Mental Health Bill [ Lords ] (Sixth sitting)

Stephen Kinnock Excerpts

Committee stage
Tuesday 17th June 2025 Public Bill Committees

[Gregory Stafford]

I thank the hon. Lady for her point, but I shall continue in the same vein unless I am told to do otherwise.

Clause 27 will ensure that when community treatment orders are considered, with all the restrictions they bring, the nominated person’s voice must be heard and an objection must be properly countered with evidence. Clause 28 addresses hospital transfers, recognising that being moved to another hospital can uproot fragile support networks and compound distress. By embedding a consultation duty here, too, the Bill will make it harder for patients to be moved arbitrarily or without explanation.

In summary, the clauses and the schedule empower patients, embed transparency and build trust, but they do so through a lens rightly focused on adults—capable, consenting adults who make choices freely. That brings me to my fundamental point: we must be absolutely certain that this approach will not inadvertently erode a bedrock of child protection: that a parent is the default legal protector for their child. For an adult, autonomy means freedom of choice, but for a child, especially one under 16, autonomy must never mean being left alone to navigate a labyrinth of legal forms and healthcare powers without the protection of a parent. That is why I strongly support amendments 54 and 55, which would ensure that for under-16s, parents remain the lawful decision makers and the first safeguard for their child’s welfare.

Let us imagine for a moment a vulnerable 14-year-old who, in the confusion and fear of a psychiatric admission, is persuaded by a well-meaning adult—or, worse, someone with a hidden agenda—to appoint them as the nominated person. That child may be separated from their parents—the very people who know the child best and have a legal duty to care for them—while an outsider gains rights to object to treatment or discharge decisions. Once that nomination is made and witnessed, it carries weight in law and could marginalise the very people who brought that child into the world and have a moral and legal duty to protect them.

This is not just theoretical. We know from real cases in family courts that unscrupulous individuals can exploit vulnerable young people. The risk that the new system could unintentionally open the door to manipulation must be taken seriously. Let us not be naive about how exploitation works: groomers, traffickers and abusers thrive in grey areas of the law; they will find loopholes and drive a coach and horses through them. If we do not make it crystal clear that no child under 16 can override parental responsibility without a court’s explicit order, we risk creating an invitation for abuse.

Can the Minister assure the Committee that no child under 16 will be permitted to override parental responsibility simply by nominating someone else without a full and proper process? Schedule 2 does include fall-back arrangements and eligibility checks, and those are welcome, but unless the law is explicit that only a court can displace a parent’s right to act for their child, those safeguards are not watertight.

Amendment 54 addresses a related area, the notification of incidents. It would require the Secretary of State to review whether the law should be strengthened so that all admissions of children and young people for mental health treatment trigger mandatory incident reporting, and whether the timeframes for that reporting are still appropriate. It would require the Secretary of State to review whether incident reporting requirements are robust enough for all under-18s in mental health settings. Are all incidents of restraint, seclusion, injury or absconding being reported promptly and comprehensively? If not, what must change?

We have seen far too many tragic cases in which harm or abuse in children’s mental health units came to light only after a scandal broke, because the system did not catch it in time. Proper oversight is not an optional extra; it is essential for the trust of families. In my view, a review alone is not enough, so I urge to the Minister to confirm that, if the review finds gaps, the Government will legislate swiftly to close them. In the meantime, what interim steps will be taken to ensure that no child is left unprotected?

Amendment 55 is the final safeguard in this suite of amendments. It would allow the Secretary of State to make consequential amendments to other laws to implement the Bill cleanly. That is good housekeeping, but it must not become a blank cheque. When it comes to parental rights or child safeguarding, no technical tweak should be done behind closed doors by negative procedure; Parliament must approve it in full daylight, on the record. Will the Minister confirm without ambiguity that any consequential amendment that touches on parental powers or child protections will come before both Houses under the affirmative procedure?

To illustrate things in the starkest terms, let me paint one more scenario for this Committee. A 15-year-old girl, already vulnerable, is detained following a self-harm incident. Her parents, distressed but committed, wish to be involved in her care plan and discharge, but in her fragile mental state the child is persuaded by an older friend—perhaps well-meaning, perhaps not—to nominate them instead. That friend, now a legally recognised nominated person, blocks discharge, disagrees with treatment and excludes the parents from updates. The clinicians are caught in a legal tangle. The child is caught in the middle, and the parents must fight in court to reclaim their rightful role. As I said before, that is not a theory; it is the sort of real-life pitfall that sloppy drafting can enable. If we see it coming and fail to stop it, we will have failed as legislators.

I wish to be clear that I support clauses 24 to 28 and schedule 2 because they modernise mental health law for adults in a way that is respectful and empowering. I support amendment 54, because it would strengthen transparency and accountability where children’s lives and safety are at stake. I support amendment 55, because it would keep our statute book coherent, but it must never be misused to erode rights by stealth. Above all, I support the amendments because they ensure that the new nominated person system does not inadvertently weaken the oldest and strongest protection we have, which is the legal responsibility of parents to care for their own child.

I urge this Committee to adopt the clauses, the schedule and amendments 54 and 55 as essential guardrails to ensure that what we pass here is not just legally sound, but morally right. Let us modernise this law and strengthen patient voice, but let us never allow a child to lose their parents’ protection by accident or bureaucratic slip. Let us be in no doubt: when the state removes or limits parental rights, it must do so under the strictest scrutiny of a court of law, with evidence tested and the child’s welfare paramount. A signed piece of paper at a bedside should never be enough. That is the dividing line between a humane, modern health system and one that risks creating new injustices in the name of progress.

I ask the Minister again: will the Government enshrine in this Bill or elsewhere that parents are the legal representatives for under-16s unless a court directs otherwise? Will he guarantee rigorous checks to prevent the manipulation of young minds at their most vulnerable? Will he commit that any necessary changes found by the incident review under amendment 54 would be acted on without delay? I commend this package of reforms to the Committee, and I trust that the Government will listen carefully to these warnings and act to make the legislation watertight.

[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairship, Mrs Harris, not least because I understand you have just returned from New Zealand, where you had duties as the Government’s trade envoy. I thought perhaps we should do a haka in your honour to mark it, but you might rule against that.

[The Chair]

I have seen you dance.

[Stephen Kinnock]

I have no comment on that, and we are not going to divide on it either.

Let me address the questions raised in this morning’s debate. First, I was asked how disputes will be resolved when the nominated person and clinicians disagree. Where a specific nominated person, power or right is being used, the nominated person’s decision applies, because these are statutory powers and rights under the Mental Health Act. However, clinicians will have discretion and can overrule a nominated person’s decision, if there is a danger to the patient or others. That will be clarified in the code.

Secondly, I was asked how we will ensure that nominated persons are aware of their powers. In addition to the broader training and familiarisation required alongside the reforms for clinicians, the statutory forms used to appoint a nominated person will set out that the witness should explain the role of the nominated person and make sure that the nominated person and patient understand the powers and requirements of the role. I think my hon. Friend the Member for Southend West and Leigh raised that point, too.

Thirdly, I was asked whether there is a mechanism to appoint an interim nominated person, and yes, there is. The interim nominated person is the nominated person appointed by an approved mental health professional when a person lacks the competence or capacity to appoint their own nominated person. While the legislation does not refer to the term “interim nominated person”, that in practice is what they are.

A lot of the discussion today has focused on how the provision will apply to children and young people. I understand the concerns raised and the importance of getting this right. In summary, we object to amendments 54 and 55, which would require nominated persons for patients under 16 to have parental responsibility for the child, whether chosen by the child or appointed for them, on the basis that children with the relevant competence should have the ability to choose their own nominated person. That is in line with the recommendations of the independent review, and in keeping with the principles of choice and autonomy and treating the person as an individual. We have put safeguards in place to ensure that their selection is appropriate and to remove anyone who does not exercise those powers in the best interests of the child.

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[Stephen Kinnock]

I can assure my hon. Friend on that. We have safeguards in place both to ensure that the selection is appropriate in the first place and that, if there are behaviours that indicate that the person is not right for the task, they will be removed and their powers taken away.

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

Can the Minister clarify where these powers are and what they look like? For example, if a 15-year-old decides to appoint someone who is 23—maybe a boyfriend, maybe not—the problem is that once they make that nomination, we are waiting for something to happen. The idea behind the clauses we have been debating, and the use of exceptional circumstances to try to solve this problem, is to ensure that we prevent any problem from happening in the first place. That is the bit I am not clear on. I thought that Government amendments 40 and 41 were possibly intended to address that point, but my worry is that once the person is chosen, we do not know how they will behave. The whole idea is to give parental responsibility first. Could the Minister address where this is in the Bill, or what it looks like in the code? This is the critical bit to get right for children.

[Stephen Kinnock]

My understanding is that it is in schedule 2.

[Dr Evans]

I would be grateful if the Minister pointed it out.

[Stephen Kinnock]

With all due respect to the hon. Gentleman, I am not going to spend time shuffling my papers around. If he cares to look at schedule 2, I think he will find it there.

Government amendments 40 and 41 have been tabled because we believe that it is not necessary to specify in legislation which person the parental responsibility the approved mental health professional must appoint as nominated person for an under-16-year-old. We have committed to clarify this in the code of practice. We have committed to establishing an expert taskforce to support the development of a statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process.

The fourth question was whether we need parental responsibility by default. The current nearest relative provision assigns an automatic relative according to a hierarchical list, which does not reflect modern family structures. For instance, step-parents and parents who live abroad are not included. That can mean that children and young people may have a nearest relative who can make decisions about their care but who may not know the child well or engage with the role, or who could even be a risk to them. Without formal care proceedings, the child would be left to be represented by a relative who will not act in their best interests.

Fifthly, questions were raised about how to ensure that young patients are not isolated from family support if needed. Engagement with children and young people suggests that they are most likely to appoint their parent as a nominated person. If they appoint someone who is not their parent, then parents could still be involved in their care and treatment where appropriate. Safeguards are in place to allow for the overruling and displacement of the nominated person if they are behaving in a way that is not in the child or young person’s best interests.

Similarly, where a child is under a care order and parental responsibility sits primarily with the local authority, the local authority will retain its parental responsibility for the child even if the child chooses a nominated person who is not the local authority. The code of practice will provide guidance on how practitioners should include those with parental responsibility and care in key processes and decisions.

Sixthly, in cases where there are safeguarding concerns, what safeguards exist to ensure that the nominated person acts in the best interests of the child? The witness will determine whether the child’s nomination is suitable. Clinicians will also have the power to overrule decisions made by a nominated person if they think there is a danger to the patient or to others. The patient, an approved mental health professional, parents and anyone with an interest in the child’s welfare can apply to the court to displace the nominated person if they think they are behaving in a way that is not in the child’s best interests.

Finally, there was a question about how we will ensure that there is no coercion, including in the example involving an older partner. We will provide guidance to the witness on how to check that no coercion has taken place, as well as wider suitability criteria. A nominated person cannot be appointed if coercion or undue pressure has taken place. We intend to state in the code, subject to consultation, that an advocate should be involved early on to provide support to the child or young person throughout the nomination process. Advocates could work with witnesses to ensure that they have the relevant information about the child to make an informed appointment.

I hope that hon. Members are satisfied with those answers and will not press their amendments. I commend Government amendments 40 and 41, clauses 24 to 28 and schedule 2 to the Committee.

Question put and agreed to.

Clause 24 accordingly ordered to stand part of the Bill.

Schedule 2

Nominated persons

Amendment proposed: 54, in schedule 2, page 77, line 21, at end insert—

“(3) Where the patient has not attained the age of 16 years, a nominated person must have parental responsibility for the patient.”—(Dr Evans.)

This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.

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[Dr Evans]

This morning, we touched on amendment 49, so I will not repeat my remarks. I will simply ask a pithy question of the hon. Member for Winchester. He rightly talked about the incredible work that his local citizens advice bureau carries out. How will the amendment blur the lines between social workers, caseworkers and the independent advocates who are already doing this work? How does he perceive that working? I worry about the complexity that it would create. I would be grateful if the hon. Member addressed that point.

[Stephen Kinnock]

I am grateful to the hon. Member for Winchester for bringing this issue before the Committee. The intention of his amendment is to extend the support offered by independent mental health advocates

“to cover social and financial stressors and support for family carers and other members of the household when the patient is discharged.”

It would amend paragraph 18 of schedule 2, which deals with amendments relating to nominated persons. It should more properly be inserted into schedule 3, which deals with independent mental health advocates.

The Bill will already extend the support that advocates can provide to help patients to be involved in decisions about their care and treatment, to be able to make a complaint and to be provided with information about other available services. Those other services could include support following discharge from statutory or voluntary organisations, which may cover social and financial issues, and help to support carers. Those organisations would be better placed to support patients with these specific needs, rather than independent mental health advocates, whose skillset is specific to supporting patients to understand their rights under the Mental Health Act and participate in decisions about their care and treatment. We will consult on guidance in the code of practice to help independent mental health advocates to understand their extended role.

In addition to policy regarding independent mental health advocacy, advance choice documents give individuals the chance to give instructions about practical aspects of their life. Examples of such aspects include domestic, financial or caring responsibilities, such as children or pets. This provision allows the individual to be looked after when unwell and aims to ease additional anxieties. For those reasons, I ask the hon. Member for Winchester to withdraw his amendment.

[Dr Chambers]

I appreciate the valid points that hon. Members have made. The point about running a pilot was a sensible suggestion. We have had something that could be viewed as a pilot in Winchester for two years. We know that it works well, and every £1 spent on it saves £14.08. If I have suggested this amendment in the wrong part of the Bill through my naivety and inexperience, or if mental health advocates are not the right people to deliver a solution that we know works, may I ask the Minister whether there is a more appropriate part of the Bill in which to include it or another way to implement this proven system, such as by amending a different Bill, before I decide whether to press the amendment to a vote?

[Stephen Kinnock]

I thank the hon. Gentleman for that question. Fundamentally, our view is that the role that he is proposing is not the right one for an independent mental health advocate. The role of an independent mental health advocate is to work with the patient around their legal rights, rather than to deal with some of the more practical issues that he is talking about here. Our sense is that there are both statutory and voluntary organisations who are better placed to carry out that work. I do not think that a pilot would work with IMHAs, because by definition that is not the right role for IMHAs.

[Dr Chambers]

In that case, can we have a discussion outside the Committee about how to do this?

[Dr Chambers]

indicated assent.

Amendment 49 negatived.

Schedule 2, as amended, agreed to.

Clauses 25 to 28 ordered to stand part of the Bill.

Clause 29

Detention periods

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

[Stephen Kinnock]

Currently, under the Mental Health Act, a person detained for treatment can be kept in hospital initially for six months before the responsible clinician must make an assessment to decide whether to continue their detention or to discharge them. The independent review raised concerns that six months is too long. It heard evidence that patients were sometimes detained longer than necessary and were only considered for discharge when a tribunal hearing was due. It found that in up to 17% of cases referred to the mental health tribunal, discharge happened in the 48 hours before the hearing. That suggests that some patients are being detained longer than is necessary.

The review recommended reducing from six months to three months the initial detention period for people admitted for treatment, so that a patient’s detention is reviewed sooner to ensure that patients are not detained when they are no longer benefiting from treatment and can be safely discharged.

Clause 29 will mean that patients detained for treatment have their detention reviewed three times—up from twice—in the first year: at three, six and twelve months from the date of detention. The new renewal periods will not apply to part III patients, except in very specific circumstances when an unrestricted patient changes status. I commend the clause to the Committee.

[Gregory Stafford]

I have some brief questions for the Minister about this important clause, which has serious implications for patient liberty and for public protection. We must ensure that decisions are clinically and legally sound. First, how will the proposed changes to initial and renewal detention periods help conditions and services and manage public risk more effectively, particularly in forensic or high-risk cases? Secondly, do longer detention periods after revocation of a community treatment order reflect a higher perceived risk, and if so, is there clear clinical evidence supporting that extension to six months? Thirdly, are we confident that the new timelines strike the right balance between protecting the public and ensuring patients are not detained longer than necessary? Finally, and as an adjunct to that, what other considerations are there in the clause or the Bill to keep the public safe and to make sure that decisions are correct in the context of clause 29?

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[Stephen Kinnock]

The aim of the clause is to ensure that a patient’s detention is reviewed sooner. The planned reforms will not change the fundamental power and purpose of the Act, which is to detain and treat people when they are so unwell that they become a risk to themselves or others. Where a patient continues to meet the criteria, their detention will be renewed.

Opposition Members have asked about extra paperwork and workload in general for both clinicians and tribunals. In the impact assessment that we published alongside the Bill, we set out the estimated costs and benefits of the reforms and the expected workforce requirements that are critical to our implementation planning. That includes consideration of the impact on clinicians of additional detention reviews, which we have calculated is estimated to be around four hours of additional workload by the clinician for each patient who is detained beyond three months.

On the clinical evidence for shortening the detention period, in the independent review we found that in 17% of cases referred to the mental health tribunal, discharge happened in the 48 hours before the hearing, which strongly suggests that some patients are being detained for longer than is necessary.

[Dr Evans]

Could I ask the Minister—

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[The Chair]

Minister, do you wish to answer the question?

[Stephen Kinnock]

I did not catch the question to which the hon. Gentleman is referring. Could he repeat it, please?

[Dr Evans]

The issue is about resetting. As the legislation is written, it would suggest that because people are moving from one place to another, the clock resets. Clinically, that could make sense, but part of the problem is that every time the clock resets, so does the person’s detention. That is a key part. Fundamentally, in this clause we are trying to stop people being detained when they do not need to be. In fact, the Minister has just said that 17% of people were discharged before the tribunal could happen. The question is around specifying, when it comes to admission and transfer, that the clock resets. What safeguards do we have to make sure that we are counting the number of times it is reset, that it is clinically appropriate and, most importantly, that we are not substituting one way of dealing with this with a back-door way of creating a reset motion?

[The Chair]

Order. Dr Evans, this is an intervention. Can we please keep it as such?

[Stephen Kinnock]

I am struggling a little to understand what the hon. Gentleman is driving at. I pointed out in my opening remarks that the review clearly recommended reducing the initial detention period for people admitted for treatment from six months to three months, so that a patient’s detention is reviewed sooner to ensure patients are not detained when they are no longer benefiting from treatment and can be safely discharged. The clause means that patients detained for treatment will have their detention reviewed three times in the first year: at three, six and 12 months from the date of detention—up from two, as it was previously. I do not think that there is any implication that it is resetting the detention; it is just a rolling set of reviews.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

[The Chair]

I will not tolerate any further speaking outside the structure. It is the second time that it has happened this afternoon, and I will not tolerate it any further.

Clause 30

Periods for tribunal applications

[The Chair]

With this it will be convenient to discuss clauses 31 to 33 stand part.

[Stephen Kinnock]

Clause 30 will introduce important reforms to the tribunal process by adjusting the timeframes for when patients can apply to the tribunal regarding their detention. Section 2 patients will now have 21 days rather than the current 14 to apply. This reform addresses concerns that patients in crisis often need more time to fully understand their rights, access legal advice and make an application.

For section 3 patients and transferred guardianship patients, clause 30 will reduce the initial application period from six months to three months. This aligns the application period with the new, shorter initial detention period of three months, reduced from six months, for these patients. This change maintains the current rights for these patients to make an application once during each successive period of detention.

For conditionally discharged restricted patients, clause 30 provides different application periods. These vary depending on whether the patient has been conditionally discharged with or without conditions that amount to a deprivation of liberty. Conditionally discharged restricted patients who are subject to deprivation of liberty conditions—also known as patients on a supervised discharge—can make an application to the tribunal sooner, between six months and 12 months from the date that they become subject to said conditions, and thereafter every two years. In contrast, conditionally discharged restricted patients who are not subject to deprivation of liberty conditions will have application periods between 12 months and two years, and thereafter every two years.

The different application periods reflect the need to consider a patient’s detention more frequently and earlier where more restrictive deprivation of liberty conditions are present. These changes improve access to the tribunal, ensuring greater protection for some of society’s most vulnerable individuals.

Clause 31 will strengthen the system of automatic referrals to the tribunal for patients detained under the Mental Health Act. It ensures that patients who may not be able to make an application to the tribunal themselves are still afforded regular judicial oversight. For patients detained under section 2, this clause reduces the automatic referral period from six months to three months. This improves the current safeguard by bringing the trigger for the automatic referral sooner. This will apply when a section 2 patient’s detention has been extended beyond 28 days and no application or referral has been made to the tribunal for review of the patient’s detention.

The clause will also improve the automatic referrals for patients detained under section 3. It does this by triggering referrals on the expiry of three months and 12 months and annually thereafter, where the tribunal has not considered the patient’s case. Additionally, this clause removes the automatic referral trigger on revocation of a community treatment order. It was found in practice that the automatic referral was an ineffective safeguard, as often the patient either was back in the community and subject to a new CTO or had reverted to being a section 3 patient before the tribunal reviewed their case. Now, where a patient’s CTO is revoked, they will be automatically referred at three months and 12 months after revocation, and then every subsequent 12 months. This allows the automatic referral periods to apply afresh from the date on which the CTO is revoked.

The clause will ensure that patients detained under the Mental Health Act are subject to regular and timely tribunal reviews, particularly when they are unable to advocate for themselves.

Clause 32 will deliver important tribunal oversight for the small cohort of restricted patients discharged into the community under conditions that amount to a deprivation of liberty, who are also known as supervised discharge patients. The clause will require patients subject to supervised discharge to be referred initially at 12 months after deprivation of liberty conditions are imposed, followed by a further referral every two years, where the patient’s case has not been heard by the tribunal in this period. The clause will also provide a safeguard for patients who may fluctuate between conditional and supervised discharge, to ensure that no supervised discharge patient will go more than four years without their case being considered by the tribunal. Automatic referrals to the tribunal ensure that patients under some of the most restrictive conditions have routine oversight of their detention where independent review would otherwise be absent.

The clause will also clarify the powers of the tribunal when considering the application or reference of a conditionally discharged patient, which include the power for the tribunal to impose conditions amounting to a deprivation of liberty. Deprivation of liberty conditions may be imposed or retained only where the tribunal is satisfied that they are necessary to protect another person from serious harm and are no less beneficial to the patient than a recall to hospital. This test preserves public protection, while enhancing the safeguards in place for conditionally discharged patients, ensuring that their care and liberty are subject to regular independent scrutiny.

Together, these changes will promote a more robust system of oversight for patients subject to long-term detention and restrictive conditions, ensuring that their rights are respected and their detention is regularly reviewed.

Clause 33 will extend the same principles of regular, proportionate scrutiny to restricted patients who are not conditionally discharged subject to deprivation of liberty conditions. For restricted patients detained in hospital, section 71 will be amended to reduce the automatic referral period from three years to one year. That amendment aligns with the amendments to increase the frequency of automatic referrals introduced in the Bill for part II patients. Through annual tribunal reviews, it is intended that those individuals are safeguarded against inappropriate detention. That aligns with the broader principles of fairness and accountability, ensuring that individuals in long-term detention are subject to appropriate judicial oversight.

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[Dr Evans]

That is a difficult balance to get right. I appreciate that the Government have said that the Bill will take 10 years to implement, but if these measures come into force from day one, we will start to see automatic referrals come through. There will be a lag as the transition happens, but my hon. Friend is absolutely right: we can foresee scenarios where patients who want to be referred into the tribunal are waiting in inappropriate care places, which may be to the detriment of their personal care and may actually make their recovery worse. He is right to highlight that question, which is why having a broad understanding of how many extra referrals are coming would be useful.

Clause 32 focuses on conditionally discharged restricted patients who are subject to deprivation of liberty conditions. It rightly ensures that those patients are brought within scope of automatic referral, first after 12 months and then every two years. Again, that is a positive step, ensuring that even those not detained in hospital will still have access to a review of their conditions. Crucially, the clause also gives the tribunals the power to vary or remove those DoL conditions.

Can the Minister say more about how that important power will be used? What criteria will the tribunals apply to assess whether a condition is genuinely necessary and proportionate? Will patients be legally represented in those hearings by default? Will another advocate be there, or will it be someone else in their place? Here, too, I would welcome some clarification from the Minister. I hope he will forgive my legal naivety, but my mother always said, “It’s better to ask a dumb question than stay dumb forever.”

The explanatory notes talk about DoL conditions. The current legal framework for authorising the deprivation of liberty for individuals who lack capacity is complex and in transition. Under the Mental Capacity Act 2005, deprivation of liberty safeguards have been the established mechanism since 2009 to ensure lawful deprivation of liberty in care settings. However, the Mental Capacity (Amendment) Act 2019 introduced liberty protection safeguards as modernising replacements, designed to simplify and broaden protections.

LPS are widely seen as an improvement to DoLS, because they extend safeguards to a wider range of settings, including hospitals and people’s own homes where deprivation of liberty might occur. They also streamline the assessment process, reducing bureaucratic delays and better reflecting person-centred decision making. The Law Commission and various stakeholder groups have supported LPS as a way to address the significant practical and legal challenges posed by DoLS, including the so-called DoLS backlog, where assessments have been delayed for many vulnerable individuals.

Despite that, I do not believe that LPS have yet been implemented, leaving DoLS still in force. I wonder if we are therefore creating ambiguity as we update the Mental Health Act through the Bill’s clauses, such as those addressing conditional discharge and deprivation of liberty, without clarity on how those will intersect with the forthcoming LPS framework that will be introduced under separate legislation. That raises important questions about the sequencing and co-ordination of legislation reform. How will the Government ensure coherence and avoid conflicting provisions when different statutes address overlapping issues at different times?

Given that context, have the Government abandoned the planned implementation of LPS, or do they remain committed to bringing them into force? If the implementation is still planned, will the Government provide a clear timeline for when LPS will replace DoLS? How do the Government intend to ensure that the provisions we are debating will align with or adapt to the introduction of LPS? What steps are being taken to ensure that vulnerable individuals and professionals who navigate this complex legal landscape will have clear, consistent safeguards and guidance through the transition? Clarification on those points is essential to avoid legal uncertainty and to ensure that the reforms provide coherent protection for those deprived of their liberties.

Clause 33 deals with patients who are not under DoLS conditions. It will ensure that even those who are under DoLS conditions, such as detained restricted patients or conditionally discharged patients with lesser restrictions, receive automatic tribunals. It will reduce the current three-year referral intervention for detained restricted patients to 12 months and introduce automatic referrals for non-DoL conditionality discharge patients after two years and then every four years. Again, that is a step forward, but four years feels like a long gap between reviews for those discharged with conditions that still significantly affect their daily lives. Will the Minister explain the thought behind the chosen timeframe? If a person’s condition changes, is there a mechanism to trigger an early referral outside the normal cycle?

The clauses show progress. They reflect a clear intention to strengthen patients’ rights, increase oversight and address historical injustices, particularly for those living under deprivation of liberty conditions in the community. But with complexity comes risk, and we need to ensure that patients understand their rights and the legal support available. The tribunal system must be properly resourced to uphold the safeguards that we place in the legislation.

[Stephen Kinnock]

I will try to answer some of the questions. On tribunal capacity, people who are conditionally discharged and those with restrictions that amount to a deprivation of liberty represent only a small fraction of tribunal business—well under 1% of all mental health tribunal cases. The modest increase in hearings is therefore expected to be absorbed within existing capacity, while delivering significant rights benefits to the individuals concerned. It is worth noting, too, that the mental health tribunal continues to perform strongly. Amazingly, it is one of the very few areas of our public services not to be left with a massive backlog by the previous Government. The open caseload has remained stable at approximately 3,700 cases for a decade, despite 31,226 appeals in 2024-25.

I was asked about LPS and replacing DoLS. The previous Government paused the implementation of the liberty protection safeguards; they decided to focus on other priorities. In the absence of LPS, the deprivation of liberty safeguards system will continue to apply. The Department has made it clear that all bodies with legal duties under the DoLS must continue to operate these important safeguards to ensure that the rights of people without the relevant mental capacity are protected.

[Dr Evans]

Does the Minister have any plan or implementation timetable for LPS, given that their introduction has been paused?

[Stephen Kinnock]

We have made it clear that we are going to continue with DoLS. Basically, we have to look at whether replacing them with LPS will achieve the stated objectives of the exercise, and I am not entirely convinced about that. It is under review.

On supporting patients, the independent mental health advocate will ensure that patients are aware of their rights. Throughout the Bill we are ensuring that patients have support by moving to an opt-out model. Additionally, if a patient does not bring a case, they will be referred automatically to the tribunal if a specified period has passed. Patients will be supported in getting tribunal oversight, as the referrals are made by a hospital manager.

Question put and agreed to.

Clause 30 accordingly ordered to stand part of the Bill.

Clauses 31 to 33 ordered to stand part of the Bill.

Clause 34

Discharge: process

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

[Stephen Kinnock]

The clause seeks to strengthen the protocol on discharging individuals under the Act by introducing a statutory requirement on the person who makes the discharge decision to consult with another. Currently, a patient’s responsible clinician can, in law, unilaterally decide to discharge a hospital in-patient from certain powers of the Act. Under our amendments, they will be required to consult someone else who is professionally concerned with the patient’s treatment, whether that be in the hospital or in the community. Where the responsible clinician is a consultant psychiatrist, the consultee may be a nurse, psychologist or occupational therapist. That is to ensure a more rounded perspective on the patient’s readiness for discharge from the Act.

The clause will introduce a similar protocol for the discharge of people under guardianship, guardianship orders and community treatment orders. For guardianship and guardianship orders, the person who makes the decision to discharge from the powers under the Act may need to consult either the responsible local social services authority or a person’s designated social worker. For patients under a community treatment order, the responsible clinician is required to consult the community clinician, in recognition of the fact that they will likely have a much clearer understanding of the patient’s progress in the community and whether they are ready for discharge under the Act.

Although multidisciplinary-based decisions represent best practice, we know that they are not always taken. The clause seeks to change that by helping to make sure that the decision to discharge is carefully considered and receives greater professional oversight.

[Aphra Brandreth]

I rise to speak to the implications of clause 34 for clinical decision making, patient safety and the operation of the Mental Health Act more broadly. The clause introduces a new requirement for the responsible clinician to consult another professional, from a different professional discipline, who is involved in the patient’s care before they make a decision to discharge a patient from detention or from a community treatment order under section 23 of the Mental Health Act 1983. If the patient is on a community treatment order, the clinician must consult the relevant community clinician.

At its heart, the clause seeks to ensure that decisions about discharge are not taken in isolation. It reflects a wider shift in mental health care towards collaborative, multidisciplinary approaches. We should welcome that in principle. These are often complex decisions that involve vulnerable individuals, and a single viewpoint may not always capture the full clinical picture. By requiring consultation with someone from another discipline, be that a nurse, an occupational therapist or a psychologist, we can help to ensure that decisions are more thoroughly considered and less likely to overlook risks.

The clause provides an important safeguard against premature or inappropriate discharge, particularly in cases where a patient may continue to pose a risk to themselves or others. It builds in a degree of professional scrutiny that supports safer and more consistent practice and, in doing so, should improve confidence among patients, families and practitioners.

I would be grateful if the Minister provided further clarity on a few practical points about how the clause will operate. First, it requires consultation but does not appear to specify whether the consulted clinician must agree with the responsible clinician’s decision in order for discharge to proceed. In cases where there is disagreement between clinicians of different professional backgrounds, what is the expected course of action? Is the responsible clinician ultimately free to proceed, or will there be an escalation mechanism? It would be helpful to understand how differing professional opinions are to be balanced and how potential deadlock is to be managed.

Secondly, although I welcome the intention to improve the rigour of decision making, will the Minister reassure the Committee that the additional consultation requirement will not introduce unnecessary delays into the discharge process? It is, of course, essential to get these decisions right, but it is also important that we do not create new barriers to discharge when a patient is clinically ready to move on. Delays in discharge can have a negative impact on patient outcomes, as well as increasing pressure on services. Although the consultation must be meaningful, it should also be proportionate, timely and clearly understood by all involved.

Will the Minister comment on how the requirement will be implemented in practice? For example, will guidance be issued to support clinicians in understanding their duties under the clause and to ensure consistency across services?

Overall, the clause represents a thoughtful and measured reform. It strengthens patient safety, promotes professional collaboration and introduces a safeguard that is both reasonable and necessary. Notwithstanding the clarifications I have raised, I hope that it will help to ensure that discharge decisions are made with greater confidence and care without becoming unduly bureaucratic.

[Dr Evans]

I rise to speak to clause 34, which inserts new consultation requirements into section 23 of the Mental Health Act 1983. The requirements relate to the discharge of individuals detained under parts II and III of the Act, as well as those subject to community treatment orders or guardianship.

Currently, under the Act, the responsible clinician has the power to discharge patients detained under sections 2 and 3, as well as unrestricted patients subject to a hospital order under part III, without any formal requirement to consult other professionals. This is already considered outdated practice in most clinical settings, where decisions are typically made within the multi-disciplinary team. However, that is not required by law. By contrast, discharge decisions for restricted patients remain with the Secretary of State for Justice or the mental health tribunal and are not affected by the clause.

Clause 34 seeks to change the current situation. It will insert proposed new subsections (2A) to (2C) into section 23 of the 1983 Act, placing a statutory consultation duty on responsible clinicians, local authorities and, in some cases, the patient’s nominated person. The aim, as outlined in the Government’s explanatory notes and by the Minister, is to formalise best practice and ensure that no discharge decision is made unilaterally without appropriate professional oversight. The Opposition welcome the intention behind the clause—strengthening safeguards, encouraging multidisciplinary collaboration and protecting patients from unsafe or premature discharges are all necessary and overdue steps—but we have a few questions about it that I hope the Minister will address.

First, proposed new subsection (2A) requires the responsible clinician to

“consult a person—

(i) who has been professionally concerned with the patient’s care or treatment, and

(ii) who belongs to a profession other than that to which the responsible clinician belongs”.

That is a sound principle, but there is an ambiguity in the phrase “has been professionally concerned”. Who do the Government have in mind? The Minister set out that it could be a nurse or a counsellor, but would it stretch as far as a GP or a practice nurse? Will there be a codifying list, either in statute or in the code of practice, so that we know who is expected to speak to that person? Does it require current involvement in the patient’s care? For example, could a professional who saw the patient only briefly many months ago qualify? If so, is that adequate to meet the clause’s intention? We would welcome clarification from the Minister on whether a definition of who and what an appropriate consultee looks like will be covered in guidance or regulations.

Secondly, I fully understand the good intent behind proposed new subsection (2B)(c), but as a good Opposition we should point out a possible unforeseen problem. It states that when the nominated person—that is, the person chosen by the patient to act in their interests—is making a discharge decision under guardianship, they

“must consult the responsible local social services authority.”

That raises both legal and practical questions. Is it appropriate to place a statutory duty on a layperson, who may be a relative, a friend or a carer with no formal training or professional support? What is the consequence if they fail to consult? Would their decision be invalid, or could it be legally challenged?

I know that the Government are trying to ensure that relatives and advocates are consulted, which is commendable. I am sure there will be no issue in the vast majority of cases, but there is a risk that the duty may unintentionally create legal uncertainty and administrative burdens for families. Has the Minister thought about whether it might be better framed as a duty on the local authority to advise or support the nominated person, rather than vice versa? I am sure we both agree on the motive and principle of shared decision making; it is simply a question of where to place the burden.

Thirdly, under proposed new subsection (2C), if someone is on a community treatment order, the responsible clinician and hospital managers must consult the community clinician before they discharge the person from that order. Again, that seems sensible, but what happens if there is no identified or available community clinician? As we have discussed, they are legally named, so could that requirement create a bottleneck to discharge? Will there be provision for proceeding with discharge if consultation is not practicable within a reasonable time? Without such a safeguard, there is a risk that patients remain subject to detention, such as conditions under a CTO, even when all parties agree that discharge is clinically appropriate.

Furthermore, the clause does not appear to require the consultation outcome to be documented, nor any disagreement to be recorded. If the responsible clinician consults someone and then disregards their view—as we heard earlier, according to the Minister they have precedence—that may be entirely justified, but surely transparency demands the recording of the reasons. Will the Government consider adding a requirement to document consultation, perhaps in the code of practice, to ensure that reasons are given when discharge proceedings are taken against clinical advice?

The clause represents an important step towards improving safety, accountability and multidisciplinary care in discharge planning, but the Opposition believe that to realise its full potential and avoid creating uncertainty or delay, the Government should look again at the clarity of key terms, such as “professionally concerned”; the appropriateness of placing duties on laypeople, such as the nominated person; the practical challenges around consultations when key professionals are not available; and the need for clear documentation requirements to uphold transparency and safeguarding in decision making. I look forward to hearing the Minister address those points.

[Stephen Kinnock]

The hon. Member for Chester South and Eddisbury asked about differences of opinion. The second professional does not have to agree. The ultimate decision in such cases sits with the responsible clinician, to ensure the clear accountability of decision making.

The hon. Lady also asked about delays. We see consultation with another professional as important to making a more informed decision on whether the patient is ready for discharge under the Act. It is especially important that the second professional involved in discharge decisions is from a discipline different from that of the responsible clinician. That will ensure a broader perspective, particularly when the second professional, such as a nurse, may have had more frequent contact with the patient.

[Aphra Brandreth]

On the discipline of the second clinician consulted, is there any guidance as to who might be appropriate? I mean not just the list of potential professions but whether there is guidance on who would be appropriate in different situations. We welcome the multidisciplinary approach, but I would like some clarification. Given your earlier response, saying that they need to agree, it is not really clear how this would add to the process. It would help if there were clarity on the professions.

[The Chair]

Order. When you say “you”, you are referring to the Chair.

[Stephen Kinnock]

We will absolutely provide guidance on that in the code, but the consultee in the case of a detained person is someone who is professionally concerned with the patient’s treatment, whether that be in the hospital or in the community, and who is from a discipline different from that of the responsible clinician. Those criteria will be applied throughout the process.

Finally, on the question from the Opposition spokesman, the hon. Member for Hinckley and Bosworth, yes, reasons will have to be given whenever there is a difference of opinion. All the relevant documentation and how that should work will be set out in the code of practice.

Question put and agreed to.

Clause 34 accordingly ordered to stand part of the Bill.

Clause 35

Ascertaining and learning from patients’ experiences of hospital treatment

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

[Stephen Kinnock]

This amendment seeks to overturn the previous amendment tabled—sorry, I should have said “the clause”. The clause seeks to overturn the previous amendment, tabled by Earl Howe and Lord Kamall. Although we support the intention of the amendment, our view continues to be that it would be duplicative.

There are already many ways in which service user feedback is used to inform policy and practice. For instance, every year the Care Quality Commission conducts thousands of interviews and visits with people detained under the Mental Health Act 1983. That may result in the CQC investigating a complaint or requiring an action statement from providers about service improvements. Although there may be room to enhance existing feedback mechanisms, we would prefer to improve what we have rather than create something new that would risk confusion.

If the objective is to provide time and space for the person to reflect on their past experiences post-discharge, I reassure the Committee that that should already form a part of co-producing a person’s care in the community plan. We also intend to create space for individuals to reflect on past experiences when making their advance choice document, with facilitation from a suitably qualified person.

[Josh Dean (Hertford and Stortford) (Lab)]

Young people who have been through detention often report challenging circumstances following that detention. Rather than supporting them, that sometimes increases their trauma. Can the Minister assure me that, as part of the changes he just set out, we will still ensure that young people have the opportunity to feed their experiences back? What specific work will the Government undertake to gather those views from young people?

[Stephen Kinnock]

My hon. Friend makes an important point. We are absolutely committed to ensuring that we create a space for young people to provide feedback. Some of that will be around past experiences when making their advance choice documents, but much broader opportunities for feedback will absolutely be built into the system. We want this to be a learning process. It is important that the code of practice is not just a document that sits on the shelf gathering dust; it should be a live document. That is why the feedback is so important.

It should be noted that although reflecting on past experiences may be therapeutic for some individuals, for others it can be traumatic, so the measure should be entirely service-user led. We also continue to be concerned about the burden that the amendment would place on independent mental health advocacy services, which are already under strain.

[Gregory Stafford]

I apologise—this may be due to the terminology of “amendment” versus “clause”—but is the Minister saying that the Government are likely to vote against clause 35 as it currently stands? He is talking about amendments and clauses, and that is slightly confusing me. [Interruption.] His officials are nodding.

[Stephen Kinnock]

I don’t know what that nod means.

[The Chair]

The Minister may want to write to the hon. Member.

[Stephen Kinnock]

Yes, but the issue may have a bearing on a potential Division. The challenge that I am facing is that my notes said,

“This amendment seeks to overturn”,

but we are talking about a clause that is seeking to overturn a previous amendment. Are we speaking in favour of a clause that will overturn an amendment? [Interruption.] Confusion reigns.

[Jen Craft]

I am equally confused; I did not think we were talking about an amendment. I thought we were talking about a clause. Apologies.

[The Chair]

Clause 35 was added by a Lords amendment; maybe that is where the confusion has come from. The Government tabled an amendment to leave out clause 35.

[Stephen Kinnock]

But we are tabling an amendment.

[The Chair]

The amendment is not selected.

[Stephen Kinnock]

We will figure it out as we go along. I have now lost my place. [Interruption.] My answer to the hon. Member for Farnham and Bordon is that the Government are voting against clause 35 stand part.

[Gregory Stafford]

Thank you, Minister.

[Stephen Kinnock]

Right. Advocates have told us that implementing what is set out in the clause would raise logistical and resourcing problems, as it would require a significant shift from their current role. They have also raised concerns that if they acted in effect on behalf of the hospital to collect feedback, their independence and impartiality in the eyes of the patient might be undermined. We would prefer to direct resources to increasing access to advocacy services among in-patients, as proposed by the Bill. Advocates play a crucial role in promoting and protecting the rights of patients. We do not wish to detract from that or to dilute their role. I do not commend the clause to the Committee.

[Jen Craft]

Like many Committee members, I was deeply confused about how we were proceeding.

On the face of it, the clause broadly seems as if it should be part of any Act about mental health care, including post discharge. I have spoken about my own experience of interacting with the Mental Health Act as it stands. I might have found the clause fairly helpful post discharge and others might have found it useful as well. However, I have just heard the Minister’s description of the limitations of the clause, and the speech that I was about to make has been thrown into complete disarray by the confusion just now. But I implore the Minister to consider the fact that, when it comes to encouraging participation, understanding, and co-designing and co-producing services, capturing the experience of those recently detained under the Mental Health Act can be extraordinarily useful. Clause 35, which was added by an amendment from the Lords, seems a fairly useful way to do that.

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[Stephen Kinnock]

Fundamentally, we do not support the clause because it is overkill. It simply puts too much burden on to a system that is already carrying out the tasks that the clause seeks to impose on the system, particularly through the CQC. Given that advocates currently have no role in relation to discharged patients, it is clear that the clause would present a new burden; that has been confirmed through my officials’ engagement with advocates and other stakeholders. One hospital manager said that within their small trust alone, the clause would result in contacting and interviewing more than 1,000 individuals discharged from the Act each year.

[Dr Evans]

The Minister says that advocates had no role in discharge, but they do when advising patients about their rights—that is fundamentally what they do. At the point of discharge, they enable patients to know what their rights are. I take his point about capacity issues. If the Government want to take the clause away, how will they hardwire patients’ feedback into the heart of the Bill?

[Stephen Kinnock]

The CQC visits and interviews thousands of detained patients each year under its statutory duty to monitor the use of the Mental Health Act. Those visits can lead to the CQC requesting improvements from service providers. The CQC publishes annual reports highlighting key findings and themes from those visits.

Trust boards are responsible for collecting and acting on service user feedback to improve services. Under the NHS contract, the patient and carer race equality framework requires trusts to have clear and visible systems in place for gathering and responding to feedback from patients and carers. What is more, Healthwatch England and its local branches also play a key role in representing the views of health and social care users. I do not really know what more the system could do. The clause simply over-embroiders and over-complicates; when that happens, we usually end up with vast numbers of unintended consequences.

We appreciate that concerns have been raised around the CQC’s role in collecting in-patients’ views. As I said, we would prefer to work with stakeholders to understand those concerns and improve the feedback mechanisms that we have, rather than reinvent the wheel and create something new. We recognise that, although there are multiple aims to the clause, the primary one is to provide a space for people to heal from their experiences of being detained. We are strongly of the view that inviting the individual to share their experiences as part of their advance choice document or care plan—

[Jen Craft]

I am glad that the Minister is explaining how capturing feedback and experience is being allowed for in other parts of the Bill. To clarify, in my own head I feel that the clause aims to capture the experience immediately after it has happened, just as hospitals offer women who have just given birth the opportunity to talk through their experience. It is healing for the patient to understand what happened to them, and it provides immediate feedback to the hospital. Is that kind of level captured in other parts of the Bill?

[Stephen Kinnock]

I understand and recognise my hon. Friend’s concerns, but we can rattle through all the different forums where feedback can be captured: the CQC, the trust boards, the patient and carer race equality framework, Healthwatch England and all the other informal channels in the mental health ecosystem. Our view is that adding another layer into all that would in the end be counterproductive. That is the Government’s position.

[Natasha Irons]

The Minister mentioned the complex network of ways in which patients can give their feedback; perhaps the aim of the clause is to try to simplify that and, as my hon. Friend the Member for Thurrock mentioned, make it a bit more direct and immediate after treatment. Are there any plans to simplify the process in another way? The complex cobweb that the Minister described is perhaps the reason why the patient voice is not always captured and utilised in a way that we would want if the services that people rely on are to be improved.

[Stephen Kinnock]

My hon. Friend raises an important point. I do worry about the list of different organisations and agencies throughout the system, and not just in mental health—so many parts of the system have had layer upon layer of bureaucracy added in. That is one of the reasons why we are abolishing NHS England: we want to try to find greater simplicity and clearer channels of communication.

Through the development of the code of practice and the consultation process, simplifying and clarifying the system will be a key objective. Adding another layer would have the opposite effect. But my hon. Friend makes an important point, which will definitely be a part of the process of consultation and development of the guidelines and code of practice. On the basis of those answers, I recommend that we do not adopt the clause.

[The Chair]

Order. I am expecting four Divisions imminently, so I will suspend the Committee.

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[The Chair]

With this it will be convenient to discuss clauses 37 to 40 stand part.

[Stephen Kinnock]

Clause 36 will introduce a subset of the current conditional discharge power where deprivation of liberty conditions are expressly allowed, otherwise known as supervised discharge. The aim of the clause is to prevent a small group of criminal justice patients with specialised support needs from remaining in hospital unnecessarily, while ensuring the risk they pose in the community is robustly managed. The reform responds to a Supreme Court decision, which found that there was no power under the current Act to impose discharge conditions that amount to a deprivation of liberty. Prior to the judgment, such conditions were used in a small number of cases in which patients with specialist needs required stringent arrangements to protect themselves and the public from harm.

Careful consideration has been given to the ethical and legal balance of the arrangements. We are clear that the threshold for use of the power is very high, and it will be accompanied by appropriate safeguards. A stringent test will be applied. The conditions will only be applied if the tribunal or Justice Secretary views the conditions as necessary to protect others from serious harm and, for the tribunal, if it considers the conditions would be no less beneficial than if the patient remained in hospital. We are also introducing additional safeguards, which ensure that supervised discharge patients are automatically referred to the tribunal after 12 months and every two years thereafter. That is more frequent than patients subject to conditional discharge, given the restrictive nature of the conditions being placed upon them.

I turn to clause 37. Prisoners and other detainees who become acutely mentally unwell in prison or another place of detention, such as an immigration removal centre or youth detention accommodation, can be transferred to hospital for treatment under sections 47 and 48 of the Act. Clause 37 will make two minor changes to those provisions.

Currently, the criteria for detention under the Act provides that appropriate treatment must be “available” for the patient or other detainee. The Court of Appeal, however, ruled that due to the specialised provision and security requirements relating to this cohort of patients, treatment must be available in practice for the detention criteria to be met, meaning that a hospital place must be identified. That diverges from how “available” treatment is interpreted across the rest of the Act, and it risks creating an additional barrier for this cohort of patients in accessing the care they need.

We are therefore clarifying the detention criteria to ensure that they can still be met, based on the patient’s clinical need, even when no hospital place has yet been identified. The change is also necessary for the effective implementation of the statutory time limit in clause 38, so that the Secretary of State is not delayed in issuing a transfer warrant when a specific bed space has not yet been identified. Clause 37 will also update the list of immigration legislation provided in section 48 to expand the scope of immigration detainees who can be transferred under that section.

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[Stephen Kinnock]

On safeguards, supervised discharge will only be used when necessary, given its restrictive nature and significant resource demands. A stringent test will apply. It must be deemed necessary by the tribunal or Justice Secretary to protect others from serious harm, and the tribunal must deem it to be no less beneficial than hospital care. Additional safeguards include automatic tribunal referrals after 12 months and every two years thereafter, if not previously reviewed.

On capacity, our expectation is that this will not have a significant impact on other restricted patients. The small cohort who are likely to be subject to supervised discharge will free beds, and that could positively impact any patient who needs a bed, but the numbers remain small and are unlikely to lead to widespread bed availability.

On demand for secure beds, clause 37 will correct a discrepancy in detention criteria caused by a Court of Appeal decision. Rather than creating further disparity, it aligns the criteria for sections 47 and 48 of the Mental Health Act with the consistent interpretation of available treatment used throughout the rest of the Act. Clause 37 does not alter the approach to clinical prioritisation of in-patient care, or the fact that a person will only be transferred once an appropriate bed has been found, in terms of both therapeutic care and level of security. That also addresses the question on implementation from the hon. Member for Farnham and Bordon.

I turn to the questions asked by my hon. Friend the Member for Shipley. She asked about the 28-day limit. Any change to the time limit would require an enhanced level of parliamentary scrutiny. Therefore, the power shall be subject to the draft affirmative procedure to ensure that both Houses are given the opportunity to debate any decision.

On dual tests, the Secretary of State for Justice applies a slightly different test from that of the tribunal in order to preserve their discretion in the interests of public protection, but conditions for patients must still be appropriate and proportionate. We will publish operational guidance to make it clear that the Secretary of State for Justice should have regard to the principle of therapeutic benefit and only use this type of discharge when the evidence indicates that it is in the best interests of the patient.

Under section 120 of the Mental Health Act, the Care Quality Commission and Health Inspectorate Wales have a duty to monitor the use of the Act. Patients subject to supervised discharge will be captured by section 120 for the purpose of regulatory oversight as a subset of conditionally discharged patients who are liable to be detained under the Mental Health Act.

I turn to the questions asked by the shadow Minister, the hon. Member for Hinckley and Bosworth. The Ministry of Justice considers that these measures are compatible with article 5 of the European convention on human rights. In 2018, the Supreme Court case of Secretary of State for Justice v. MM established that there was no lawful basis under the Act to impose conditions that amounted to a deprivation of liberty. The new provisions will provide a statutory basis for the Justice Secretary and the tribunal to impose such conditions.

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[The Chair]

With this it will be convenient to discuss the following:

Amendment 19, in schedule 3, page 91, line 13, after “patient” insert

“or English qualifying informal patient under 18”.

This amendment extends the provision of opt-out advocacy services in England to informal inpatients under 18.

Government amendments 42 and 43.

Schedule 3.

[Stephen Kinnock]

I will first discuss clause 41 and schedule 3. Independent mental health advocates are specially trained advocates who can support patients detained under the Mental Health Act to understand their rights and participate in decisions about their care and treatment, but not everyone who would benefit from an independent mental health advocate currently has access to one. In view of the benefits that advocacy can bring, we are expanding the right to an independent mental health advocate to all mental health patients, including informal or voluntary patients who are not detained under the Act.

We know that some informal patients are not told about their rights and legal status. Informal patients in Wales already have the protection, and we want to extend it to patients in England. It will help ensure that the voices of individuals are heard and their rights respected, and that potentially vulnerable groups, including children and young people, do not go without important advocacy protections.

Moreover, the Bill provides an additional enhanced mechanism for ensuring that the most vulnerable mental health patients, those compulsorily detained under the Mental Health Act, are able to benefit from advocacy. We are introducing an opt-out system for that particular cohort, to put the onus on hospital managers rather than patients themselves to request independent mental health advocacy services. Hospital managers must notify providers of advocacy services about the patients who are eligible for IMH advocacy. Advocacy providers must then arrange for independent mental health advocates to interview those patients to find out whether they want to use their services.

The right to an independent mental health advocate will also be expanded to include part III patients who are subject to the new supervised discharge, which allows for part III patients to be conditionally discharged into the community and still deprived of their liberty. The Bill also enables independent mental health advocates to provide extra help to patients to have a greater say in their treatment or to make a complaint. Together, these changes increase the access that patients have to advocacy, which contributes to improved patient rights.

I will next address amendment 19. We appreciate that people under 18 are a vulnerable group who would benefit from advocacy representation. For this reason, the Bill extends the right to an independent mental health advocate to informal patients, including under-18s, who are often admitted on a voluntary basis. We are introducing a duty on hospital managers to inform them of this right. That means that hospital managers will be expected to proactively approach all children and young people, and others, such as their parents or carers, to make sure they know that they are entitled to an advocate and help them to appoint one.

We will make it clear in the code of practice how independent mental health advocates should support children and young people with their particular needs. However, we think it is right that detained patients, including under-18s—rather than informal patients—receive advocacy on an opt-out basis. This is because they are subject to greater restrictions, meaning that it is even more important that they are supported to exercise their rights.

Finally, I will address Government amendments 42 and 43. Schedule 3 introduces the concept of “English qualifying informal patients”, who, for the first time in England, will be eligible for independent mental health advocacy services. We are amending this measure to change the definition of both English and Welsh qualifying informal patients. Amendments 42 and 43 are minor amendments to address a technical issue with the legislation. There is case law saying that the term “informal patient” would cover anyone there on a voluntary basis and not subject to any compulsory legislative framework. However, as currently drafted, the Bill’s definition is wider, defining an informal patient in England or Wales as an in-patient in hospital who is receiving assessment or treatment for a mental disorder at the hospital but not subject to the Mental Health Act. A person deprived of their liberty under any other legislation such as the Mental Capacity Act 2005 or under a court order would therefore be classed as an “informal patient”, which would be incorrect, as people who are detained cannot, under case law, be informal patients.

That would lead to complications in practice. A patient subject to the deprivation of liberty safeguards would be eligible for independent mental health advocacy as well as independent mental capacity advocacy. However, an independent mental health advocate cannot provide any help or support in relation to the Mental Capacity Act. The amendments address that issue by changing the definitions of “English qualifying informal patient” and “Welsh qualifying informal patient”, to be an in-patient receiving assessment or treatment for a mental disorder who is not detained under any other legislation or court order.

For those reasons, I hope that the hon. Member for Winchester is satisfied not to press his amendment, and I commend Government amendments 42 and 43, clause 41 and schedule 3 to the Committee.

[Aphra Brandreth]

I rise to speak to clause 41, which brings into sharper focus two pillars of a fair and rights-based mental health system: the provision of clear information to patients and the strengthening of independent mental health advocacy. It rightly recognises that, when a person is detained under the Mental Health Act 1983, often during a period of acute crisis and difficulty in their life, they need to feel that their clinical needs are being met, but in a way that respects them as individuals, with the same entitlements to dignity and agency as any other member of our society.

The clause provides for informal patients to be eligible for an independent mental health advocate. I welcome the extension to enable more individuals to access this vital advocacy. It empowers patients to know that independent advocacy is available, but we must ensure that there are sufficient resources so that those who choose this help are given sufficient support when they are in a potentially vulnerable position. As someone representing a constituency that is in England but borders Wales, I also welcome that these changes bring care into line so that advocacy help is offered to informal patients, regardless of which side of the border they are accessing treatment.

The clause places a renewed duty on services to ensure that information is given to patients clearly, promptly and in a form that they can understand. It introduces an obligation for advocacy providers to determine, through an interview, whether a qualifying patient wishes to use the service. This support is important; no person should be expected to navigate the complexities of mental health legislation, or their rights under it, without proper guidance. However, where there is a duty

“on hospital managers and others to notify providers of advocacy services about qualifying patients”,

can the Minister clarify who is meant by “others”? Will there be a list of people and roles who are given this responsibility?

The role of an independent mental health advocate is vital. These individuals can be a lifeline. They can help people to understand their rights and any medical treatment, and crucially, can support an individual to have their say about any treatment. Clause 41 rightly reinforces the importance of independent mental health advocates, and it is important that we match that ambition with the legal and practical steps to support them.

It is entirely right that we welcome the recognition of the role of independent mental health advocates, who serve a vital function in ensuring that patients’ voices are heard and their views represented, especially when navigating what can be an incredibly complex legal and clinical environment. Their independence is fundamental to not only their effectiveness but the confidence that patients and families can place in the system, which brings me back to my point. It is therefore important that we support independent mental health advocates with the resources that they need to do their job effectively.

If we are to rely further on advocates, we need to ensure that they are in a position to deal with that, so that we do not create statutory entitlements that are difficult to act upon. Actions, as well as words, are needed. At present, many areas already struggle with advocacy coverage. If we now place additional expectations on the service, and I believe that we will through this provision, we must ensure that there are sufficient numbers of trained, experienced independent mental health advocates across the country to meet rising demand. Can the Minister reassure the Committee that the necessary people with the skills and training are available to fulfil this expanded role?

We must also consider the patients’ experience, as has been the focus of so many of the remarks made in the Committee today. Again, I emphasise the vulnerability of patients at times of crisis. If we are to tell patients that support in the form of an advocate is there for them, we need to ensure that it is accessible and easy to reach and understand. Clause 41 moves us in the right direction, but implementation is everything. It must be backed by local accountability, adequate funding and clear operational guidance. This includes ensuring that all patients, regardless of background, language or capacity, are given support that is appropriate and effective.

It is vital to consider the wider implications of this clause. The reinforcement of the independent mental health advocate’s involvement should be mirrored by greater investment in advocacy services, stronger integration with care planning and more regular engagement with patients themselves on how these services work in practice. In our earlier discussions, my hon. Friend the Member for Farnham and Bordon suggested that we use trials, which could also be considered here to ensure that, as changes are brought in, they are matched by appropriate service levels.

I am largely supportive of clause 41, which I think moves us in the right direction towards a transparent mental health system that is there for patients, ensuring that they have a voice and are not an afterthought. As long as it is deliverable in practice, and does not give false hope to patients, the clause strengthens the Bill.

--- Later in debate ---

[Dr Evans]

The hon. Gentleman identifies exactly what the point of an IMHA is. The way the Bill is written, the IMHA determines whether a patient has capacity or competence to make a decision. That determining means that they are making the choice, which is quasi-clinical. According to the definition that the hon. Gentleman has just given, that would fall out of the IMHA’s scope, because that would involve the ability to make decisions about capacity.

My concern is whether we have scope creep here. If so, we should be explicit about it—perhaps it is something we want to consider—but the way it is written, IMHAs will make capacity-based decisions about whether a person has the capacity to decide whether they need help. I would argue that that should be done by someone who is qualified as a doctor, a psychiatrist or community psychiatric nurse, as currently happens. That is the clarification that I am looking for from the Government. If I have the wrong end of the stick, I will happily back down, but this area of the Bill needs clarifying.

To that end, and if the Bill is written as I fear, I would welcome it if the Minister can tell us how IMHA providers will be supported to make best interest decisions appropriately, especially in cases involving fluctuating capacity or complex presentations. Will there be clinical oversight or statutory guidance to avoid inconsistency or overreach in these assessments? Although I support the principle of proactively offering advocacy, we must ensure that the decisions made on a person’s behalf are done with the appropriate checks and accountability, and by the right people.

My third point is about the exclusion of emergency section patients. The welcome change in the clause and the schedule expands the pool of support, but we should also pay attention to those who are, by definition, excluded. Paragraph 317 of the explanatory notes make it clear that individuals detained under sections 4, 5, 135 and 136 will not benefit from IMHA support. Those are often people detained in crisis situations, sometimes in police custody, or brought in under emergency powers.

For completeness, will the Minister clarify why that group is being left out, given their heightened vulnerability and the likelihood of distress or disorientation? Are the Government satisfied that patients under these emergency powers are receiving adequate information and support at the most critical moments of intervention? Is there a mechanism to support the nominated person if the patient does not have capacity, so that the nominated person receives the information they need to make a fully informed decision? If the answer is that the duration of detention is too short to justify IMHA involvement, I ask the Minister: how short is too short when a person’s liberty and medical autonomy are in question?

It may be that Government amendments 42 and 43 address some of those points, so I will return to this in a second before moving on to my fourth point. In terms of information sharing and patient autonomy, I welcome the retention of the duty to inform patients, especially informal patients, of their right to advocacy, and for that provision to be given both orally and in writing. However, I note that the responsible person must also—except where the patient requests otherwise—be provided with written information to the nominated person. What safeguards are in place to ensure that that does not inadvertently breach the patient’s privacy, such as in situations involving estranged family members, controlling relationships or very personal health issues, which could be disclosed but are not relevant to mental health? It is essential that the nominated person framework enhances advocacy and support and does not undermine the person’s right to control who knows about their care.

Finally, I would welcome clarity from the Minister about how the uptake and impact of expanding the IMHA system will be monitored. Will there be reporting requirements on providers? If so, will that be through the integrated care boards, or is that part of the CQC? Will patients have the opportunity to feed back on the effectiveness of the support they receive?

Before I turn to the amendments, I reiterate that the Opposition support the principle of strengthening advocacy in mental health services. Clause 41 is an important step towards a more rights-based and person-centred system, but the detail of the implementation is key.

I note that proposed Government amendments 42 and 43 to schedule 3 specifically change the definition of “English qualifying informal patient” and “Welsh qualifying informal patient” to exclude patients detained under any

“legislation or by virtue of a court order”,

rather than limiting exclusion to those detained solely under the Mental Health Act. That important clarification partly improves on one of the problems I mentioned when discussing clause 41.

In simple terms, those amendments try to address the issue of clarity and coverage for patients detained under other laws, and I believe that this is how they do that. Originally, the Bill excluded only patients detained under the Mental Health Act from being classified as informal patients eligible for IMHA services, but some patients might be detained under other laws or court orders, such as criminal justice laws, which the original wording did not cover. The amendments change the definition to exclude anyone detained under any legislation or by a court, not just the Mental Health Act. In practice, this means that patients detained under other laws will not mistakenly be considered informal patients eligible for IMHA services under this part of the Bill.

The proposals close a gap so that the right groups get advocacy services, and there is less confusion for hospitals and advocates about who qualifies. In essence, by broadening and bettering the definition and defining the exclusion, this will ensure that patients detained under other legislation, such as the Criminal Justice Act, or other court-mandated detention powers, are not mistakenly classified as informal patients eligible for IMHA services under those provisions. That reflects a more comprehensive and legally coherent approach to defining eligibility.

This clarity is welcome, as it reduces potential ambiguity in respect of providers. That said, will the Minister comment further on how these changes will interact with existing IMHA provisions or advocacy entitlements for those detained under other legislation? Are there parallel safeguards or advocacy rights for those groups? What guidance will be provided to practitioners and IMHA providers to navigate the complexities of overlapping detention regimes, especially when a patient’s status might shift rapidly between voluntary Mental Health Act detention and court orders? Will this amendment necessitate any further changes in regulations or operational policies to ensure smooth implementation and clarity for patients, families and service providers? Ensuring that no patient falls through the cracks due to definitional nuances is crucial for integrity in our mental health advocacy services.

Finally, Lib Dem amendment 19 would insert after “patient”, in schedule 3, page 91, line 13,

“or English qualifying informal patient under 18”.

As the hon. Member for Hertford and Stortford and Opposition Members rightly pointed out, it is quite hard to see why the Government would not want to put that in place. The explanatory statement says that it aims to extend

“the provision of opt-out advocacy services in England to informal inpatients under 18.”

It seems clear in what it does and is a well-defined amendment to that end. I am keen to understand why the Government do not want to support it. Do they believe that this is currently balanced elsewhere in the system? Are there already provisions elsewhere? If not, why—if it is good for adults and we are strengthening their opportunities—should it not be the same for our children?

I will finish on that point. I would be grateful for answers on the clause, the schedule, the Government amendments and the Lib Dem amendment.

[Stephen Kinnock]

The hon. Member for Chester South and Eddisbury asked who can make referrals in addition to hospital managers. The list of responsible persons is in proposed new section 130CC, in paragraph 6 of schedule 3. In addition to hospital managers, the responsible local social services authority is also required to notify providers of advocacy services about qualifying patients; whether it is a matter for the hospital or the local authority depends on the patient.

I was asked whether there are enough people to fulfil the tasks of the IMHA. The impact assessment gives our current best estimate of likely workforce and funding requirements and sets out the expected expansion required for each workforce group. We will recruit approximately 330 additional IMHAs.

[Aphra Brandreth]

Does the Minister have any more detail on that? Is there a timeframe for recruiting these advocates and putting the training in place? That would help reassure the Committee that there is provision to ensure that the timing will fit with the introduction of the changes in the Bill.

[Stephen Kinnock]

As has been discussed, as soon as the Bill gets Royal Assent we will launch an extensive consultation around the code of practice. The code of practice will cover everything from training to recruitment to capacity building, and the plan will be set out in the first annual written ministerial statement, which will take place one year after the Bill receives Royal Assent.

My hon. Friend the Member for Hertford and Stortford asked about children admitted informally. We are introducing a duty on hospital managers to inform informal patients of their right to a mental health advocate. We will set out the importance of independent mental health advocate representation for children and young people in the code of practice. That could include the importance of a proactive approach for hospital managers.

We will also describe in the code the new role for independent mental health advocates in relation to informal patients, including vulnerable in-patient groups, such as children and young people, people from ethnic minority backgrounds and people with a learning disability or autism.

The hon. Member for Farnham and Bordon asked whether we have the money for it. The funding requirements will, I think, be related to our best estimate of likely workforce and funding requirements. If we are going for 330 additional IMHAs, the funding requirements will be defined by that number.

The shadow Minister, the hon. Member for Hinckley and Bosworth, asked whether it will be local authority funding. We are obliged to fund new burdens on local authorities to resource this expansion of the independent mental health advocates. He then asked a blizzard of additional questions; I got lost in the thread of them all. We will go through Hansard and write to him.

[Dr Evans]

Will the Minister give way on that point?

[Stephen Kinnock]

No, I have finished.

Question put and agreed to.

Clause 41 accordingly ordered to stand part of the Bill.

Schedule 3

Independent mental health advocates

[The Chair]

Does the hon. Member for Winchester wish to press amendment 19?

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss clauses 43 and 44 stand part.

[Stephen Kinnock]

The clauses will amend section 132 of the Mental Health Act in relation to detained patients, and section 132A in relation to community patients, and insert a new provision in relation to conditionally discharged patients. They place a statutory duty on hospital managers to supply complaints information to detained patients, community patients and conditionally discharged respectively, as well as to their nominated person.

Patients, their family and carers have a right to complain about the treatment they receive, including care and treatment under the Mental Health Act. The patient’s rights to complain are enshrined in the NHS constitution. Although the code of practice currently sets out that information about complaints should be provided to patients when they are detained, there is no statutory duty to do so. Under the clauses, hospital managers will be required to provide information on how to make a complaint about: first, functions under the Bill; secondly, any medical treatment for mental disorder received during their detention; and thirdly, the outcome of any complaint about medical treatment. That includes providing information about how to make a complaint to the Parliamentary and Health Service Ombudsman about the mismanagement of complaints about medical treatment, where the person believes their complaint to another body—for instance the hospital or CQC—was not appropriately investigated.

Hospital managers must take practicable steps to ensure that patients have understood complaints procedures, and information about complaints must be provided both verbally and in writing. The duty requires that information must be provided as soon as practicable after the patient is first detained, when the section that they are detained under changes, when the detention is renewed, or every 12 months for restricted patients under part III of the 1983 Act. For community patients, a duty is triggered as soon as it is practical after being placed on a community treatment order and as soon as practical each time the community treatment order is renewed. For conditionally discharged patients, it is triggered as soon as practicable after being conditionally discharged. I commend clauses 42 to 44 to the Committee.

[Gregory Stafford]

I rise to speak in favour of clauses 42, 43 and 44, which together strengthen the duty to inform patients—whether detained in the community or conditionally discharged—about how to make a complaint about their treatment and the outcome of that complaint. The Mental Health Act has long included duties to tell patients their rights, but too often that information has been patchy, hard to understand or buried in paperwork. The clauses tackle that by requiring clear, repeated information about not just detention, but treatment and the complaints process.

Clause 42 relates to information about complaints for detained patients. Section 132 of the Mental Health Act 1983 originally required hospitals to inform detained patients of their rights, but that was often inconsistently applied. This clause responds to long-standing concerns about transparency and patient empowerment, aligning with the broader goals of the Bill to enhance autonomy and dignity in mental health care. Specifically, there is an expanded duty of information. Hospital managers must now ensure that detained patients understand how to make complaints, not only about their detention, but about their treatment, along with the outcomes of any complaints.

There are some timing requirements, i.e. that the information must be provided as soon as practicable after detention begins and be repeated annually for restricted patients, or after each section 20 report for others. That will improve patient’s awareness of their rights and how to seek redress. It will promote accountability and mental health services by encouraging feedback and complaints, and support better outcomes by addressing grievances early and constructively.