Mental Health Units (Use of Force) Bill (Third sitting)

Steve Reed Excerpts

Wednesday 25th April 2018 Public Bill Committees

[The Chair]

I welcome the Committee back to consideration of the Bill, and bring apologies from Ms Buck, who is unable to be here today. You will have to make do with the second division—namely, me. Last night, the House agreed a money resolution on the Bill, which is very good news. That enables us to resume the line-by-line consideration that was curtailed.

Clause 7

Recording of use of force

[Mr Steve Reed (Croydon North) (Lab/Co-op)]

I beg to move amendment 94, in clause 7, page 4, line 15, leave out subsection (1) and insert—

“(1) The responsible person for each mental health unit must keep a record of any use of force by staff who work in that unit in accordance with this section.”

This amendment replaces Clause 7(1) and inserts a revised duty on responsible persons to record the use of force in mental health units in accordance with that clause.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 88, in clause 7, page 4, line 15, at end insert—

“(1A) Subsection (1) does not apply in cases where the use of force is negligible.

(1B) Whether the use of force is ‘negligible’ for the purposes of subsection (1A) is to be determined in accordance with guidance published by the Secretary of State.

(1C) Section 6(1B) to (3B) apply to guidance published under this section as they apply to guidance published under section 6.”

This amendment would mean that the duty to record information regarding the use of force would not apply in cases where the use of force is negligible.

Amendment 37, in clause 7, page 4, line 16, leave out subsection (2).

This amendment removes the requirement for the Secretary of State to prescribe in regulations the information that must be recorded under Clause 7.

Amendment 38, in clause 7, page 4, line 18, leave out lines 18 and 19 and insert

“The record must include the following information—”.

This amendment is consequential on Amendment 37.

Amendment 39, in clause 7, page 4, line 19, at the end insert—

“( ) the reason for the use of force;”.

This amendment would require the responsible person to record the reason for a use of force.

Amendment 40, in clause 7, page 4, line 20, leave out “time” and insert “date”.

This amendment replaces the requirement to record the time of a use of force with a requirement to record the date of a use of force.

Amendment 41, in clause 7, page 4, line 21, leave out paragraph (b) and insert—

“(b) the type or types of force used on the patient;”.

This amendment clarifies that the responsible person should record the types of force used in cases where more than one type of force is used.

Amendment 89, in clause 7, page 4, line 21, at end insert—

“() whether the type or types of force used on the patient form part of the patient’s care plan;”.

The amendment inserts a requirement for responsible persons to record whether the force used on a patient formed part of the patient’s care plan.

Amendment 43, in clause 7, page 4, line 22, leave out “identity of the patient” and insert

“name of the patient on whom force was used”.

This amendment makes a drafting change to refer to “name” rather than “identity” in Clause 7(3)(c).

Amendment 44, in clause 7, page 4, line 22, at end insert—

“( ) a description of how force was used;”.

This amendment inserts a requirement for responsible persons to record how force was used. For example, if physical restraint was used, the responsible person would need to record what particular technique was used on the patient.

Amendment 45, in clause 7, page 4, line 22, at end insert—

“(ca) the patient’s consistent identifier;”.

This amendment inserts a requirement for responsible persons to record the patient’s consistent identifier, which the patient’s “NHS number”.

Amendment 46, in clause 7, page 4, line 23, leave out “identity” and insert “name”.

This amendment makes a drafting change to refer to “name” rather than “identity” in Clause 7(3)(d).

Amendment 90, in clause 7, page 4, line 23, leave out “those who restrained” and insert

“any member of staff who used force on”.

This amendment ensures consistency of language with the rest of Clause 7.

Amendment 48, in clause 7, page 4, line 24, leave out

“anyone not employed by the registered manager”

and insert

“any person who was not a member of staff in the mental health unit”.

This amendment makes a drafting change to clarify that the responsible person needs to record whether a person who was not a member of staff at the mental health unit was involved in a use force.

Amendment 49, in clause 7, page 4, line 26, leave out

“disorders or main mental disorder”

and insert “disorder (if known)”.

This amendment clarifies that the responsible person only needs to record a patient’s mental disorder if it is known. It also makes the language consistent with the Mental Health Act 1983.

Amendment 50, in clause 7, page 4, line 27, after “patient” insert “(if known)”.

This amendment clarifies that the responsible person only needs to record a patient’s relevant characteristic if they are known.

Amendment 51, in clause 7, page 4, line 28, leave out “had” and insert “has”.

This amendment is a drafting change so that Clause 7(3)(h) uses the present tense.

Amendment 52, in clause 7, page 4, line 28, leave out “autism” and insert “autistic spectrum disorders”.

This amendment ensures consistency with the Autism Act 2009 and the Code of Practice published under the Mental Health Act 1983.

Amendment 53, in clause 7, page 4, line 29, leave out paragraph (i).

This amendment leaves out the requirement to record whether any medication was administered during the use of force. This information should be recorded by virtue of Amendment 44.

Amendment 54, in clause 7, page 4, line 30, at end insert—

“( ) a description of the outcome of the use of force;”.

This amendment requires a responsible person to record a description of the outcome of a use of force.

Amendment 91, in clause 7, page 4, line 31, leave out paragraph (j) and insert—

“(j) whether the patient died or suffered any serious injury as a result of the use of force;”.

This amendment requires a responsible person to record whether a use of force resulted in a death or serious injury.

Amendment 56, in clause 7, page 4, line 35, leave out “all” and insert “any”.

This amendment makes a drafting change.

Amendment 57, in clause 7, page 4, line 35, leave out “restrain” and insert “use force on”.

This amendment ensures consistency of language with the rest of Clause 7.

Amendment 92, in clause 7, page 4, line 35, at end insert—

“() whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan;”.

This amendment requires a responsible person to record whether a notification regarding a use of force on the patient was sent in accordance with the patient’s care plan.

Amendment 59, in clause 7, page 4, line 36, leave out paragraph (l).

This amendment removes the requirement for a responsible person to record whether consent was given by the patient before force was used on the patient.

Amendment 61, in clause 7, page 4, line 38, leave out “an entry in”.

This amendment ensures consistency of language with Clause 7(1).

Amendment 62, in clause 7, page 4, line 38, leave out “at least 10” and insert “3”.

This amendment reduces the number of years that records must be kept under Clause 7 from 10 years to 3 years.

Amendment 64, in clause 7, page 4, line 39, leave out from “made” to end of line 42.

This amendment removes the requirement for records to be kept at a mental health unit.

Amendment 65, in clause 7, page 4, line 42, at end insert—

“( ) In subsection (3)(ca) the ‘patient’s consistent identifier’ means the consistent identifier specified under section 251A of the Health and Social Care Act 2012.”

This amendment is linked to Amendment 45 and defines “patient’s consistent identifier”.

Amendment 95, in clause 7, page 4, line 42, at end insert—

“( ) This section does not permit the responsible person to do anything which, but for this section, would be inconsistent with—

(a) any provision made by or under the Data Protection Act 1998, or

(b) a common law duty of care or confidence.”

This amendment clarifies that the responsible person’s duty to keep a record of any use of force on a patient and to retain that information is subject to the Data Protection Act 1998 and the common law duties of care and confidence.

Amendment 66, in clause 7, page 5, line 3, leave out paragraph (c).

This amendment removes a paragraph from the definition of “relevant characteristics” that deals with gender reassignment.

Amendment 67, in clause 7, page 5, line 6, leave out from “pregnant” to the end of line 7.

This amendment removes from the definition of “relevant characteristics” whether a patient has maternal responsibility for the care of a child.

Amendment 68, in clause 7, page 5, line 12, leave out subsection (6) and insert—

“( ) Expressions used in subsection (5) and Chapter 2 of Part 1 of the Equality Act 2010 have the same meaning in that subsection as in that Chapter.”

This amendment make a drafting change to ensure that the relevant characteristics in Clause 7 are interpreted by reference to the meaning of the protected characteristics in the Equality Act 2010.

Clause stand part.

[Mr Reed]

It is a pleasure to serve under your chairmanship, Mr Gray. I hope a few more of my colleagues will turn up before we get too far through this morning’s business. It is a pleasure to see everybody here, and I hope that we will make a little more progress this morning than we did last week. I am sure we will, thanks to the money resolution that was laid yesterday evening—I thank the Minister for ensuring that that could go ahead.

Clause 7 creates a new duty to keep a record of any use of force on a patient in a mental health unit. Currently, it is not possible to find out how or when force is used, or to compare one hospital with another regarding the way, and extent to which, they use force. Requiring mental health units to collect and record data in the same way will ensure transparency in our mental health services, meaning that if force is used disproportionately against particular groups, such as black, Asian and minority ethnic patients or women, we will have a mechanism to expose it and, if necessary, to prevent it, and to ensure that the services operate equally for everybody.

Most of the amendments are minor changes to ensure that we are recording information consistently. They are based on information collected in a local incident report, and are in keeping with the data protection principles. They also ensure that the relevant characteristics of the patient, such as age, gender and ethnicity, are recorded in line with the Equality Act 2010, ensuring consistency across the Government system. Further detail about information to be recorded will be set out in guidance under clause 6.

Amendment 88, which the Government were keen to include and I was happy to table, means that the duty to record information will not apply in cases where the use of force is negligible. Statutory guidance will set out the meaning of “negligible”, so it is important that that definition, provided by the Secretary of State, is right and defines the term very tightly. In some cases, the minor use of force, such as guiding a patient by the elbow, should clearly not need to be recorded, as that would create an unnecessary burden on professionals working in mental health units. However, I know that the Minister is aware of the need to avoid that becoming a loophole.

The guidance will be subject to consultation, and I know that advocacy groups, which have been providing so much support to us all as the Bill has progressed, have concerns that they want to raise. The consultation will allow them to do so formally, and I welcome that, because the Bill has so far proceeded on the basis of consensus. Indeed, that is the only way that it will succeed.

[The Parliamentary Under-Secretary of State for Health (Jackie Doyle-Price)]

It is a pleasure to serve under your chairmanship this morning, Mr Gray. As the hon. Gentleman explained, the clause and amendments will impose a duty on a responsible person to keep a record of any use of force by staff who work in the unit. The aim behind all the measures is to bring greater transparency to the use of force. Through transparency, we can ensure accountability. What is not to like about that?

I am grateful to the hon. Gentleman and to the interest groups to which he referred for the dialogue we have had to get this right. The list of information required, as amended by this group of amendments, is welcomed by the Government. It provides clarity and consistency, with positive and proactive care guidance. We know that there are currently limitations, and we believe that this proposal will make a material improvement for all concerned—patients and institutions alike.

The hon. Gentleman referred to guidance. I am aware of some of the concerns that have been raised by some lobbyists. I would reiterate what he said: we have embarked on taking this Bill forward with him in the spirit of constructive dialogue, and we hope to bring everyone with us. When the Bill becomes an Act—touch wood—and it is then implemented through guidance, it is very much our intention to take the development of that guidance through in the same spirit. We will involve all interested parties in drafting that guidance.

Amendment 94 agreed to.

Amendments made: 88, in clause 7, page 4, line 15, at end insert—

“(1A) Subsection (1) does not apply in cases where the use of force is negligible.

(1B) Whether the use of force is ‘negligible’ for the purposes of subsection (1A) is to be determined in accordance with guidance published by the Secretary of State.

(1C) Section 6(1B) to (3B) apply to guidance published under this section as they apply to guidance published under section 6.”.

This amendment would mean that the duty to record information regarding the use of force would not apply in cases where the use of force is negligible.

Amendment 37, in clause 7, page 4, line 16, leave out subsection (2).

This amendment removes the requirement for the Secretary of State to prescribe in regulations the information that must be recorded under Clause 7.

Amendment 38, in clause 7, page 4, line 18, leave out lines 18 and 19 and insert—

“The record must include the following information—”.

This amendment is consequential on Amendment 37.

Amendment 39, in clause 7, page 4, line 19, at the end insert—

“( ) the reason for the use of force;”.

This amendment would require the responsible person to record the reason for a use of force.

Amendment 40, in clause 7, page 4, line 20, leave out “time” and insert “date”.

This amendment replaces the requirement to record the time of a use of force with a requirement to record the date of a use of force.

Amendment 41, in clause 7, page 4, line 21, leave out paragraph (b) and insert—

“(b) the type or types of force used on the patient;”.

This amendment clarifies that the responsible person should record the types of force used in cases where more than one type of force is used.

Amendment 89, in clause 7, page 4, line 21, at end insert—

“() whether the type or types of force used on the patient form part of the patient’s care plan;”.

The amendment inserts a requirement for responsible persons to record whether the force used on a patient formed part of the patient’s care plan.

Amendment 43, in clause 7, page 4, line 22, leave out “identity of the patient” and insert—

“name of the patient on whom force was used”.

This amendment makes a drafting change to refer to “name” rather than “identity” in Clause 7(3)(c).

Amendment 44, in clause 7, page 4, line 22, at end insert—

“( ) a description of how force was used;”.

This amendment inserts a requirement for responsible persons to record how force was used. For example, if physical restraint was used, the responsible person would need to record what particular technique was used on the patient.

Amendment 45, in clause 7, page 4, line 22, at end insert—

“(ca) the patient’s consistent identifier;”.

This amendment inserts a requirement for responsible persons to record the patient’s consistent identifier, which the patient’s “NHS number”.

Amendment 46, in clause 7, page 4, line 23, leave out “identity” and insert “name”.

This amendment makes a drafting change to refer to “name” rather than “identity” in Clause 7(3)(d).

Amendment 90, in clause 7, page 4, line 23, leave out “those who restrained” and insert—

“any member of staff who used force on”.

This amendment ensures consistency of language with the rest of Clause 7.

Amendment 48, in clause 7, page 4, line 24, leave out—

“anyone not employed by the registered manager”

and insert—

“any person who was not a member of staff in the mental health unit”.

This amendment makes a drafting change to clarify that the responsible person needs to record whether a person who was not a member of staff at the mental health unit was involved in a use force.

Amendment 49, in clause 7, page 4, line 26, leave out—

“disorders or main mental disorder”

and insert “disorder (if known)”.

This amendment clarifies that the responsible person only needs to record a patient’s mental disorder if it is known. It also makes the language consistent with the Mental Health Act 1983.

Amendment 50, in clause 7, page 4, line 27, after “patient” insert “(if known)”.

This amendment clarifies that the responsible person only needs to record a patient’s relevant characteristic if they are known.

Amendment 51, in clause 7, page 4, line 28, leave out “had” and insert “has”.

This amendment is a drafting change so that Clause 7(3)(h) uses the present tense.

Amendment 52, in clause 7, page 4, line 28, leave out “autism” and insert “autistic spectrum disorders”.

This amendment ensures consistency with the Autism Act 2009 and the Code of Practice published under the Mental Health Act 1983.

Amendment 53, in clause 7, page 4, line 29, leave out paragraph (i)

This amendment leaves out the requirement to record whether any medication was administered during the use of force. This information should be recorded by virtue of Amendment 44.

Amendment 54, in clause 7, page 4, line 30, at end insert—

“( ) a description of the outcome of the use of force;”.

This amendment requires a responsible person to record a description of the outcome of a use of force.

Amendment 91, in clause 7, page 4, line 31, leave out paragraph (j) and insert—

“(j) whether the patient died or suffered any serious injury as a result of the use of force;”.

This amendment requires a responsible person to record whether a use of force resulted in a death or serious injury.

Amendment 56, in clause 7, page 4, line 35, leave out “all” and insert “any”.

This amendment makes a drafting change.

Amendment 57, in clause 7, page 4, line 35, leave out “restrain” and insert “use force on”.

This amendment ensures consistency of language with the rest of Clause 7.

Amendment 92, in clause 7, page 4, line 35, at end insert—

“() whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan;”.

This amendment requires a responsible person to record whether a notification regarding a use of force on the patient was sent in accordance with the patient’s care plan.

Amendment 59, in clause 7, page 4, line 36, leave out paragraph (l).

This amendment removes the requirement for a responsible person to record whether consent was given by the patient before force was used on the patient.

Amendment 60, in clause 7, page 4, line 38, leave out “registered manager” and insert “responsible person”.

This amendment is consequential on Amendment 7.

Amendment 61, in clause 7, page 4, line 38, leave out “an entry in”.

This amendment ensures consistency of language with Clause 7(1).

Amendment 62, in clause 7, page 4, line 38, leave out “at least 10” and insert “3”.

This amendment reduces the number of years that records must be kept under Clause 7 from 10 years to 3 years.

Amendment 64, in clause 7, page 4, line 39, leave out from “made” to end of line 42.

This amendment removes the requirement for records to be kept at a mental health unit.

Amendment 65, in clause 7, page 4, line 42, at end insert—

“( ) In subsection (3)(ca) the ‘patient’s consistent identifier’ means the consistent identifier specified under section 251A of the Health and Social Care Act 2012.”.

This amendment is linked to Amendment 45 and defines “patient’s consistent identifier”.

Amendment 95, in clause 7, page 4, line 42, at end insert—

“( ) This section does not permit the responsible person to do anything which, but for this section, would be inconsistent with—

(a) any provision made by or under the Data Protection Act 1998, or

(b) a common law duty of care or confidence.”.

This amendment clarifies that the responsible person’s duty to keep a record of any use of force on a patient and to retain that information is subject to the Data Protection Act 1998 and the common law duties of care and confidence.

Amendment 66, in clause 7, page 5, line 3, leave out paragraph (c).

This amendment removes a paragraph from the definition of “relevant characteristics” that deals with gender reassignment.

Amendment 67, in clause 7, page 5, line 6, leave out from “pregnant” to the end of line 7.

This amendment removes from the definition of “relevant characteristics” whether a patient has maternal responsibility for the care of a child.

Amendment 68, in clause 7, page 5, line 12, leave out subsection (6) and insert—

“( ) Expressions used in subsection (5) and Chapter 2 of Part 1 of the Equality Act 2010 have the same meaning in that subsection as in that Chapter.”.—(Mr Reed.)

This amendment make a drafting change to ensure that the relevant characteristics in Clause 7 are interpreted by reference to the meaning of the protected characteristics in the Equality Act 2010.

Clause 7, as amended, ordered to stand part of the Bill.

Clause 8

Statistics prepared by mental health units

[Mr Reed]

I beg to move amendment 69, in clause 8, page 5, line 16, leave out subsections (1) to (5) and insert—

“(1) The Secretary of State must ensure that at the end of each year statistics are published regarding the use of force by staff who work in mental health units.

(1A) The statistics must provide an analysis of the use of force in mental health units by reference to the relevant information recorded by responsible persons under section 7.

(1B) In subsection (1A) ‘relevant information’ means the information falling within section 7(3)(a), (b), (g), (h) and (j).”.

This amendment replaces the provisions of Clause 8 with a duty imposed on the Secretary of State to ensure that statistics are produced regarding the use of force in mental health units.

[The Chair]

With this it will be convenient to discuss the following:

Amendment (a), at end insert—

“(1C) The Secretary of State must make an annual statement to Parliament, as soon as practicable following the publication of the statistics under subsection (1).”

Clause stand part.

[Mr Reed]

Clause 8 places a duty on the Secretary of State to ensure that statistics on the use of force against mental health patients are published annually. That will allow us to identify trends in the way, and against whom, force is being used, and whether its use is reducing as intended, or whether some groups, such as BAME patients or women patients, are experiencing disproportionate use of force, as appears to be the evidence from the existing inadequate statistics.

The Secretary of State will be ultimately responsible for ensuring that NHS Digital publishes the statistics. Amendment 69 revises the list of information covered by the statistics to ensure that it covers the place, date and duration of the use of force; the types of force used on the patient; the relevant characteristics of the patient, such as age, ethnicity, gender or other demographic or similar characteristics; whether the patient has a learning disability or autistic spectrum disorder; and whether the patient died or suffered a serious injury as a result of the use of force.

My hon. Friend the Member for Liverpool, Wavertree—I am pleased to see that she has joined us—has tabled an amendment in this group, and I would be happy to give way to her so she can explain the reasons for that.

[The Chair]

Order. It is not a question of giving way. The hon. Member for Liverpool, Wavertree will be called afterwards.

[Mr Reed]

In which case, I will comment briefly. My hon. Friend raises a point that we discussed at an earlier stage. The Minister took the view that there was a better way to achieve these objectives, but I look forward to hearing my hon. Friend’s comments before we take a decision.

[Luciana Berger (Liverpool, Wavertree) (Lab/Co-op)]

I thank my hon. Friend for his representations. I apologise for being a few minutes late—I was at another event.

Amendment (a) is about accountability: it would ensure we have annual updates on progress. Ultimately, that is the motivation behind the amendment. Having annual statistics on the use of force under clause 8 would ultimately lead to a minimisation of, and reduction in, the use of force. That is why we are all here today, so that update is absolutely critical.

In the Committee’s first sitting, clause 9 was amended to require the Secretary of State to publish a report relating to any reviews, and other reports about individual cases, particularly relating to deaths and serious injuries, but there is no requirement for the Secretary of State to publish a report relating to the annual stats on the use of force. Therefore, there is no opportunity for Parliament to scrutinise the progress towards the goal of reducing the use of force, which is the purpose of the Bill. That is the motivation behind the amendment.

--- Later in debate ---

Independent investigation of deaths

[Mr Reed]

I beg to move amendment 1, in clause 12, page 6, line 34, end insert—

“(1A) A person appointed under this section must be independent of the NHS and of private providers of mental health services.”

This amendment would ensure that the person appointed to investigate deaths is independent of the NHS and of private providers of mental health services.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

New clause 1—Independent investigation of deaths: legal aid—

“(1) Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services) is amended as follows.

(2) After paragraph 41 (inquests) insert—

‘41A Investigation of deaths resulting from use of force in mental health units

(1) Civil legal services provided to an individual in relation to an investigation under section 12 of the Mental Health Units (Use of Force) Act 2018 (independent investigation of deaths) into the death of a member of the individual’s family.

(2) For the purposes of this paragraph an individual is a member of another individual’s family if—

(a) they are relatives (whether of the full blood or half blood or by marriage or civil partnership),

(b) they are cohabitants (as defined in Part 4 of the Family Law Act 1996), or

(c) one has parental responsibility for the other.’”

This new clause would ensure that legal aid was available to family members in relation to an investigation under Clause 12, which would be launched in the event of a death as described in Clause 11.

New clause 6—Investigation of deaths or serious injuries.—

“When a patient dies or suffers a serious injury in a mental health unit, the responsible person for the mental health unit must have regard to any guidance relating to the investigation of deaths or serious injuries that is published by—

(a) the Care Quality Commission (see Part 1 of the Health and Social Care Act 2008);

(b) Monitor (see section 61 of the Health and Social Care Act 2012);

(c) the National Health Service Commissioning Board (see section 1H of the National Health Service Act 2006);

(d) the National Health Service Trust Development Authority (which is a Special Health Authority established under section 28 of the National Health Service Act 2006);

(e) a person prescribed by regulations made by the Secretary of State.”

This new clause imposes a duty for responsible persons to have regard to guidance that relates to the investigation of deaths or serious injuries when those occur in a mental health unit.

[Mr Reed]

Mr Gray, perhaps with your indulgence, this is an appropriate moment to acknowledge the presence of Seni Lewis’s parents, Aji and Conrad Lewis, who are extremely welcome here this morning.

The principles in the clause are fundamental to the Bill and to correcting injustices that have affected not just the Lewis family but far too many other families. After Seni Lewis’s death in such tragic and avoidable circumstances in 2010, his parents faced a seven-year battle to get an inquest opened, simply so that they could find out what had really happened to their child. The mental health services would also have had the opportunity to learn from those mistakes, to ensure that they were not repeated.

No grieving parent—indeed, no one—should ever have to face the ordeal of fighting for justice for so many years after the loss of a deeply loved relative. There is currently a glaring disparity between the way that deaths are investigated in mental health settings and in other forms of state detention. If a person dies in police custody, there is an automatic external investigation by an independent national body. If a person dies in a mental health setting, the trust or private provider investigates itself or appoints another trust or individual to do so. That means that reports end up being delayed or kept secret, or are not sufficiently robust. That is a denial of justice and a failure to learn the appropriate lessons as swiftly as necessary.

The system does not learn from mistakes, and it has lost public confidence, particularly among the BAME community. That means we end up with a series of isolated tragic incidents that keep happening time and again. We need a truly independent investigation system for non-natural deaths in mental health settings, just as we have in other forms of state custody.

I pay tribute at this point to the extraordinary work carried out by the campaigning charity INQUEST, which has exposed many failings, such as that that affected the Lewis family, shone a light on them and helped bring us to the position we are in today, making these recommendations in the Bill.

Amendment 1 would require that any person appointed to investigate deaths is completely independent of the NHS or of any private mental health service provider. It is an opportunity to ensure that there is fully independent scrutiny before any inquest begins. Crucially, that means that no family will have to fight for years for justice, in the way that the Lewis family had to.

I now turn to the serious incident framework, which is now in place but was not at the time of Seni’s death. I agree that it is an improvement, but I still have concerns about certain aspects of the guidance and the investigations themselves. We have already discussed the need for the full independence of investigations, but we must also consider the independence of those who commission a level 3 investigation under the new framework.

My concern is that under the framework as it is drawn up, it is still possible for the NHS to avoid such an investigation because it regards it, perhaps wrongly, as an unnecessary burden. As a result, lessons will not be learned, the system will not be held to account and more patients will suffer injury or even death.

I respectfully invite the Minister, therefore, to comment on who takes the decision to commission a level 3 investigation under the new framework and whether it is possible for the NHS to avoid commissioning the right level of investigation so that the appropriate lessons are not learned and the system not held to account. Moreover, does the framework guarantee that a level 3 investigation will take place following the death of a patient from the use of force?

That is key, because it is the loophole through which the Lewis family fell following the death of their son. That failing led to them being denied justice and to the trauma of not only losing their child in such horrific circumstances but having to fight the state for seven years just to secure justice and to find out what had gone wrong to leave an otherwise healthy 23-year-old losing his life.

I hope that the Minister will be able to give a full assurance that families will not have to experience the same long delays under the new framework. For example, how soon following a death should it start, and how long should it take to be completed?

Finally, I am concerned about the quality of the investigations under the framework. The charity INQUEST and others have been absolutely clear for many years that too many investigations are inadequate because they are not fully independent of the organisation that is being investigated. We simply cannot allow that to continue. If the Minister will not support my amendments, I would very much appreciate hearing from her how she intends to address those very important concerns, which I know from conversations and previous debates she shares with me.

I now move on to new clause 1. Another barrier to justice for families is the lack of funding for legal advice and representation. Dame Elish Angiolini’s report concluded last year that

“families face an intrusive and complex and mechanism for securing funding”,

because there

“is no legal aid for inquests other than in exceptional circumstances”.

The Angiolini report recommended that legal aid should be awarded to families in the case of deaths in police custody. The Government have accepted that there is a need to look at that in the Lord Chancellor’s ongoing review of the provision of legal aid. To me and many others, it makes little sense not to extend that to situations in a mental health unit. Restraint in police custody is not different from restraint in a mental health unit, which is the whole point of the Bill.

We need—and I believe that this is also the Government’s intention—consistency in the way in which people with mental ill health are treated across the whole system. We cannot have differences between one form of state custody and another. We have already seen that lead to too many deaths, disproportionately of young black men. Here is an opportunity to correct that unfairness, to make the system more equal for everyone, regardless of their background.

New clause 1 will ensure that legal aid is available to family members in relation to an investigation of an unnatural death in a mental health unit, as described in clause 11. It is very important that we level the playing field. There is a serious imbalance when the state has access to high-quality legal advice but a family in highly traumatised circumstances does not. That is an injustice which my proposal will correct, although I look forward to hearing from the Minister whether there is an alternative means of achieving the same objectives, which I believe that she shares.

[Luciana Berger]

I rise briefly to support my hon. Friend’s amendments, which are critical because, outside this place, organisations and families affected by the loss of a loved one in a mental health setting are looking to us to address this injustice. He said that there is an automatic independent investigation in some settings. If someone loses their life in prison, for example, the prisons and probation ombudsman carries out an independent investigation. It is absolutely critical that that happens if people are taking their lives or losing their lives in prison.

People in a mental health setting are at their most vulnerable, and I believe that one person taking their life is one person too many. Unfortunately, too many people in mental health settings in our country take their lives. We have a responsibility to them, their loved ones and their families to ensure that proper investigations take place so that real learning can occur. There are too many examples. We have heard about the suffering of the Lewis family—we are here today because of what they went through—who had to wait a long time to get justice and an understanding of what happened to their son.

There is also the experience of the family of Connor Sparrowhawk. Sara Ryan has been an incredible campaigner since her son’s death in 2013. Despite her indomitable campaigning, strength and courage, it took five years for that family to get justice and to understand what happened to their son, who died in a bath in a mental health setting. Those are just two families; there are many others who do not have that strength. I totally understand why they might not: in the wake of the loss of a loved one, they might not have the wherewithal to pursue the relevant organisations, particularly if the family cannot match the legal and financial might at the organisations’ disposal. We see time and time again that they can prolong proceedings, send lengthy letters and keep batting things away.

I anticipate that colleagues on both sides of the Committee will reflect on their experiences from their constituencies. Our constituents come to us because they face that wall and are unable to challenge the system. We have a responsibility if we are serious about adequately contending with this issue. I welcome the Government’s support in helping us to get to where we have got so far. I see this measure as part of a bigger picture. Without it, we will be failing people. We must be serious about equality of mental health and parity of esteem in this country. In my view, this is a social justice issue: disproportionately, it is black men in mental health settings who are affected in this way.

People should automatically get an independent investigation. They should not have to fight for one or go through an incredibly drawn-out legal process. Some people manage to get investigations at the moment, but it should be automatic. That is why my hon. Friend’s amendments are critical. Many organisations are concerned about this issue, including INQUEST, a charity that fights on behalf of many people in our country to ensure they get access to justice and an understanding of what happened. Often, it is about the unknown. People were not there at the time, and they really want to understand how their loved one came to take their life.

Without real movement on this issue, we will be doing an injustice to people up and down the country. I support my hon. Friend’s amendments, and I hope the Government give them due consideration to ensure we adequately deliver for people in our country.

--- Later in debate ---

Currently under the serious incident framework, an independent investigation must be commissioned and conducted independently of the parts of the system that are under investigation, including any directly involved commissioners. Given the complex nature of these incidents, it is important that the team carrying out the investigation has the right skills and experience. It is probable that those skills and experience will be held by people who have worked, or are still working, in the NHS. So, to tackle the point about the independence of the NHS, these people will have the expertise; the key point is that the governance ensures that they are entirely independent.

[Mr Reed]

If the investigations are being carried out by people in another part of the NHS who have sufficient understanding of the service they are investigating, is there not a risk, given the relatively small number of professionals working in the sector, that the investigation could be compromised by pre-existing relationships between the people being investigated and those charged with carrying out the investigation? Would that risk rendering the findings insufficiently robust?

[Jackie Doyle-Price]

Clearly, that is the risk that the hon. Gentleman is determined to settle here. We do take it very seriously, but I am satisfied that, through governance and external scrutiny by the CQC, we can ensure that that is not the case. It is important to have investigators who have that specialist knowledge to be able to undertake a full investigation.

I am confident that the governance of the serious incident framework will provide the right guidance to ensure that all individuals carrying out the investigations are suitably qualified and sufficiently independent. I hope that assures the hon. Gentleman. We will continue to address the matter with full external scrutiny so that we can genuinely ensure their independence.

Let me be completely clear: this is not just a process—not just a rubber-stamping exercise. We need proper independent investigation to ensure that there is accountability in the system and that, in future, families such as that of Seni Lewis, do not feel frustrated and lost and that the system is not responding to them—that is absolutely not the case. We must use this opportunity to ensure that that independent investigation is thorough and rigorous.

I turn now to the amendment on legal aid for investigations. Clearly, any family in this situation does need some independent support and advocacy. It is very difficult when there is no one person to whom a family can turn to get independent support at such a time. The Bill is not the place to resolve any issues around legal aid, but let me assure the hon. Gentleman about wider discussions that are taking place within Government.

The hon. Gentleman will be aware that the Ministry of Justice is committed to the ministerial board on deaths in custody, and I am one of the rotating co-chairs of that board. We are looking at an urgent review of the provision of legal aid for inquests, and the position is due to be published later this year as part of the Government’s response to Dame Elish Angiolini’s review of deaths and serious incidents in police custody. We will take up this matter as part of that. As the hon. Gentleman says, it is important that we consider deaths in mental health detention on the same basis as those in other methods of detention, such as prisons. That review will ensure consistency of support for families.

[Mr Reed]

Is the Minister saying that the Lord Chancellor’s review will be expanded to encompass deaths in mental health custody in the same way that it is covering deaths in other forms of state custody?

[Jackie Doyle-Price]

Yes. It is very much being taken forward by that ministerial board, of which I am co-chair alongside Ministers from the Home Office and the Ministry of Justice, to achieve exactly that consistency. I hope that reassures the hon. Gentleman on that point. I will also be happy to support him if he wishes to make representations to the Ministry of Justice, which owns that work, although I am very much part of it.

[Jackie Doyle-Price]

I will write to hon. Members about that to set it out clearly. I could give a flippant answer, but it might not be accurate, and I do not wish to mislead the Committee. I would say that the ministerial board is actively meeting and consulting with external stakeholders at this very moment. It is not going to be a long-grass project, but we will give hon. Members more clarity in due course.

On that basis, I ask the hon. Gentleman to withdraw the amendment. The Government propose that clause 12 be replaced by new clause 6, which sets out the method of investigating cause of death. New clause 6 requires that, when a patient dies or suffers a serious injury in a mental health unit, the responsible person would have regard to certain guidance that relates to the investigation of deaths or serious injuries, including the NHS serious incident framework and any relevant guidance from the CQC, NHS Improvement and NHS England. The new clause moves the process more consistently into the body of the health service and the framework for investigation.

I know the hon. Gentleman’s objective is to prevent a recurrence of the experiences of the Lewis family, whose investigation got stuck for many years. We have drawn up the new clause on that basis. We want to avoid any confusion that introducing a completely new system might lead to. We want to avoid duplication, but establish independence, which we have already started to move forward on with the Healthcare Safety Investigation Branch.

The coroner already has a responsibility to investigate deaths of those detained under the Mental Health Act 1983 and any death that is unexpected or unnatural, which would include deaths that occurred during, or as a result of, the use of force. The NHS serious investigation framework sets out robust procedures for investigating and learning from an unexpected patient death, including an independent investigation when criteria are met.

To reassure the hon. Gentleman on timing, which I know is a big issue here, we would expect any investigation into a serious incident to be concluded within a year and certainly to commence within three to six months. There might sometimes be issues that elongate that investigation, but we will avoid any case just being stuck and left. Investigations will always be undertaken as soon as practicable.

I ask the hon. Gentleman to withdraw the amendment and not to press new clause 1. I ask the Committee to disagree to clause 12.

[Mr Reed]

I am grateful to the Minister for her comments and in particular for the new information and assurances that she has given. I am sure that will be widely welcomed. It is clear that we have the same objectives, but there are perhaps some small remaining disagreements over the best way to achieve those objectives.

I hope that the bottom line for both of us is that investigations of deaths need to be triggered automatically, they need to be fully independent, and families of the deceased need access to legal aid so that they are operating on a level playing field with the people who are being investigated for having caused the death. I understand that the Minister seeks to achieve that by a different route; it is important to give her the space she will need to be able to demonstrate to not just me but the many stakeholders and families outside this place that she has robust means of doing that.

While reserving the right to reintroduce amendments into the Bill at a later stage if necessary, at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

The question is that clause 12 stand part of the Bill.

[The Chair]

That is not quite correct. Perhaps I can clarify. The situation is that the Government have proposed new clause 6, which will be voted on later, to replace clause 12. I think I am right in saying that the Member promoting the Bill agrees with that. Therefore, if we wish clause 12 to be removed from the Bill, and replaced by new clause 6 eventually, the correct answer will be no, rather than aye.

Clause 12 disagreed to.

Clause 13

Police body cameras

[Mr Reed]

I beg to move amendment 93, in clause 13, page 7, line 20, leave out subsections (1) and (2) and insert—

“(1) If a police officer is going to a mental health unit on duty that involves assisting staff who work in that unit, the officer must take a body camera if reasonably practicable.

(1A) While in a mental health unit on duty that involves assisting staff who work in that unit, a police officer who has a body camera there must wear it and keep it operating at all times when reasonably practicable.

(1B) Subsection (1A) does not apply if there are special circumstances at the time that justify not wearing the camera or keeping it operating.

(1C) A failure by a police officer to comply with the requirements of subsection (1) or (1A) does not of itself make the officer liable to criminal or civil proceedings.

(1D) But if those requirements appear to the court or tribunal to be relevant to any question arising in criminal or civil proceedings, they must be taken into account in determining that question.”

This amendment brings the effect of failing to wear or use a body camera into line with contraventions of the PACE codes, and takes into account whether it is reasonably practicable and whether particular circumstances justify not wearing or using a camera.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 75, in clause 13, page 7, line 26, leave out subsection (3).

Clause 13(3) is omitted because the protection provided by the Data Protection Act 1998 and guidance on use of body cameras is sufficient.

Amendment 96, in clause 13, page 7, line 31, at end insert—

“( ) In this section—

‘body camera’ means a device that operates so as to make a continuous audio and video recording while being worn;

‘police officer’ means—

(a) a member of a police force maintained under section 2 of the Police Act 1996,

(b) a member of the metropolitan police force,

(c) a member of the City of London police force,

(d) a special constable appointed under section 27 of the Police Act 1996, or

(e) a member or special constable of the British Transport Police Force.”

This amendment reproduces definitions from Clause 17, except for minor amendments to the definition of “body camera”, and omitting community support officers and adding special constables in the definition of “police officer”.

Clause stand part.

[Mr Reed]

I have only been here for five and a half years, Mr Gray, and I am afraid it takes an awful lot longer than that to get to understand the strange machinations of the House of Commons.

Clause 13 introduces a requirement for police officers who attend a mental health unit to wear an operational body camera. The roll-out of body cameras across the police, which I understand will be extended to all forces by autumn 2019, although the Minister will correct me if I am wrong, introduces an independent witness to police actions. Research I have seen shows that the use of cameras in these circumstances makes it up to 50% less likely that the police will use force at all. The number of complaints filed against police officers also reduces dramatically. We see from those statistics that transparency is good for patients, the public and the police. Practitioners also advise me that the presence of body-worn cameras on police officers can help to de-escalate a situation, by reassuring the patient that there will be a record of what is going on. The patient should, therefore, feel a greater level of security and protection than would otherwise be the case. We welcome that.

There was agreement on Second Reading about the need to get the provision right; we want maximum transparency without inadvertently preventing officers from attending an emergency if they are not equipped with a working body camera. Therefore, this clause, as amended, would ensure that officers are not in breach of the law if they are unable to access a working camera in an emergency. That means that police officers will use body-worn video cameras in a mental health unit unless there is a strong operational reason not to do so.

Amendment 93 brings the effect of failing to wear or use a body camera into line with the contraventions in the police and criminal evidence codes. Amendments 75 and 96 set out definitions and guidance to be used in the clause. Police community support officers are not within the definition because they are not trained in the use of force and so would not be called to assist in the management of a patient. However, as special constables have all the powers of a constable, they are included within the definition.

--- Later in debate ---

[Jackie Doyle-Price]

The hon. Member for Dulwich and West Norwood makes excellent points for us to consider further. The Bill, which is specifically about detention and use of force in detention, is perhaps not quite the right space for that, but her points are well made. I am particularly concerned about people with learning disabilities, who are often treated as the Cinderella in the system. It is incumbent on all of us to ensure that we do our best to protect their rights, as well as those of other groups. On that basis, the Government are content to support the amendments tabled by the hon. Member for Croydon North.

Amendment 93 agreed to.

Amendments made: 75, in clause 13, page 7, line 26, leave out subsection (3).

Clause 13(3) is omitted because the protection provided by the Data Protection Act 1998 and guidance on use of body cameras is sufficient.

Amendment 96, in clause 13, page 7, line 31, at end insert—

“( ) In this section—

‘body camera’ means a device that operates so as to make a continuous audio and video recording while being worn;

‘police officer’ means—

(a) a member of a police force maintained under section 2 of the Police Act 1996,

(b) a member of the metropolitan police force,

(c) a member of the City of London police force,

(d) a special constable appointed under section 27 of the Police Act 1996, or

(e) a member or special constable of the British Transport Police Force.”—(Mr Reed.)

This amendment reproduces definitions from Clause 17, except for minor amendments to the definition of “body camera”, and omitting community support officers and adding special constables in the definition of “police officer”.

Clause 13, as amended, ordered to stand part of the Bill.

Clause 14

Retention and destruction of video recordings

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

[Mr Reed]

May I take clauses 14 to 17 together, Mr Gray?

[The Chair]

Yes, you may take them together but we will decide on them separately.

[Mr Reed]

Thank you for your clarification, Mr Gray. Amendment 17 to clause 14—

[The Chair]

Order. That amendment has not been selected. The position is that no amendments have been selected for clauses 14 to 17, so the only debates possible are whether those clauses stand part of the Bill. If either side wishes a clause not to stand part, we can debate it and divide on it, but the view may be taken that we have debated the issues sufficiently elsewhere, so we can move on to clause 18, amendments to which have been selected. However, the Government or the Member in charge of the Bill are perfectly entitled, if they wish, to have a debate on clauses 14 to 17, but that will be on whether they stand part of the Bill.

[Mr Reed]

I am grateful for your further clarification, Mr Gray. I believe that the understanding was that those clauses should not stand part of the Bill, as the provisions in them have already been addressed elsewhere in the Bill or have become unnecessary because of provisions in other legislation. For those reasons, I am proposing that the clause not stand part of the Bill.

[Jackie Doyle-Price]

As the hon. Gentleman has just outlined, many of the provisions in clauses 14 to 17 are covered by other legislation, such as the Data Protection Act, and oversight by the Information Commissioner’s Office. There are obviously powers of enforcement accruing in that way. In the spirit of avoiding duplication, we are content that the clauses be removed from the Bill.

--- Later in debate ---

[The Chair]

For the sake of clarity, when I say that the question is that the clause should stand part of the Bill, the answer if you wish them to be removed from the Bill is no.

Question put and negatived.

Clause 14 accordingly disagreed to.

Clauses 15 to 17 disagreed to.

Clause 18

Regulations

[Mr Reed]

I beg to move amendment 81, in clause 18, page 9, line 25, at end insert

“(other than regulations made under section 20(3))”.

This amendment provides that commencement regulations under Clause 20 are not subject to any parliamentary procedure.

[The Chair]

With this it will be convenient to discuss clause stand part.

[Mr Reed]

I hope to sow a little less confusion in this particular clause.

[The Chair]

No confusion at all—very straightforward.

[Mr Reed]

You are very kind, Mr Gray. Clause 18 sets out how regulations under this Bill are to be made. Amendment 81 ensures that commencement regulations under clause 20 are not subject to any parliamentary procedure, which is the convention. Parliament will have approved the principle of the provisions of the Bill by enacting them. Any other regulations made under the Bill will be subject to the negative procedure. I hope that makes more sense to other hon. Members than it necessarily does to me, and that the Committee accepts the clause as amended.

[Jackie Doyle-Price]

This clause sets out that regulations under this Bill should be made by statutory instrument; the only amendment is to ensure that regulations under clause 20 are not subject to further parliamentary procedures. Those are to undertake the commencement and any transitional provisions required to implement the Bill.

Amendment 81 agreed to.

Clause 18, as amended, ordered to stand part of the Bill.

Clause 19 ordered to stand part of the Bill.

Clause 20

Commencement, extent and short title

[Mr Reed]

I beg to move amendment 83, in clause 20, page 9, line 35, leave out subsections (3) and (4) and insert—

“(3) The other provisions of this Act come into force on such day as the Secretary of State may appoint by regulations.

(4) Regulations under this section may appoint different days for different purposes or areas.”

This amendment gives the Secretary of State the power to commence the Bill by regulations.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

New clause 4—Transitional provision—

“The Secretary of State may by regulations make transitional, transitory or saving provision in connection with the coming into force of any provision of this Act.”

This new clause gives a power to the Secretary of State to make transitional provision in relation to the implementation of the Bill.

[Mr Reed]

Clause 20 sets out when the Bill’s provisions are to be brought into force and amendment 83 allows the requirements of the Bill to be brought into force as and when it is feasible to do so and by regulations, rather than within six months as originally drafted.

New clause 4 gives the Secretary of State the power to make transitional provisions for the implementation of the Bill, which, where appropriate, will allow flexibility in its application as it comes into force. I know that the Minister is committed to the Bill; we have strengthened it by working consensually cross-party and with the many interested parties outside the House.

[Jackie Doyle-Price]

I reassure the Committee that I want to ensure that the requirements of the Bill are commenced as soon as they are ready. We are certainly not in the business of delay, but we recognise that some aspects of the Bill will be quicker to implement than others. We will be able to commence some things very quickly, but if we take clauses 7 and 8, for example, getting the right systems in place for local recording and publication of statistics may take a little longer than some other aspects of the Bill. Commencing by regulations allows the Government to bring the new requirements into force as and when that is feasible, having regard to those parts of the system that move at a different pace.

The transitional provision will allow the Secretary of State to make transitional provisions in connection with the coming-into-force provisions of the Bill. That is important particularly where the Bill’s requirements represent a substantial change in practice. For example, if training under clause 5 is carried out before the responsible person is appointed, the transitional provision could state that the training is deemed to have been provided by the responsible person. That will also allow us to give the NHS and other providers some time to prepare for their duties under the Bill. The Government accept the amendment to clause 20 and the new transitional provision.

Amendment 83 agreed to.

Clause 20, as amended, ordered to stand part of the Bill.

--- Later in debate ---

Question proposed, That the Chair do report the Bill, as amended, to the House.

[Mr Reed]

On a point of order, Mr Gray. Thank you very much for guiding us through the sometimes confusing proceedings so skilfully this morning. I thank hon. Members for participating this morning and on the previous occasion on which we met. I thank hon. Members and the officials who have worked on the Bill for their hard work in getting us this far.

I thank Seni Lewis’s parents, Aji and Conrad Lewis, for joining us this morning. When I have spoken to them about what happened to their son and the need for this Bill, they have reiterated to me their very deep desire for Seni’s death not to have been in vain. I believe our work on this Bill creates a legacy for Seni Lewis, which is that no one else suffering or living with mental ill health need suffer in the way Seni Lewis did.

[Jackie Doyle-Price]

On a point of order, Mr Gray. I associate myself with the hon. Gentleman’s remarks. I thank you and the Clerks for guiding us safely and promptly through the procedure. It has been a very good use of our time and resources. I also thank my officials, who have worked very quickly to pull this Bill together in a way that delivers the hon. Gentleman’s objectives in a way that works. It can be challenging when these things come through in a private Member’s Bill.

I pay tribute to the hon. Gentleman, who has brought forward a very important reform to how we treat people detained under the Mental Health Act. From my perspective as Minister, we have reached the position whereby, if we are going to achieve parity of esteem, there needs to be a complete reconfiguration of the law as it applies to mental health, to strengthen people’s rights. This very important reform will achieve exactly that.

I also associate myself with the tribute the hon. Gentleman paid to Seni Lewis’s parents. They have taken an incredible tragedy and channelled it into doing something positive. They will achieve a real legacy that strengthens the rights of people who find themselves detained. I pay full tribute to them for doing so.

My final thanks go to all hon. Members who have turned up—quite often to do nothing, because we did not have a money resolution to progress the Bill, but I am very grateful to them for doing so.