Tuesday 14th January 2025
(1 year, 9 months ago)
Lords ChamberMental Health Act 2025 View all Mental Health Act 2025 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 47-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (14 Jan 2025)
Lord Cryer
Member’s explanatory statement
This amendment and my other amendments to Clauses 4 and 43 are minor and technical amendments to clarify that the references to after-care services include services arranged (as well as directly provided) by a public authority under section 117 of the Mental Health Act 1983.
Lord in Waiting/Government Whip (Lord Cryer) (Lab)
My Lords, in moving government Amendment 7, in the name of my noble friend the Minister, I shall also speak to government Amendments 14, 87 to 94, 127, 161 and 162, also in the name of my noble friend the Minister.
The minor and technical government Amendments 7, 14 and 127 make changes to Clauses 4 and 43 to clarify that the references to aftercare services include services arranged, as well as directly provided, by a public authority under Section 117 of the Mental Health Act 1983.
I turn to government Amendments 87 to 94, which concern Clause 31, and Amendment 162 on the commencement of certain provisions within Clauses 29, 31 and 34. Amendments 87 to 94 divide Clause 31 into two clauses to allow for automatic referral rights to the mental health tribunal to be commenced separately for patients who will be subject to conditional discharge subject to deprivation of liberty conditions. This is an important safeguard for this new form of conditional discharge, given the level of restriction that these individuals will be under. Under Clause 31, patients conditionally discharged under deprivation of liberty conditions will be referred to the tribunal 12 months post discharge and every two years thereafter.
Amendment 162 amends Clause 53 to adjust commencement for certain provisions currently commenced by regulations to be commenced two months after Royal Assent, and vice versa. Automatic referral to the tribunal under Clause 31 and increased application rights under Clause 29(2) shall now commence at two months post Royal Assent for conditionally discharged patients subject to deprivation of liberty conditions. That is to coincide with the introduction of this new subset of conditional discharge at Clause 33 and ensures that the new measure is introduced with the full suite of carefully considered safeguards in place.
Amendment 162 also adjusts commencement for the change of detention criteria for transfers from places of detention to hospital under Sections 47 and 48 of the Mental Health Act 1983 to commence via regulations. This change in the detention threshold ensures that the detention criteria can be met without the need for a hospital bed to be identified, and is closely linked to the introduction of the statutory time limit at Clause 35. The ability to commence this reform simultaneously with the time limit at Clause 35 will allow for streamlined implementation planning around the new statutory notice process and accompanying guidance.
Finally, government Amendment 161 creates an equivalent power for Welsh Ministers to make consequential provision in areas of their devolved legislative competence. This is a limited power and allows Ministers to make regulations containing such provision as they consider necessary to deal with legislative consequences that arise as a result of the Bill. The power cannot be used to make substantive policy changes. This new clause would mirror the powers of the Secretary of State, as set out in Clause 51. This provision was requested by the Welsh Government in their legislative consent memorandum, in which they recommended that the Senedd grants consent to the Mental Health Bill. We believe that this is appropriate, and I am grateful to the Welsh Government for their close collaboration and support for this important piece of legislation.
I hope that noble Lords are able to support these technical and necessary amendments. I beg to move.
Lord Kamall (Con)
My Lords, I am sure the noble Lord is thinking, “If only all groups went as swiftly as this one”. I thank him for bringing forward these government amendments. We understand that although they are largely technical in nature, they address some important points regarding the delivery of aftercare services, tribunal reviews and the broader application of this legislation.
We see the point of Amendments 7, 14, and 127 to clarify the references to aftercare services under Section 117 of the Mental Health Act, including services arranged by public authorities in addition to those directly provided. We understand that this reflects the practical realities of service delivery and may help to avoid ambiguity in how these obligations are interpreted. If we have heard any lesson throughout this debate, it is about how we avoid ambiguity when it comes to the treatment of patients.
We understand also that Amendments 87 to 94 focus on tribunal reviews for patients subject to conditions amounting to a deprivation of liberty, which we have discussed in other groups. The proposal to commence these provisions two months after Royal Assent is pragmatic and necessary to provide patients with timely access to justice. The amendments also introduce a new clause requiring the Secretary of State to refer certain cases to the tribunal within defined timelines. We agree that this will ensure that patients who are conditionally discharged but not recalled to the hospital are not left in a state of indefinite uncertainty. Once again, that was covered in the last group of amendments as somewhere where the patient could fall between the cracks, as it were. Timely tribunal reviews are essential for safeguarding patients’ rights and ensuring that any conditions imposed remain proportionate and necessary.
We understand also that Amendments 161 and 162 propose adjustments to the commencement of specific provisions, including granting Welsh Ministers powers to make consequential provisions within their devolved competence. Though these amendments are largely procedural, they underline the importance of clarity in implementing the reforms set out in the Bill. Of course, we understand that healthcare is a devolved matter. I remember having to deal with the devolved Administrations when I was a Health Minister, and we always did so collaboratively. Welsh Ministers should indeed have the same right to make consequential provisions, although if I have a question for the Minister, it is: what safeguards and oversight mechanisms will be in place to ensure equal application of the Bill to Wales, as in England? I am sure he will be aware that we have sometimes had questions in this place as to why the standard of health or social care in another part of the United Kingdom might be different, even understanding that it is due to devolution. Are there any safeguards to ensure that one part of the UK is not seen as having an inferior service to the rest of the UK? How would the Government address that?
With that, we very clearly understand that these are technical amendments and we will not oppose them.
Lord Cryer (Lab)
I am grateful to the noble Lord and take his point about ensuring there are equal standards across the devolved Parliaments and Assemblies. However, nothing is guaranteed. As he undoubtedly did when in government, we will endeavour to collaborate with Welsh colleagues—as well as others—to ensure that equal standards are applied across England and Wales. That includes regular contact with the Senedd and the Welsh Executive on a variety of matters, including health. That may be a slightly vague answer, but at the moment it is the best I can do.
I thank the noble Lord for his other comments. I have spoken about the need for these minor, technical and necessary amendments, and I hope noble Lords can support them.
Lord Kamall (Con)
This raises another issue, which I know has been raised in other areas of healthcare, of families who live across borders—if the parents live in one part of the United Kingdom and the children live in another, or if someone who has lived away from home moves back. I do not expect an answer now, as that would be unfair, but if the noble Lord could write to noble Lords on cross-border issues, where someone has commenced care in one area but then they or their parents have moved to another area, that would be satisfactory. We had a number of issues around this in healthcare, particularly mental health care, and it is important to resolve them.
Lord Cryer (Lab)
I am happy to do that. I remember having those sorts of issues when I was a Member of the other place. Probably a number of us have experienced them. I suppose that, at present, it is how it has always been: you have to try to communicate with the respective authorities and bring them together so that there is some sort of continuity.
Lord Cryer
“(The arrangements may also include provision authorising or requiring a copy of the report to be given to other persons.)”Member’s explanatory statement
New section 125A(3)(b) requires arrangements to include provision for reports to be given to the people listed in that provision. This amendment provides, for the avoidance of doubt, that arrangements may also include provision for reports to be given to others.
Lord Cryer
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 4, page 5, line 20.
Lord Cryer
“(The arrangements may also include provision authorising or requiring a copy of the report to be given to other persons.)”Member’s explanatory statement
New section 125B(3)(b) requires arrangements to include provision for reports to be given to the people listed in that provision. This amendment provides, for the avoidance of doubt, that arrangements may also include provision for reports to be given to others.
The Earl of Effingham (Con)
My Lords, I thank the noble Baroness, Lady Tyler, my noble friend Lady Browning, the noble Lord, Lord Scriven, and the noble Baroness, Lady Hollins—who sadly is not in her place today—for their amendments in this group.
Given that it is now widely accepted that we should be moving towards a system of health and care focused on prevention, these all appear to be sensible amendments. They seek to understand how integrated care boards and local authorities are identifying those with autism or learning disabilities, the risk of them being detained and, if appropriate, the risk to the community, as well as ensuring that those with autism and learning disabilities receive the appropriate level of care.
Amendment 28, in the name of my noble friend Lady Browning, specifies that local authorities must seek to ensure the needs of people with autism and learning disabilities can be met without detention when they are exercising not only their market function but their commissioning functions. This acknowledges the roles that local authorities play in commissioning health and social care. Local authorities commission publicly funded social and healthcare services, many of which interact with mental health service provision, such as authorised mental health professionals and addiction services. By explicitly mentioning the commissioning functions of local authorities and not just the market functions which arise out of the Care Act 2014, this amendment gives the Bill greater clarity.
The noble Baroness, Lady Hollins, has tabled Amendments 36 and 37 in this group, which relate to the provision of community services for autistic people. These amendments are in a similar vein to Amendment 139 in the name of my noble friend Lord Kamall, which will be discussed in the next group and which seeks to ensure a greater availability of community services. Amendments 36 and 37 expand the duties on integrated care boards and local authorities to provide better and more responsive care to those on dynamic support registers.
Of particular interest is subsection (3)(a) of the new Section 125I proposed in Amendment 37. That new provision states that integrated care boards must
“establish digital systems to … assess, monitor, and address sources of inequality”
arising out of the current provision of mental health care. As my noble friend Lord Kamall has been keen to stress, digitalisation in health and social care is the way forward for improving productivity and ensuring the best possible care outcomes.
I know the Minister believes in the value of the expanded use of technology and digital systems, and it would be welcome if she could give some commitment here. When we hear from her, we would be interested in whether there are any legal reasons for not being able to accept what these amendments seek to do, such as around issues of privacy, or whether the barriers are financial. We very much look forward to the response of the Minister.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to the noble Lords present for their contributions this evening. Perhaps I can make a general point to the noble Baroness, Lady Tyler, and the noble Earl, Lord Effingham, about the main pillars of change which we look forward to in the 10 year-plan. The noble Earl has just referred to one of them, which is the move from analogue to digital. In that context—the noble Baroness raised a point about parity between mental health and physical health—the moves from sickness to prevention, from hospital to community and from analogue to digital apply at least as much to mental health as they do to physical health. That is our way forward. I am looking forward to the 10 year-plan to really give structure to that.
Let me turn to Amendment 21, tabled by the noble Baroness, Lady Tyler. This amendment seeks to ensure that the register under new Section 125D includes autistic children and children with a learning disability who have risk factors for detention, so that they can be supported in the community. We absolutely agree with the intention behind the amendment, although I have to say that it is regarded as unnecessary because the current drafting does not limit the duty to adults; it includes anyone who meets the other criteria, including children, which I know the noble Baroness is rightly looking for. The register is designed to provide health and care bodies with additional information about the needs of those with a learning disability and autistic people who have risk factors for detention under Part II of the Act. That is to ensure there is a particular focus on their needs, so that they can be better supported in the community.
The noble Baroness, Lady Tyler, made the observation, which I understand, about too many children being left to reach crisis point and the increase in the number of children in need of mental health services, particularly over the last three years. I very much recognise this concern. We have seen an increase in referrals and access across children’s and young people’s mental health services, including crisis services. This is due to an expansion of the services to meet need but also to an increase in prevalence and intensity. It might be helpful if I indicate that NHS England is in the process of developing proposals for a new model of specialised children’s and young persons’ mental health services, supported by a new service specification and quality standards. This new approach would support delivery of specialised services in the community, as well as in appropriate in-patient settings close to the child’s or young person’s family and home. That is a matter that has been raised many times in this Chamber and one that I am very sympathetic to.
Amendment 22 was tabled by the noble Lord, Lord Scriven, and supported by the noble Baroness, Lady Browning. If taken forward, this amendment would require each local authority to assist the integrated care board in its duties in respect of support registers for people with a learning disability and autistic people. We certainly agree with the intent of this, and I am pleased to be able to provide reassurance that the clause already provides the Secretary of State with the general power to make further provision about the register in regulations. We expect this to include detail on how relevant information is to be obtained and from whom. This is to include the role of local authorities, alongside other relevant health and care bodies, in providing further relevant information.
We believe that it is most appropriate to include this detail in regulations rather than in primary legislation, since the way in which information is obtained, what information is obtained and who might be involved may change with emerging best practice. As noble Lords will realise, that point has been made in respect of a number of these amendments. Returning this to Parliament at every instance would be disproportionate.
However, it is important that the process actively involves health and care system partners. We are clear that the integrated care board must retain overall responsibility for the register. Providing a list of named bodies that have a role in providing information in the legislation may create an unintended diffusion of responsibility, which could negate the benefits of putting these registers on a statutory footing.
Lord Scriven (LD)
I am sorry to interrupt the Minister in mid-flow. She has just explained why it would be wrong to put the process for collecting the data in the Bill, with which I completely agree, but my amendment does not seek to do that. It seeks to make it a legislative requirement of local authorities to be part of the process.
The reason I have tabled the amendment—and I am sure it is the same for the noble Baroness, Lady Browning, in putting her name to it—is that NHS England’s figures say that a lot of people who are admitted to hospital, 52%, are not on the register, but many will have come into contact with the local authority. That is why it is important for the Bill to make local authorities part of the process of identifying who should be on the register. That would subsequently allow the Government to provide statutory guidance about the collection of the data, but it is important that there is a statutory duty in the Bill to do that.
Baroness Merron (Lab)
I thank the noble Lord for adding to the points that he made in response to my comments and the assurances that I have just given, and I am happy to review them. I understand the intent.
Amendments 24 and 29, tabled also by the noble Lord, Lord Scriven, seek to impose a duty on integrated care boards and local authorities to consider information in the register, or obtained by virtue of this clause, when exercising certain existing functions. I strongly agree with the principles behind these amendments, although it is considered that the current drafting in the clause, which requires both integrated care boards and local authorities to “have regard to” the relevant information, already achieves the intended effect. The common duty to have regard is one that both integrated care boards and local authorities are familiar with and used to applying. In this context, we expect this duty to result in careful consideration being given to the information.
Departing from the wording of a well-established duty could create ambiguity, leaving it to the interpretation of individual integrated care boards and local authorities. As I can see the noble Lord agrees, that would be a very undesirable outcome. It may inadvertently create a weaker duty than that set out in the Bill or lead to variation in interpretation and response to the duties.
If Amendments 25, 26, 30 and 31, tabled by the noble Lord, Lord Scriven, were taken forward, they would put a duty on integrated care boards and local authorities to ensure that the needs of people with a learning disability and those who are autistic could be met without detaining them, unless there was a compelling reason why that was not possible. A point was raised, including by the noble Lord, Lord Crisp, about difficulties in enrolment on dynamic support registers and the need to address that in the Bill. DSRs are part of existing NHS England policy and we have heard that they can be effective in preventing hospital admissions. That is why we propose putting these important registers on a statutory footing and making them a requirement.
The Bill already places duties on integrated care boards and local authorities to seek to ensure that the needs of those with a learning disability and of autistic people can be met without detaining them under Part II. This is a legal requirement to ensure that particular attention is paid to the needs of people with a learning disability and of autistic people, and that services should be commissioned accordingly.