Mental Health Bill [ Lords ] (Fifth sitting)

Stephen Kinnock Excerpts

Committee stage
Tuesday 17th June 2025 Public Bill Committees

[The Chair]

With this it will be convenient to discuss the following:

Clause 23 stand part.

New clause 4—General duty to secure sufficient resources for services in the community—

“(1) It is the general duty of integrated care boards to ensure, insofar as is reasonably practical, that services in the community responsible for delivering care, treatment, or detention provisions under the Mental Health Act 1983 and this Act have the necessary resources, including financial support, to meet service demands.

(2) Additional forms of resource may be determined by integrated care boards in consultation with relevant local authorities or health care service providers and may include—

(a) sufficient numbers of trained medical professionals;

(b) purpose-built facilities for patient care;

(c) community services responsible for out-patient care.

(3) Each Integrated Care Board must conduct an assessment of its resources every two years to evaluate its ability to deliver services in the community effectively.

(4) Each Integrated Care Board must publish a report outlining its findings upon completing the assessment in subsection (3). The first reports must be published within one year of the passage of this Act.”

This new clause places a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand on services to ensure that the provisions of the Bill function as intended and to assess and report on this every 2 years.

[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairmanship, Sir Desmond. I will discuss a number of issues concerning community treatment orders and ensuring sufficient resources for community-based care.

Clause 22 will add the community clinician as a third key decision maker for community treatment orders, alongside the responsible clinician and approved mental health professional, ensuring additional professional oversight. Involving the community clinician in the initial request for a community treatment order will improve the planning and implementation of community treatment orders by ensuring good communication between ward and community doctors, aiding continuity of care. It should also help to prevent the inappropriate use of community treatment orders, for instance to free up beds where there are pressures on acute wards.

Making sure that only those who need to be on a community treatment order will be put on one supports the principles behind the reform of the Mental Health Act 1983, including the principles of least restriction, of therapeutic benefit and of treating the person as an individual. It should also positively impact the racial disparities that have been seen in the use of community treatment orders. The community clinician’s opinion is important when a patient is under a CTO, because the clinician may have a better understanding of the patient’s progress, including how well the patient is engaging with their treatment while in the community. Their insights are valuable in deciding whether the patient should be discharged to a community treatment order or recalled to the hospital if their symptoms worsen. Those who are supporting the patient in the community should be a part of the decision of whether the restrictions of the CTO are still required.

I turn to clause 23. In addition to reducing the number of people placed on CTOs, as has been referred to in relation to clauses 6 and 22, we aim to provide greater protection to those subject to them. CTOs extend the coercive powers of the Mental Health Act into people’s lives beyond hospital. CTOs should be used only when necessary, with conditions tailored to the individual rather than applying blanket restrictions. Currently, some CTO conditions display an overreach of power, such as requiring abstinence from alcohol even if this is unrelated to the person’s mental health condition. The clause will remove the ability of the responsible clinician to apply conditions to a person’s community treatment order which are appropriate but not necessary, giving a higher threshold for conditions to be set.

The clause will allow the mental health tribunal to recommend that the responsible clinician reconsider the necessity of conditions specified in a CTO if the tribunal determines that the patient is not yet suitable for discharge. For example, while not set out in the Bill, the tribunal may use this power if it finds the conditions imposed in a CTO to be possibly disproportionate, overly restrictive, lacking clinical benefit or not treating the person as an individual.

New clause 4 would place a general duty on integrated care boards in England to ensure that community services have the necessary resources to meet demand, and to report on this every two years. This duty to commission local services based on local need is already placed upon integrated care boards by the National Health Service Act 2006, as amended by the Health and Care Act 2022. An integrated care board must arrange for the provision of services as it considers necessary to meet the reasonable requirements of the people for whom it is responsible. Integrated care boards and their mental health trusts are required to prepare a joint forward plan that describes how the ICB will arrange for NHS services to meet their population’s physical and mental health needs. For that reason, we do not think the new clause is necessary, and it could place a disproportionate burden on ICBs and mental health providers. I therefore hope that the hon. Member for Winchester will be satisfied not to press it. I commend clauses 22 and 23 to the Committee.

--- Later in debate ---

[Dr Evans]

The hon. Member rightly talks about resources and about the cuts as a proportion—although small, it is a cut in NHS spending. The last Conservative Government brought in the mental health investment standard to try to ensure parity between physical health and mental health in investment so that, regardless of how big the pot was, mental health was prioritised. Does the hon. Member agree that there is a concern that that could be slipping under this Government? Does he agree that that needs to be addressed in the context of the community provision that we are discussing?

[Stephen Kinnock]

Where is the evidence for that?

[Dr Chambers]

Would the Minister like to intervene?

[Stephen Kinnock]

No, thank you. I am chuntering from a sedentary position.

--- Later in debate ---

[Gregory Stafford]

I rise to speak to clauses 22 and 23 and to Liberal Democrat new clause 4.

As my hon. Friend the Member for Hinckley and Bosworth said, the Opposition support clauses 22 and 23 generally. Clause 22 addresses the concern that community clinicians—essentially, those responsible for overseeing a patient’s care outside hospital—have historically had limited formal input into decisions about community treatment orders, even though they are central to the patient’s ongoing care. It ensures that community clinicians not only are consulted but, in some cases, must provide written agreement before key decisions are made. It aims to improve continuity of care, ensure decisions reflect the realities of community-based treatment, and reduce inappropriate and poorly co-ordinated use of CTOs.

The benefits of the clause are obvious, but they are worth restating. Clearly, it improves the continuity of care and ensures that clinicians with direct knowledge of the patient’s community care are involved in those key decisions. It enhances safeguards, adding an additional layer of professional oversight before coercive measures are imposed or suggested. It promotes collaboration by encouraging joint decision making between the hospital-based and community-based clinicians, and it reduces the risk of inappropriate CTOs by ensuring they are used only when genuinely appropriate and supported by those delivering care.

However, I ask the Minister to touch on three points. First, requiring a written agreement or consultation could delay urgent decisions if not managed efficiently, so will he explain how, under the clause, any potential delay—a disagreement or just administrative inertia—can be removed to ensure treatment is not delayed?

That moves me on to the administrative burden. Clearly, the clause adds a level of complexity and requires more documentation and co-ordination. Although I understand that that is a necessary outcome, I would again be grateful for the Minister’s thoughts on how to ensure effective and speedy implementation.

As my hon. Friend the Member for Hinckley and Bosworth said, the ambiguity in the roles of the two clinicians may create confusion or disputes over responsibilities if they are not clearly defined or agreed. My reading of the clause is that there is no such clear definition; will the Minister look to provide one through other agencies, or will he put something into the clause in Committee or later in the Bill’s proceedings?

Clause 23, on the conditions of community treatment orders, addresses the concerns that the threshold for imposing conditions on community treatment orders has been too low, allowing conditions that may be clinically unnecessary or overly restrictive. By removing the “appropriate” test, the clause will tighten the legal standard to ensure that only necessary conditions are imposed.

Additionally, the clause will empower tribunals to play a more active role in scrutinising CTO conditions by allowing them to recommend that clinicians review specific conditions, even if the patient is not discharged. This reflects the Bill’s broader aim of enhancing patient rights and removing unnecessary restrictions.

The clause is a welcome addition. It will ensure that CTO conditions are imposed only when strictly necessary, meaning that there are stronger safeguards, and it will enhance the role of tribunals in protecting patient rights without requiring full discharge. It will reduce clinical overreach by preventing the use of overly broad or vague conditions that may not be clinically justified.

However, as with the previous clause, I have some questions. First, the tribunal power is limited in that it can only recommend, not require, the reconsideration of conditions. Is that the intention, or will the Minister strengthen the clause at some point to ensure that the tribunal can require a reconsideration of conditions? If he will not, what issues does he see arising from there not being a reconsideration?

Secondly, as I mentioned in my intervention on my hon. Friend the Member for Hinckley and Bosworth, I have a concern about the potential ambiguity in the shift from “appropriate” to “necessary” leading to uncertainty or dispute over interpretation. As we touched on in relation to other clauses, clinicians will need additional guidance or training to apply the revised standard consistently. Where will that revised training and guidance be located, and what is the timeframe for its implementation? We need to ensure that all clinicians are fully trained and ready to use this new power.

I will briefly touch on new clause 4, tabled by the Liberal Democrats, because although I understand that the hon. Member for Winchester may not press it, somebody else might. It would place a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand such that the provisions of the Bill function as intended, and to assess and report on this every two years. As my hon. Friend the Member for Hinckley and Bosworth mentioned, the Opposition generally support the overall aims of the new clause, but as ever, there are some issues with the detail, so I have five questions for the hon. Member for Winchester if he responds, or for the Minister to answer in his summing up.

First, if we imposed a statutory duty on ICBs to ensure sufficient resources for the CTOs, what mechanisms would there be to monitor and enforce compliance? Secondly, what would be the consequences if an ICB failed to meet this duty? Would there be formal accountability or a sanction process? Thirdly, how would the duty interact with existing NHS budgetary constraints and competing priorities? Would it become a statutory obligation with no clear means of redress if unmet? Fourthly, could the duty set a precedent whereby Parliament mandates resource guarantees without providing additional central funding? Finally, what constitutes “sufficient” resources in the context of the CTOs? Who defines that standard, and it is defined locally or nationally?

[Stephen Kinnock]

The term “unreasonable delay” is subject to review by the courts, and further guidance will be given in the code of practice. On what happens if the responsible clinician and the community clinician disagree, the addition of a third decision maker is not about overruling the responsible clinician, who continues to have overall responsibility for the patient on the community treatment order. Including the community clinician at the point of putting someone on a community treatment order helps to ensure continuity of care for the patient. Involving the community clinician in other decisions around the community treatment order, particularly recall, revocation, renewal and discharge, means they can provide an additional insight into the patient’s status while in the community.

[Dr Evans]

I am grateful for the clarification. Does it mean that, in essence, there will be a hierarchy, so the responsible clinician is above the community clinician and trumps them? If a community treatment order cannot be signed off, it does not exist. I want to explore that angle; is that what the Minister is suggesting?

[Stephen Kinnock]

Yes, the responsible clinician has primacy.

On the workforce impact, our impact assessment, which was published alongside the Bill, sets out the additional hours of required clinician activity. We will invest in implementing these reforms.

On the meaning of the word “necessary”, we will provide further guidance in the code of practice to provide for a range of scenarios to help to clarify necessary conditions, as well as to clarify that failure to meet those conditions should not always result in recall to hospital.

On the requirement for a responsible clinician to respond to recommendations, we considered giving the tribunal the power to change or remove conditions on a person’s community treatment order. However, the outcome of our stakeholder engagement was that tribunal colleagues did not consider that it was appropriate for them to make clinical judgments, for example whether a condition is of clinical benefit. Providing the power to recommend that the responsible clinician reconsiders the conditions allows the tribunal to provide additional scrutiny but also allows for clinical discretion in decision making.

The hon. Member for Farnham and Bordon asked about training. The training plan will be in the first written ministerial statement.

On where the terms are defined, clause 10 defines responsible clinician and clause 22 defines community clinician. We will define the distinction between the roles in the code of practice.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23 ordered to stand part of the Bill.

Clause 24

Nominated person

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

[The Chair]

With this it will be convenient to discuss the following:

Amendment 54 to 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.”

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

Amendment 55 to schedule 2, page 80, line 13, after “2(2))” insert

“, has parental responsibility for the patient (see paragraph 2(3))”.

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

Government amendments 40 and 41.

Schedule 2.

Clauses 25 to 28 stand part.

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[Stephen Kinnock]

I will discuss a number of issues concerning the topic of the nominated person, one of the Bill’s key reforms. I will first address clause 24 and schedule 2, which seek to replace the current nearest relative provisions with the nominated person, chosen by the patient, who can protect their rights when they are detained. The independent review found the nearest relative provision to be outdated and inappropriate. It allocates someone based on a hierarchical list, which does not reflect modern families and could result in someone unfamiliar or potentially risky to the patient being given the role.

 We have ensured that appropriate safeguards are in place to protect patients as well as to enable choice. A health or social care professional or an advocate must witness the nomination and confirm in writing that the nominee meets the criteria and that no undue pressure has been put on the patient. Children and young people with the relevant capacity or competence can choose their own nominated person. We expect this will be their parent or guardian, but sometimes a step-parent or other relative over 18, without parental responsibility, may be more suitable to protect a patient’s rights. Safeguards will be put in place to support children in making this choice.

If a patient of any age lacks capacity or competence to make a nomination, an approved mental health professional will appoint a nominated person on their behalf. For children under 16, this will be someone with parental responsibility, including the local authority if the child is subject to a care order. This appointment is temporary until the patient has capacity or competence to make their own appointment.

For all patients, the responsible clinician or approved mental health professional can temporarily overrule the use of a particular nominated person’s power, for example to discharge the patient, if the patient is likely to act in a manner that is dangerous to themselves or others. A nominated person can be removed by the county court if deemed unsuitable—for example, if they misuse their powers or neglect the patient’s welfare or the public interest. Anyone with an interest in the patient’s welfare, such as their parents, can apply to the court. The Bill extends the nominated person safeguard to some restricted part III patients, but their nominated person’s powers will be limited, as appropriate, in the interests of public safety and criminal justice.

Amendments 54 and 55 would require nominated persons for patients under 16 to have parental responsibility for the child, whether chosen by the child or appointed for them. The Bill currently requires this if the child lacks competence to appoint their own nominated person. However, where a child has competence to decide, we think it is right that they can choose the person to represent their interests. That view was supported by the majority of respondents to the White Paper consultation on reform of the Mental Health Act, and it is in keeping with the principles of choice, autonomy and treating the person as an individual.

Like the current “nearest relative” provision, which the nominated person will replace, the amendments do not take into account the greater diversity of modern family structures—for example, where a step-parent may play a vital role in a young person’s life but does not have formal parental responsibility. Our engagement with children and young people during the development of the Bill suggests that the vast majority will appoint a parent as their nominated person. However, we think having choice is important to prevent children from having to have a nominated person who may not engage with the role or act in accordance with their best interests, just because they have formal parental responsibility.

Where children have competence to choose their own nominated person, a health or social care professional, or advocate, will be required to witness the nomination and confirm in writing that the nominated person is over 18 and suitable to take up the position. Regardless of nominated person status, parents should be involved in a child’s care and treatment, and they will retain their legal rights under parental responsibility. 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.

Government amendments 40 and 41 will remove paragraph 11(3) to 11(5) of schedule 2 from the Bill, as it is unnecessary to specify in legislation which person with parental responsibility the approved mental health professional must appoint as nominated person for an under 16-year-old. A prescriptive list of who an approved mental health professional must appoint for a child under 16 may prevent a more suitable adult from being chosen as the nominated person. The Bill states that for under-16-year-olds lacking competence, an approved mental health professional must appoint a parent, or whoever has parental responsibility, to be the child’s nominated person. This would include consideration of special guardians and child arrangement orders.

The Government do not agree that a person with residual parental responsibility should always be blocked from being a nominated person, as the child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child. For example, the parent might struggle with their own health issues, but that does not necessarily mean that they would not be an effective nominated person. The situation is different in the case of a care order because the local authority is being given lead parental responsibility. We have engaged with the Children’s Commissioner on that point.

If there is no suitable person with parental responsibility willing to act, the approved mental health professional must take into account the patient’s past and present wishes and feelings, so far as reasonably ascertainable, when deciding who to appoint. We will establish an expert taskforce to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process for children and young people.

Clause 25 will require the approved mental health professional to consult the nominated person before they make an application for admission for treatment or guardianship. This is an existing right for the nearest relative. However, currently if the nearest relative exercises one of their powers, such as the ability to block admission, but the professional believes their objection is unreasonable, the only means of overruling them is to remove or displace them as the nearest relative. This can leave patients without someone to represent their interests during detention.

Clause 25 will allow the approved mental health professional to make use of the existing barring order to temporarily overrule the nominated person, if the patient would be likely to act in a manner dangerous to other persons or themselves if their admission was blocked. This is a well-established process. Although the nominated person can continue to represent the patient in other ways, they can still be displaced by the court from the role entirely if their actions indicate they are unsuitable for the role—for example, if they are repeatedly objecting to admission without considering the welfare of the patient or the interests of the public. Approved mental health professionals can continue to use that process.

Clause 26 will transfer the nearest relative provisions relating to the power to order discharge of a patient to the new nominated person role. The power can be temporarily overruled by a responsible clinician if they think that the patient’s discharge would result in danger to themselves or others. It is a well-established process that allows for clinical discretion, but means that the nominated person can continue to represent the patient’s rights in other ways. Clause 26 also reduces from six months to three months the time period during which the nominated person cannot make another order for discharge. That reflects the changes in detention periods under clause 29.

Clause 27 will give the nominated person a new power to object to the use of a community treatment order. We also recognise, however, the importance of protecting patients and the public, so if the responsible clinician is concerned that without a community treatment order, there would be a risk of danger to the patient or others, they can overrule the nominated person’s objection. Those changes will help both to reduce the number of inappropriate community treatment orders and to ensure that safeguards are in place for patient safety and public protection.

Finally, clause 28 provides that before deciding to transfer a patient, the person responsible for taking that decision must consult the patient’s nominated person, unless consultation is not reasonably practicable or would involve unreasonable delay. The nominated person will not be able to object to a transfer, because there may be good reasons for transferring a patient—for example, if a different trust can provide better care, such as a specialist eating disorder unit. Consulting the nominated person, however, means that they are aware of the reasons for transfer and how it will benefit the patient. That will help the nominated person to remain actively involved in protecting patients’ rights and kept informed about a patient’s care and treatment.

[Dr Evans]

I welcome the chance to contribute to the debate on clauses 24 to 28. I will then turn to Government amendments 40 and 41 and to amendments 54 and 55, tabled by my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer).

Clauses 24 to 28 represent a significant reform to the Mental Health Act 1983. They seek a shift from the traditional concept of a nearest relative to giving patients more control by allowing them to nominate a person to act on their behalf. Clause 24 is the cornerstone of the reform, establishing the role of a nominated person as the patient’s chosen individual to take over certain rights and responsibilities previously held by the nearest relative. It represents a fundamental change from a fixed family-based system to one centred on patient choice and autonomy.

Currently, the nearest relative, often by blood relation, holds a range of statutory powers under the Mental Health Act, regardless of the quality of their relationship with the patient. The clause will enable patients, especially adults, to nominate a trusted person—a family member, friend or advocate—who can act in their best interests. That is a progressive and patient-focused change relating to modern social realities, where family ties are complex and a biological relative is not always the best supporter.

Empowering patients to select their nominated person can enhance trust, improve communication and ultimately lead to better care outcomes. It does, however, raise pressing questions. For children and young people, particularly those aged 16 and 17, who gain legal capacity to nominate, what safeguards ensure that parental concerns and children’s welfare remain adequately considered? How will disputes between nominated persons and relatives, or between the nominated person and clinicians, be resolved? Part of that might be addressed in Government amendments 40 and 41, but I am keen to understand a little more. What training and oversight will ensure that nominated persons understand their duties and, importantly, their boundaries? Finally, for a patient who does not or cannot nominate someone, will the nearest relative still have a role, and how will that be managed?

Clause 25, on applications for admission or guardianship, builds on clause 24. It will require the approved mental health professional to consult the nominated person before making applications for admission or guardianship, except where consultation is not reasonably practicable or would cause unreasonable delay. It will also allow the nominated person to object to such applications, requiring a barring report from the approved mental health professional if an objection is made.

The clause will formalise the nominated person’s involvement at a critically early stage of the intervention, ensuring that their voice can influence decisions that deeply affect the patient. The power to object introduces an important check, though it is balanced by the professional’s ability to override objections on the grounds of safety. The Opposition agree with that, but there are still some questions. How will professionals navigate conflicts between their clinical judgment and objections by the nominated person? Will there be clear guidance to avoid delays that could jeopardise patients or public safety?