admission is of more than 24 consecutive hours’ duration,

the managers of the hospital must notify the regulatory authority immediately, setting out why they consider that the requirements under subsection (1A) above are met and providing the information set out in subsection (3A).

(3C) Subsection (3D) applies when—

(a) the managers of a hospital accommodate a patient to whom this section applies in an adult ward for a consecutive period of at least 28 days; or

(b) detain or admit a patient to whom this section applies who—

(i) was ordinarily resident immediately before being detained or admitted in the area of a local authority other than the local authority within whose area the hospital is situated, or

(ii) was not ordinarily resident within the area of any local authority.

(3D) Where this subsection applies, the managers of the hospital must immediately inform the appropriate officer of the responsible local authority—

(a) of the patient's detention or admission, and

(b) when the patient's detention or admission ceases.’

(4) Leave out subsection (4) and insert—

‘(4) In this section—

(a) “adult ward” means a ward in a hospital to which persons aged 18 or over are detained in or admitted to;

(b) “the appropriate officer” means—

(i) in relation to a local authority in England, their director of children's services, and

(ii) in relation to a local authority in Wales, their director of social services;

(c) “hospital” includes a registered establishment; and

(d) “the responsible authority” means—

(i) the local authority appearing to the managers of the hospital to be the authority within whose area the child was ordinarily resident immediately before being detained or admitted, or

(ii) where it appears to the managers of the hospital that the patient was not ordinarily resident within the area of any local authority, the local authority within whose area the hospital is situated.’”

This new clause seeks to ensure that children are only placed on adult wards where there are exceptional circumstances, and it is in their best interests. It includes procedural safeguards for determining the reasons behind (and suitability of) admitting a child to a hospital environment in which adults are simultaneously accommodated or in an out of area placement.

New clause 17—Children detained on adult wards—

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

(2) After section 131A (Accommodation, etc. for children), insert—

‘131B Children detained on adult wards

(1) The Secretary of State must reduce to zero, within five years of the passage of the Mental Health Act 2025, the number of children detained on adult wards.

(2) The Secretary of State must publish, within six months of the passage of the Mental Health Act 2025, a report to outline how the duty under this section will be met, including how provision for treatment under this Act will be increased.’”

This new clause would require the number of children detained on adult wards to be reduced to zero within 5 years, and for the Secretary of State to produce a report on how this will be achieved.

New clause 20—Report and Guidance: Transition to Adult Mental Health Treatment—

“(1) The Secretary of State must, within 18 months of passing of this Act, prepare and lay before Parliament a report on improving provision for patients transitioning from treatment in a hospital environment for children and young people to one for adults when they attain the age of 18.

(2) The report under subsection (1) must include an assessment of—

(a) the current pathways and outcomes for young people transitioning between hospital environments for children and for adults;

(b) any gaps in care or support experienced by patients during this transition;

(c) best practices for ensuring safe and effective transitions.

(3) Following the report under subsection (1), the Secretary of State must publish guidance for integrated care boards, local authorities, and providers of mental health treatment on improving outcomes and ensuring continuity of care for patients transitioning to a hospital environment for adults.

(4) The guidance under subsection (3) must include—

(a) specific steps to guarantee continuity of care for patients transitioning between treatment in a hospital environment for children and young people and one for adults;

(b) measures to identify young people requiring transition support at an appropriate stage;

(c) provisions for joint working and information sharing between providers of treatment for children and young people and for adults;

(d) requirements for the review and updating of care and treatment plans to reflect the needs of patients transitioning to a hospital environment for adults.

(5) Integrated care boards, local authorities, and providers of mental health treatment must have regard to guidance published under subsection (3).

(6) In preparing the report under subsection (1) and the guidance under subsection (3), the Secretary of State must consult—

(a) young people with experience of transitioning between children and young people’s and adult mental health services, and their carers and guardians;

(b) relevant professional bodies;

(c) integrated care boards;

(d) local authorities;

(e) providers of mental health treatment;

(f) such other persons as the Secretary of State considers appropriate.

(7) The Secretary of State must update the guidance under subsection (3) at regular intervals, and no less frequently than every three years.”

This new clause would require the Secretary of State to review and report on the transition of patients from children's to adult mental health settings for treatment at age 18 and publish guidance for relevant bodies on improving provision and ensuring continuity of care during this transition.

[Stephen Kinnock]

I rise to speak to clause 54 and to a number of new clauses relating to the treatment of children and young people.

I turn first to clause 54. The Care Quality Commission (Registration) Regulations 2009 require the CQC to be notified of specified events, one of which is where a child is placed in an adult psychiatric unit and the placement has lasted more than 48 hours. When the CQC is notified, the circumstances are reviewed and the risk is assessed. These notifications can trigger further assessments and inspections, and require the trust to provide regular updates and give assurance that the children concerned are being safeguarded.

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[Dr Shastri-Hurst]

You will be disappointed to know, Mrs Harris, that the notable contributions from my hon. Friends the Members for Chester South and Eddisbury and for Farnham and Bordon mean that my contribution will be even briefer than usual. [Interruption.] Rapturous support across the Committee—exactly the consensus-building that we are seeking to achieve.

I rise to speak in support of new clause 12. It necessarily addresses the inappropriate placement of children on adult wards, which is not just distressing but deeply damaging to those involved. The issue is about having child-centred safeguards. It is essential that we ensure that children under 18 are placed on adult wards only when it is absolutely necessary and there is no alternative. The new clause would not only support best practice—it aligns with clinical guidelines on age-appropriate care—but provide welcome legal clarity. It would strengthen and clarify the existing provisions within the Mental Health Act. For those reasons, I encourage all hon. Members to support it.

On clause 54, the Minister would be disappointed if I did not put a couple of questions to him.

[Stephen Kinnock]

Yes, I would.

[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?

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Publishing another report in six months’ time and setting a five-year goal will be of little comfort to a 17-year-old who, this week, might find herself placed on an adult ward for lack of a suitable alternative, or indeed a 15-year-old, detained miles from home, isolated and at risk. Those children do not need a long-term goal; I gently say that they need protection now. That is why our new clause does three critical things—which I will not state again. While I welcome the ambition of new clause 17, I believe that it must be complementary and enforced by duties today, not tomorrow. On that point, I will wait for the Lib Dems to wind up.

[Stephen Kinnock]

The hon. Member for Guildford asked about timelines. There is the timeline for the review on the face of the Bill, and then there is the broader question about implementation and how all the moving parts fit together. We have now had the spending review, which will provide a financial envelope for mental health more broadly, and for implementation of the Bill. We will be ready to move forward with implementation on that basis, which will include the code of practice.

My hon. Friend the Member for Hertford and Stortford asked about a time limit for notification. It is already a legislative requirement for the CQC to be notified when a child or young person is placed on an adult ward for a continuous period of longer than 48 hours. In addition, the previous Government assessed that the current requirement of 48 hours was sufficient. As part of the review that is mentioned on the face of the Bill, we will consider whether that remains the case for receiving notifications, and whether it remains appropriate.

My hon. Friend also asked about further safeguards for children and young people, including those in inappropriate settings. Obviously, the placement of a child or young person on an adult mental health ward only happens following a thorough clinical assessment. Trusts are required to have robust local safeguarding protocols in place, including mandatory staff training on safeguarding and incident-reporting mechanisms, to ensure accountability and oversight. Staff are appropriately trained in child and adolescent mental health care, and they must meet level 3 competency in safeguarding children.

The hon. Member for Farnham and Bordon asked about data. The CQC already publishes “Monitoring the Mental Health Act”, a statutory annual report that must be laid before Parliament, in which it reports on the number of people under 18 who are admitted to adult wards. Additionally, it reports qualitative information on placements for children and young people, such as placements on children’s general wards. I hope that I have addressed that point.

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Brought up, and read the First time.

[Stephen Kinnock]

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

[The Chair]

With this it will be convenient to discuss Government amendments 37 and 38.

[Stephen Kinnock]

The new clause takes forward a commitment made in the Lords by Baroness Merron to address issues relating to the unequal application of the Human Rights Act 1998 for some mental health patients. Sadly, this issue was highlighted following the death of Paul Sammut. I extend my deepest condolences to his family.

We now wish to take action to ensure a more equal application of the Human Rights Act, with the aim of extending its protection to certain mental health patients. Under this amendment, private providers will be taken to be exercising a function of a public nature for the purposes of section 6(3)(b) of the Human Rights Act when they are carrying out certain services and when those services are arranged and/or paid for by either local authorities or the NHS. Those functions are section 117 aftercare; services provided in pursuance of arrangements made by a local authority in Scotland, discharging its duty under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003; and in-patient treatment and assessment for mental disorder, whether or not a patient is detained under the Mental Health Act.

When carrying out those services, private providers will be required to act compatibly with the convention rights set out in the Human Rights Act. Many patients in private facilities already have those protections. Private providers are already taken to be exercising a function of a public nature for the purposes of section 6(3)(b) of the Human Rights Act when caring for patients detained under the Mental Health Act or providing care for patients due to the effect of section 73 of the Care Act 2014. The new clause seeks to extend those protections to other mental health patients in private provision, where care is arranged and/or paid for by the NHS or a local authority. As the new clause is a modification of the Human Rights Act, this is a reserved matter and the amendment will therefore apply in all four nations.

Government amendments 37 and 38 are minor technical amendments to the Bill’s extent provision in clause 57 to ensure that our amendment—new clause 10—relating to the Human Rights Act extends UK-wide. The Human Rights Act, which the new clause 10 seeks to modify, extends UK-wide. The amendments are therefore necessary to ensure that the same Human Rights Act protections extend to all four nations. I hope that hon. Members feel able to support the amendments.

[Dr Evans]

I welcome the opportunity to speak on these important provisions, which apply the Human Rights Act 1998 to certain private care providers delivering mental health services. At present, the Human Rights Act applies directly to public authorities and to those exercising functions of a public nature. However, an increasing proportion of mental health care and aftercare services are delivered by private providers, under arrangement with NHS bodies and local authorities. The current legislation leaves some ambiguity about whether private providers are legally bound to comply with the Human Rights Act when delivering such services. That creates a potential accountability gap that risks undermining the protections that we want to guarantee to vulnerable patients.

The Government’s proposal to explicitly extend the application of the Human Rights Act to registered private care providers when they deliver specific services commissioned or paid for by public authorities is a welcome step towards closing the gap. By doing so, it will ensure that these providers are treated as performing public functions under section 6 of the Act. That means that they will be directly accountable for upholding the rights enshrined in the Human Rights Act, including the rights to liberty, dignity, privacy and freedom from inhuman or degrading treatment.

This approach is not without precedent. For example, in the case of prison outsourcing, courts have established that private companies running prisons are subject to the Human Rights Act because they perform public functions. Similarly, private care providers delivering publicly funded mental health services should be held to the same standard as NHS bodies or local authorities.

It is worth noting that although this explicit statutory extension of the Human Rights Act to private providers is a new provision in the Mental Health Act 1983 for England and Wales, similar principles already apply in Scotland through case law and existing legislation. Under the Mental Health (Care and Treatment) (Scotland) Act 2003, local authorities have a statutory duty to provide aftercare services, which may be delivered by private providers. Scottish courts recognise that when private providers perform public functions, such as delivering those statutory services, they are subject to the Human Rights Act, following key judgments such as YL v. Birmingham City Council.

This Government proposal provides much-needed clarity and an explicit statutory footing across all four nations of the UK. It also ensures consistency across the four nations, referencing equivalent legislation in Scotland, Wales and Northern Ireland. This helps to remove ambiguity and ensure consistency. However, we must also consider the practical impact. Although these changes strengthen rights and protections, they also increase the regulatory burden on private providers. Providers may face new compliance costs, legal challenges and the need for enhanced training and oversight. That could have a knock-on effect on service availability, particularly in a market already facing staffing pressures and financial constraints.

The Government should therefore consider how to support providers to meet the new obligations without destabilising service provision. There is also a need to ensure that commissioners and regulators have the necessary resources and powers to monitor and enforce compliance effectively. In that spirit, I will pose some questions to the Minister for clarification and look for reassurance.

How will the Government monitor compliance with the Human Rights Act among private providers, and what enforcement mechanisms will be used? Has there been any consultation with private care providers about the potential operational and financial impacts of this extension, and will the extension apply only to services arranged or paid for by NHS bodies? What protections exist for patients receiving private mental health care outside these arrangements? How do the Government plan to ensure consistency in application across all four nations? Do the Government foresee private provision of mental health-related services expanding? If so, by how much?

I agree that the final two amendments look like two small consequential amendments that clarify and ensure that the human rights extension applies equally across England and Wales, Scotland and Northern Ireland. The insertion of “subject to subsection (2)” appears to be technical. I would just welcome confirmation from the Minister that it will not inadvertently limit the scope of the new protections. Otherwise, Opposition Members will support them.

[Stephen Kinnock]

I thank the shadow Minister for those questions. I will have to get back to him in writing, because the questions that he asks obviously have an important legal dimension, and it was physically impossible to get the information in the time between his sitting down and my standing up to speak. I am not a human rights lawyer either, so it is best if I write to him on those points.

Question put and agreed to.

New clause 10 accordingly read a Second time, and added to the Bill.

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