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

Debate between Steve Reed and Luciana Berger

Wednesday 25th April 2018 Public Bill Committees

[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.

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[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.

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

Debate between Steve Reed and Luciana Berger

Committee Debate: 1st sitting: House of Commons
Wednesday 28th March 2018 Public Bill Committees

[Mr Reed]

This is a very important clause, because it establishes the requirement for mental health units to have in place a policy regarding the use of force in that unit. That requirement does not currently exist, so there is wide divergence and variation between procedures, practice and means for controlling and managing the use of force in different health units, which can be detrimental to the safety of patients.

A written policy will effectively govern the use of force within the units, and there is a real opportunity for NHS trusts to work with service users and their families to formalise and replicate the best of what many are already doing to reduce the use of force. The use of force varies enormously across NHS trusts. Some already have robust policies in place to minimise the use of force but others do not. The amendment will put an end to the regional disparity between trusts. Based on currently available figures, the variation can be as wide as between 5% and 50% of patients being subject to the use of force while attending mental health units for treatment.

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

I congratulate my hon. Friend on bringing forward the Bill, which is a fantastic achievement. The fact that he has used his private Member’s Bill slot for this Bill is to be highly commended. My local mental health trust, Mersey Care, adopts the “no force first” approach, which is very important. I just wanted to shine a spotlight on the fact that some trusts adopt that approach. I welcome the fact that the Bill seeks to eradicate the differences in approach across the country.

[Mr Reed]

I thank my hon. Friend for her intervention. Mersey Care is well known to me and to many others in the room as a fine example of the best practice that we wish to replicate everywhere across the country, so that patients, wherever they are, can enjoy the very best levels of service, to which they ought to be entitled.

I will go through the amendments in the grouping. Collectively, they are intended to add greater clarity and consistency to the policies. Amendment 9 provides that, for relevant organisations that operate a number of health units, the responsible person needs to publish only one policy to cover all staff in all those units. Amendments 10 and 13 ensure that the policy is consulted on when it is first published and when changes are made. It is important that the responsible person considers and consults the views of current and previous service users to ensure that their experiences form part of improving policy and guidance into the future.

Amendment 14 requires the policy to include reducing the use of force, which is a key purpose of the Bill, and a key commitment that the use of force should only ever be used as a genuine last resort, as indeed it is in Mersey Care and other mental health trusts. We should be clear that this is only a start—we would like the use of force to be minimised and not just reduced—but this puts into legislation the Government’s intention to reduce the use of force, and we will be holding them to that.

Amendment 16 places into statutory guidance a requirement on the responsible person to take all reasonable steps to ensure compliance with the policy, and makes a failure to have regard for the guidance a breach of the statutory duty.

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[Mr Reed]

I am grateful to my hon. Friend for making that important point and I look forward to hearing the Minister’s comment. That point has been made to me by many service users and advocacy groups, including Rethink Mental Illness, YoungMinds and others.

Many of the approaches outlined in the Bill ought to be applied more widely for people who experience mental ill health in many other circumstances. I hope that the Government’s ongoing review into mental health will do that. I hope that some of the principles in the Bill will take us forward and allow that review, when it reports back, to make a bigger impact than it perhaps might have made otherwise.

Moving back to the principles of training in general, the Bill includes provisions on training to recognise the Equality Act 2010 and de-escalation techniques that reduce the need for force to be used in any circumstances. The amendment will also strengthen the requirement for trauma-informed care. It is important to include in the Bill that staff are trained in the impact of further traumatising patients, whose mental ill health may have already been exacerbated by forms of trauma.

I am informed by Agenda that more than 50% of female patients in mental health units have experienced physical or sexual abuse by men, which in most cases contributes significantly to their mental ill health. After those experiences, being forcibly restrained—generally by groups of men—can further traumatise those women and make their mental health conditions even worse, so it is very important that staff are fully aware and trained in the risks of re-traumatising patients who have already been traumatised.

It is also important that training takes full account of the risks of unlawful discrimination regarding race. Dame Elish Angiolini’s report last year into deaths and serious incidents in police custody found that:

“The stereotyping of young Black men as ‘dangerous, violent and volatile’ is a longstanding trope that is ingrained in the minds of many in our society.”

We only have to look at pictures of the faces of people who have died in state custody, including in mental health custody, to see how severe the risk of unconscious bias in the system is. A much higher proportion of those faces will be of young black men than the proportion present in the population as a whole. In order to ensure that staff will not be acting out of prejudice against people who enter a publicly funded health service for treatment on equal terms with everyone else, it is important that staff are trained to be fully aware of the risks of unconscious bias and racism in that service.

Putting anti-discrimination training into legislation is a move towards ending such unlawful discrimination, as is the overall aim of the Bill, and towards exposing the use of force to much closer scrutiny by standardising data recording across the whole country, so that it is possible to compare performance in mental health units on the same basis in different parts of the country. That is not currently possible, and it is a loophole that was pointed to by Dame Elish Angiolini in her report. I am pleased that the Bill will close the loophole.

Crucially, staff must also be trained in the use of techniques to avoid or reduce the use of force—essentially de-escalation. That makes the situation safer for everyone involved. It is critical that anything that might trigger behaviours in a patient that could lead to their being restrained should be avoided, if at all possible, so that the use of force can be minimised.

Amendment 86 sets out a revised duty on the responsible person to ensure that training is provided for staff in mental health units. Amendment 87 sets out when training should be provided to staff. It should be provided as soon as the provision comes into force, and there should be refresher training at regular intervals. That will build the institutional knowledge needed to ensure that force will only ever be used as a genuine last resort.

[Luciana Berger]

My hon. Friend, and many other Members, will probably have seen the “Dispatches” programme last month, in which a temporary member of staff went to work in a privately owned but NHS-funded mental health unit. That undercover report revealed scenes that were difficult to watch. Part of the challenge was that the individual was not given any appropriate training when she was asked to care for some very unwell people in secure parts of the accommodation. I want to reinforce what my hon. Friend has been saying: the issue is critical for existing and new staff, and often there are too many temporary staff working in such units.

[Mr Reed]

My hon. Friend makes an important point, clearly and eloquently. There are no circumstances in which an untrained member of staff, whether full-time or not, should be able to use force—effectively violence—on a patient. If they have not been properly trained, that should be an absolute no.