Mental Health Bill [HL]
(1 day, 4 hours ago)
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Baroness Merron
That the House do agree with the Commons in their Amendment 1.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, with the leave of the House, I will speak also to Amendments 2 to 21, including Amendments 19A and 19D. It is a pleasure to return this Bill to this House; I very much appreciate the support and engagement of noble Lords throughout its passage.
Let me turn first to the government amendments in the other place, other than the minor and technical amendments, which are there for clarification. We have clarified the duties on NHS bodies to make arrangements regarding advance choice documents, otherwise known as ACDs. NHS bodies must actively inform individuals about ACDs, rather than taking a minimal approach. The Bill requires that information and help are provided to people who wish to make an ACD through discussion with a suitably qualified person. NHS bodies should consider the advantages of making an ACD within 12 months after discharge and aim to provide support. Additional guidance on these duties will be in the revised code.
I thank my noble friend Lady Keeley and the noble Baroness, Lady Barker, for raising concerns about the unequal application of the Human Rights Act. The Government have now made it so that registered private providers delivering Section 117 aftercare or in-patient mental health services, funded by local authorities or the NHS, are treated as carrying out public functions under the Human Rights Act and act compatibly with the convention rights. This amendment will apply UK-wide.
I turn to the amendments made by this House on police powers. I thank the noble Baroness, Lady May, for her constructive engagement and for establishing the review of the Mental Health Act when she was Prime Minister, which has brought us to this place today. We have removed the amendments made to Clause 5 that would have added police and other authorised professionals to Sections 2, 3 and 5 of the Mental Health Act. Extending police and other authorised professionals to these sections would be inappropriate—a view that is shared by the police.
We have removed Clause 50 from the Bill, which would have extended emergency police powers under Sections 135 and 136 of the Act to other authorised persons. Health and care professionals lack the training, equipment and access to rapid back-up needed to use such powers safely, and stakeholders are concerned about staff having the authority to use reasonable force. A blanket extension of powers to multiple agencies would risk confusion and delay in emergencies due to a lack of clarity over who should respond.
There are strong views on either side of this issue, and there are situations where health professionals feel that they do not have the powers they need. That is why I am announcing longer-term plans to launch a consultation into emergency police powers of detention. We will consult on the powers available to different professionals in different situations and settings, in particular—but not limited to—the operation of the emergency powers in Sections 135 and 136. The consultation will seek views on powers and joint working approaches to ensure that health and social care professionals and police have the appropriate powers to act in order to prevent people harming themselves and others when in a mental health crisis. We firmly believe that this is the right approach to a complex issue that requires careful consideration and consultation.
I turn to community treatment orders. Clause 6(3) has been removed from the Bill, as CTOs already comply with the code and have an initial six-month period. The responsible clinician may renew a CTO if there is a risk of serious harm without it and a reasonable prospect of therapeutic benefit. Following positive engagement with the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, I can confirm that the Government will review the statutory forms that relate to CTOs, with the aim of strengthening them to ensure a clear audit trail of the reasons for applying a CTO and associated conditions.
Regulations will require that statutory care and treatment plans specify any CTO conditions and their justifications, which will also be clarified in the code. We will work with the Tribunals Service and the judiciary to ensure that the patient’s plan is considered alongside other evidence at tribunal hearings. We will clarify in the code that, where a tribunal recommends that the responsible clinician reconsider CTO conditions as it does not consider them necessary, the responsible clinician should review and, potentially, revise those conditions. The code will set out that the responsible clinician should inform the patient of their decision after considering the tribunal’s recommendation, which should be recorded in writing. We will engage on the code before publication and involve the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, in the process. As the tribunal is responsible for considering all relevant evidence, this may include recent recommendations made at past tribunal hearings regarding the conditions placed on the person, including the detail and rationale of any current conditions.
I can confirm that since September 2025 we have increased the quantity and frequency of reporting on racial disparities in key metrics, such as detention CTOs and length of stay by ethnicity. Much of this data was previously published annually but it is now published monthly, allowing for closer monitoring of progress. The data is publicly available on the Mental Health Act annual dashboard and, along with implementation of the patient and carer race equality framework, will be used by the Care Quality Commission as part of its inspection regime.
On the debriefing amendment, I thank the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, for their constructive engagement. We have removed Clause 35, which required independent mental health advocates to consult people about their in-patient experience after discharge. This removes policy duplication and additional strain on advocacy services, whose focus is on supporting detained patients’ rights. The code will clarify the processes of care planning. Supporting someone to make an advance choice document should include the opportunity to reflect on past experiences. The 10-year health plan commits to making patient feedback central to quality improvement.
The Government have tabled amendments in lieu regarding the appointment of a nominated person for a child under 16 who lacks competence, and I am most grateful to the noble Baroness, Lady Berridge, for her continued work on this. The Bill now states that an approved mental health professional, or AMHP, must appoint either
“a person who has parental responsibility … a person named in a child arrangements order as a person with whom the relevant patient is to live”
or
“a person who is a special guardian”.
If there is no suitable person willing to act, the AMHP must consider the child’s wishes and feelings when deciding who to appoint.
On the amendment tabled by the noble Baroness, Lady Berridge, to the Government’s Motion, I understand the intention to prevent a parent who has had parental responsibility limited from being appointed as a nominated person by an AMHP where a child lacks competence to make the appointment. The amendment tabled would mean that a special guardian or person named under a child arrangements order as someone with whom the child must live must be appointed. It is not appropriate for legislation to say that a particular individual must always be appointed nominated person. If they are not able, or even willing, to perform the role effectively, requiring them to take this role and ruling out other options risks harming the child’s interests.
As we know, legislation can be a blunt tool. It is far more appropriate to set out nuances such as this in the statutory code to ensure that the child’s individual needs are considered. That is why we previously agreed to set up an expert task force to consider these very complexities. Part of this role includes ensuring that clear guidance is given to AMHPs on who to appoint in a range of scenarios to avoid unintended consequences. At this late stage, in order to get this right, we should not be hurriedly working through these complexities as part of the legislation. We should develop detailed guidance, in consultation with professionals and patients, through drafting the code of practice. I therefore ask the noble Baroness not to move her amendment.
In conclusion, I hope that noble Lords will support our position and pass the legislation without amendment. I beg to move.
Baroness Berridge (Con)
My Lords, I will speak to Amendment 19D in my name. I thank the Minister and her officials for the frequency of their engagement on the Bill. I put on record my apology for not spotting possible issues with the Government’s Motion, to which I have tabled the amendment, much earlier. I thank the Minister and her officials for meeting with the approved mental health professionals, the professional group dealing—often late at night or at a weekend—with our sickest children, who do not have the competency to appoint a nominated person for themselves.
I specifically recognise the inconvenience to the Bill team, but this matter relates to the protection of mentally ill children and has been flagged at every stage since the Wessely review in 2018, when a consultation was suggested. In recent meetings with the Minister, I understood that what was to be achieved was that the appointment of nominated persons would reflect existing court orders made by the family court on child protection grounds. The mischief that the approved mental health professionals want to solve is that they do not want to have any discretion to appoint as a nominated person anybody not in accordance with an existing court order. They want to see this achieved through the mandatory appointment of the special guardian in priority to anybody else, the rationale being that special guardianship is usually used to avoid care orders, adoption or long-term fostering.
Baroness May of Maidenhead (Con)
My Lords, first, I am very grateful to the Minister and her officials for the interaction and the many discussions we have had on the matters posed in the amendments I originally put down to the Bill on the powers of the police and the possible extension of some of those to authorised professionals, including healthcare professionals. I am also grateful to the Minister and the Government for agreeing to the review and consultation in relation to the exercise of powers, not simply those in Sections 135 and 136 but the general exercise of powers between police, healthcare professionals and other authorised professionals.
I have a number of questions about that review, but before I come to them, I hope I can crave the indulgence of the House just to cite a couple of examples of what is concerning me about the powers. Often, people go to the situation in which there is a real threat—a risk of violence or of danger to those exercising powers of restraint—but actually there are other issues. In moving the government Motion, the Minister referred to the fact that there are indeed some concerns among healthcare professionals, as well as among police, about the exercise of these powers. One situation might be if a patient presents to a GP in an evident mental health crisis, the clinician determines an urgent assessment is needed and the patient is advised to attend hospital voluntarily, but they are unwilling to do so and there is no other available alternative statutory pathway, so the police are contacted in order to exercise their powers under Section 136. It is not that the police are needed; it is just that they are the only people who have the power at the time. There is not necessarily a need to restrain somebody; they are just the only people who have that power.
The other circumstance might arise in an accident and emergency department, where a patient is identified as requiring hospital admission for mental health care, but the individual attempts to leave before an approved mental health professional or a second assessing clinician is available or a bed is found, the emergency department staff have no statutory authority to prevent the individual’s departure, and they ring the police for assistance. In the joint Home Office and DHSC review, which reported in 2014, there was evidence of this. Dr Beale said:
“A police officer has more power in that situation than I do. How can I excuse calling the police to my department to assist in mental health care? … We want to reduce the involvement of police in mental health care, not invite it”.
I am sure we are all agreed that we want to ensure the best possible pathway and experience for the person with mental health problems, we want to reduce the use of police resource, and we want to improve the policing of communities, because the police officer required to attend unnecessarily a mental health patient is a police officer taken off the policing of their local community.
So my questions are, will the review ensure that it also looks at the evidence given to the review that reported in 2014, which, among other things, showed that 93% of paramedics agreed with extending the Sections 135 and 136 powers to remove a person to a place of safety to other professionals, provided that they are trained and equipped? What is the timeline for the review and consultation? I would like it to be something like six months. Which department will be running the review or be responsible for it? I think it should, again, be a joint Home Office and DHSC review. What happens at the end? If it identifies a need to extend these powers or to add healthcare professionals to the list of authorised professionals, will the Government guarantee to undertake that, and what vehicle would they use to do so?
Once again, I am very grateful to the Minister for the discussions we have had, and I would just like to be clear on these points.
Lord Scriven (LD)
My Lords, I wish to put on record my thanks for the collaborative spirit of the Minister and her officials when discussing the issue of community treatment orders.
This issue came about during the passage of the Bill, in the context of the balance between mandatory community treatment and deprivation of people’s freedom in the community; people who seemed always to be in the revolving door and could not get off a community treatment order; and in particular racial disparity.
The Minister has moved forward, and it really is about that balance between the power of the individual patient and the clinician. Where the Government have got to in discussions is a “stop and check” for the clinician—having to think about why the extension of the community treatment order is required. If the tribunal says that certain conditions of a treatment order should not be established or be part of a patient’s treatment, the clinician has to stop and think and will be mandated through the code of practice to explain why that happens.
I very much welcome the offer to consult both myself and the noble Baroness, Lady Tyler, and involve us in redrawing the code of practice. It is important that within that code of practice, words such as “must” are used, rather than “may”, which would give the clinician the discretion to not write things down as much as is required when people’s freedom is being taken away.
Again, I thank the noble Baroness and her officials and look forward to getting that balance absolutely correct to stop the revolving door.
Baroness Watkins of Tavistock (CB)
My Lords, I thank the Minister, officials and Members of the other House for Amendment 12, which will ensure the human rights of patients who are placed in the private sector under NHS contracts. Many of us were concerned about that, but the situation is completely resolved through Amendment 12.
Lord Davies of Brixton (Lab)
I had an amendment in the area covered by Amendments 1 to 4 at an earlier stage of the Bill, and I just wanted to put on record my thanks to the noble Baroness, Lady May of Maidenhead, for her tenacious pursuance of this issue, and the discussions which followed. I also want to thank my noble friend the Minister for taking the right step in having a full consultation on the issue. As she said, there are strong views on both sides. There is a need for some change, but clearly, full consultation is the right approach.
Perhaps I can also take the opportunity, even though the issue does not arise directly, to mention again the “Mental Health Crisis Breathing Space” and the fact that although it is not in the Bill, it will be in the MHA code of practice. I just hope we get there sooner rather than later.
Lord Meston (CB)
My Lords, I strongly support the position taken by the noble Baroness, Lady Berridge. The question of who should be appointed as a young patient’s nominated person has been thoroughly explored during this Bill in both Houses. Everyone agrees that some clarity is required in an area with a variety of different factual scenarios. Either selection of the nominated person can be left to the discretion of the approved mental health professional, with or without some guidance, or there can be some statement or indication in the Bill of priority or preference as between potential candidates.
Baroness Hollins (CB)
My Lords, I want to acknowledge the extensive discussions about how the Act will apply to people with learning disabilities and autistic people. We know that Clause 3 will not be switched on until sufficient community support is in place. Developing the right community support is key to ensuring that people with learning disabilities and autistic people are supported well in the community and not inappropriately detained.
On Report in the other place, Minister Kinnock committed to work with people with lived experience and other stakeholders to set out a road map for change. The excellent House of Lords Select Committee report, Time to Deliver: the Autism Act 2009 and the New Autism Strategy, which was published yesterday, also calls for
“a clear timeline and roadmap for strong community services to be put in place, so that provisions in the Mental Health Bill to prevent the unnecessary detention of autistic people and people with a learning disability can be commenced”.
When will the Ministers begin meeting people with lived experience and stakeholders to develop the road map? What progress have His Majesty’s Government made in determining what sufficient community support is and how this will be assessed, particularly given that in October there were still more than 2,000 autistic people and people with a learning disability in hospital in England, 92% of them being detained under the Mental Health Act? According to NHS Digital data, only 19% of local areas have achieved the March 2024 target to reduce the number of in-patients. It is worrying. Are ICBs on track to meet the 2026 target of a further 20% reduction?
Baroness Buscombe (Con)
My Lords, I entirely support my noble friend Lady Berridge. Following on from the noble Lord, Lord Meston, this is a really important issue in relation to my noble friend’s amendment. It is unfortunate that this issue was not put out to consultation because there is a lack of clarity. It would be otiose to repeat anything that either noble Lord has already said, but I urge the Minister—and I know she is a very good listener—to consider this issue a little further, given that this moment for the child or young person is so critical. Unless there is clarity, unless it is in the Bill and unless this issue of discretion versus mandating to support the role of the AMHPs is sorted out in the primary legislation, it will be very difficult to reflect that in any statutory code of practice.
Lord Pannick (CB)
My Lords, I join with the noble Baroness, Lady Watkins, in welcoming government Amendment 12, which says:
“A registered care provider is to be regarded for the purposes of section 6(3)(b) of the Human Rights Act 1998 as exercising a function of a public nature in providing any of the services mentioned”.
I am particularly pleased to see that the Government and the other place accepted this point, because it reverses the effect of a decision of the Appellate Committee of this House in 2008, YL v Birmingham City Council, in which I was the unsuccessful counsel for the unfortunate applicant. At the time, I took comfort from the fact that, of the five members of the Appellate Committee, the two who dissented in favour of my client were the noble and learned Lord, Lord Bingham of Cornhill, and the noble and learned Baroness, Lady Hale, and I am very pleased that their approach has now been accepted by Parliament. The point was summarised by the noble and learned Baroness, Lady Hale. She said that it is a function of a public nature for the purposes of the Human Rights Act when the function is performed pursuant to statutory arrangements, when it is performed at public expense and when it is performed in the public interest. It has taken 17 years, but the law has got there in the end.
Baroness Tyler of Enfield (LD)
My Lords, I start by adding my thanks to the Minister for her extremely constructive engagement throughout the Bill and particularly in recent weeks, as we have discussed community treatment orders and strengthening measures to monitoring racial disparities. My noble friend Lord Scriven has already covered the former, and I simply want to say that I am very grateful for the steps that the noble Baroness has taken to strengthen those measures for monitoring. Looking at racial disparities was, after all, the underlying rationale for this piece of legislation, so I am very glad that we are now going to have monthly reporting that we can access through the database and the dashboard—that is very good news. We will most certainly be scrutinising that data very carefully on these Benches and drawing any areas of concern to the attention of the House.
Liberal Democrats welcome the Bill. It is long overdue as an important step in ensuring people’s dignity and human rights, but we also recognise that it comes amidst a very challenging landscape for mental health services more broadly. We all know the serious shortcomings in current mental health services. Throughout the process of scrutinising the Bill in both Houses, we have urged the Government to back calls to invest in community mental health services and to produce a clear, costed implementation plan with clear timescales. We consider that very important because our outstanding concern is that the Bill on its own does not include adequate measures to promote preventive and early intervention services to stop people reaching crisis point and all the issues that we have discussed during this passage of the Bill.
We have been very glad to contribute to the Bill. It constitutes the biggest piece of legislation on mental health in 40 years. In the same vein, it could be the case that we do not have another major piece of legislation for another 40 years. I hope that is not the case, but these Bills do not come along very often. That is why we are determined to push the Government to look beyond the relatively narrow scope that this Bill has offered, to include community-led preventive care rather than simply focusing on helping people as they reach crisis point.
It has been a very important piece of legislation. I would like to thank the Minister again for her extremely constructive engagement and the tone she has set throughout this Bill. I would like to thank all noble Lords, from these Benches and from all Benches, for their extremely well-considered and very expert and heartfelt contributions. Last of all, I would like to thank officials, the Bill team and Adam Bull in the Liberal Democrat Whips’ Office.
Lord Kamall (Con)
My Lords, I too start by thanking the Minister, her officials and her special adviser for their constructive engagement on the Bill. The Bill has been returned to us from the other place without the amendments made in this House. Obviously, I would have preferred it if those amendments had remained in the Bill, but I understand that the Government believe that they are not necessary.
Amendments 1 to 4, and 11, remove the amendment proposed by my noble friend Lady May of Maidenhead and tabled by me and my noble friend Lord Howe on Report, which would have allowed a wider range of people to undertake detention under Sections 2, 3 and 5 of the Mental Health Act. I thank my noble friend Lady May for giving specific examples of why that was called for.
I understand that there were two main concerns with those amendments. First, some were concerned about setting a precedent beyond the Bill for being detained by personnel who are not police officers. Secondly, some of the health professionals who would have been affected by this change felt that they had not been properly consulted. I am therefore grateful to the Minister and her officials for suggesting a consultation on whether these powers could be extended. It is good that we are going way beyond just this and having a wider consultation.
Amendment 6 removes Clause 35 from the Bill. It was inserted after a successful Division on Report and was moved by my noble friend Lord Howe. It was intended to ensure that those who are detained and given treatment for their mental health receive a proper debriefing after their discharge and that the system can learn and not repeat the same mistakes. My noble friend mentioned the experiences of young people who felt that they were not being listened to, but during our meeting with the Minister, she agreed to outline at the Dispatch Box how the Government would ensure that more is done to listen. We welcome the assurances she has given.
Another question we raised was on patients having a right to an advance choice document. We would of course have preferred that to be in the Bill, but we understand that Amendments 7 to 10 are a step in the right direction, and in fact the Government have said that there is not really much difference in practice between the wording in the Bill and the alternative wording that we suggested. Once again, I welcome the assurances, but we will pay close attention to make sure that ICBs and trusts are making people who should have the right to an ACD aware that they do have that right. I think that is something that many noble Lords agree on.
On Amendment 19D from my noble friend Lady Berridge, I understand that she had some concerns, which she was able to share with the Chamber, supported by other noble Lords. One was on the use of “or”, and there is some debate about whether we need “or” in the Bill to imply “or”. I am not a legal expert, but I hope that some assurance can be given there. I also hope that some of the other issues my noble friend mentioned can be resolved in further discussions between her and the department, and possibly either in the code of practice or in specific guidance—but also in discussions with the relevant health professionals who have raised the concerns with her.
One issue that I raised a number of times, and I thank noble Lords from the Lib Dem Benches also for raising it, is racial disparities. We have been speaking about racial disparities for far too long, and for far too long we have been given the answer, “It’s too complicated” or “The data is much more granular than you think”. I welcome the fact that the data will be published more frequently, but I hope that we take that data and make changes based on the evidence in it so that we are not looking at anecdotes or people’s prejudices but are tackling the real problem. For far too long, people of Afro-Caribbean descent have been detained, and no one has really got to the crux of the matter. I know that this is an issue which noble Lords from all Benches agree that we really need to hone in on and tackle.
Given all that, I again thank the Minister, her officials, her special adviser and others for their constructive approach. I also thank all noble Lords from all Benches. Many of us said that it was not a particularly political Bill, but it was an issue that we just wanted to get right. Given that, as the noble Baroness, Lady Tyler, said, this issue does not come up frequently enough and that it might be another 10 or 20 years before we discuss it again, and things move on and we are more aware of issues and understand some of these conditions in more detail, I thank all noble Lords and the Minister for the constructive way in which we have all worked together. Hopefully, we can now ensure that the Bill makes its way on to the statute book.
Baroness Merron (Lab)
My Lords, I thank noble Lords for the thank yous and the appreciation for the whole team, which, as noble Lords have said, is extensive. I also appreciate the welcome for the number of improvements that we have made to the Bill by being able to work together. I am grateful to noble Lords for their contributions, as I said at the outset. We have made significant progress on the Bill. Even today, the amendments and discussions reflect the complexity of these reforms and the shared determination to deliver legislation that will make a real difference.
I will seek to address some of the points that Peers have raised—as always, I am very happy to pick up points outside the Chamber. I turn first to those raised by the noble Baroness, Lady Berridge. She asked about having strong requirements for local authorities rather than special guardians. Stakeholders, including the Office of the Children’s Commissioner, agreed that the main priority should be whether the child is under a care order—that is, the local authority has parental responsibility—and that this should be considered under a separate tier to a special guardian or child arrangements order.
I will now pick up the point that the noble Baroness, Lady Berridge, and the noble Lord, Lord Kamall, raised about why there is no use of the word “or” in the legislative drafting. On this point, I am advised that, by default, the absence of “and/or” on the page means “or” as a matter of drafting. The modern style is to say “and” when you mean “and”, but to leave—I hope that the noble Lords, Lord Meston and Lord Pannick, and some of their colleagues can assist. I will start that sentence again: the modern style is to say “and” when you mean “and”, but to leave “or” silent if the latter is what is intended. This is the key point: we are clear that it must be a single person who is appointed.
On the issue that the noble Baroness, Lady Berridge, raised about the creation of a hierarchy, we simply do not agree that a person with residual parental responsibility should always be blocked from being a nominated person, as the child arrangements order or special guardianship may be in place for reasons other than the parent being a risk to the child. However, we agree with the general principle that the AMHP should be aware of, and consider the implications of, any child arrangements order or special guardianship. In most cases, it is true that they will still appoint those people to be the nominated person, rather than the person with residual parental responsibility. It is considered that allowing flexibility allows judgments to be taken on a case-by-case basis, taking into consideration specific circumstances and what is most appropriate for the child or young person, rather than a blanket exclusion. We will provide clear guidance in the code, following consultation and engagement with experts and professionals. I hope that will allow a way forward to deal with the complexity.
The noble Baroness raised a point about a parent having malevolent intent. I stress that, if the AMHP later finds that the special guardian will be a more suitable person, the legislation allows them to terminate the appointment of the nominated person and appoint the special guardian instead. If there are any outstanding issues that I have not covered either in my speech or in this response, I will be happy to discuss those with the noble Baroness, as I have continued to do. As I said earlier to noble Lords, I believe that this discussion, these questions and the amendment all show the complexity that we are all seeking to resolve.
The noble Baroness, Lady May, asked a number of questions about the consultation. My department will lead the consultation, and we will be working with the Home Office and stakeholders to scope it. While I cannot give an exact timeline for the review, and I am sorry to be unable to do so, I can say again that before launching the consultation we are going to be working closely with the Home Office, the NHS, social care colleagues and the police to consider the options to consult on that support better outcomes for patients and the services. I will be pleased to set out further details on the timetable in due course.
The noble Baroness, Lady May, asked what happens at the end of the review. I am sure she will understand that I do not want to pre-empt the outcome of the process. However, on a future vehicle to implement the review, while obviously we cannot commit to a legislative means to do that, we will be taking forward the consultation results and outcomes when parliamentary time allows. I will be pleased to keep the noble Baroness updated on all these developments.
The noble Baroness, Lady Hollins, mentioned my colleague the Minister, Stephen Kinnock MP, who did a sterling job of taking through this legislation in the other place. She asked about his work with lived-experience groups. I say to your Lordships’ House and to the noble Baroness in particular that, after Royal Assent, our first priority will be to draft and consult on the code of practice. We will be engaging with people with lived experience, their families and carers, and with staff, professional groups, commissioners, providers and others to do this, alongside launching a public consultation. The code will be laid before Parliament before final publication. Realistically, we expect that this process will take at least a year, but the nature of our discussions means that it is important that we get this right.
The noble Baroness, Lady Tyler, asked about confirmation of an implementation timeline. While of course legislation is important, implementation is what delivers the results. We estimate, as the noble Baroness has heard me say, that full implementation will take around 10 years; that does not mean we wait 10 years but, realistically, that is how long full implementation will take, due to the time needed to train the workforce and the need to ensure that the right community support is available. Noble Lords will be aware that this timeframe necessarily spans multiple spending reviews and multiple Parliaments, so we are limited—I hope noble Lords will understand this—in the detail that can be given about future spend and timelines. I quite understand why noble Lords raise this issue.
I acknowledge the dedication and thoughtful engagement shown by Members of your Lordships’ House throughout the passage of the Bill. The amendments made by the Government reflect not only technical refinements but, importantly to me, our response to the concerns and insights that were raised by Peers, MPs, stakeholders and those with lived experience. I believe that those concerns and insights have improved the Bill’s clarity and effectiveness, and I hope that noble Lords will support these amendments. It is thanks to what I regard as exemplary cross-party working that we are in a position to pass the Bill into law and begin implementation. It is about bringing positive change as soon as possible for those whose lives are touched by the legislation that we have debated. I commend the Motion to the House.
Baroness Merron
That the House do agree with the Commons in their Amendments 2 to 17.
(c) bringing the availability of that information and help to the attention of such people as it considers appropriate.”
“(1A) The arrangements that must be made under subsection (1) include such arrangements as NHS England or the integrated care board considers appropriate for people to be given information or help by having a conversation with someone who is suitably qualified, whether in-person or remotely.
(1B) In deciding how to discharge the duty under subsection (1), NHS England or an integrated care board must have regard to the particular benefits to a person of making an advance choice document within 12 months of their discharge from a hospital or a registered establishment where they were receiving medical treatment for, or assessment in relation to, mental disorder.”
(c) bringing the availability of that information and help to the attention of such people as it considers appropriate.”
“(1A) The arrangements that must be made under subsection (1) include such arrangements as the Local Health Board considers appropriate for people to be given information or help by having a conversation with someone who is suitably qualified, whether in-person or remotely.
(1B) In deciding how to discharge the duty under subsection (1), a Local Health Board must have regard to the particular benefits to a person of making an advance choice document within 12 months of their discharge from a hospital or a registered establishment where they were receiving medical treatment for, or assessment in relation to, mental disorder.”
“Human Rights Act 1998: extension to certain private care providers
In the Mental Health Act 1983, after section 142B insert—
“142C Human Rights Act 1998: extension to certain private care providers
(1) A registered care provider is to be regarded for the purposes of section 6(3)(b) of the Human Rights Act 1998 as exercising a function of a public nature in providing any of the services mentioned in subsection (2) (to the extent that it would not otherwise be so regarded).
(2) The services are—
(a) after-care services provided in pursuance of arrangements made under section 117;
(b) services provided in pursuance of arrangements made by a local authority in Scotland discharging its duty under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003;
(c) the provision of medical treatment for mental disorder or assessment in relation to mental disorder, for an in-patient at a hospital, but only where that treatment or assessment is arranged or paid for by an NHS body.
(3) In this section—
“hospital” means any institution for the reception and treatment of people—
(a) suffering from mental disorder or other illness,
(b) convalescing, or
(c) requiring medical rehabilitation;
“illness” includes any injury or disability requiring medical treatment
or nursing;
“NHS body”—
(a) in relation to England, has the meaning given by section 275(1) of the National Health Service Act 2006;
(b) in relation to Wales, has the meaning given by section 206(1) of the National Health Service (Wales) Act 2006;
(c) in relation to Scotland, a health board constituted by order made under section 2 of the National Health Service (Scotland) Act 1978;
(d) in relation to Northern Ireland means—
(i) the Department of Health, or
(ii) a Health and Social Care Trust; “registered care provider” means--
(a) a person registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008,
(b) a person registered under Part 2 of the Care Standards Act 2000 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016,
(c) a person providing—
(i) a care service which is registered under section 59 of the Public Services Reform (Scotland) Act 2010, or
(ii) an independent health care service registered under section 10P of the National Health Service (Scotland) Act 1978, or
(d) a person registered under Part 3 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003.””
“means—
(a) a person by whom a nominated person is appointed under Part 1 of Schedule A1, or
(b) a person for whom a nominated person is appointed under Part 2 of that Schedule.”
Baroness Merron
That the House do disagree with the Commons in their Amendments 18 and 19 but do propose Amendments 19B and 19C in lieu—
“(3) If no local authority has parental responsibility for the relevant patient but there are one or more other persons who have parental responsibility and who are willing to act as the nominated person, the approved mental health professional must appoint one of them.”
“(3) If no local authority has parental responsibility for the relevant patient and there is a person within the following list who is willing to act as the nominated person, the approved mental health professional must appoint such a person—
(a) a person who has parental responsibility for the relevant patient;
(b) a person named in a child arrangements order as a person with whom the relevant patient is to live;
(c) a person who is a special guardian of the relevant patient.
(4) In sub-paragraph (3) “child arrangements order” and “special guardian” have the same meaning as in the Children Act 1989 (see sections 8(1) and 14A(1) of that Act respectively).”
Baroness Berridge
In Amendment 19B in lieu, as closing words after subsection (3)(c), insert—
Baroness Berridge (Con)
My Lords, I am grateful to the Minister for her clear intention to continue the dialogue on this, but I believe that we all would be assisted by officials from the Department for Education who hold responsibility for the Children Act and the various experts in the UK on this very difficult area of the interconnection of the Mental Health Act and the Children Act. I have to say at this point that I believe that there still is a fundamental misunderstanding of the authority of a court order to allow a professional to go behind it and appoint someone to this role who could directly conflict with a special guardianship order.
I want to make it totally clear that His Majesty’s Government are giving discretion to a group of professionals who have clearly said that they do not want this, do not have the competency to do it and would need 24/7 legal advice to attempt it. Unfortunately, because of the lack of consultation on this area, at this late stage we are at a very difficult moment for those professionals, who do not want to do the job that the Minister is giving them. In the light of her promises to meet further on this, I will not move my amendment to the Motion.
Baroness Merron
That the House do agree with the Commons in their Amendments 20 and 21.
“(c) the patient is not liable to be detained under this Act or any other legislation or by virtue of a court order.”
“8 In section 130J (Welsh qualifying informal patients), in subsection (2), for paragraph (c) substitute—
“(c) the patient is not liable to be detained under this Act or any other legislation or by virtue of a court order”.”