Luke Evans MP: speeches

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12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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It is a pleasure to be here on day two in Committee. I will first address clause 5 and then the Government amendments. The clause marks significant reform to the legal foundations of mental health detention in this country. At its core, the clause seeks to update the grounds for detaining individuals under the Mental Health Act. It will amend several critical sections—sections 2, 3, 5, 20 and 145—to ensure that detention is used only when absolutely necessary and in line with the principle of least restriction, which was put forward in the Wessely review and is now in the Bill. Let me outline what the changes will do in practical terms, as the Opposition see it. Under section 2 of the Mental Health Act, “Admission for assessment”, detention will now be justified only if “serious harm” may occur to the “health or safety” of patients or others. The decision must weigh the “nature, degree and likelihood” of that harm, a much more structured and risk-based framework than previously existed. Under section 3, “Admission for treatment”, we will see a clearer threshold. Detention will be permitted only if “serious harm” may occur without treatment, if the treatment is necessary, if the treatment cannot be provided unless the individual is detained and, crucially, if appropriate treatment is available. Section 5(4), on emergency hospital detention, will be updated to align with the same “serious harm” test, recognising that even urgent situations demand clear legal justification. Section 20, which governs the renewal of detention process, will be brought in line with the same standards, such that they apply not just once but every time detention is extended. That is an important safeguard. A statutory definition of “authorised person”, those empowered to detain, will be introduced in section 145, ensuring that such persons are appropriately trained and regulated. Those changes respond to real and long-standing concerns. The 2018 independent review of the Mental Health Act warned that our current criteria are too broad and that they allow for detention that is often unnecessary, sometimes prolonged and, in too many cases, distressing for patients and families. Clause 5 seeks to change that by grounding detentions in a clear, evidence-based assessment of risk and necessity. The clause has significant advantages. It will introduce stronger safeguards against inappropriate detention and will shift the focus away from diagnosis alone and towards the actual risk of serious harm. It will offer greater clarity for professionals, giving them structured criteria for making decisions that are ethically and legally sound. It will enhance patients’ rights by aligning the law more closely with the principles of autonomy and proportionate care. However, with every reform there are challenges, and we must not ignore them. The terms “serious harm” and “likelihood”, although essential, remain open to interpretation. We must ensure that the forthcoming code of practice offers clear, detailed guidance that minimises subjectivity and inconsistency in their application. Furthermore, there is a question mark over public safety, which the Minister seemed to point to but which I want to explore a bit further. We have not tabled an amendment, but I am keen to understand how this works. Given that the definition is potentially ambiguous and in practice quite difficult to judge, has the Minister considered inserting the words “cumulative” or “escalating”? To be clear, this is a call not to water down those safeguards, but to shore them up with a safety net, so that this reform does not inadvertently trade off liberty against safety, especially in communities. We need to ensure that we are not inadvertently introducing a real risk that someone, particularly someone on the margins of eligibility, may fall through the cracks. There are individuals whose behaviour is escalating and whose pattern of deterioration is known to services, but who do not yet meet the “serious harm” threshold at the time of assessment. I have seen this at first hand as a clinician—a picture that goes round and round. These are some of the most complex situations that one will ever have to deal with in one’s clinical career. The words “escalating” or “cumulative” may help to give further clarification to clinicians on the frontline. For those on the margins, what consideration have the Government given to the notion of a duty for professionals to produce a risk management plan in any case in which detention is considered but not authorised, so that we do not simply assess and walk away, but assess and act in a community setting? That would not lower the threshold, but contextualise it. It would ensure that detention remains a measure of last resort, but not too late a resort.
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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My hon. Friend makes an important and poignant point. The Government have rightly stated that this change could take up to 10 years to implement, but we need to ensure that the most important safeguards are set out. Elsewhere, the Government have suggested that they will be in the code of practice. When we were discussing section 5 of the Mental Health Act and other issues, I said to the Minister that we need a constructive timetable, not only to know what the roll-out will look like but so that we can consult with the professions and ensure that they are able to deal with it. Later, we will again discuss the interface between the Mental Capacity Act 2005 and the changes that bring in new tests. That will be really important. We will also discuss the change of statutory safeguards for electroconvulsive therapy and changes to the statutory safeguards around who the second clinician will be—there is quite a feast of movements through this legislation. Make no mistake: that is what the country wants, but the Government must clearly set out some rationale for the timetable. Unfortunately, the Opposition’s proposal for a costed plan was defeated. We wanted to set out some kind of concrete timetable over 18 months to ensure that we do not slip back, and to give the Government the flexibility to make the necessary cultural and legal changes. I hope that that addresses some of my hon. Friend’s concerns, but he was right to put that point to the Minister. I oppose Government amendments 26 to 29, which would remove the reference to detention “by a constable or other authorised person”, and to delete the proposed definition of “authorised person”. I support the argument advanced powerfully in the other place by Baroness May, whose experience as a former Home Secretary gives her deep insight into the interaction between policing and mental health. Of course, it was under her premiership that the entirety of this discussion was progressed. I thank her for everything she has done, although I am not quite so thankful for the workload that it has created for me in my evenings and weekends. Her central message was clear: we must stop treating mental health as a policing issue and start delivering the right care from the right person in the right place. I wholeheartedly agree, as I am sure the Committee does. I understand what the Government are trying to achieve. On the face of it, the amendments are technical. They seek to ensure that detention under the Bill is solely based on necessity where there is a risk of serious harm or the need for urgent treatment, and that it is not tied to who is doing the detaining. On paper that sounds reasonable, but in practice those changes will remove vital clarity and will risk baking in a system that has already failed too many people in mental health crisis. Let us look at the problem with removing “authorised person”. The Bill, as amended in the Lords, wisely recognises the need to broaden the group of people who can respond to mental health incidents so that they include not just police officers, but trained and equipped professionals, mental health nurses, paramedics and approved mental practitioners—people who are qualified to care, not just to detain. The definition of “authorised person” in clause 5(7) ensures that only those with training competence and safety considerations are empowered to act, so it provides a framework for accountability, not a free-for-all. By removing the framework, the Government amendment would create a legal vacuum: it tells us that someone must be detained, but not by whom. In doing so, it would leave NHS trusts, police forces and local authorities with a lack of legal guidance and with a risk-averse default to the police. I think we agree that the police should not be the first responders. As Baroness May has reminded us, and as many officers have told me, the police are routinely called out to mental health incidents, not because they are best placed to respond but because there is no one else available or authorised. That is neither fair to the police nor fair to the individuals in crisis. A police uniform can escalate distress. A custody cell is not a place of recovery. An officer guarding a patient in accident and emergency for 29 hours, as the Metropolitan police have reported, helps no one—not the patient, not the police and not the public. The 2019 College of Policing snapshot found that 95% of mental health-related calls did not require a police response. That is staggering. It underlines why we must build up the capacity and legal authority of clinical professionals, not erase them from the statute. I turn to the Government’s argument and why it falls short. The Government’s case is that removing the phrase “by a constable or other authorised person” will de-emphasise the police and make the law more flexible. Ironically, however, removing the clarity about who may act risks re-entrenching police dominance in these scenarios, simply because no one else will feel legally empowered to intervene. The Government argue that the definition is unnecessary or potentially restrictive, but I say the opposite: a well-drafted enabling definition gives confidence, clarity and a lawful mandate for healthcare-led responses. This is not about excluding the police altogether. There will always be situations in which an immediate threat to life or serious violence requires a police presence, but that should be the exception, not the structure around which our mental health law is designed.
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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The hon. Lady makes an incredibly important point about the range of people who can and do respond in such cases. The Opposition are not saying that is a problem; we want to support them by giving them the legal backing and framework to step up to be the first port of call. Unfortunately, by default it is always the police, because they are the only ones whose ability to deal with such situations is covered. The amendment aims to create a culture so that the people she mentions have the confidence to deal with them, and the accountability so that we can say, “The police should not be there first; it should be the first responders that we have.” We are starting to see cross-fertilisation; we are simply providing a legal framework that says that this should be the way forward by default and design, not an exception where people are working around the system. I think we are on the same page here. It is about the nuances of how we do this, and whether it requires primary legislation. The House of Lords voted that it requires primary legislation, and the Opposition share that belief. That is why I am asking Government Members to reconsider when the amendment comes to a vote whether the balance is right because we would give people the security, legal certainty and ability to do exactly what they want to do, which is to care for patients, not worry about whether there will be some criminal side to the situation, and what the police interaction could be.
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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Spot on. The hon. Gentleman will have used them far more than I ever have, and that was exactly the point of them when they were brought in in 2008. The reason they have been so contentious is their misuse, misapplication and ongoing use. That is what we are trying to highlight. With clause 6 the Government are trying to streamline their use. That leads me neatly on to why the Lords introduced clause 6(3), which Government amendment 30 would remove. It is about how to ensure that there is adequate oversight so that people do not remain on CTOs in perpetuity or, more likely, have them applied inappropriately. Concerns have been raised about racial disparities in the use of CTOs—particularly for black men, but there is also work to be done on those from other communities who find themselves on CTOs. The hon. Gentleman is right: that is the ethos behind ensuring that we push people to community care. The problem is how to set that against the legislation on CTOs and how to provide the resources to enable an appropriate setting for that care.
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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Maybe it is my clunky naivety as someone stepping into the legal statutory framework, but I was hoping the Minister would guarantee he could take that away to look at with the team. I know from my clinical experience and from speaking to colleagues that it is one of the hardest things to measure and look for. Later, we will discuss areas where there are good case examples of people who have shown the problem of escalating behaviour that is missed by the authorities. This might be a clumsy and clunky way of trying to highlight that point, which is why we have not yet come up with amendments, but I would appreciate the commitment to look further at that when the Government takes the point away. It is really important to make sure we can give clinicians more certainty around what this looks like.
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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Yes. As the Minister pointed out on the Committee’s first day, legislation sets the culture. One the main reasons for the Wessely report was the racial disparities that had been found. We still have to look into the cause and effect of that, but one of the big markers was that CTOs were increasing indefinitely and seemed to hit certain communities disproportionately, without there being a full understanding of why. That was why in the House of Lords some argued that we should get rid of CTOs completely. The Opposition do not agree with that; we agree that clause 6 is important and that CTOs serve a purpose, for the reason that the hon. Gentleman explains so eloquently. The emphasis is on getting people into community treatment where we think it will be better for them, but ensuring that CTOs are not an undue burden on clinicians or patients and are not used inappropriately. Clause 6(3), introduced in the Lords, sets out a maximum duration of 12 months for CTOs, after which an extension would require thorough review. That process would demand consultation with the patient, their nominated persons and relevant mental health professionals, and the written agreement of a qualified psychiatrist. That multi-layered review process is vital to ensure that any extension is based on clear therapeutic benefit and necessity rather than routine or bureaucratic inertia. Moreover, the requirement of regular reviews every six months to extend CTOs would further strengthen oversight and accountability. The involvement of tribunals, which may recommend variations or terminations, would add yet another layer of protection for patients’ rights, as the Government and Opposition both acknowledge. While the reforms are, on the whole, positive, we must remain vigilant. The consideration of risks must be applied carefully and consistently to avoid unintended consequences such as deterring clinicians from using CTOs when they are genuinely needed. Ordered, That the debate be now adjourned.— (Taiwo Owatemi.)
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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My hon. Friend is absolutely right. Under the last Government, the “right care, right person” initiative was launched with the Humberside police force to try to ensure appropriate care, but that is an example in isolation. One solution would be to include guidance in the codes of practice, but it would not have the statutory footing to allow that legal certainty, which is the concern. Another would be to include something in the annual statement that we will receive from the Government. We should work collaboratively to try to find a decent piece of work to look for the evidence base and build a delivery plan to help the police extract themselves from situations, when appropriate, and care givers to insert themselves. It is admirable to share a problem that is difficult not just in England but in Wales, Scotland and Northern Ireland. I agree that the Government are right to proceed with caution, but caution is not the same as inaction, especially when lives are at stake and the law no longer reflects the reality of mental health care. The amendments are not about expanding police powers; they are about reducing the need for police involvement by giving others the lawful authority to act. Although maths may not be my strong point, I am not blind to the make-up of this Committee; I realise that the change will inevitably happen. I want to press the Minister on how he proposes to reduce the burden on the police to safeguard them from thousands of hours spent dealing with mental health crisis issues. In extreme cases, they are not appropriate responders. This is the key issue to improve so many aspects of our society. We could improve the working life of the police, allowing them to do what they are paid to do, trained to do and passionate about: policing and protecting their communities. We could improve life for the public, because it would free up the police to tackle crime and keep them safe. Most importantly, we could provide the correct care to those patients at their biggest time of need. I hope the Minister will set out how the Government plan to achieve that.
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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My hon. Friend is right: we agree that this is not a place for the police unless there is an absolute sign of criminal intent. The problem is that what happens is a member of the public sees something, reports it to the police and, naturally, it is the police, the fire service or the paramedics who come forward. If a person is unsure about someone behaving in an irrational manner, which by definition someone with a mental health issue could well be doing, the likelihood is that they will call the police and the police will be the first responders. We know that they tend to be the fastest to respond. Slightly widening and refining the definition of who can respond would allow us to build a framework and culture that might encourage a first responder—we often say that the AA is the fourth emergency service; it may well be that mental health services would be the fifth emergency service and could respond. That is what we need for service provision. The idea behind this is to try to crowbar the police out of that position, unless absolutely necessary, as my hon. Friend rightly says. Allowing a new framework would be good for safety and good for the police, because they would be freed up to do other stuff. More importantly, it would get the care as quickly as possible to the people who need it the most.
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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The hon. Lady points to the fact that the police are named, as they should be. Imagine if we took out the police completely—whowould then have the power to restrain, restrict and detain people under the Mental Health Act? That is the whole point of having the provision. What we are trying to do is refine and constrict the definition to make it clear for everyone in this country exactly who is entitled to do what. Emergency incidents could happen outside this House—would the police and mental health responder be there? That will come down to the clinical judgment of the 999 responder, the call handler and the clinician there, so I do not want to make it too restrictive. At the same time, we have to consider the evidence that is right under our nose, which is that 95% of the time the police are being called out inappropriately for mental health conditions. I guess that is the rub of what we are trying to sort out. Our responsibility in this House is not only to write good law, but to enable better systems of care. That means ensuring that the law empowers the right professionals to act at the right time, and centring the needs of the individuals in crisis, not just managing risk from the top down. I therefore ask the Minister to reconsider the amendments. Instead of deleting the definition of “authorised person”, let us work to try to strengthen and clarify it to support a wider, safer and compassionate response to mental health crises. Let us seize this opportunity to reset the balance between policing and care, which the police themselves are asking for and our continents desperately need. Much was made of the amendment in the other place, and I am grateful to the Lords Minister, Baroness Merron, for writing to Baroness May with an explanation of her concerns about the changes. The letter is dated 3 June and a copy was kindly laid before this House and the Committee. It is worth working our way through some of the issues raised. I fully recognise the Government’s concerns within it, and I agree with the need for extreme care when legislating on the deprivation of liberty, but I express reservations about the Government’s decision to overturn the amendment. According to the letter, the Government’s central concern seems to be the unintended extension of police powers. The Government argue in the letter: “Your amendments to clause 5 would give the police additional powers under the Mental Health Act. We do not support extending police powers in this way, and we understand that the police do not support this extension either.” That is also what the Minister has said in Committee. Respectfully, that is a mischaracterisation of the amendments. The original Lords amendments do not extend the powers of the police; they reflect current practice where the police are often involved in detaining individuals in mental health crises.
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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My hon. Friend is spot on about training. It is one thing to enshrine these measures in primary legislation; it is another thing to have the training and interpretation that go with them. One of the reasons that we have not tabled an amendment on the matter, as yet, is that there could be some concerns about what “cumulative” or “escalating” behaviour looks like. Ask any clinician and they will say that they have seen patients who are on the borderline and are struggling. It can be unclear whether they are within or outside the definition; they could be wavering between the two, given the state of their mental health. That is a real concern, but the broader pattern of identifying the picture of what is happening could be helpful and important. One way to address the issue would be to review the data and legislation. Would the Government consider carrying out a review two years after the implementation of the Bill, specifically to look at the working of the legislation through the lens of public safety? I hope that there will be no concerns, but that would provide a backstop and a legal safety net. We do not want to wait another 40 years if there are changes that need to be made.
12 Jun 2025 · Mental Health Bill [ Lords ] (Third sitting) · Hansard source
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I bow to the hon. Member’s expertise on this; the problem is that all the evidence shows that the police are the first there. I would like to see much more of him and his colleagues being able to respond and carry this out. We are giving them the legal certainty to do so. That is the argument for making sure that we have codified safeguards around who is and is not able to make such decisions. At the moment, it is purely the police who are called out to these situations, but this gives us another legal weapon with which we could fight this inappropriate use. The aim is to codify the safeguards around who can exercise detention, ensure accountability and, importantly, enable health-led alternatives to police detention. Are the Government confident that the decision does not leave a legal grey area around which profession or agency has the statutory power to detain, especially during urgent community or hospital-based crises? On the authorised person category in the section 135 and 136 powers, the Government say in their letter: “Extending these powers to ‘authorised persons’…could potentially lead to staff, patient and public safety issues. That is precisely why the Lords amendment included a tightly defined category of authorised person, subject to the Secretary of State’s regulation, mandatory training and safety provision. The intent is to ensure that when a professional, such as a trained mental health nurse, is better placed to respond than the police, they can do so lawfully and appropriately. The Government say: “Section 135 and 136 powers have been designed for police officers who have specific training, equipment and access to rapid support”. Many frontline NHS and social care professionals, including AMHPs, crisis team members and community psychiatric nurses, already respond to acutely distressed patients in highly volatile environments. They lack the police powers, but not the clinical expertise. The amendments would bring clarity and lawful backing to the situations they already manage. Take, for example, a mental health nurse in a community who arrives at a person’s home to conduct an urgent assessment. The individual is clearly experiencing psychosis, and is at immediate risk of self-harm. Under the current law, the nurse must call the police, delaying the care and potentially escalating the situation. Under the amendment, they could lawfully detain, provided they are authorised and trained. There are also confusions over the emergency response roles. The Government letter states: “There is a very real risk of confusion over who should respond in an emergency if multiple agencies have the same powers, which could lead to delays.” That concern is valid, but confusion is far more likely under the current law, where roles are unclear and NHS professionals must sometimes act unlawfully or wait for overstretched police. A regulated and accountable authorised person category, established in law and detailed in the code of practice, would clarify responsibilities, not blur them. Have the Government done any modelling of the delays and safety risk caused by not empowering suitably trained healthcare professionals to act in urgent situations? The letter also highlights concerns from stakeholders that this is “a radical proposal with a number of serious and potentially dangerous consequences and should not be pushed through without proper consideration”. These proposals were not developed in isolation; they were advanced in the House of Lords, where the former Mental Health Act reviewers, legal experts and mental health professionals carefully considered their scope. They are also consistent with the direction of the 2018 independent review, which emphasised reducing coercion, racial disparity and the overuse of police powers. The “right care, right person” initiative already expects health professionals to step in, but—unless I stand corrected—the initiative is not underpinned by any legal reform. Without amending the Act, health staff are still expected to take on crisis care without the powers of protection that they need to safely or lawfully do so. How can we expect health-led responses to mental health crises without giving health professionals the power in law to act? Turning to guidance and the code of practice, the Government say that they will issue further guidance on police handover protocols and the legal frameworks. While guidance is welcome, it is not a substitute for statutory reform. Guidance cannot grant powers to detain or protect professionals from liability. We can have legal clarity with this framework. If the Government want to push ahead with removing the amendments, will the Minister consider committing to a formal consultation with NHS England, the AMHP leads, frontline staff and patients on creating a legally robust authorised persons role? Would he consider piloting models of community-based urgent response teams that include AMHPs and trained nurses with delegated powers? Would he legislate for police exit strategies in A&E and community crisis responses that are enforceable, not just guidance based? Given our discussion about new clause 24, there is clearly scope for a sensible piece of work in the grey area to improve the interface for patients, clinicians and police. I think that is one we can all agree on.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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The hon. Lady is making an excellent speech and an excellent observation, and she clearly understands the rationale for the amendment. I just wonder, given that the use of a CTO is currently a clinical decision, why we find ourselves facing this problem in the first place. Ensuring a review and putting it on a statutory footing would hopefully stop that, because despite clinicians’ best intentions, more of these have been rolled on. This provision is simply a mechanism to try to stop that. What are her thoughts about how to make sure that that is the case?
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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Clause 21 will introduce a statutory duty to provide care and treatment plans for most patients detained under the Mental Health Act in England. It is, in the Government’s own words, a cornerstone of the reform package, so it warrants thorough scrutiny. Under the current legal framework, there is no universal statutory requirement for a written care and treatment plan for detained patients. Although the care programme approach is widely used in England, and the Mental Health (Wales) Measure 2010 provides a statutory framework for care planning in Wales, provision in England is more variable. There is also the section 117 duty to provide aftercare for some patients, but there is no legal requirement to produce a personalised plan that spans care, treatment and discharge planning from the point of detention. Clause 21 attempts to fill that gap. We welcome its aim of ensuring that all eligible detained patients in England have comprehensive, personalised and reviewable care and treatment plans in place. We particularly support the requirement for the plans to address both clinical and social needs such as housing and employment. The aim to embed transparency and collaboration will ensure that patients and those close to them are meaningfully consulted when it is practicable. The ambition to create a consistent national framework, which will improve the quality and equity of care, is also commendable, as is the recognition that restrictive interventions, including compulsory treatment, should be clearly justified in the plans. Nevertheless, I have several important questions for the Minister. We have talked about the draft regulations; I assume that these plans will be encoded in them. Does the Minister have an idea of when the draft regulations are likely to be published? Given the interest in the plans, that is important. Much of the substance of what a plan must include, including how often it will be reviewed and how much information can be disclosed, is left to regulations. Without sight of it, how can Parliament be confident that the framework will be robust, enforceable and fit for purpose? I trust the Minister, but what if he is shuffled away and we get a different Minister? We may not know. I turn to timeliness. Will the Government consider setting a clear deadline in regulations, for example within seven or 14 days of detention, for the creation of a care and treatment plan? The benefit of personalised planning can be realised only if plans are produced promptly. That point leads me to enforcement and accountability. What happens if a care and treatment plan is not produced or is not updated appropriately? Will patients and their advocates have any legal recourse? What oversight mechanisms are being developed to ensure compliance? Proposed new section 130ZA(6) of the Mental Health Act requires consultation with the patient and with their family or advocate, but only where practicable and appropriate. Can the Minister explain how that will be interpreted in practice? Would the Government consider strengthening the consultation duty to require a recorded justification when a consultation does not occur? It seems to me that in most cases it should happen, so providing a justification when it does not would allow accountability and ensure that it is being put in place. How will the plans integrate within existing frameworks? Many detained patients already have a CPA plan, or a section 117 aftercare plan. How will the Government ensure that these new statutory plans complement existing requirements, rather than duplicating them? On forensic patients and privacy, the clause allows for the inclusion of information about victim and public protection arrangements in plans for patients detained under part III of the Act. I completely understand why that is, but it raises a question: how will the Government balance the patient’s right to privacy, rehabilitation and focus with safety? We support the principle that everyone detained under the Act deserves a clear, person-centred plan that outlines not only why they are detained, but how they will move forward, recover and return to life in the community. I turn briefly to the Liberal Democrat amendments. I assume that many of the points will be addressed in the regulations, so I will not go through all the individual applications, because I think that there is space there and the plan would be able to pick things up. However, I completely understand what the hon. Member for Guildford is trying to achieve. The thrust of all the amendments that the Liberal Democrats have tabled has been accountability and making sure that we consider all points. I just hope to make sure that the Bill is practicable, and I hope on behalf of His Majesty’s Opposition that we can strike a balance between accountability and practicability and ensure that we have both. The Minister clearly has support from both sides of the Committee for getting this right. I look forward to hearing his answers and hearing about how Members can work together to ensure that.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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Clause 11 will introduce new section 56A into the Mental Health Act 1983. The clause represents an important reform to the framework for how treatment decisions are made to detain patients under part IV of the Act. The clause effectively establishes a statutory clinical checklist. It imposes a duty on the approved clinician in charge of treatment to consider a set of factors before giving medical treatment to the patient—whether or not the patient consents, lacks capacity or is refusing treatment. It applies to all treatments under part IV and to patients of all ages, including children. As the Government’s explanatory notes set out, that duty includes considering alternative treatment options, taking steps to assist and encourage the patient’s participation in decisions, giving proper weight to the patient’s past and present wishes, feelings, beliefs and values, including advance statements, avoiding the reliance on discriminatory assumptions such as those based on a patient’s age or behaviour, and consulting others involved in the patient’s life, such as families, carers, nominated persons or advocates. Importantly, where a patient lacks capacity, the clinician is still required to consider what the patient would want if they had capacity. We welcome the fact that it reflects a commitment to person-centred care, even in the most complex clinical situations. I recognise and welcome the intention behind the clause. The principle that patients should not be passive recipients of care but active participants in decisions about their treatment is well established in modern mental health practice. The clause gives that principle a stronger legal footing, aiming to embed it in everyday clinical decision making. The Government rightly acknowledge that many patients have felt, in the past, that their views and preferences have been overlooked. Proposed new section 56 is intended to prevent that and promote autonomy, dignity and respect, even where coercive treatment is being considered. I note that clause 11 amends the existing provision on second opinions and treatment certification, such as sections 57 and 58 of the Mental Health Act. It would appear that clinicians must now confirm in writing that they have complied with new section 56A checklists. Could the Minister confirm that that is correct? If so, that is a welcome move towards accountability and transparency. I want to raise a few areas where further clarification or strengthening might be needed. First, the clause still leaves substantial room for clinical discretion. Much of the checklist is qualified by what is “reasonably practicable” or “reasonably ascertainable”. That is understandable from a legal drafting perspective, but it raises questions about how robustly the duties will be applied in practice, particularly in under-resourced or overstretched services. Can the Minister confirm what support will be given to clinicians, such as the statutory guidance or training, to ensure that new section 56A is implemented meaningfully and consistently across the system? Secondly, although clinicians must now record that the checklist has been completed, the patient or their family currently have no direct route to challenge non-compliance. There does not seem to be an appeal mechanism, so I wonder what or who might fulfil that role. It would be helpful if the Minister could set out the process. Is there a formal role for advocates in contesting whether the process was followed properly? If found wanting, are there sanctions for failing to comply? Is it perceived to be part of the integrated care board commissioning role, for example? Could the Minister say more about what resources are available to patients or carers who believe their views were not properly considered? Would the Government consider a statutory right to request a review where the checklist appears to have been bypassed? Thirdly, I note that the clause applies only to patients treated under part IV of the Act. It does not apply to patients subject to community treatment orders, unless they are recalled to hospital, yet those patients may still face significant pressure to comply with treatment, often under the threat of recall. Forgive me if I am a little muddled, but I would welcome some clarification on the rationale for excluding CTO patients from these protections. Are the Government open to extending these duties to cover community settings, particularly as part of future of reform, especially as they did not accept the amendments tabled in the Lords? Fourthly, the checklist applies to all ages, including children and young people. That raises important questions about how capacity, consent and participation will be judged in younger patients, and how the duty to consult parents or carers will be balanced with the rights of the child. Will specific guidance be issued to support clinicians applying this clause in cases involving children and adolescents? Further still, while proposed new section 56A emphasises consultation and participation, the weight to be given to the views of others—whether an advocate, nominated person or family member—remains at the discretion of the clinician. That may be clinically appropriate, but it raises the question: how will clinicians be supported to navigate competing or conflicting views, and will they be required to provide reasons for how they have balanced those perspectives? I will not delve into it now, but when we come to nominated persons, there is a reason that this particular point is poignant. We need to understand how decisions are being made when there are challenges. While I welcome the clear emphasis in clause 11 on patient voice, autonomy and dignity in treatment decisions, I must raise a matter of considerable concern and spend a little bit of time on it: the absence of any explicit reference to public safety or risk to others within the proposed new section 56A. It could be argued that this is not a minor omission. As legislators, we have a duty not only to protect the rights of the individuals in clinical care but to safeguard the wider public. While risk to the public is rightly a key consideration in detention decisions under sections 2, 3 and 20A of the Mental Health Act, it is not reflected at all in the new duties governing treatment decisions, even when the treatment may directly affect behaviour inciting compliance. We sadly know that the stakes here are not hypothetical. When we were discussing clause 5, the Minister turned around and asked what the point was of over-embroidering the Bill, especially if such duties already exist in these cases. I will tread carefully here, because there are both legal and emotional sensitivities, but there are good examples of why this really matters. A deeply troubling case, and one that continues to resonate when we talk about risk, public safety and clinical decision making under the Mental Health Act, is that of Nicola Edgington and whether the Bill does enough to address it. In 2011, Nicola Edgington, a woman with a diagnosis of paranoid schizophrenia, walked into a police station and an A&E department in south-east London. She told the staff that she was relapsing and desperately begged to be detained, warning them that she posed a danger to others. Despite her history—she had previously killed her mother during an earlier episode—she was allowed to leave hospital. Within hours, she murdered a complete stranger, 58-year-old Sally Hodkin, and seriously injured another woman. Serious incident reviews concluded that the risk she posed to the public was severely underestimated. Professionals focused on her current presentation, not the pattern of risk, and key warnings were missed. She asked to be sectioned; she was not, and someone died. Since that case, there have been some important reforms, including stronger guidance on the risk assessment, improved information sharing between agencies, and enhanced care co-ordination through the care programme approach. Crucially, even today, there is still no statutory duty requiring clinicians to explicitly consider risk to the public when making treatment decisions under the Mental Health Act, including decisions about whether to detain or treat someone who is deteriorating. That brings me to clause 11 and proposed new section 56A. The Government rightly propose a clinical checklist for treatment decisions—one that includes a patient’s wishes and beliefs, as well as views from family or advocates. These are welcome steps, but the checklist is silent on public protection. It recognises autonomy, but not risk to others. It includes past preferences, but not past violence. Should we not at this moment consider an explicit legal duty to assess and document the risk that a patient may pose to others when treatment decisions are made, especially for those with a serious history of violence or relapse?
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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I rise to speak on an essential aspect of our mental health system: the role of mental health tribunals, and the proposed changes to the grounds upon which they can discharge individuals detained under the Mental Health Act 1983. Each year in England and Wales, about 20,000 people come before a mental health tribunal. These individuals are not criminals, but patients—often vulnerable, often voiceless—detained in hospital or living under community treatment orders, sometimes against their will. The function of the tribunals is clear: to act as an independent safeguard, to scrutinise the legality of detention, to test whether the continued deprivation of liberty is justified, and to ensure that care is being given within the bounds of both clinical necessity and human rights. Each tribunal consists of a legal judge, a psychiatrist, and a specialist lay member. Together, they form a check on the powers granted by the state to detain and treat people on mental health grounds. Therefore, tribunals are independent bodies that review whether a person should remain detained under the Mental Health Act. Historically, while an imperative, there have been concerns that modernisation is needed. The criteria they used were broad and inconsistent with modern principles of least restriction and patient rights. The 2018 independent review of the Act recommended aligning tribunal powers with clear risk-based criteria to ensure the detention is only maintained when absolutely necessary. The clause seeks to change the criteria that these tribunals apply when making decisions about discharge. Specifically, it would align the discharge tests used by tribunals with the statutory conditions for detentions—those found in section 2(2) in the 1983 Act for assessment, section 20(4) for treatment and section 17A(5) for community treatment. On one level, this is pragmatic reform. It simplifies the legal framework and avoids confusion caused by duplicative or overlapping tests. It creates consistency between the reasons someone can be detained and the reasons their tribunal must use to determine whether they should remain so. I would, however, caution the Committee not to treat simplification as neutral. While the administrative clarity is welcome, legal clarity can also narrow discretion. In tightening the grounds for discharge to mirror the detention criteria exactly, the clause may reduce the tribunal’s ability to consider the broader context, including, for example, the patient’s progress, their lived experience or the factors not strictly enumerated in statute. There is a risk that tribunals become passive reviewers of statutory boxes, rather than active assessors of individual liberty and clinical justification. Tribunals may ask whether the criteria are still met, rather than whether continued detention is truly necessary or proportionate. Moreover, I believe—although the Minister may have to correct me—that the clause applies retrospectively, including to individuals detained under forensic sections or already living under CTOs. We must ask whether it is right to shift the legal test midway through someone’s treatment or tribunal process, potentially raising the bar for their discharge. I welcome the intent behind the clause to create coherence to improve the legal precision of our mental health law, but will the Minister reflect on its practical effects? Will it make discharges harder? Will it reduce the tribunal’s role to tick-boxing? Will it truly serve the interests of the patient? Mental health tribunals are not merely administrative bodies; they are guardians of liberty for people who are often too unwell to speak for themselves. Any change that touches their powers must be approached with care, compassion and rigorous scrutiny. I ask the Minister to clarify how the clause will affect discharge rates in practice. Will tribunal members retain discretion to consider the individual circumstances of the patient beyond the bare statutory criteria? How will that be monitored? Has an impact assessment been carried out on the proposed change? Finally, in the Minister’s speech on clause 6, he said that he expects more people to be automatically referred. How many more does he expect the Government to see? I believe in his answer he said that 129 out of 4,000 were overturned. Is there any work to be done to see how many more automatic referrals would come in, how many more would be challenged, and what the impact of that would be? We must be mindful that mental health law is about not only treatment, but trust, autonomy and justice, so let us ensure that these reforms reflect that.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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The hon. Lady makes an excellent point. This is especially relevant when capacity fluctuates in some patients, which we expect to see more often with the kind of dementia that will potentially come forward —for example, some of the new illicit drugs that are available can cause significant problems. Does she agree that having that flexibility is key? That is why the clause will help to ensure that the patient is empowered at all those different moments, and that there is a robust statutory framework to hold them to account. We do not want them to slip through the net, because if they do, by definition, not having these treatment plans up to date and in place may lead them to other parts of the Act, and we are trying to avoid that in the first place. That is the problem with having CTOs, or the concern that she mentioned in our sitting this morning, which has also been raised by charities. Does she agree?
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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I think I see where the Minister is coming from, but to take the example that he chose last time we spoke about this, there could be someone with a severe eating disorder. At the moment, there are in-patients with an eating disorder whose care is seen as palliative. Part of the problem lies in how we decide what is a reasonable prospect of benefit and where the boundary lies. What should be done if someone forcibly refuses food? Where do we draw the line on putting in nasogastric tubes? I mention that not to get a specific answer from the Minister but to point out the difficult nature of the balance that the Bill is trying to achieve—where is the therapeutic benefit, and who is making the decision on it? With the system being patient-centred, the patient may well challenge it and say, “That is not for me; I don’t want this treatment.” But as the Minister said two days ago, the Government take a slightly paternalistic view on overruling that when it comes to someone’s capacity. So here lies the rub, and I would be grateful if the Minister could write to me if he cannot answer now. In the case of that example, which is live now, how do we balance the prospect of reasonable benefit—that would be evident in the case of someone with an eating disorder having food—with the reality of a patient feeling that they are not deriving any benefit from it from their perspective? If they wanted to challenge that, who would they turn to? I would have thought that a clinician would take the same position as the Minister—that they should have some treatment—but their capacity gives them the right to say “No, I won’t”.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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I am grateful for the opportunity to speak to clause 10, which addresses the nomination of the responsible clinician under the Mental Health Act. As we have heard, the responsible clinician is a pivotal figure in the operation of the Act, holding substantial legal powers in relation to detention, treatment and discharge. The Government’s explanatory notes make it clear that the clause is intended as a clarification, rather than a reform, of how a responsible clinician is designated by formally acknowledging that they are nominated by managers of the relevant hospital. That may well reflect current practice, but in legislation as sensitive and consequential as this, particularly where it relates to rights and liberties of people with serious mental illnesses, even clarification warrants scrutiny. I would like to raise a few points of constructive concern and seek reassurances from the Minister. First, although the clause is presented as technical, it alters the statutory language around who is responsible for nominating the RC from an implied clinical judgment to an explicit managerial nomination. Even if that reflects what already happens, there is still a de facto risk of blurring the lines between clinical decision making and administrative oversight. Can the Minister confirm that this change will not give hospital managers discretion to override clinical suitability in selecting the responsible clinician? Secondly, the clause distinguishes the responsible clinician from the soon-to-be defined community clinician role, which the Minister touched on. Although that separation may be helpful, it might help to guard that from confusion. Will clear published guidance accompany this change to explain to professionals, patients and families how roles are differentiated and how nominations are made? Thirdly, on the matter of transparency and accountability, will patients be informed when a responsible clinician is nominated for their care? Will there be a mechanism for a patient to raise concerns if they believe that their nominated clinician is not appropriate for their needs and, if necessary, to change them? If so, what will that mechanism be? Finally, although I accept the Government’s assertion that the clause is primarily clarificatory, we should keep it in mind that the Mental Health Act should not be amended lightly. The responsible clinician is not merely an administrative figure; they are central to the person’s liberty, treatment and legal rights. Have the Government considered whether additional safeguards could be introduced, in either guidance or statute, to ensure that this clarification does not lead to unintended consequences or the dilution of clinical independence? The clause may be a small piece of a much wider reform, but, as ever with mental health legislation, the details matter. They shape people’s experience of care and of coercion.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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It is a relief that we have not dropped clause 11, an important clause. Equally important is clause 12, on the appointment of a doctor to provide a second opinion. The clause will introduce the new framework for appointing second opinion appointed doctors under the Mental Health Act, which is indeed important. I begin by acknowledging the Government’s efforts to clarify and strengthen the role of these doctors, who play a vital part in safeguarding the rights and wellbeing of patients subject to compulsory treatment. The emphasis on the independence of the second opinion appointed doctor is a positive step. Ensuring that that doctor is not the patient’s responsible clinician or treating doctor reinforces impartiality. Furthermore, the clear responsibility for this doctor to assess therapeutic benefit and to verify that clinicians have followed the clinical checklist, considering patients’ wishes and preferences and treatment alternatives, reflects an encouraging commitment to embedding autonomy and choice in the clinical discussions. Having said that, I would like to raise some constructive points and seek clarifications on certain operational aspects that I believe are critical to the clause’s effective implementation. First, the Bill requires the regulatory authority, namely the Care Quality Commission in England and Care Inspectorate Wales, to appoint the second opinion doctor “as soon as reasonably practicable”. The absence of a specific maximum timeframe could raise concerns about potential delays. Given the importance of timely second opinions in safeguarding patient rights, will the Minister clarify what safeguards are in place to prevent undue waiting times? Forgive me: I could not find it, but has any clear data been recorded on timings for second opinion appointed doctors? Has any consideration been given to whether a timescale should be implemented in legislation in order to ensure that there is no slipping through the cracks? That may be appear to be overkill; I defer to experts in the Department, but given the acute needs of some patients who will encounter the legislation, it is worth considering. Secondly, the role of the regulatory authority is pivotal in the process. In England, that role falls to the Care Quality Commission, so it is worth spending a few moments reflecting on the CQC’s role not in general terms, but specifically in relation to mental health settings. Strangely, I speak today from a position of both continuity and change. Having been a Government Member during a period when there was reform of the CQC and it was under active discussion, I now speak for the Opposition, but with an equally strong commitment to ensuring that reforms are delivered and that people with mental health needs receive care that is not only safe, but dignified and therapeutic. It is no secret that mental health services, particularly in-patient units, have faced significant challenges in recent years. Some high-profile failures in care, including abuse and neglect in mental health hospitals, have understandably shaken public confidence. As a regulator, the CQC has struggled at times to respond quickly or decisively enough. In some cases, failings persisted despite earlier inspections raising concerns. We need to be honest about the fact that the pace of regulatory response has not always matched the urgency of the risk, particularly for detained patients, who are among the most vulnerable people in our society and our care system. Two recent independent reports—the Dash review, which began in May 2024 just before the election, and the follow-up work by Sir Mike Richards on its findings—have offered a candid but constructive diagnosis of what went wrong inside the CQC. They have identified serious weaknesses: a sharp reduction in inspection activity; delays in publishing reports; an overcentralised system that dilutes expertise in specialist areas such as mental health; and a lack of transparency that sometimes makes it difficult for families and professionals alike to understand how services are monitored. Both reports were also forward-looking, however. They have informed a programme of reform, which began under the previous Government and is, I hope, continuing under this Government. What has changed? The CQC has started to take action. It now has a renewed commitment to sector-specific expertise, which should help mental health, with dedicated inspection teams for mental health returning. The backlog of unpublished reports has been significantly reduced and the CQC’s digital systems are starting to be overhauled. Perhaps most importantly, the regulator is beginning to work on increasing transparency in order to engage better with service users and staff in mental health settings. These changes are welcome, but fragile. Reform takes time and momentum can easily be lost. Context matters when we are considering giving an organisation more work in primary legislation, which is why I have raised the issue and given a potted history. The Bill gives us the opportunity to ensure that the rights and safety of people subject to detention or treatment under the Mental Health Act are properly safeguarded, but legislation alone will not guarantee good care. The role of the CQC as a proactive and trusted regulator is essential. That means ensuring that inspections are sufficiently frequent, especially in settings in which patients are detained and find it hard to raise concerns; ensuring that de-escalation, restraint and seclusion practices are being scrutinised not just in policy, but in practice; ensuring that the voices of patients and families are actively heard in regulatory processes; and ensuring that any concerns that are raised, whether by whistleblowers, staff or external professionals, are acted upon promptly. I do not say all this to assign blame. Indeed, many of the problems that the CQC has faced have been years in the making, and I accept that some of them arose while I was on the Government Benches. However, I am saying this now because I believe that there is cross-party agreement that regulatory failure is not an option for mental health services. As we look ahead to implementing this legislation, I hope that the Committee will keep it in mind that a reformed Mental Health Act must be matched by a reformed regulatory framework that is resourced, responsive and rooted in the lived experience of those it is designed to protect. We know that the CQC has undergone significant changes and is under new leadership after the concerns, complaints and issues. Do the Government have faith in the CQC? I ask the Minister to provide assurances that both the CQC and—
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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Clause 20 addresses a central principle in healthcare, ethics and law: the right of individuals to make informed decisions about their treatment, and the conditions under which that right can be overridden. Let me begin by recognising the objective of clause 20 as both important and welcome. It replaces the outdated and potentially ambiguous language in the Mental Health Act 1983—language that speaks of whether a patient is “capable of understanding the nature, purpose and likely effects” of treatment—with a clearer legal standard based on whether a patient has capacity to consent, in accordance with the Mental Capacity Act 2005. This reform aligns the Mental Health Act with how capacity is already understood and applied across health and social care, and it harmonises part IV of the Act with part 4A, which already uses that language in the context of community patients. So far, so sensible. However, as the Opposition, our role is not only to acknowledge the intention, but to ensure that the implementation matches the ambition, and that patients’ rights are not merely affirmed in law but upheld in practice. What do these changes actually do? Under clause 20, we see a wholesale substitution of terminology. For example, in sections 57 and 58 of the Act, which deal with certain serious treatments such as neurosurgery and ECT, the language shifts from “capable of understanding” to having or lacking capacity to consent as defined in the Mental Health Act. It also explicitly incorporates advance decisions to refuse treatment under section 25 of the MCA, the role of a donee of lasting power of attorney, and the authority of a deputy appointed by the Court of Protection. This is a welcome acknowledgement of patients’ rights to plan ahead and to have their wishes respected, even when they later lose capacity. While the Government’s explanatory notes suggest that this is not expected to create practical change, I think we should pause and ask: what if it does? We are told that clinicians interpret “capable of understanding” as meaning “having capacity” under the Mental Capacity Act. But the MCA test is precise: it requires the person to understand the information relevant to the decision, retain that information, use or weigh it as part of the decision-making process, and communicate their decision. So are clinicians routinely applying this test fully, or are they relying on informed judgment? Can the Minister confirm, for example, whether NHS trusts have audited how consistently the MCA test is being applied in mental health settings? I was a clinician and am now an MP, so I understand the intent behind it, but the legal clarity—now with my MP hat on—is really important to ensure that we truly are interpreting the legislation we pass in this House for this country in the correct way when we are acting as clinicians. When it comes to advance decisions in acute settings, clause 20 provides that an advance decision to refuse treatment must be both valid and applicable, as per section 25 of the Mental Capacity Act, but in the real world of psychiatric in-patient care, clinicians may encounter such decisions during a crisis, when patients are at serious risk of self-harm or suicide. How will the Government support clinicians in determining validity and application quickly, safely and lawfully? I assume— I think the Minister hinted at this—that that will be part of the code of practice. On the power to override consent, perhaps most crucially the Mental Health Act allows for treatment without consent, even when the person has capacity, if they are detained under the Act. Again, we touched on this in relation to amendments discussed on the first day. That is a profound legal power. Does the clause change it in any way, or does it simply confirm that capacity is assessed, but not necessarily respected, under compulsion? If the Government intend the law to remain as it is—that patients with capacity can still be treated without their agreement—they may well need to specify and set that out. I urge Ministers to consider how we communicate that reality to patients, whose sense of agency and trust in the system may otherwise be undermined. I turn to the matter of Gillick competence for children under 16. The clause clarifies that the standard for under-16s is Gillick competence, not capacity under the Mental Capacity Act. This reflects the long-standing legal test established in the 1986 case of Gillick v . West Norfolk and Wisbech Area Health Authority. Under Gillick, a child can consent to their own medical treatment if they have sufficient understanding and intelligence to comprehend what is proposed. The Gillick test has advantages. It allows for a case-by-case assessment, not a rigid age threshold, and respects the emerging autonomy of young people. However, there are also risks: it can lead to inconsistency between clinicians and does not offer the same structured framework as the MCA. What safeguards will be put in place to ensure consistency and rigour in applying the Gillick test? Will the Government commit to updating the code of practice with guidance on assessing Gillick competence specifically in mental health contexts? I turn to deputies, attorneys and verifying authority. The clause references lasting powers of attorney and deputies—that is right and proper—but we need to ask how a clinician will verify that a donee is acting within the scope of their authority. Will the Government consider a national standard protocol to support clinicians in checking LPAs and court orders, particularly in urgent situations? For example, could this be part of the checklist, which we have already discussed, or is it implied that it will be part of that in the first place? Many of those concerns were shared in the other place. They were partly addressed in the letter for Baroness Merron, which is worth reviewing. It sought to clarify a number of concerns raised on Second Reading in the other place. I welcome the tone of the letter and the Minister’s stated willingness to listen. In particular, I acknowledge the recognition of the “challenges…to decision makers” that may be presented by “the complex interface between the Mental Health Bill and the Mental Capacity Act”, and I welcome the Government’s commitment to engage with clinicians and stakeholders during the revision of the code of practice. That is important. However, the letter also raises some further issues that deserve scrutiny. First, the Minister says: “Both Acts provide appropriate procedural safeguards to ensure that the individual’s Article 5 human right to liberty and security is protected during their detention. The nature of the safeguards provided under the two Acts are different”. That is undeniably true, but therein lies the concern: where the safeguards differ, so too may the thresholds, the review mechanisms and the practical experience of those subject to detention. In cases in which a person might meet criteria under both Acts, what clear guidance will clinicians be given on how to decide which legal framework to apply and how to ensure that the individual receives the most appropriate and proportionate protection? In the same letter, the Minister addresses the potential unintended consequences of reforms to section 3 of the Mental Health Act, namely that “people with a learning disability and autistic people, who lack capacity, could, in certain circumstances, be detained under the Mental Capacity Act rather than the Mental Health Act”. The Government’s stated intention is to prevent that outcome by strengthening community-based services. The letter states that “the proposed changes to Part 2, section 3…will only be commenced when we are assured that there are strong community services in place.” In the absence of clear statutory criteria, that could be seen as moving the target, so will the Government publish a set of benchmarks or a public readiness test? The Minister has said that the implementation will take place over 10 years, but a readiness test with criteria setting out how that will apply would help us to deal with a lot of the issues that we have talked about during the passage of the Bill.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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I appreciate the hon. Lady’s insight, both as a politician and as a patient. I guess the Opposition are concerned that there is no explicit duty here, which is why legislating for that is so important. There was a huge number of inquiries about the case from 2011. There have been sufficient changes, but in 2023, as we saw in Nottingham, there was yet another case. There are still ongoing proceedings, so I will not comment too much on that, but this is an opportunity that the Committee should seriously consider. This harks back to what I was talking about on Tuesday. It is another step—an escalation—in this concerning pattern of behaviour, and it is hard, from a clinician’s point of view, to work out whether something is going to happen. I see this as part of the checklist to make sure that consideration is there, or, if public safety is not there, that it does not fall into a statutory role as it would anywhere else. Those are my concerns. We have not put down an amendment, but I am interested in the hon. Lady’s thoughts on how that should be approached from both the politician and the patient side.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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You have actually caught me at a perfect point, Mr Vickers. The concept of therapeutic benefit is central to the second opinion doctor’s assessment. However, in clinical practice, interpretations of therapeutic benefit can vary considerably. How do the Government propose to ensure consistency and fairness in such assessments? Will there be clear and standardised guidance for the training of doctors giving a second opinion, to avoid subjective discrepancies? The introduction of the clinical checklist is a welcome enhancement, especially the requirement to consider patients’ past and present wishes and available treatment alternatives. However, it is essential that the checklist is not just a mere bureaucratic box-ticking exercise, as we have discussed. What mechanisms will be in place to monitor compliance with the checklist? What recourse will patients have through the assigned second doctor? Finally, I note that the clauses following clause 12 move towards tailoring safeguards around patients’ capacity or competence. That seems more humane and targeted than a one-size-fits-all approach, but this added complexity may increase administrative burdens on second opinion doctors and treating teams. Have the Government considered the potential impact on workload? Are there plans for adequate training and support to manage the transition effectively? In conclusion, clause 12 represents an important evolution in protecting the rights of patients undergoing compulsory treatment. The Opposition recognise that progress has been made. However, the effectiveness of the reforms hinges on clear operational frameworks, adequate resources and a robust regulator. I look forward to the Minister’s response to my questions and hope that the Government will take them on board to strengthen the Bill.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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The clause will amend section 61 of the Mental Health Act 1983 on the review and treatment of detained patients. The 1983 Act requires approved clinicians to provide reports on the treatment and condition of detained patients, particularly where patients do not consent to treatment. Those reports are integral to the scrutiny and safeguarding of the patients’ rights. The Act sets out timing requirements for such reports, which generally coincide with detention renewals, helping regulatory authorities such as the CQC in England and the Healthcare Inspectorate Wales to oversee treatment appropriately. I imagine that you are expecting me to continue my speech on the CQC, Mr Vickers, but I will spare you; you are august in your understanding of the health inspectorates, so I will not put the Committee through that. The clause updates the timing and scope of the reporting requirements, and we welcome the fact that it will introduce a more structured reporting schedule. It will require reports to be provided after six months, then every six months and then every 12 months, as well as for the reports to be provided within two months of those periods. The clause also explicitly includes part III patients—those under forensic orders—especially those transferred from guardianship or those whose community treatment orders have been revoked. Importantly, the clause grants regulatory authorities the power to require reports not only from non-consenting patients but where patients are found to be consenting under certain treatment sections. That enhances the regulator’s oversight role, allowing it to request additional information should concerns arise. We acknowledge that the intent behind these changes—to align reporting practices across different patient groups and to strengthen regulatory oversight—could improve consistency in monitoring, ensure that concerns about treatment are promptly addressed and, ultimately, enhance patient safety and rights. However, several questions arise. How will the increased power for regulatory authorities to require reports, including from consenting patients, be balanced to avoid placing excessive administrative burdens on clinicians? Will the changes to the timings of reports, particularly the delay of the first report to three months for certain cohorts, risk any gaps in early detection of treatment issues? What safeguards or limits will exist to prevent potential overuse of the power to request additional reports? Could that put further strain on mental health services and regulatory bodies that are already stretched? How clear and workable are the definitions distinguishing different patient groups, such as part III patients transferred from guardianship or those with revoked community treatment orders? Might that complexity lead to inconsistent application? The clause distinguishes those groups because it assigns them different reporting schedules and rules. For example, part III patients transferred from guardianship and CTO-revoked patients after 6 months have a specific reporting timetable—every 6 months, then 12 months. In contrast, CTO-revoked patients within six months of their hospital order and other part III patients retain their existing, presumably different, reporting periods. That layering risks creating complexity. The Bill uses technical terms, and references to a patient being transferred from guardianship under section 19 or to a community treatment order being revoked are not immediately clear and may not be uniformly interpreted by all clinicians and regulatory staff. Why is that a potential problem? If these terms or categories are not clearly defined and communicated, or if the practical implications are not straightforward, there is a risk that clinicians might misclassify a patient’s status, leading to incorrect timings or absence; regulatory authorities might struggle to apply the rules consistently; and patients might inadvertently fall through gaps in reporting. For example, let us imagine a patient who was initially under guardianship, which means that someone was legally responsible for their care, but who was then transferred to a hospital order under part III of the 1983 Act. If the clinician or regulator is unclear whether the patient fits into the “transferred from guardianship” category for the revised six-month reporting cycle, they might apply the wrong schedule, and thereby delay important reviews or misunderstanding opportunities for intervention. Concern about definitions is really about ensuring clarity and practicality and making sure that everyone involved in patient care and oversight understands precisely which patients fall under which reporting categories, so that the intended protections and reviews happen without there being confusing gaps.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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It is an excellent and eagle-eyed point. I would point to the evidence base that I cited, starting from 1988 onwards. That is three and half decades’ worth of evidence that points to a causal factor. In my clinical background, I have seen patients that I think it relates to. Perhaps I will stand corrected, but I am not sure that domestic violence has been shown as a causal factor of mental health conditions. We know that in the developmental stages that children go through, when their brains are developing and growing, as the 2016 study showed, there are intrinsic changes. That is why the Opposition chose to put that wording in. I agree that the definition could be wider, and we discussed that on the first day of debate with the Liberal Democrat definitions. I see the hon. Lady’s intent, but the main point is the evidence base. Maybe in the future that would be something, if we have evidence, that the Minister could consider taking forward. At this point in time, I think it is undeniable that childhood trauma makes a difference, and that is why the amendments specifically say “childhood trauma”, not anything wider.
12 Jun 2025 · Mental Health Bill [ Lords ] (Fourth sitting) · Hansard source
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I rise to speak to clauses 15, 17 and 18 and Liberal Democrat amendment 13. Clause 15 will amend section 58A of the Mental Health Act 1983 in regard to ECT. It is worth understanding the law as it stands. At present, if a patient lacks capacity to consent to ECT, treatment may be administered only if a second opinion appointed doctor certifies that the treatment does not conflict with any valid advance decision, or a decision made by an attorney, a deputy or the Court of Protection. That acts as an important safeguard, ensuring independent scrutiny of patients’ prior wishes or of proxy decisions before such an invasive treatment can proceed. This clause will shift the responsibility. Under the Bill, the initial determination about whether ECT would conflict with any advance decision or proxy decision is moved from the second opinion appointed doctor to the patient’s approved clinician. Only if the clinician finds no conflict would the SOAD then be involved to certify that the patient lacks capacity, that the treatment is appropriate and that the clinician’s decision aligns with proposed new section 56A safeguards. The Government’s explanatory notes clarify that that reflects the unique nature of ECT: if a valid refusal exists, treatment must be prevented outright. The clinician therefore acts as a gatekeeper before SOAD involvement. Clause 15 marks a significant shift in the role of the SOAD with respect to ECT. The whole point is to transfer the responsibility to ensure that treatment does not conflict with advance decisions or refusals. That contrasts with the approach under proposed new section 57A, under which the SOAD must certify the presence of a valid decision before compulsory treatment. The rationale, as explained in the Government’s notes, is that for ECT, the mere presence of an advance refusal should prevent treatment, whereas in the case of other compulsory treatments, the content of the advance decision is integral to deciding whether treatment can proceed. I recognise the rationale for the change and the introduction of a clinical checklist—I assume that we are talking about new section 56A—but I have some questions for the Minister. Does shifting the initial responsibility to the approved clinician risk reducing the independent oversight currently provided by the SOAD, especially given the invasive nature of ECT? How can we be confident that clinicians will rigorously check for and respect valid advance refusals or proxy decisions? What practical safeguards will be in place to ensure that clinicians have full and timely access to any relevant advance decisions or proxy appointments? Will there be a standard process for verifying those, especially where records may be fragmented? The SOAD’s role is now more focused on assessing appropriateness of treatment and capacity but, it appears, without responsibility for confirming the absence of conflicts with advance refusals. Will the SOAD therefore be empowered with sufficient information to make the judgment confidently? How will the clinical checklist be implemented and monitored across services to ensure consistent application? Can we be assured that it will effectively embed the principles of therapeutic benefit and least restrictive option, especially when dealing with ECT? What mechanisms will be available to family members or advocates who believe that a patient’s prior wishes, or proxy decisions, are being overlooked? Will there be accessible avenues by which to raise concerns or seek timely review?

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