Tobacco and Vapes Bill

Earl Howe Excerpts

Committee stage
Thursday 30th October 2025 Grand Committee

[Baroness Walmsley (LD)]

My Lords, on behalf of our Benches, I have added my name to my noble friend Lady Northover’s Amendment 12. I also support Amendment 148, of course, although my name is not on it yet; I have a bit of a track record on changing “may” to “must”, so I am very much in favour of that amendment.

As my noble friend said, the tobacco industry sits on a rich source of data that would help public health planners and practitioners to plan and deliver public health smoking cessation services in a granular way. That could help to reduce inequalities, so my noble friend’s Amendments 12 and 148 are no-brainers for the Government in the fight against health inequality, which I know they are in favour of winning. As the noble Lord, Lord Crisp, pointed out, if you have the data, you have a powerful weapon; the industry uses it and the Government should have it.

The data would also shine a light on the massive profits of the tobacco companies, which saw the writing on the wall about the decline of tobacco smoking and shifted part of their business model to hooking young people and existing smokers into being addicted to their nicotine vaping products instead. They then surrounded them with brightly coloured packaging, attractive-sounding flavours and masses of expensive advertising. One has to wonder why they spend so much money on advertising and the attractive displays in my local village shops. Ah, yes—it must be because that enables them to hook people to their profitable products for life.

These profits are addressed in Amendment 192 from the noble Lord, Lord Young of Cookham, which is supported by my noble friends Lord Rennard and Lady Finlay of Llandaff, and in my noble friend Lord Russell’s Amendment 194, which I also support. Both amendments propose a levy on the profits of tobacco companies. Tobacco and the nicotine it contains are uniquely harmful products, which is why they should be treated in this way. They are highly addictive for some people from their very first use, by the way; that is sometimes ignored. Tobacco kills more than 76,000 people in England every year—that is almost as many as were killed by Covid in just one year, in 2020—and the four manufacturers that are responsible for most of the UK’s tobacco sales make excessive profits that require regulation. It has been said that they make an estimated profit of £900 million a year in the UK, with an average net operating profit margin of about 50%; as my noble friend Lord Scriven pointed out, most manufacturers of other goods are quite satisfied with an average of 10%. Yet those companies currently pay very little corporation tax in the UK. The tobacco tax of £6.8 billion that they pay does not even scratch the surface of the harm they do; as has been pointed out, that tax is paid by the consumer and not by the producer.

In other areas of society, polluters are required to avoid and minimise pollution and to pay to clean it up. Tobacco companies make no effort to do either. In other monopoly situations, such as energy supply, the Government intervene, yet tobacco companies get away scot free, despite the fact that their products cost the NHS £1.82 billion annually and the ill health caused by them causes major suffering to individuals and families; they also have a major effect on productivity and the economy, costing society in England £43.7 billion a year.

Given this Government’s objectives on growth, I would have thought that a “polluter pays” tobacco levy would be very popular with them, as it is with the general public, 76% of whom support the policy. It could raise up to £700 million per year to fund vital smoking cessation and wider public health activities, as my noble friend Lord Russell suggests in his amendment. It could prevent industry manipulating prices to undermine the health aims of tobacco taxes. A levy would make tobacco less profitable in the UK and reduce industry incentives to lobby against government actions to achieve a smoke-free country. I know that they are very clever lobbyists. Although I trust that this Government will resist such lobbying, this would ensure that the cost burden of taxes is not shifted to consumers because a levy alongside a cap on manufacturer pricing would prevent manufacturers passing the costs on to consumers.

Smoking remains the leading cause of preventable death in the UK, alongside obesity caused by poor diet. Investing in the resources raised by the levy to help smokers quit, as in Amendment 194, will support the Government’s ambitions to halve the difference in healthy life expectancy and shift healthcare from treatment to prevention, an ambition outlined strongly in the Government’s 10-year health plan.

These amendments are very much in line with what the Government want. I hope that they will have the courage to accept them. The key principle is that the revenue to tackle the harms of tobacco should come from the industry, not the poor, addicted and often sick consumer, and the cost of the damage caused by tobacco should certainly not come from the taxpayer.

[Earl Howe (Con)]

My Lords, this group of amendments addresses common themes: the regulation of the tobacco industry, its profits and its reporting obligations. Collectively, these raise important questions about transparency, fairness, proportionality and the limits of state intervention.

Beginning with Amendments 12 and 148, tabled by the noble Baronesses, Lady Northover and Lady Walmsley, these concern the provision and publication of information by tobacco manufacturers and importers. We recognise the intent behind these amendments: to improve the quality and availability of data so that public health policy can be better informed. Data, transparency and evidence-based policy-making are essential to an effective tobacco control strategy. However, would these amendments enable us to achieve that? Requiring every manufacturer and importer to publish detailed quarterly sales data broken down by product type, brand and region would give us more information, but how useful would it be? The Department of Health and Social Care and the Office for Health Improvement and Disparities already have access to significant data from HMRC such as market surveys and other reporting systems. The question usefully begged by this amendment is whether there are any gaps in that data that could usefully be filled.

This brings me to Amendment 148, also tabled by the noble Baroness, Lady Northover, which seeks to change Clause 95 so that the Secretary of State “must” rather than “may” make regulations requiring producers and importers to provide information about their products. I would like an answer to my earlier question before I jump one way or the other on that amendment. I appreciate the spirit in which she has tabled it. Having more data would certainly be useful, but we need to know exactly what data before we compel companies across the board to do one thing or another. It is generally better to provide Ministers with flexibility, allowing them to act where there is a clear and proportionate need, without imposing automatic or universal obligations on every business regardless of its size or nature.

--- Later in debate ---

[Earl Russell (LD)]

I appreciate the noble Earl’s point about duties versus levies. Might he be open to considering a percentage of duties being hypothecated for smoking cessation? Might that be a way of squaring the circle?

[Earl Howe (Con)]

It certainly could be—it sounds a very interesting way forward. I did not take it that the noble Earl was suggesting introducing a levy as a substitute for tobacco duty but as an addition to it, so, in the nature of things, if this were accepted, that is the mix we would get.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am most grateful for the debate today on this group of amendments, which seek to impose regulatory obligations on the tobacco industry. Although in general I would certainly say that I have sympathy for the aims behind these proposals, I suggest that, for the reasons I will go on to outline, they are not necessary in respect of the Bill.

Amendment 192, tabled by the noble Lord, Lord Young of Cookham, seeks to require the Secretary of State to consult on proposals for regulating the prices and profits of, and to raise funds from, tobacco manufacturers and importers. Similarly, Amendment 194 from the noble Earl, Lord Russell, seeks to require the Secretary of State to introduce regulations to raise funds from tobacco manufacturers and retailers.

The noble Earl, Lord Howe, made the first point that I was intending to make. I feel that in many ways —I know not all noble Lords will share this view—we already have a “polluter pays” tax on tobacco, which comes in the form of tobacco duties, as the noble Earl outlined. Overall, throughout, I am very focused on what impact will be made on improving public health and driving down rates of smoking, as I know we all are. I also appreciate that there are different opinions as to how that might be done. It has been pointed out regularly to the Government that the UK has some of the highest tobacco taxes in the world. Duty rates on all tobacco products were increased by 2% above inflation in the Autumn Budget last year, with an additional increase for hand-rolling tobacco to reduce the gap with cigarettes, and this duty raises about £8 billion a year.

I am aware that the noble Lords, Lord Bourne and Lord Scriven, in addition to other noble Lords, are very supportive of these amendments. I am sure that noble Lords who have quoted me accurately today will probably say I should have looked at this before, but I refer back to, as the previous Government will be aware, a previous consultation in 2014, which showed that going down this road would not raise the significant amounts being referred to when you take into account lost duties.

I have spent quite a lot of time with officials and others going through the detail of all this, not least because of my previous comments. Certainly, having had the chance to review the detailed government advice and all that comes with it, which I now have access to as a Minister, I think that the way to reduce the profits of the tobacco industry is to reduce the use of tobacco—I believe I said that on day one in Committee—and by creating a smoke-free generation. That is not just a prize in itself but will have a great impact, in the way I think noble Lords seek, on the industry. It is unclear to me how an additional levy on tobacco industry profits could be implemented without the costs being passed on to consumers—again, there was some concern about that in this debate—or without regulating prices.

The noble Lord, Lord Young, referred to a price cap on tobacco products. Certainly, my investigation into this shows that regulating pricing would be extremely complicated to design and implement, and difficult to shield from abuse and challenge by the global tobacco industry. Therefore, given that, as I just said, our focus is on implementing our smoke-free generation, our judgment is that the benefits do not outweigh the costs.

Therefore, at this stage, to do the job that I believe most people—not everybody, I know—is focused on, our preference would be to continue with what is a proven, effective and understood model of increasing tobacco duties. This approach provides an incentive to those who currently smoke. It incentivises them to quit, which is what we want to focus on, as well as generating revenue to be put back into a full range of public services, including public health and the National Health Service.

I say to the noble Lord, Lord Crisp, who I know is extremely well aware that I am about to say this, that of course tobacco taxation is a matter for His Majesty’s Treasury, and decisions on taxes are reserved for fiscal events. I would be extremely unwise, in my position, to speculate in advance of a forthcoming Budget.

Moving on to Amendment 12—

--- Later in debate ---

Amendment 18 is a different matter. I trust it is a probing amendment, and I look forward to hearing how the Government plan to deal with the issue that it raises. There are currently a number of mental health trusts using vending machines to provide vapes as part of their smoking cessation services. Without an exemption to the vending machine ban for this purpose, the Government need to bring forward clear guidance that can deal fairly with this situation, since mental health trust premises will not be licensed premises under the regime currently being proposed. I look forward to the Minister’s response to that amendment as well.

[Earl Howe (Con)]

My Lords, I turn first to Amendment 16, tabled by the noble Baroness, Lady Fox, and my noble friend Lord Parkinson. The amendment raises the broad question of how, as a society, we wish to define adulthood. From that point of view, I think the amendment is a useful one. Clause 10, like much of our statute book, assumes that 18 marks the threshold of adulthood—the age at which one may also contract, serve on a jury or purchase regulated products. Yet, as my noble friend Lord Moylan argued, proposals to extend the franchise to 16 and 17 year-olds invite us to reconsider that assumption. I shall be interested to hear what the Minister has to say about the amendment.

I turn to Amendment 18, tabled by my noble friend Lord Moylan and the noble Baroness, Lady Fox. We have in Clause 12 a proposed measure that would outlaw any vending machine that dispenses vapes or nicotine products to a paying customer. The question that my noble friend and the noble Baroness have posed is whether the Government are prepared to consider any exceptions to this hard and fast prohibition. Is there not a strong case for saying that, in a smoking cessation clinic where there are adult clinical staff guiding patients through a structured programme, or in a mental health unit where staff often find themselves dealing with patients in a high state of agitation, a vending machine dispensing vapes or nicotine products not only would do no harm but could be of considerable benefit to the well-being of the individuals being treated? In those clinical environments, vapes and nicotine products are not promoted for casual use. They have a utility, and their utility lies as a means of harm reduction under clinical supervision. Let us just remind ourselves that patients admitted to mental health settings, or being treated in one, are much more likely to be smokers than other members of the general population. The noble Baroness, Lady Fox, drew attention to that. For obvious reasons, there is a deep reluctance within mental health units to permit smoking on the premises. Access to vapes, on the other hand, is a far less contentious issue, I suggest.

I would be grateful if the Minister could say why the Bill makes no provision for exceptions, even narrow ones, to the ban on vending machines. I am not contesting the proposal to ban such machines in the majority of settings, but vapes are not the same as tobacco. I have been approached by one vending machine operator that supplies machines to adult-only venues such as clubs. It asked the same question in its briefing sheet. Why is it that, in a place where anyone entering has been vetted as being an adult, they are being denied access to a vending machine? I would be grateful for the Minister’s comment on that.

Amendment 21 from the noble Earl, Lord Russell, and the noble Baroness, Lady Walmsley, raises a rather different question. I appreciate the intent behind this amendment. The goal that the noble Earl and the noble Baroness are aiming at is of course a worthy one. However, I have three problems with what they are proposing. First, if one makes vaping too expensive, law-abiding citizens who wish to quit smoking will be deterred from doing so. That is surely a risk. Secondly, smokers who may be less concerned about the lawfulness of the products that they buy will be steered towards unregulated products and/or the black market. I suggest that, under this proposal, that is simply bound to happen. Thirdly, any minimum pricing arrangement will act as a dampener on competition, and hence a dampener on innovation. A good example of such innovation is the age-gating technology that my noble friend Lord Lansley spoke about in our previous Committee session—technology built into a product or its packaging that prevents underage use. Approaches of that kind should be explored before we ever consider blunt instruments such as statutory price controls.

Finally, I turn to Amendment 28, tabled by the noble Baronesses, Lady Northover and Lady Walmsley, which would prohibit the provision of free tobacco or vaping products through the course of business. Again, I completely understand and respect the motivation behind that proposal, but we should ask some questions about it. In the case of tobacco products, I am absolutely on the same wavelength as the noble Baronesses; at the same time, it would be helpful to know how much of a problem this now is.

First, is it not already illegal? If not, and if free samples of cigarettes, say, are being supplied by the manufacturers or importers to wholesalers or retailers, that sounds like an expensive exercise, bearing in mind the need for them to account to HMRC for the relevant tobacco duty, which I do not think they can avoid. What can the Minister tell us about that?

Secondly, on free samples of vapes, I listened carefully to the noble Baroness, Lady Northover, but I venture to say that different considerations apply to vapes compared to tobacco. My noble friend Lord Moylan was absolutely right: vapes are not in the same league of harm as tobacco products. They are also a smoking cessation tool. I would be the first to agree that free vapes should not be handed out to children. That is a given—

[Baroness Northover (LD)]

The advert I have here says that the samples they are giving out are actually derived from tobacco. Even though it says, “No smoke, no vape and no tobacco”, the advert states that the samples are derived from tobacco. My reference is therefore to tobacco products—that is the link there—but I also emphasise the point about nicotine.

[Earl Howe (Con)]

If it is a tobacco product, I take the point, but I thought that the noble Baroness was also arguing about handing out free vapes. Making it illegal for a shopkeeper to supply an adult with a regulated vaping product as a free sample feels very much like an unreasonable restraint of trade. If someone enters a shop to buy cigarettes—let us say he is a smoker—and the shopkeeper offers him a free vape, what exactly is wrong with that, as long as the regulations are adhered to? Do we really want to criminalise that kind of free supply? I am afraid that I am not convinced.

The Bill already imposes a series of significant new obligations and compliance costs on legitimate businesses. The restrictions contained in Clauses 13 to 15 alone are substantial and will likely require many retailers to make complex and costly adjustments. To introduce further constraints and prohibitions, as well as a substantial potential liability, however well-intentioned, has to be thought about very carefully before we go down that path.

[Lord Patel (CB)]

My Lords, if the nicotine contained in the vapes is not extracted from tobacco, where is it coming from?

[Earl Howe (Con)]

Perhaps the noble Lord, with his compendious knowledge, can enlighten us on that.

[Lord Patel (CB)]

It comes from tobacco.

--- Later in debate ---

[Baroness Merron (Lab)]

I appreciate the clarification that the noble Earl has made. If that is the case, though, I have to say that that would send a complex pricing message to people, and we are not seeking to add complexity to where we are going. I am not sure I agree with the analysis but I am happy to look at the point that he is making.

Perhaps it will be helpful if I reassure the noble Earl that we are already acting to pick up the point that he rightly raised and which the noble Baroness, Lady Walmsley, was keen to emphasise, which is to ensure that vapes are not sold for pocket-money prices. Indeed, the Chancellor has confirmed the introduction of a vaping products duty from 1 October 2026. That will set out a single flat rate of £2.20 per 10 millilitres on all vaping liquids, and it will be accompanied by a simultaneous one-off increase in the rate for tobacco duties.

The noble Earl, Lord Russell, raised a number of points about the environmental damage done by vapes. I will be pleased to hear and respond to the debate in the next group about single-use vaping.

The noble Baroness, Lady Walmsley, asked about vapes being prescribed as a quit aid. We have a world-first scheme here, Swap to Stop, to help adults to ditch cigarettes as part of a 12-week programme of support, as I highlighted earlier in response to the noble Lord, Lord Moylan.

Amendment 28, tabled by the noble Baroness, Lady Northover, would prohibit businesses from providing free samples of tobacco and vaping products. The noble Baroness said herself that Clause 15 already bans the free distribution of any product or coupon that has the purpose or effect of promoting a tobacco, herbal smoking, vaping or nicotine product as well as cigarette papers, and that includes free samples. It should never have been the case that addictive nicotine and vaping products could have been legally handed out for free, and I am glad to say that the Bill closes that loophole. Clause 15 also states that products cannot be sold at a substantial discount, which will ensure that businesses cannot heavily discount products to the point where the price is no longer such a relevant factor for a prospective purchaser. So the noble Baroness is quite right to seek to close that loophole, and I am grateful to her for raising the issue, but I can confirm that the Bill already achieves her intention.

[Earl Howe (Con)]

To pick up on that, I ask the Minister to clarify the issue that was left slightly in the air earlier about the derivation of nicotine. While nicotine can be synthetically produced, it is derived from tobacco, but the point made by definition in the Bill is that a vaping product is a distinct product from a tobacco product. So the advertisement seen by the noble Baroness, Lady Northover, which I agree is highly regrettable, may be accurate in saying that the product is derived from tobacco but is not a tobacco product. Is that correct?

[Baroness Northover (LD)]

Can I comment on that? It has been very instructive to learn all about this subject. I could see a discussion occurring between the noble Earl and his noble friend but most nicotine is, in fact, derived from tobacco. This fits with what the advert I have here says, which is that the product advertised is derived from tobacco but does not contain tobacco leaf. Whether it is misleading for it to say, “No tobacco”, is another matter, but, clearly, dancing on the head of a pin is not very helpful here.

[Earl Howe (Con)]

I respectfully disagree. It is helpful to dance on the head of a pin if we can distinguish “tobacco” from “tobacco product” and, again, distinguish a tobacco product from a vaping product. The Bill does that.

[Baroness Northover (LD)]

I disagree that we can necessarily distinguish between nicotine and a tobacco product, given that most nicotine products are derived from tobacco and are, therefore, tobacco products. However, the key thing here is that nicotine is being targeted at children, who often then graduate to smoking cigarettes. So you have not only an addiction but a potential route into the problem that we have worked on together for many years: reducing smoking, especially among the young, for all the reasons we know about.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, the first amendment in this group, in the name of the noble Earl, Lord Russell, and the noble Baronesses, Lady Grey-Thompson and Lady Walmsley, shines a spotlight on a fascinating question: when is a reusable vape not a reusable vape? The ban on single-use vapes came into force on 1 June this year, as we have heard. Single-use or disposable vapes are clearly defined in the guidance: they are vapes which are not designed or not intended to be reused. For all the reasons given by the noble Earl, especially the environmental reasons, that ban is soundly based. A reusable vape is one that possesses two key features: it must have a battery which can be recharged and the e-liquid container—that is, the cartridge or the pod—can be either refilled or replaced with a separately sold item, which is where the amendment comes in.

The regulation explicitly states that a device is not refillable or reusable if it has a single-use container, such as a pre-filled pod, that you cannot buy separately and replace. In other words, the law at present tries to capture in the definition of a disposable vape all devices that look and function like a disposable vape. So far, I hope, so clear, but as we have heard from the noble Earl, this leads on the ground to some grey areas of interpretation. A vaping device may be packaged in such a way as to claim that it is intended to work with replaceable pods—and hence that it should be classed as refillable and reusable. In practice, however, that claim can sometimes be a fiction. If, in reality, the replacement pods are not readily available for purchase separately, the device is at risk of falling foul of the legal description of a reusable vape. Enforcement authorities will also check whether the battery is genuinely rechargeable and whether a replaceable heating coil is genuinely replaceable.

More and more reports suggest that in some shops, replacement pods are either not available at all or are in very short supply. Furthermore, so-called reusable devices are priced similarly to the former disposable vapes. The net effect is that the user is tacitly encouraged to throw away the entire device, including the battery and the pod, once they have finished using it. Functionally, the supposed reusable vape has become a disposable vape.

The question therefore is: is there a need to change the definition of what counts as a disposable vape? The noble Earl suggests in his amendment that part of the answer is to ban pre-filled single-use vaping pods. The problem with that suggestion is that some vaping devices properly classified as reusable devices genuinely depend on the supply of replacement single-use pods and are thereby genuinely reusable. Banning all single-use pods would mean removing those types of reusable vaping devices from the market, a step which, on the face of things, appears rather severe.

What, therefore, is to be done? If it is true that many devices currently on the market technically tick the box of being refillable or reusable but in practice behave like disposables, how are we to address that loophole? Is the answer to reframe the regulations, or does the answer lie in intelligent enforcement by local authorities and trading standards? I will be interested to hear the Minister’s reply.

That point links neatly to the second amendment in this group, Amendment 145, tabled by the noble Baroness, Lady Fox of Buckley, which I think makes a sensible and pragmatic case, pace the noble Baroness, Lady Carberry, to whom I listened very carefully. In introducing further regulations in this area, we would be well advised to take stock of the prohibitions that have already been introduced and examine their impact in practice. The single-use vape ban that came into force on 1 June provides us with an opportunity to do that. We will no doubt debate at later stages the regulation-making powers designed to control flavours, and so on. I align myself with the noble Baroness, Lady Fox, in wanting to tread cautiously, reflecting on how the single-use ban came in as quickly as it did and whether some unintended consequences have ensued from it.

[Baroness Merron (Lab)]

My Lords, I am most grateful to noble Lords for the debate on this group of amendments. I will start with Amendment 22, tabled by the noble Earl, Lord Russell, which seeks to ban all “pre-filled single-use vaping pods”.

We understand the concerns being raised about the environmental harms of single-use products. The ban that was introduced by Defra came into force on 1 June, which was not so long ago. Under that ban, vapes must be rechargeable and refillable, while any coil must be replaceable. A vape is not considered refillable if it has a single-use container, such as a pre-filled pod, that you cannot buy separately and replace. Pre-filled pods that can be replaced are therefore not captured, to the points raised by a number of noble Lords, as the ban focuses on tackling the greatest environmental harms. Those are posed by batteries and the surrounding elements contained in the vapes. I acknowledge that vaping creates waste; that is true when users fill up a tank or pod themselves using refill bottles, as the noble Earl described, as well as when pre-filled pods are used.

However, to minimise the environmental impact, since April 2024 it has been compulsory for all businesses selling vapes and vape products, including pods, to provide their customers with a recycling bin and to arrange for these products to be collected by a verified recycling service. I hope that makes a helpful contribution in answering the points raised by the noble Earl, Lord Howe. Since this obligation came into force, some 10,500 vape takeback bins have been introduced into stores. I say to the noble Earl, Lord Russell, that Defra is monitoring the impact of its regulations and will consider the environmental impact of any new vaping regulations brought in using the powers in this Bill.

I hear the concerns about the appeal of single-use pods to children. The Bill contains powers to regulate vape devices. Importantly, we have recently launched a call for evidence that seeks information on the role that different sizes, shapes and features of devices play in the appeal of vaping to young audiences. As part of that, we would welcome evidence on any types of vaping device that particularly appeal to children. I assure the Committee that we will use the evidence to inform future proposals on potential restrictions to devices.

Amendment 145, tabled by the noble Baroness, Lady Fox, seeks to place additional requirements on the Secretary of State before regulations can be made on contents and flavour. I note that part of these requirements involves evaluating the impacts of the ban on single-use vapes, which came into force on 1 June. Defra is monitoring the impact of its regulations and a post-implementation review will be undertaken in line with statutory obligations.

Turning to the impact of future restrictions on contents and flavour, we recognise that vape flavours are an important consideration for smokers seeking to quit. We will therefore consider the scope of restrictions very carefully to avoid any unintended consequences on smoking rates. I am grateful to my noble friend Lady Carberry for her contribution on this group.

As I said, to support all this, the call for evidence was launched on 8 October. It includes questions about the role of flavours, their contents and the associated risks. I assure noble Lords that before any restrictions are introduced on contents and flavours, we will conduct an impact assessment. We will also undertake a consultation on our policy proposals, and Parliament will have the opportunity to scrutinise the regulations. I hope that this response allows noble Lords not to press their amendments.

Tobacco and Vapes Bill

Earl Howe Excerpts

Committee stage
Monday 27th October 2025 Grand Committee

[Baroness Walmsley (LD)]

My Lords, we were talking about the issue of one person almost the same age as another person having less freedom of choice. The point is that once you are addicted to nicotine, your freedom of choice is extremely limited, as we have just heard from my noble friend Lady Northover. She gave the example of her nephew, who found it extremely difficult to give up. My late mother-in-law was in the same position. She tried to give up smoking until she died—and she died of smoking, sadly.

It is very important that we have a robust system of enforcement. I look forward to hearing the Minister telling us about it, and what future measures the Government might take to reduce the number of illicit cigarettes—although I am told that it has declined by about 90% since 2000. One or two noble Lords mentioned the case in Australia. The fact is that it was a lack of robust enforcement that caused the problem in Australia. Despite that, the amount of people smoking has indeed gone down—but I agree with noble Lords who say that we need strong enforcement. When it comes to a smoker who, let us say, is my age, or who will be my age in many years’ time, who needs to provide some kind of ID, as long as it is not absolutely mandated, I am sure that some form of ID will be devised by clever people for those aged 82, and it will not be very difficult for them; they will just be able to do it, and that will sort that problem out altogether.

As noble Lords might have gathered, I support the Government’s generational approach to reaching the point of a smoke-free Britain. It is a public health crisis, as is obesity, on which the Government also need to take action. Lots of amendments are coming up about various aspects that have been mentioned today, such as age-gating, which we will discuss in greater detail. This has been a very extensive and passionate debate. I must say that I find myself a little surprised that so many of former Prime Minister Rishi Sunak’s party are so against what the Government are trying to do achieve his ambition. However, I shall leave it at that.

[Earl Howe (Con)]

My Lords, I thank my noble friend Lord Murray for bringing forward the amendments in his name, because he has allowed us to begin this Committee by engaging with one of the central and, dare I say, most controversial pillars of this Bill: the generational smoking ban. It is fitting that we start with this big policy issue, because the clause goes to the very heart of what the Government are seeking to do in creating what they describe as a smoke-free generation.

Before I turn to the points made in the debate, it is worth reminding ourselves of the context in which we are discussing the Bill—and a number of noble Lords have underlined that context. Smoking remains the single biggest entirely preventable cause of illness, disability and death in our country. It kills some 80,000 people each year. It costs our NHS and social care systems more than £3 billion annually. Someone is admitted to hospital because of smoking almost every minute. It shortens lives, it devastates families, and it deepens inequality. Yet, as we debate this issue, we can recognise that, happily, the direction of travel is positive. Smoking rates have been falling: in 1990, nearly one in three adults smoked, but, today, that figure stands at just above one in 10. The number of children who smoke is falling as well.

Those are not arguments for complacency or for not legislating, but nor are they arguments for legislating carelessly. My noble friend Lord Murray asked some pertinent questions for the Minister to answer, in particular on the Windsor Framework and the dangers of a burgeoning illicit market, but, more generally, he was surely right to challenge the Government to explain exactly how the generational ban will operate. I say that he is right, because the proposal will represent a profound shift in how the law treats adults. It will, for the first time, make a permanent legal distinction between two adults, based solely on their dates of birth. One person aged 35, say, will be permitted to buy a legal product, while another person aged 34 will put a tobacconist in criminal jeopardy for selling him precisely the same product.

I emphasise that I pay tribute to my right honourable friend the former Prime Minister. Nevertheless, serious practical questions arise from that distinction, quite apart from the questions around discrimination throughout this Bill, to which we need—I say this to the Minister—to face up. Some of those questions have already been foreshadowed by my noble friends Lord Murray and Lord Moylan but, as a starter, let me pick up the question of enforcement, which came up in the contribution from the noble Lord, Lord Scriven. How exactly do the Government intend these measures to be policed? How much responsibility will fall on shopkeepers, how much on trading standards and how much on the police?

Then there is the impact on retailers. How will small and independent retailers be supported to implement the new age checks and avoid inadvertent breaches of the law? Are we just going to leave them to cope as best as they can? Importantly, there is also the question of public understanding. How will the Government communicate to the public, especially younger adults, that some people of more or less the same age may face entirely different legal restrictions?

Can the Minister confirm one point of detail, which we discussed in our meetings on the Bill ahead of Committee? Will a person born on or after 1 January 2009 be permitted to sell tobacco products to someone born before that date? In other words, will someone who is themselves legally prohibited from purchasing tobacco still be able to serve or sell such products to others who remain entitled to buy them? That may seem a minor question, but it is one of the many practical questions that shopkeepers and retailers are already asking. The answer will affect staffing and hiring practices. What age will an employee of a tobacconist have to be to handle tobacco sales? Those are not arguments against the generational ban, but I hope that the Minister can address these concerns in her reply.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, the amendments in this group relate in different ways to age verification and the role of retailers and how these new rules will be implemented, monitored, enforced and supported in practice. I begin by thanking my noble friends Lord Moylan, Lord Lansley and Lord Young of Cookham, as well as the noble Viscount, Lord Hanworth, and—through the noble Baroness, Lady Northover—the noble Lord, Lord Davies of Brixton, for their thoughtful and varied contributions. Noble Lords have raised from different angles the same essential question: how can we make sure that the Bill works, not just in principle but in practice, and that those on the front line of enforcement are properly supported in the roles that they perform?

I start with Amendments 3 and 17 from my noble friend Lord Moylan, which would ensure that any regulations specifying methods of age verification were made under the affirmative resolution procedure and would implement a greater age threshold during the interim period. I fully support my noble friend. These regulations should be made subject to the affirmative procedure. The powers that we are talking about are far from minor; they will determine how retailers verify a customer’s age, what technologies can be used and what systems are deemed compliant. The verification methods will be central to the success and fairness of the new regime, and it is therefore right that they should be subject to proper parliamentary scrutiny before coming into force, not least because the technology in this space is evolving rapidly and the decisions that the Government make on this front will have real implications for retailers and enforcement bodies as well as consumers. I suggest that it is becoming even more important, given the Government’s announcement around a national digital ID.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I turn next to my noble friend Lord Lansley’s amendments, which would introduce requirements and provide enabling powers for age-verification technology to be built into vaping devices themselves. This proposal opens up all sorts of interesting avenues of thought. The idea of age-gating devices, using technology to prevent use by those who are underage, is innovative by any standards. As we heard from my noble friend, there is already at least one technology that would facilitate this; like him, I am led by the manufacturers to understand that it has been successfully trialled in the United States.

There could be distinct advantages to such a system: it would close a loophole that rogue sellers currently exploit; it would be more effective as a way of reducing the incidence of underage vaping; it could avoid unpleasant confrontations in retail stores, about which we know retailers are very worried; and, as my noble friend said, it would not affect the way in which adults use vapes as a way of quitting smoking. From the Government’s point of view, an amendment along the lines of my noble friend’s would act as a form of future-proofing the Bill, because it would enable them to regulate the technology in devices or packaging— a power that this Bill does not currently give them. Can the Minister tell us whether the Government have considered systems of this kind and whether officials are aware of developments in this field?

I turn to the amendment in the name of the noble Viscount, Lord Hanworth, which calls for a review of age-verification methods. The Committee will be grateful to him for raising this idea; it links into my noble friend Lord Lansley’s amendment, but it also speaks to the crucial principle that we must remain properly informed about how these measures will work in practice. This Bill introduces a major new regulatory framework, so it has to be monitored and tested against real-world evidence. Age verification will, as I have said, be central to the Bill’s success, so we need credible and accurate systems to facilitate it. The noble Viscount is therefore right to emphasise the need to engage directly with those on the front line: the retailers who will have to implement these rules every day. Their experience will be one of the best indicators of whether the system is working as intended.

I turn to the amendments in the name of the noble Lord, Lord Davies of Brixton, introduced by the noble Baroness, Lady Northover, which seek to place a statutory requirement on businesses to operate age-verification policies in England and Wales. These are well-intentioned amendments, and we share entirely the objective of preventing underage sales. However, as I read it, the Bill as drafted already makes it an offence to sell tobacco or vaping products to anyone below the legal age and provides for a due diligence defence for retailers who have taken all reasonable precautions. In practice, that means having and enforcing an age-verification policy, which is the very outcome that these amendments seek to achieve. The familiar Challenge 25 model is already a well-established part of a range of retailer compliance. So, although we understand and respect the motivation behind these amendments, we do not believe that it is necessary to restate these duties in the Bill.

I welcome the amendment from my noble friend Lord Young of Cookham, which would prohibit the online sale of tobacco products. This raises serious and timely questions around enforcement, fairness and the protection of legitimate retailers. My noble friend put his case very well. Online sales prevent a potential route for illicit or underage trade; as purchasing habits continue to shift online, that risk will surely only increase. We therefore see every benefit in exploring whether a prohibition or stricter control of online sales is appropriate.

If I were to voice a caveat, which I am sure my noble friend would not object to, it would be that we must always ensure that law-abiding retailers—those who comply with the law and operate responsibly—are not disadvantaged. Any new regulation has to be clear, enforceable and fair. The central question here is: has the Minister given any thought to this issue? If so, what capacity do the Government have to enforce a measure such as the one suggested by my noble friend? What mechanisms exist to distinguish legitimate traders from those operating illicitly? Can we control online sales in the way we would like to do? I am sure that the Minister will be the first to recognise that, if unregulated online trade becomes a loophole—indeed, it already is—it will seriously undermine the objectives of the Bill.

[Baroness Merron (Lab)]

My Lords, this group of amendments addresses the important topics of age verification and online sales. I am grateful to all noble Lords for not just their contributions but the intent behind these amendments—an intent that I have heard as being presented to assist the Bill. I am grateful for noble Lords’ considerations; I have certainly heard the support given by the noble Lord, Lord Bourne, to a number of these amendments.

I turn to Amendments 24 and 25 tabled by my noble friend Lord Davies of Brixton, who is not able to be in his place. We wish him well. I thank the noble Baroness, Lady Northover, for presenting these amendments, which would introduce a requirement for a person carrying on a business selling tobacco, herbal smoking, vaping or nicotine products, in England or Wales, to operate an age-verification policy. I certainly welcome the intention to prevent underage sales and to express a view—as I have heard not just from the noble Baroness but from other noble Lords—about supporting retailers to do the job that we are asking of them. I associate myself with that, but we believe that the Bill’s current provisions are sufficient in this regard.

--- Later in debate ---

I turn to my noble friend Lady Northover’s amendment on communications strategy. One of the ways in which the Government need to invest is in an effective communications strategy. Over the years, tobacco manufacturers have spent millions on advertising their products—much of it misleading, such as the earlier claims on the so-called health benefits of filters; although that has stopped now, some people still believe it. So it is time to turn the tables and invest in making people aware of the dangers, for both health and personal wealth, of smoking. For young people, perhaps the most effective communication will be if some celebrities and influencers whom they admire and with whom they identify could be persuaded to make it uncool to smoke; that is what I would like to see contained in a communications strategy.

[Earl Howe (Con)]

My Lords, as we have heard, the amendments in this group engage with some of the central questions in the Bill: how can we reach a smoke-free future? Also, how is that process to be monitored, communicated and, in some cases, accelerated?

I begin with the amendments in the names of my noble friend Lord Young and the noble Baronesses, Lady Northover and Lady Grey-Thompson, which would require the Government to publish regular reports setting out a road map to a smoke-free United Kingdom, together with a communications plan, to support the implementation of a smoke-free generation policy. We on these Benches welcome the principle that underpins these amendments; they are thoughtful, constructive and rooted in the simple but vital idea that Parliament’s responsibility does not end when a Bill becomes law. Once legislation is enacted, our duty of oversight begins. A five-yearly report outlining the Government’s road map—including interim targets and data disaggregated by region, age and demographic group—would help provide a picture of how well the Act was working and enable Parliament to see whether progress was genuinely being made, particularly among communities where smoking rates remain stubbornly high.

Equally, the amendment in the name of the noble Baroness, Lady Northover, which would require a communications plan, is extremely sensible. The success of the Government’s policy will depend as much on public understanding as on the legal framework itself. People must know what is changing, why it is changing and what the benefits are. I made this point earlier but, if the policy is to succeed to the maximum extent, it must carry consent—and that consent depends on clarity and effective communication from the Government. If we are to measure the success of the policy honestly, we also need to assess not just how far smoking rates have fallen but whether the problem has simply been pushed underground, and we need to do so at regular intervals.

I shall cover briefly the amendment in the name of my noble friend Lord Bethell, which would establish a universal prohibition on the sale of tobacco products from 2040. My noble friend made a closely argued case. I recognise his sincere commitment to public health and his aim is admirable; notwithstanding that, I am afraid that I cannot support his amendment. The Government’s generational approach, for all its complexity, is precisely that: generational. It is designed to allow the harmful habit of smoking to decline naturally as fewer people take it up. The goal of a smoke-free future is the same but it is achieved through prevention and behavioural change, not a single act of prohibition.

Tobacco and Vapes Bill

Earl Howe Excerpts

2nd reading
Wednesday 23rd April 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, the House will be grateful to the Minister for the characteristically clear way in which she has opened this debate. As she indicated, the Bill in large measure replicates a Bill introduced in the other place towards the end of the last Parliament. Speaking as someone who helped take through some important anti-smoking legislation during my time in the Department of Health, I begin by saying that the overall aims the Minister has set out for this measure are ones I fully subscribe to.

Some little time has of course passed since I occupied the Minister’s departmental seat and, in the intervening years, we have seen the rise of vaping as an alternative form of nicotine consumption, sometimes as a perfectly valid means of quitting smoking, but increasingly as a habit adopted by non-smokers leading directly to nicotine addiction. I am therefore the first to say that I share the Minister’s acute concern about this trend, which is in part caused by the numbers of young people taking up vaping who have not previously smoked.

The Bill therefore has some laudable aims and some welcome aspects. In the spirit of similarly motivated legislation going back over the past 25 years, it is surely our duty as legislators to look for ways to discourage smoking, to protect those who do not smoke from second-hand smoke and to prevent children accessing tobacco, vapes and other nicotine products as if they were toys or fashion accessories. It is right too, while we are about it, to look at the wider dimensions of the issue, such as the sale of non-nicotine vapes, as well as other nicotine products such as nicotine pouches. The Bill before us takes us into all these areas.

At the same time, there are two crucial tests that legislation of this kind needs to pass. They are tests that Parliament has rightly applied to all previous anti-smoking measures: the tests of proportionality and practicality. Much of what we shall need to debate in Committee and beyond will revolve around those two tests, where there is often a delicate balance to be struck—for example, the balance between personal freedoms and health gain, between health gain and business burdens, and between business burdens and free enterprise. Par excellence, in this particular area, we are dealing with another balance that threads its way through all the others: the balance of probabilities around human behaviour.

This Bill bears the same name as the one introduced by the previous Government and shares many of the same features. It is nevertheless substantially different. It will not therefore surprise the Minister to know that there are aspects to it which we shall wish to explore, to question and, in some cases, to directly challenge.

I mention first the most egregious. The Bill before us contains no fewer than 66 delegated powers, which is double the number present in the previous iteration. This should concern us. Whether one supports the main principles of the Bill or not, it cannot be right to condone a legislative model that leaves large swathes of policy areas with scant detail to be amplified later by ministerial decision.

It is not simply the volume of issues to which the regulation-making powers relate; it is also the nature of those issues. When the Bill was reintroduced, it transpired that the Government had inserted a new Part 7, permitting the Secretary of State and the devolved Ministers to designate, by regulations, anywhere that is open to the public as smoke-free, including outdoor areas, and to designate any smoke-free place as vape and heated tobacco-free, once again by regulations.

I recall the debates that we had in the House in 2006 on the Health Bill, which banned smoking in all indoor settings and on public transport. I supported that ban from the Front Bench on the grounds that there had recently been conclusive evidence that second-hand smoke indoors posed a serious health risk to those who chose not to smoke. That policy has indeed stood the test of time.

What is less clear-cut is whether there is significant health value in removing the proportionality of the Health Act 2006, which requires the Secretary of State to apply the test of the risk to a person of inhaling “significant quantities of smoke” when deciding where to designate as smoke-free. There was a very good reason for that: it struck a balance between the public health concerns associated with second-hand smoke exposure and the rights of people who wish to smoke. It was deemed to be the correct and most proportionate test. The Government have decided to do away with that. I must simply ask: why?

The Bill’s delegated powers extend to other areas. Part 5 grants the Secretary of State significant power to regulate the features, retail packaging and content of not just tobacco products, which the Secretary of State can already regulate, but all vaping and nicotine products. I do not disagree that there are a number of novel products that should see greater regulation. Nicotine pouches, for example, can currently be sold at extraordinarily high strengths of nicotine, with some being sold online containing 30, 50 or even 100 milligrams of nicotine per pouch. This certainly should be regulated. The problem is that we do not know how these extensive powers will be exercised. What do the Government have in mind? Why can we not see some specific proposals in the Bill? The Minister would have been the first to jump on this kind of open-ended drafting when in opposition.

I have a particular concern around packaging, which is one instance where issues of proportionality rear their heads. Clause 89 grants the Secretary of State expanded powers to regulate retail packaging. The packaging of cigarettes and hand-rolling tobacco has been heavily regulated for some time, and with good reason. Up to now, though, there have been exemptions for the packaging of cigars and pipe tobacco products. They were exempted from the Standardised Packaging of Tobacco Products Regulations 2015 and the Tobacco and Related Products Regulations 2016. There were also some exemptions for these products in the Tobacco Advertising and Promotion Act 2002. Over the years there have been several consultations, all of which have supported the continuation of the exemption. I am not aware of any cogent argument to persuade me that it should now be abandoned. This is certainly something that we shall wish to question at later stages.

The Bill also includes the power to restrict the flavour of nicotine products, and the Government have signalled that they are considering banning certain flavours of vaping liquids. On the face of it, this may seem a reasonable proposal, bearing in mind the troubling rise in youth vaping. The problem here, though, is one of perverse consequences. There is increasingly strong evidence that access to a variety of flavours is a key factor contributing to smokers making the switch to vaping and then not going back to cigarettes. During the Public Bill Committee in the other place, Louise Ross, who launched the world’s first stop smoking service, wrote in her submission:

“Flavours are really important to adult users of the products, whether new users or those who are staying smokefree with a vape”.


She added that those who use vaping products report it is flavours that

“stopped them from going back to cigarettes, which they found tasted terrible after a few weeks of vaping”.

Evidence of that kind should give us pause, before we go hurtling into a ban on what some see as no more than a tempting gimmick to trap unsuspecting teenagers. Once again, we can dig deeper into these questions in Committee.

This leads me to advertising. As noble Lords will know, tobacco advertising has been banned in this country for many years and, although difficult to prove, there seems little doubt that the ban has played its part in bringing about the marked fall in smoking prevalence that we have seen over the past 10 to 15 years. So, if you want to reduce rates of youth vaping—as most right-minded people wish to do—it is only natural to look closely at the idea of extending the advertising ban to vaping products. However, the difficulty with that idea is, once again, the risk of unintended consequences. There is a danger that Part 6, which would ban advertising on all vape and nicotine products in all scenarios, may turn out to work against the valid efforts of the NHS to encourage smokers to give up cigarettes. It is telling that the Government’s own impact assessment for this Bill admits that the ban on vape advertising could lead to more people smoking for longer. It says:

“Whilst smoking prevalence in the UK has been falling for many years, the risk of this policy is that the potential health gains from reduced vaping consumption, could be offset by a slowing of smoking cessation at a societal level”.


So what is the right response? The Government’s manifesto contains a commitment to ban the advertising of vaping products to children, and most of us, I am sure, are deeply uncomfortable with the thought that there are vaping products on the market that have been designed to appeal specifically to young people. Therefore, this is a situation that requires a nuanced and proportionate response. Surely to goodness, adults who use vapes as a smoking-cessation tool should still be able to access information that allows them to make informed decisions on the products they purchase. There could and should be some room for controlled advertising of nicotine products to be permitted in relevant settings within the NHS, in pharmacies, at the point of sale and, potentially, in other retail settings such as specialist vaping shops, in the same way that specialist tobacconists are exempted from tobacco advertising bans. We shall return to this issue in Committee.

This is a further example of how certain aspects of the Bill could hamper the commendable progress we have made in this country on reducing smoking prevalence. It would surely be madness if we allowed this Bill, which is expressly designed to bear down on the incidence of smoking, to unintentionally have the opposite effect. We absolutely must guard against that.

Finally, I turn to the proposal set out in the Bill to introduce a licensing regime for the sale of tobacco and nicotine products. While many have welcomed this as a practical method of dealing with enforcement, many column inches have been devoted to the practicability of an age-verification scheme that will be not just about the need to distinguish a 17 year-old from an 18 year-old; as time passes, it will require retailers to check the ages of people in much older age brackets, so as to distinguish a 37 year-old from a 38 year-old. I do not propose to dwell on this issue now —we can do so, as necessary, at later stages—because there is a much more immediate problem to occupy us.

Once again, the licensing regime is to be established by regulations. This means that we do not yet know any details of what the regime might look like or how it might be implemented. If you are a retailer, this really matters. There is a certain amount of detail in Schedule 1, but the phraseology is, I am afraid, rather vague. The regulations to establish a licensing scheme “may” make

“provision limiting the number of licensed premises”

in a particular area; they

“may make provision about the duration … of licences”;

and they

“may … enable a licensing authority to attach conditions”—

any conditions—“to a licence”. I suppose those are clues, but what will this licensing scheme actually look like? We simply do not know.

The Bill permits the licensing authority to “charge a fee” for an application for a tobacco and nicotine licence. How much might it charge? We do not know. What will be the upper limit that can be charged? Again, we do not know. Will retailers be required to apply for a tobacco licence separately from a nicotine licence or an alcohol licence and be charged for all three? We do not know.

In its written evidence submission to the Public Bill Committee, the Association of Convenience Stores said:

“If the licensing fees replicated the same rates as the alcohol licensing scheme for the convenience sector, we estimate it would result in an additional cost of £11.4 million per year initial sign up and £10.4 million for annual renewal fees for convenience retailers”.


These sums of money represent additional costs at a time when, as I think we all recognise, small retailers simply cannot afford them. The association went on to say that the proposed ID requirements were a major concern and that retailers were already stretched thin trying to manage age verification effectively with current regulations. It said that adding another layer of complexity with the potential for increased fines and penalties would simply make it harder for convenience stores to do their job and increase the likelihood of honest mistakes happening. These are real concerns that retailers have. They are not concerns fed to us from the tobacco industry or the vaping industry; they are concerns relayed to Parliament by the very people that this Bill will impact the most.

In preparing for this Bill, I reread part of our proceedings on the Tobacco Advertising and Promotion Bill, way back in 2001, when I asked the Minister to accept that there was no difference between us on the end we had in view, which was to reduce the prevalence of smoking, particularly among young people. I repeat that assurance today, and I would add an assurance on youth vaping.

It is indeed our duty to protect the health and well-being of everyone in our United Kingdom. However, we must never forget that it is possible for Governments to champion those worthy aims by imposing regulation and burdens that are disproportionate to the good that they will do, or that, in our desire to change the law for the better, we pay too little regard to the law of unintended consequences.

Mental Health Bill [HL]

Earl Howe Excerpts

Report stage
Wednesday 2nd April 2025 Lords Chamber

[Lord Scriven (LD)]

My Lords, I rise very quickly to support the amendment from the noble Lord, Lord Stevens, and have put my name to it.

I will add a couple of extra things to the noble Lord’s very well-argued case. Modest as it may be, I think it is an effective measure—and this is why I think it is and why the House should support the noble Lord’s amendment if he decides to push it to a vote. It is not that the Secretary of State has announced that the percentage will decrease next year; the percentage decrease happened during this financial year, going down from 9% to 8.78%. So we are now on a trend for the percentage of National Health Service spend on mental health.

Furthermore, one has to question the priority of the Government when they look at the national planning guidance and some of the targets that have been dropped from it. There are no plans to target the 2 million long waiters waiting for mental health care. It would be slightly disingenuous of the Minister, in response, to talk just about the mental health investment scheme, because all it refers to is ICB spend. The uniqueness and cleverness of the amendment from the noble Lord, Lord Stevens, is that it talks about all health service spend, including non-ICB spend, specialised commissioning and other elements that need to be there.

Mental health takes up 20% of illness treated by the NHS, which will probably be spending 8.7%. Because of the trend that is happening, the amendment from the noble Lord, Lord Stevens, is absolutely vital to ensure not just that the percentage is maintained but that the community facilities within this will be funded and implemented.

[Earl Howe (Con)]

My Lords, I will not speak at length, but I express my support for the case put forward by the noble Baroness, Lady Tyler, in her Amendment 50. Her concerns around the resourcing of the mental health workforce are well founded and there is no better source of evidence for those concerns than the CQC, which I thank for briefing me, very fully, on this subject at the beginning of last month.

When we look at the issue of workforce sufficiency, a paradox confronts us. Between 2019 and 2024, the mental health workforce grew by nearly 40,000 full-time equivalent staff—an increase of 35%. Yet, when we sit down to read the CQC’s recently published Monitoring the Mental Health Act in 2023/24, we find that staff shortages are a pervasive feature throughout the service. There is a cocktail of reasons for this apparent contradiction: very steeply rising patient demand; patients being admitted to hospital with a greater acuity of mental illness; a struggle in many places to recruit staff with the right skills; and poor retention of skilled staff, with, as a consequence, a high reliance on agency workers. That all impacts the quality of care given to patients, because, with hospital staff suffering burnout and temporary staff coming and going, there is often no opportunity to develop the kinds of therapeutic relationships that make patients feel psychologically safe and secure.

Of course, not all areas of the country are the same. Geographical disparities affect the availability of different skill sets, resulting in different kinds of problems manifesting themselves: for example, in one of the three high secure hospitals, the CQC encountered cases where patients were being kept in their rooms during the day. Elsewhere, on a number of in-patient wards, patients with autism or a learning disability reported that staff lacked the necessary training to look after them properly. In other settings, the lack of training is more basic: agency staff very often do not know how to operate the hospital’s IT system. This mixed picture underlines the fact that the amendment from the noble Baroness, Lady Tyler, is expressed in exactly the right way, since it mandates that biennial staff sufficiency reviews should be done not centrally but by commissioners locally.

That formula is appropriate for another reason. Depending on where you are in the country, there can be different sorts of barriers to accessing care, whether the barriers are for people from ethnic minority groups, for children and young people or simply for people living in areas of high deprivation. The more people find it difficult to access the care that they need, the more seriously they can be at risk. That particularly applies to children. The noble Baroness, Lady Bennett, made that point. We have not heard much from the Government about workforce planning generally, but this is an area where this exercise just cannot wait.

This leads me to Amendment 59, in the name of the noble Lord, Lord Stevens. It will not be much comfort to him if I say that I am right behind the sentiment of the amendment. He knows that, sadly, I cannot ask my colleagues on these Benches to vote for it, simply because I do not think it is appropriate for primary legislation to tie the hands of Government in matters of health spending. Those macro decisions surely have to be for Ministers.

Nevertheless, the flagship principle at the centre of the amendment is parity of esteem—a principle that is enshrined in statute and to which I am totally signed up, alongside, I am sure, all of your Lordships. However, parity of esteem is a broad concept and should, in my view, be measured in a range of ways, not simply by reference to monetary input, important as that is—and it is important.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, I declare an interest as a member of that persecuted minority of activist human rights lawyers. Crucially, it is a privilege to follow the noble Baroness, Lady Barker, and my noble friend Lady Keeley, who have done so much wonderful work on this. I also commend the brains trust of mental health professionals and lawyers who sat behind them.

On 24 February, we had a lengthy discussion on this in Committee, and it was one of the best debates in which I have had the privilege of participating in your Lordships’ House, and not just because everybody agreed. But they did. I do not remember a single person speaking against my noble friend’s amendment in Committee. We disagree well in your Lordships’ House, but it says something that not a single person disagreed. In particular, I commend the eloquent speeches on that day by the noble and learned Baroness, Lady Butler- Sloss, and by the noble Earl, Lord Howe, on the Opposition Front Bench.

I have been very excited to hear that my noble friend the Minister has been in such constructive meetings with my noble friend Lady Keeley. Whatever debates there are about contracting out vital public services, nobody on any side of this House wants people to be treated less decently and with fewer human rights because of a service being provided directly by the state or a decent contractor. With that, I look forward expectantly, with hope in my heart, to the response of my noble friend, who is very experienced, decent and wily.

[Earl Howe (Con)]

My Lords, having listened to the noble Baroness, Lady Keeley, and her clear and concise explanation of this amendment both today and in Committee, I can do no other than express my full support, yet again, for all she has said. This is indeed an important issue that case law has exposed as needing resolution, and the amendment seems to achieve that aim extremely well. I may have read the runes incorrectly, but I dare to entertain the hope that, if the amendment is not to be accepted as it stands, which of course would be very gratifying, the Government will take the matter forward in the way the noble Baroness has asked.

Mental Health Bill [HL]

Earl Howe Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

Those two things are important and, I hope, would bring much-needed clarity and consistency to the difficult job that approved mental health professionals do. If they do not have that degree of consistency, they could potentially leave themselves vulnerable to legal challenge. These amendments, taken together, would ensure that the Children Act was no longer, as the noble and learned Baroness, Lady Butler-Sloss, said, ignored and that, through the scrutiny of this Bill, we had ensured that these two very important Acts were aligned.

[Earl Howe (Con)]

My Lords, this is Report and I do not propose to do more than underscore all that is been said by noble Lords who have spoken, particularly my noble friend Lady Berridge. Approved mental health professionals carry with them a huge responsibility for the well-being of those whose interests they are called upon to protect. When a child or young person suffers a mental health crisis, it is the job of the AMHP to make the right assessments, take the right decisions and follow the right procedures under the law to ensure that the young person is looked after appropriately and swiftly. To do that, he or she needs a clear set of ground rules to follow.

We need to imagine a situation, such as the one posited by my noble friend, in which a child’s mental and emotional condition is such that they lack decision-making competence. An AMHP is then called in. In that situation, when it comes to appointing a nominated person for the child, the scope for confusion and indeed delay is enormous. Who should be appointed? Is it the mother or the father, or is there someone else who should take precedence?

The Minister has acknowledged through the government amendments before us that, when there is a care order for the child, the AMHP should have no choice but to appoint the local authority as the nominated person for the child. That is a welcome step forward but, as my noble friend has rightly said, what if there is a special guardianship order or child arrangement order issued by the court under the terms of the Children Act? In those circumstances, too, the AMHP should be relieved of the obligation of making a decision that, if it is the wrong one, could leave them open to legal challenge. I very much hope the Minister will be receptive to the powerful arguments that my noble friend and the noble and learned Baroness, Lady Butler-Sloss, have advanced on these significant issues.

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for their contributions in this important area, and I thank the noble and learned Baroness, Lady Butler-Sloss, for Amendment 2.

On that point, I can say that a copy of the report made following a care and treatment review must be sent to those who have a legal duty to have regard to the review recommendations, so that they are implemented appropriately. We agree that parents play an important role. However, it may not be appropriate for the report to be sent to parents in every case: for example, where safeguarding concerns have been raised. Inappropriate sharing of information could result in the patient withdrawing their consent to the review. So we will provide statutory guidance on the role of the parent to assist the responsible commissioner in considering who to involve in care and treatment reviews.

On Amendment 25, also tabled by the noble and learned Baroness, Lady Butler-Sloss, the Bill already allows anyone involved in the patient’s care or welfare, which includes parents, to apply to the county court to terminate the appointment of a nominated person. I can assure the noble and learned Baroness that we will make this clear in the code of practice and the Explanatory Notes for the Bill, as she has raised an important point.

To address Amendment 27, we are concerned that making it a requirement for parents always to be consulted when a nominated person is chosen could put undue pressure on a child to choose a parent. However, we agree that the witness should consider the views of parents and others who may have insight into the suitability of a nomination. I can tell the House that we will therefore set out in the statutory code of practice how the views of the family and others should be fed into the witnessing process.

I have also heard the concern of the noble Baroness, Lady Berridge, about the nominated person regarding children who lack competence. In response to this, as she acknowledged, I have tabled Amendments 29 to 33 to make it clear who an approved mental health professional must appoint in certain circumstances. For an over-18 lacking capacity, an approved mental health professional must appoint a competent lasting power of attorney or Court of Protection deputy, if they have one. For all under-18s lacking capacity or competence, where there is a care order, they must appoint a local authority which has parental responsibility for them or, if relevant, a competent Court of Protection deputy. Where there is no care order, the approved mental health professional can appoint a person who does not have parental responsibility for 16 and 17 year-olds. This allows for suitable alternative arrangements, for example, informal kinship arrangements for young people who live independently. I hope that this reassurance and commitment on my behalf provides the further clarity for which the noble Baroness has been advocating.

Finally, in response to Amendment 34, we agree that in the vast majority of cases we would expect a parent, or whoever has parental responsibility, to be appointed. This would include consideration of special guardians and child arrangement orders. As I have set out before, we do not agree that a person with residual parental responsibility should always be blocked from being a nominated person. A child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child. For example, the parent might struggle with their own health issues but could still be an effective nominated person.

The situation is different in the case of a care order because the local authority is being given lead parental responsibility. We have engaged with the Children’s Commissioner on this point. As I believe the noble Baroness may be aware, I recently met the Children’s Commissioner on a range of issues, including discussions about the Mental Health Act.

If there are no relevant people, approved mental health professionals must follow the patient’s past and present wishes and feelings when deciding who to appoint. We do not believe that the eldest person should be given preference, as this represents an outdated assignment of responsibility. I assure the noble Baroness, Lady Berridge, that I have been advised that my officials met the chair—but I understand that the term is lead—of the AMHP Leads Network last November.

I can make a further commitment, which I hope will be helpful to your Lordships’ House. I am committing to establishing an expert taskforce to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process for children and young people. Views will be very much welcomed on who should be part of this; I have already invited the noble Baroness, Lady Berridge, and the noble and learned Baroness, Lady Butler-Sloss, to make suggestions about that. With these reasons, I hope that noble Lords can support our amendments and will not press their amendments.

--- Later in debate ---

Moved by

[Earl Howe]

12: Clause 8, page 14, line 19, at end insert—
“(iii) seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma;”

[Earl Howe (Con)]

My Lords, in moving Amendment 12, I will speak also to four other amendments in my name included in this group: Amendments 13, 15, 37 and 41.

To set the scene, there is a theme running through all the amendments in this group—not only mine—which is patient empowerment. All of us, I am sure, welcome the fact that patient empowerment is already writ large in the substance of this Bill, and as the changes that it makes are taken forward, as they will be, I am certain that they will be hugely beneficial to patients. However, as we heard in Committee, there remain features of mental health law and practice that give cause for real concern. My contention, which I am sure is shared, is that we should try to do all we can to make sure that the procedures, clinical practice and, if possible, cultures are made as good as they can possibly be in the way that this legislation is drafted.

My Amendments 12 and 13 are identical to amendments that I tabled in Committee. The point of them is to signal something important about the culture of mental health care. Many of us may take for granted that the aim and purpose of treatment in a mental health unit is to promote psychological well-being and recovery and to minimise distress, but we know that there are many patients undergoing treatment for whom distress and psychological trauma are ever-present features of in-patient care, particularly children and young people. The noble Lord, Lord Crisp, reminded us of that earlier. My Amendment 58, which we will debate in a later group, is designed to tackle this problem in a practical way.

The same applies to my Amendment 41, which brings us back to an issue that I am glad to say received strong support from noble Lords in Committee: the need to beef up the provisions in this Bill around advanced choice documents. ACDs are a great idea and I am delighted that the Government have recognised their potential for enhancing patient well-being, because that is what they will certainly do. We know from research that they have the potential to reduce compulsory detention rates appreciably, as well as reducing time spent in hospital. However, as the Bill is now expressed, patients will not be guaranteed an opportunity to create an advanced choice document, if that is their wish. All that we have in Clause 42 is a provision to allow commissioners to make information on ACDs available to people for whom they are responsible. I do not think that that is good enough.

I turn to my Amendment 15 and, in doing so, focus on an issue that has been brought to my attention by the Law Society relating to nasogastric tube feeding of patients in mental hospitals. The central concern here is that the Mental Health Act 1983 contains no specific safeguards for situations where nasogastric tube feeding of a patient is being proposed. That is because it is considered to fall under Section 63 of the Act, which does not require a second opinion appointed doctor. I suggest that this is unsatisfactory.

In January of this year alone, according to the most recent data, there were 1,975 uses of restraint to facilitate nasogastric feeding in England. Furthermore, a recent comprehensive audit of in-patient mental health units in England reported that the duration of nasogastric tube feeding under physical restraint ranged from a single feed to 312 weeks, with a mean duration of 29.1 weeks. In other words, this is an invasive procedure and the degree of invasiveness can be measured not just by the amount of force used but by the length of time for which the treatment lasts.

Professor Phil Fennell outlined the significant gaps in patient protection in the use of nasogastric tube feeding in his 2019 article, The Regulation of Tube Feeding: a Critical Analysis, and this highlighted the need for regulations.to govern the use of nasogastric tube feeding to achieve a more patient-centred approach to what is quite a drastic medical intervention. The same issue was previously raised in 2007 by the Joint Committee on Human Rights, which pointed out that forcible feeding is potentially a breach of Articles 3 and 8 of the convention, and it, too, questioned why it was not subject to regulation in the same way as ECT is under Section 58 of the Act. The response at that time was that the provisions were compliant with the ECHR.

However, this was before the decision in X v Finland, and in this case, the European Court of Human Rights found that Finland violated X’s rights under Articles 5, 8 and 13 of the convention. X was involuntarily admitted to a mental institution and forcibly medicated with nasogastric tube feeding, which the court deemed unjustified and a breach of her rights to liberty and privacy. Additionally, X lacked an effective remedy to challenge the forcible medication. However, the court did not find a violation of her right to a fair trial under Article 6.

The Law Society has put it to me that this highlights the wider need for safeguards, as patient X did not have sufficient avenues for challenging forcible nasogastric tube feeding. It strongly contends—and I agree—that the Bill represents a real opportunity for making a change to the law in a way that creates a direct safeguard for patients consistent with the safeguards applicable to electro-convulsive therapy, and that is what my amendment seeks to achieve.

Finally, I direct the House’s attention to Amendment 37. This returns us to a Committee debate we had on 22 January. The patient voice in mental health care is, I would argue, inherently weaker than it is in other fields of healthcare, and the patient experience that much more determinative of outcomes. That really matters because, as we know from evidence provided by the CQC and many patient-representative groups, the care of patients in mental health settings is frequently underresourced. It therefore carries with it a heightened degree of risk that acceptable standards of care are not always maintained.

In this amendment, which replicates the amendment I tabled in Committee, I am putting forward the idea that, if every patient discharged from a mental healthcare setting were to be given the opportunity to rate, comment on and provide constructive feedback on the treatment they had received while in hospital, the value to the system and the potential value to the patient could be very significant.

I know that the Minister does not take issue with this. Indeed, I am sure she is sympathetic to what I have said. What I must question, though, is the premise of her response to me in Committee. In that response, she sought to argue that the visits and interviews with patients carried out by the CQC fulfil a function that, in terms of transparency and empowerment of patients, is identical to the kind of debriefing that I am arguing for.

Having heard what I have heard from well-informed patient groups, I must beg to disagree. The reality of the CQC’s encounters and interviews with patients is an evidence-gathering process that is all too often skewed. Here are some of the comments from patients that have been relayed to me. “I know when we had a CQC visit, the nursing staff would steer CQC in the direction of patients who would reflect positively about the ward.” Someone else said: “A lot of the time, if you speak to the CQC, they will have staff present at the same time, so you can’t be honest”.

Patients have also expressed doubts about the effectiveness of the CQC’s monitoring process in general. I will share a couple of typical comments. “There’s been examples of where it took three to four years of the same consistent reports”—of a mental health unit—“for the CQC to eventually do something about it”. And again, “If this process”—of the CQC—“was working, young people would be having a much better experience”.

It has been put to me that one of the differences between the process adopted by the CQC and the debriefing process that my amendment proposes is that the CQC does not take an individualised approach to its monitoring. I am sure that the CQC is sincere in wanting to speak to people about their poor experience of hospital care, but, in practice, people say they have often felt dismissed when speaking about what they have experienced.

There is a wider point here as well. In the words of another patient: “De-briefing isn’t just complaining. It’s discussing and reflecting on events during admission and the patient’s experience in order to learn from it. A complaint is given and then dealt with behind the scenes, whereas a de-brief is a reflective discussion between multiple people where the young person is an active participant in discussing their own experience”. Another said: “It gives people the room to process things”.

In practice, the independent mental health advocate would take responsibility for the debriefing process. The Minister expressed concern about that and about the risk of overburdening those individuals. I appreciate that concern, but suggest that a conversation with a patient, or former patient, taking the form of a debriefing is squarely in line with the existing role of an independent mental health advocate. It would not be asking him or her to do appreciably more than they do already. As one patient put it:

“The IMHAs doing the de-briefing is already technically what they do, there just isn’t a formal name to the process … They don’t need any specific training to be able to manage the process as they already know what to do. They are there to advocate”


for them.

--- Later in debate ---

I turn finally to Amendment 63. This would significantly change the tribunal’s role, which focuses currently on reviewing detention, not treatment decisions. The previous Administration consulted on a similar recommendation from the independent review, and noble Lords may recall that serious concerns were raised. The tribunal is not designed to deal with complex treatment disputes, which need specialist input and established therapeutic relationships between the patient and clinician. However, the emphasis on therapeutic benefit in the revised detention criteria will see that the tribunal pays particular attention to the patient’s care and treatment and whether it is proving effective, as part of discharge decisions. For these reasons, I hope that noble Lords will not press their amendments.

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who have spoken so powerfully in support of the amendments in this group. I also thank the Minister for her full reply. In the interests of time, I will not cover all the issues at length; however, I am grateful to the Minister for her welcome assurances on my Amendment 41. It is excellent news that the Government will be taking forward my plea to strengthen the provisions around advance choice documents when the Bill reaches the other place.

On nasogastric feeding, I was glad to hear that discussions would be taken forward with the professions in the mental health sector. I hope that the Law Society’s concerns will be taken into account in those discussions.

Finally, I must express some disappointment at the Minister’s reply about the idea of a debriefing process for patients after leaving hospital. We cannot be sure that the work of Dr Dash will deliver progress in this area, and I still feel that the case I tried to put is strong. I will reflect on what the Minister said, but I reserve the right to test the opinion of the House when Amendment 37 is reached. For now, I beg leave to withdraw Amendment 12.

Amendment 12 withdrawn.

--- Later in debate ---

[Lord Scriven (LD)]

My Lords, I thank the noble Baroness for detailing very clearly the Government’s amendments. I also thank the Minister, who I see in her place, for, again, a very collaborative approach and for, on this occasion, implementing exactly not just what was in my previous amendment, so ably moved by my noble friend Lady Tyler, but what came from the Delegated Powers and Regulatory Reform Committee.

On the use of ECT, the powers in the government amendments before the House mean that the balance is absolutely correct on not having the second doctor’s signature and consent, as well as on the need to save life and the use of ECT. I thank the Government sincerely for not just listening but acting on the concerns that were around.

[Earl Howe (Con)]

My Lords, the House will be grateful to the Minister for these government amendments, which, as the noble Baroness made clear, cover two principal policy issues. Accordingly, I have two sets of queries.

On the changes for the rules for authorising electroconvulsive therapy, I am sure it is not the Government’s intention in any way to water down the safeguards surrounding the administering of ECT. However, in relation to Amendments 16 and 17, taken together, can the Minister reassure me? The Bill, as modified by the proposed amendments, will posit that there could be circumstances in which a patient who has the capacity to consent to ECT but who has not consented to it could nevertheless find their refusal to treatment overridden by the decision of a single treating clinician. Even in a situation where the judgment of the clinician was that ECT was necessary to save the patient’s life, it seems to me a significant change from the current rule whereby the decision of a second opinion appointed doctor is required in all cases where it is proposed to administer ECT to a non-consenting patient who has the capacity to consent.

Amendment 17 makes it clear that the regulatory authority—the CQC, in other words—may give permission for ECT to be administered only on the say-so of a single doctor where a SOAD is not available and “exceptional circumstances” apply. I will not ask the Minister to define what “exceptional circumstances” might consist of, but it is to be assumed that a primary example of such circumstances might be when time was of the essence and no SOAD could be located soon enough to avoid exacerbating the risk of harm or death.

So my questions are, firstly, has this proposed change been prompted by a general awareness across the mental health sector that the availability of SOADs can frequently prove a problem in circumstances where urgent decisions are needed? In other words, to put it bluntly, are we being asked to change the law because of habitual shortcomings in NHS communication arrangements? I would be concerned if that were the case.

Secondly, what guidance, if any, will the CQC formulate for itself to ensure that, when its decision is sought to temporarily waive the requirement for a SOAD, it will not do so just on the basis of a SOAD being unavailable? Will it also commit itself to a standard procedure whereby it will seek at least some background detail from the treating clinician of the case before him or her, such as the reasons why they consider that administering ECT to that particular patient carries particular urgency? In other words, can we be reassured that the treating clinician’s opinion will be subject to at least a modicum of testing and cross-questioning before the CQC issues the go-ahead for ECT to be administered? I hope so, because anything short of that could turn into a tick-box exercise.

The other government amendment on which I would appreciate further clarity is Amendment 26, which

“changes the process for appointing a nominated person”.

One of the changes proposed is that the various statements and signatures required for appointing the nominated person no longer have to be contained in the same instrument. The other is that the nominated person’s signature no longer has to be witnessed. I was grateful for the Minister’s explanation, but it implies that the written instrument that appoints the nominated person and is signed by the patient in the presence of a witness can be executed without the nominated person themselves being in the room, or indeed anywhere near. At the moment, the Bill says:

“The instrument appointing the nominated person must … contain a statement, signed by the nominated person in the presence of”


the same person who witnesses the signature of the patient.

I previously assumed that the reason for that provision was the responsibility that the Bill places on the witness—quite a serious responsibility—to ensure, as far as possible, that the nominated person, whoever they are, is a fit and proper person to act in that capacity. It would appear now, with this amendment, that there is no need for the witness even to clap eyes on the individual who is nominated. How can that be right? Without at least meeting the nominated person, how can any self-respecting witness certify, hand on heart, that, in the words of the Bill, they have

“no reason to think that the nominated person lacks capacity or competence to act as a nominated person,”

or that they have

“no reason to think that the nominated person is unsuitable to act as a nominated person”.

Are they simply meant to take the patient’s word for it?

This alteration in the wording raises all sorts of question marks in my mind, given the concerns expressed by noble Lords in Committee about misplaced loyalty towards a particular individual, a naivety on the part of a child or young person, or even some degree of psychological manipulation of a young person—for example, someone who makes it their business to set a child against their own parents.

In Committee, the Minister herself emphasised the need for the law to prevent exploitation and manipulation. While I did not at the time think that her response was completely reassuring, I saw it at least as an acknowledgement that the role of the witness could not be fulfilled properly without some sort of contact with the nominated person. Was I right or wrong on that? It would be helpful if the Minister could explain how my misgivings in this area, about the way in which the nominated person procedure comes to be implemented in practice, might be allayed.

[Baroness Blake of Leeds (Lab)]

My Lords, I thank the noble Lord, Lord Scriven, for his comments and express my thanks also for the many contributions made by noble Lords around the House.

The noble Earl, Lord Howe, asked some searching questions. I think the main thrust of his comments was to look for reassurance that due diligence will be gone into in all of the areas that he raises. I am not sure that I can answer every line in detail, but I want to reassure him in particular about the nominated person question, which I know has caused him enormous concern.

In addition to what I have said, I emphasise that there is no intention at all to water down the safeguard, and that Amendment 26 will make sure that patients get access to a nominated person quicker, along with all the rights and powers that entails, meaning that safeguards provided by the role will not be delayed. That is the crucial point that we have to factor in as to why these amendments are deemed necessary. As he quite rightly says, this is particularly important for patients and those who may be subject to out-of-area placements.

The change that we are bringing in is that the nominated person’s signature does not need to be witnessed in person. None of the safeguarding checks is changed in any way by this. In answer to the noble Lord’s concern, we would expect that, in the majority of cases, the witness will still meet the nominated person face to face. In exceptional circumstances, where this is not possible, we believe that it is better to be able to appoint a nominated person, subject to all the appropriate safeguarding checks, than to have to wait until a person can have their signature witnessed.

A second opinion doctor is not currently required for urgent and compulsory electroconvulsive therapy; this is new under the Bill. I need to emphasise this point. What the amendment does is sets out the exceptional circumstances where a second opinion appointed doctor—sorry, it is a bit of a mouthful—is not required. I hope that gives some clarification.

We have to make sure that these are all taken in the round. I reassure the noble Earl, Lord Howe, and noble Lords across the Chamber, that many of these are regarded to be due to exceptional circumstances, where time is of the essence.

As to whether some of these provisions are based on failure, it is from learned experience and bringing together everyone who has a view to make sure that everything we bring forward is in the best interests of the patient. That is the crucial thing. This is where the detailed work will be done under the code of practice, bringing together all the different parties in a measured way. It will take a few months to do this. That is critical, so that we can all be reassured that the processes are brought into play.

I can understand the concern about making sure that communication is there in situations of stress, but I believe that these amendments are designed to address this issue, with, as I have said, the patient’s interest absolutely in the forefront. There will be opportunities as the code of practice is put together for us to make sure that our endeavours are followed, bringing the best opinion together with the best interest of the patients.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I support this amendment and, in particular, what the noble Lord, Lord Meston, has said. He has considerable experience of the county court, which I do not have, excepting when I used to appear before it.

What concerns me is that, if a case is sent to the county court, to a judge who is not a family judge, there will be considerable difficulties for that judge. I support the idea that it should be either the mental health tribunal or—as I would prefer, and as the noble Lord, Lord Meston, has suggested—the Court of Protection. The judges of the Court of Protection are judges of the High Court, Family Division, of which I was president. That would be the right court. If it is said by the Government that they are not prepared to move on this issue, and I suspect they might not be, could they at least put in the court code of practice that, if it is sent to the county court, it will be dealt with by a family judge in the county court? The county court sits also as a family court. That would at least ameliorate the situation.

[Earl Howe (Con)]

My Lords, I will speak briefly to the amendments in this group tabled by my noble friend Lady Berridge, supported by the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, whose last suggestion I hope will be listened to by the Minister.

I must commend my noble friend for her tenacity with this issue. As she has outlined, there is a significant concern that the use of the county courts to decide on matters pertaining to the termination of nominated persons is not the most appropriate process. I do hope that the Minister will give my noble friend words to her comfort.

[Baroness Merron (Lab)]

My Lords, I thank the noble Baroness, Lady Berridge, for her Amendments 24, 28 and 35. They would mean that the mental health tribunal, rather than the county court, handled the termination of appointment of the nominated person. The county court already has a role in displacing the nearest relative. It has the expertise, procedural tools and legal framework to handle sensitive disputes involving external parties, such as conflicts of interest or allegations of abuse. The First-tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales are focused on reviewing detention under the Mental Health Act. This would add an additional burden on the tribunal, risking undermining its core function and delaying detention reviews.

The noble Baroness, Lady Berridge, raised the issue of legal aid. County court mental health cases are largely limited to applications for the displacement of a nearest relative. Legal aid is currently available to a person seeking the displacement of the nearest relative, except where the person bringing that application is doing so in a professional capacity and to the nearest relative themselves. That would also apply for the nominated person, which will replace the nearest relative.

Legal representation is available where the applicant meets the means test, unless they are under 18, and the relevant merits criteria. If there are any further points of clarification, I will be pleased to make them to any noble Lords who have raised points today, including the noble Baroness.

As we do not feel that the mental health tribunal is the right place for what I was referring to before I went on to legal aid, I ask the noble Baroness to withdraw the amendment.

--- Later in debate ---

Moved by

[Earl Howe]

37: After Clause 33, insert the following new Clause—
“Ascertaining and learning from patients’ experiences of hospital treatmentAfter section 23 of the Mental Health Act 1983 (discharge of patients) insert—“23A Ascertaining and learning from patients’ experiences of hospital treatment(1) A patient who has been detained under this Part of this Act must, within 30 days of their discharge, be offered a consultation with an independent mental health advocate to review their experiences of hospital treatment.(2) A report from any consultation undertaken pursuant to subsection (1) shall be produced by the independent mental health advocate in partnership with the patient.(3) The report referred to in subsection (2) shall be provided to the managers of the hospital within 14 days of its completion.(4) The managers of the hospital shall publish each year a report setting out what they have learned from patients’ experiences at the hospital, and the actions they have taken.””Member’s explanatory statement
This amendment would mandate the de-briefing of mental health patients after they have left hospital.

[Earl Howe (Con)]

My Lords, I listened carefully to the Minister’s reply to the proposal that I made to give mental health patients an automatic opportunity to avail of a debriefing process after leaving hospital, in the interests of patient empowerment and greater transparency for the system generally. I am afraid that I nevertheless wish to test the opinion of the House.

Mental Health Bill [HL]

Earl Howe Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I will also say briefly that I too added my name to Amendment 51 in the name of the noble Lord, Lord Meston. In Committee, I pondered this issue long and hard. At one stage, I thought that perhaps more consultation was required, but having listened to the arguments and heard from people in the sector, which was very helpful, along with the briefings we have received, I am now firmly of the view that this is a real gap in the current Bill.

We have this opportunity and, as has been said two or three times so far today, we do not get such an opportunity very often. It might be once every 10 or 15 years that we get the opportunity to look at mental health legislation such as this. I have therefore come strongly to the view that we need to make the most of this opportunity so that there is a proper test for decision-making for under-16s—a sort of competence test—within the Bill.

In coming to that view, I have taken two or three things into consideration. One is that it would apply only when the Bill requires that a child’s competence is to be considered. Then, very importantly I thought, the amendment is concerned only with the question of a child’s ability to decide, not what happens once that has been determined. Finally, this excellent amendment explicitly limits this test to decision-making under the Bill and the previous Mental Health Act 1983. In short, it applies only to children who fall within the scope of this legislation, so it is tightly drawn. The noble and learned Baroness, Lady Butler-Sloss, set out so powerfully the need for this and the case for it, in a way that I could not possibly do. I just wanted to explain how my thinking had evolved since our discussions in Committee.

Briefly, while I am on my feet, I was always very supportive of the amendment put forward by the noble Earl, Lord Howe, for strengthening safeguards for children admitted to adult wards and out-of-area placements. This is a really important issue and I shall be interested to hear what he has to say on the subject. I was also interested to hear the Minister talk about the amendment that she has put forward in relation to this, so I hope that progress is being made in this important area. I will be interested to hear what the noble Earl’s reaction is to that.

[Earl Howe (Con)]

My Lords, I join other noble Lords in expressing my full support for Amendment 51 in the name of the noble Lord, Lord Meston. A very compelling case was put by forward by him and the noble and learned Baroness, Lady Butler-Sloss.

I also thank the Minister very warmly for her Amendment 46 and her helpful explanation of what it is likely to entail regarding the process that will flow from it. It is reassuring to know that our Committee debates on age-appropriate treatment for children and young people have been seriously considered by the Minister. I put on record my appreciation of the advanced notice she gave me of her intention to meet noble Lords’ concerns in this constructive way. I hope, nevertheless, that she will not mind me posing a number of questions prompted by the government amendment and my Amendment 58, which has been grouped with it.

Mental Health Bill [HL]

Earl Howe Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

Moved by

[Earl Howe]

160BA: After Clause 50, insert the following new Clause—
“Duty to publish investigations(1) The Mental Health Act 1983 is amended as follows.(2) After section 54A insert—“54B Duty to publish the outcome of investigations(1) Integrated care boards, hospital managers and the relevant authority must, if requested to do so by the court, publish any report, review or investigation that they have undertaken in relation to a relevant patient.(2) For the purposes of this section, a “relevant patient” is a patient who–(a) has received treatment under this Act,(b) is currently receiving treatment under this Act, or(c) has been detained under this Act, andhas been sentenced for a “specified offence” under section 306 of the Sentencing Act 2020.””

[Earl Howe (Con)]

My Lords, I beg to move Amendment 160BA and will speak to Amendment 160BB. These amendments, tabled in my name and that of my noble friend Lord Kamall, stem directly from the harrowing case of the murder of three people by Valdo Calocane in Nottingham. The Minister and, indeed, other noble Lords may question the propriety of referring to an individual case in this way. However, I believe that this is one occasion on which it is legitimate to do so.

The amendments I have tabled were drafted in the light of the facts that have emerged from the full independent investigation into the care and treatment of Valdo Calocane in the months leading up to the tragic events of 13 June 2023. There have also been press articles on a report by the Independent Office for Police Conduct, the IOPC, which identified 11 mistakes in the run-up to that fateful day. There is a great deal about the case that is known and not disputed, and, given the magnitude of the tragedy, it would be remiss of this Committee not to spend at least a little time considering its implications.

Before I go further, there are two things I need to say. The first is to acknowledge that the Government have agreed to a judge-led public inquiry that will start in a matter of weeks. Secondly, on that account I will do my utmost to avoid saying anything that would undermine that inquiry.

There are a number of issues arising from the treatment of Valdo Calocane that are directly relevant to the Bill because they are of wider application. The report of the independent investigation recounts the timelines associated with Calocane’s treatment. His first contact with mental health services was on 24 May 2020, when he was arrested for criminal damage and a Mental Health Act assessment was undertaken. That assessment indicated that Calocane was experiencing the first episode of psychosis brought on by sleep deprivation and social stressors.

During that first contact, he was not detained for treatment as he acknowledged that he required help for his condition. However, after returning home, Calocane was arrested again and, on admission, was considered not to have capacity to consent and was consequently detained under Section 2 of the Mental Health Act. After that episode of treatment, he was again detained on 13 July 2020, this time under Section 3 of the Mental Health Act. Upon discharge, he was

“considered to have a primary diagnosis of paranoid schizophrenia and was to continue with antipsychotic medication”.

During the course of 2021, Calocane was detained again under Section 2 of the Act and continued treatment in the community. He began missing appointments with his care co-ordinator and mental health care team from July 2022. On 4 August, the care co-ordinator attempted to make a home visit, but the given address was incorrect. On 17 August, the care co-ordinator attempted to reach Calocane at a new address, which received no response.

The report then states:

“On 23 September 2022 it was documented that as no contact had been made with VC, a decision was made at an MDT meeting on the 22 September to discharge VC back to his GP due to non-engagement. A letter to VC’s GP was written the same day, outlining non-contact and that VC had been discharged”.


The key aspect of all this is the problematic last line:

“There was no contact between VC and mental health services or his GP between this date and the tragic incidents in June 2023”.


For a whole nine months prior to the killings there was no contact between any health service and Calocane. What this demonstrates is that the co-ordination of the community aspect of Calocane’s care was clearly inadequate. After he began to miss appointments, it appears that there may not have been sufficient attempts at outreach. There were evidently issues with maintaining contact between mental health services and the patient.

It is this issue that my Amendment 160BB tries to address. The amendment takes the form of a report on continuity of care, to ensure that all options can be explored. I do not profess to have the answers but, as proposed subsection (2) in the amendment makes clear, such a report must include discussion of the possibility of creating some form of duty, placed on ICBs and/or hospital managers, to

“maintain contact with patients known to have a mental disorder”.

This is not too far from one of the recommendations of the independent investigation, which said:

“NHS England and other national leaders, including people with lived experience, should come together to discuss and debate how the needs of people similar to VC are being met and how they are enabled to be supported and thrive safely in the community”.


The point is that, somewhere along the line, the mental health care system failed Valdo Calocane and ultimately his victims and the wider public. As we debate this Bill, we have the opportunity to address these potential failures, in the hope that we can make progress towards minimising the number of patients who slip through the net in this way.

The second issue to arise from the case relates to the publication of the investigation. Noble Lords will remember that controversy arose when the NHS trust responsible refused to publish the full version of the independent investigation into the treatment of Valdo Calocane, due to patient confidentiality. We all know that the NHS did subsequently publish this investigation—I have just referenced it above—but this was not without significant public and political pressure.

There are questions to be answered about whether patient confidentiality rules should apply in cases such as this, where there is a significant public interest. Of course, there should always be adequate safeguards to ensure that a patient’s medical records are protected, but, as my Amendment 160BA sets out, where there have clearly been significant institutional failings regarding a patient who has been treated under the Mental Health Act and who has then gone on to commit a violent offence, it may very well be in the wider public interest for such investigations to be published in full.

I am under no illusion that this amendment is the absolute best solution to the problem. But I hope it at least starts a conversation and pushes the Government to review their approach to publication. There are obviously a number of concerns raised by these harrowing events. We obviously must do better. In the light of the published report, does the Minister believe that there are any measures that could and should be taken now, prior to the report of the judge-led inquiry? I thank the Minister in advance for the considered answer that I know that she will give. I beg to move.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise quickly to say that I am very sympathetic to the aims behind these two amendments. They have been set out very powerfully and comprehensively by the noble Earl, Lord Howe. I feel, particularly, that an obligation to publish a report of an investigation of the type we have just heard about is absolutely essential if we are to avoid a repetition of these terrible events. There must be a way of learning lessons from this, and transparency and publication are an important part of that.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I am grateful to the noble Lords who have spoken in this debate. While the Calocane tragedy provided the trigger for these amendments, there are messages sent out from that case that are of wider and more general application that it would not be inappropriate for the department and NHS England to think about now, and I am glad that such consideration is being given as we speak. I recognise that there are established processes set out in the community mental health framework, among other places, but those processes clearly failed, which is why the Calocane case is such a seminal one.

The inquiry will no doubt shed further light on who bears responsibility for what happened, but that is not my concern today, as I am sure the Minister will appreciate. My concern is that practical steps could be taken, perhaps in the areas of professional training, updating the code of practice and the revision of standard referral protocols—the Minister has spoken broadly about those sorts of things, which I very much welcome. I will give further thought to this very vexing set of issues between now and Report but, for now, I am content to withdraw the amendment.

Amendment 160BA withdrawn.

--- Later in debate ---

[Baroness Tyler of Enfield (LD)]

My Lords, I will speak to Amendments 160C and 160D in the name of my noble friend Lord Scriven. These amendments would ensure that any changes to this primary legislation implemented through secondary legislation were properly considered by Parliament before they took effect.

Amendment 160C makes it clear that certain provisions in subsection (5) should not be included under the general powers in Clause 51, and Amendment 160D then strengthens parliamentary oversight by requiring that any statutory instrument amending or revoking this primary legislation be approved by both Houses before it comes into force; that is, by using the affirmative procedure.

This is a matter of proper scrutiny. Primary legislation is carefully debated before it becomes law, as we have demonstrated throughout this Committee stage, and any later changes to it should not be made too easily or without full consideration. If a statutory instrument can amend or remove part of an Act without Parliament’s approval, there is a risk that important legal protections could be altered without proper deliberation.

This is particularly important in the context of mental health legislation, where the law directly affects the rights, personal liberties, and treatment and care of highly vulnerable people. I hope that the Government will recognise that these amendments, which are completely in line with the recommendations of the Delegated Powers and Regulatory Reform Committee, simply ensure that when primary legislation is changed, it is done with the same level of scrutiny that was given to it in the first place. I beg to move.

[Earl Howe (Con)]

My Lords, I will keep this brief since I can do no more than back the noble Baroness, Lady Tyler, in every word that she has said in support of these two amendments. We are dealing here with a Henry VIII clause that is surely far too permissive given the great sensitivity of the Bill’s entire subject matter and, as the noble Baroness said so well, its momentous significance for the health and well-being of very vulnerable people.

The absolute minimum that Parliament can expect is that Parliament be consulted in the exercise of these powers. The affirmative procedure is therefore entirely appropriate for any statutory instruments made under this clause and I hope the Minister will not disagree with what is proposed.

[Baroness Merron (Lab)]

My Lords, I thank the noble Lord, Lord Scriven, for tabling Amendments 160C and 160D, which were introduced by the noble Baroness, Lady Tyler, and spoken to by the noble Earl, Lord Howe.

The proposal in the amendment, as was referred to, was a recommendation in the report from the Delegated Powers and Regulatory Reform Committee. I hope that your Lordships’ Committee will welcome that we are actively considering this proposal and will publish our response to the committee’s recommendation ahead of Report.

Mental Health Bill [HL]

Earl Howe Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, I am right behind the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, in their Amendment 130. We know, and I believe that by and large we accept, that the Bill is not intended by the Government to hold out the prospect of instantaneous changes to the delivery of mental health care. It offers a series of measures that, over a period of years, should make a material difference to the well-being of a wide range of mentally ill people who require treatment, whether in a secure mental health setting or in the community.

The Minister has spoken of the need to view these measures in the broader context of the NHS 10-year plan and, certainly from the Government’s point of view, that is a perfectly reasonable position to take. However, if that is the Government’s policy, it begs a whole mass of questions around implementation and funding. For example, what do the Government see as the immediate high-priority measures that they wish to introduce? Which measures do they propose to defer, and for how long? What are the costs associated with these changes, both to the NHS and, as the noble Baroness, Lady Tyler, pointed out, to the justice system and local government? Bearing in mind Treasury constraints, when realistically do they believe a clear timeline for change will emerge? We have the impact assessment, but how far can we rely on that?

If those questions for the time being have to remain hanging in the air, as I suspect they will, I share the view of the noble Baroness, Lady Tyler, that Parliament, in the not-too-distant future, needs to be given an account of what the longer-term future looks like in a way that reflects not only the Government’s current thinking but, as time goes on, how their thinking evolves, as it surely will. There is therefore a strong case for a report to Parliament sometime in the next few months and on an annual basis thereafter, making clear both the timeline of ambition and the timeline of what in reality is being delivered.

I am conscious that we all need to keep our remarks succinct and to the point, so I will comment only briefly on the other amendments in this group. I am afraid I cannot support Amendment 153 in the name of the noble Baroness, Lady Bennett. I have always believed that what matters most in healthcare is not whether a service is delivered by a public or a private organisation but rather the quality of care to patients and whether good outcomes are achieved at acceptable cost.

Finally, my noble friend Lord Kamall has added his name to Amendments 163 and 164. These amendments stand absolutely four-square with the theme of Amendment 130, and on my noble friend’s behalf I express my warm support for them. The noble Lord, Lord Stevens, has said it all.

Just as we accept that we will not get any instant changes arising from the Bill, by a corresponding token, the Government cannot take that as a free pass from Parliament to defer implementing its provisions sine die. We cannot have a situation in which, prior to implementing the provisions, the principle of parity of esteem is quietly put to one side. I hope the Minister will have reassuring words to say on those very important points of principle.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am most grateful to noble Lords for their contributions to this first debate today, and I start by saying how glad I am—I am sure other noble Lords will say this too—to see the noble Baroness, Lady Hollins, in her rightful place. I certainly heard her support for the amendments that we are discussing.

Before I turn to the amendments, it may be helpful to your Lordships’ Committee if I briefly set out some of the high-level plans for implementation of these reforms. I am grateful for the understanding—the noble Earl, Lord Howe, made this point—that time is required. I also understand the emphasis that noble Lords are putting on pace and, of course, we try to match those two things together, but I know we are all agreed on the need to get the Bill in the right place and the Act delivering.

The first priority after Royal Assent will be to draft and consult on the code of practice, and we will be engaging with people with lived experience and their families and carers, staff and professional groups, commissioners, providers and others to do this. The code will be laid before Parliament before final publication, and I am committed to working with noble Lords to ensure that we get this crucial piece of work absolutely right. We expect that this process will take at least a year.

Alongside the code, we will be developing secondary legislation, which will also be laid before Parliament, with more detail on areas such as statutory care and treatment plans. We will then need time to train the existing workforce on the new Act, the regulations and the code. This will likely be in 2026 and 2027, and we intend to commence the first major phase of reforms in 2027.

Of course, some reforms are going to take longer, as noble Lords will appreciate. The noble Baroness, Lady Neuberger, tempted me to go even further than five years, and I thank her for the temptation, but I know I will not be able to please her on this occasion. Of course, it takes time to train new second opinion appointed doctors, judges and approved clinicians, so, as set out in the impact assessment, we believe it will take 10 years to fully implement the reforms, but I emphasise that these timelines are indicative, and we will iterate these plans as we get more certainty on future funding and the wider workforce plans. Of course, I fully appreciate the importance of parliamentary scrutiny and accountability of this work, which is crucial, and I am committed to updating the House throughout the implementation period.

Turning to the amendments, I will start with Amendment 130 in the name of the noble Lord, Lord Scriven, kindly introduced by the noble Baroness, Lady Tyler. I say in response that any implementation plan, as proposed in the amendment, which would be published four months after Royal Assent, would be very unlikely to contain any more detail than is already in the impact assessment. It is important to prioritise drafting the new code and the secondary regulations after Royal Assent. I also confirm to your Lordships’ Committee that we will commission an independent evaluation of the reforms, alongside existing monitoring and reporting by the CQC.

As I have said, I fully expect to update the House during the planning and delivery of the reforms. However, a requirement in primary legislation to publish annually, and within four months of Royal Assent, would be premature.

Amendment 153, tabled by the noble Baroness, Lady Bennett, would prohibit for-profit companies from delivering provisions of the Act. I listened closely to the concerns raised by the noble Baroness, but I do not share the view that a ban on for-profit providers is the right approach, for the reasons that were set out by the noble Earl, Lord Howe, and the noble Baroness, Lady Fox. Our focus should indeed be on ensuring that we have high-quality and good value-for-money services. However, I assure the noble Baroness, Lady Bennett, that we are already investing in a significant quality transformation programme and piloting new models of care to ensure that care is focused on the individual, with maximum therapeutic benefit. That is where our priority lies and for that reason we are resisting this amendment.

Turning to Amendment 163, I am grateful to the noble Lords, Lord Stevens and Lord Kamall, and the noble Baronesses, Lady Tyler and Lady Neuberger, for bringing this issue before the Committee. As I said in my opening remarks, I too want to see the benefits of these reforms coming into play quickly and effectively. We intend to commence the reforms in phases, because some can be implemented more quickly than others, which need more time. This is not just about money but about building system and workforce capacity. For example, the impact assessment estimates that we need over 400 additional second opinion appointed doctors and over 300 additional approved clinicians. Many of these will be consultant psychiatrists, who would already need to have commenced training prior to the legislation for us to fully implement the Bill within five years, as required by this amendment. Rather than having a fixed deadline, as is proposed, we intend to monitor the impact of investment and test readiness to commence new powers on an ongoing basis, commencing each phase when we are confident that it is safe and effective to do so.

Finally, I turn to Amendment 164, tabled by the noble Lord, Lord Stevens, and supported by the noble Lord, Lord Kamall, and the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger. I associate myself with the comments about the commitment to treating physical and mental health equally, in line with this Government’s manifesto commitments. The mental health investment standard requires ICB spending on mental health to grow at least in line with overall recurrent funding allocations. Based on total planned spend for 2024-25, we expect all ICBs to meet the standard in this financial year.

There are already mechanisms to ensure that spending on mental health is prioritised. I refer noble Lords to Section 12F of the NHS Act 2006, which requires the Secretary of State for Health and Social Care to lay before Parliament an annual document setting out whether they expect NHS England and ICB spending on mental health to increase in the next year. The Secretary of State will publish this statement before the end of this financial year.

As several noble Lords said, funding for mental health spend goes beyond the scope of the Mental Health Act, which aims to improve the care and treatment of individuals who have a mental illness and need to be detained in hospital or subject to restrictions in the community. Therefore, I respectfully suggest that the Act is not the appropriate mechanism for holding the Government to account on mental health spend. I ask the noble Baroness to withdraw the amendment.

--- Later in debate ---

Moved by

[Earl Howe]

142: After Clause 50, insert the following new Clause—
“Accessibility for children with physical disabilities(1) The Mental Health Act 1983 is amended as follows.(2) In section 131A (Accommodation etc for children), after subsection (4) insert—“(4A) Where a child who is accommodated under this section has needs arising from a physical disability, the managers, in determining the suitability of the environment in which the child is accommodated, must ensure that such reasonable adjustments to the environment are made as they consider necessary.”” Member’s explanatory statement
This amendment seeks to ensure improvements in accessibility for children with physical impairments who are accommodated in mental health inpatient units.

[Earl Howe (Con)]

My Lords, in moving Amendment 142, I will speak to Amendments 143 and 144 standing in my name and that of my noble friend Lord Kamall. These amendments are about one critical issue that has proved seemingly intractable despite best efforts for many years: the way the mental health system looks after child patients. I am not talking just about child patients who have been compulsorily detained under the Mental Health Act, although they are the subject of Amendment 143; I am referring also to children admitted to a mental health unit as in-patients for any reason at all. That is the subject of Amendment 144.

Noble Lords who are veterans of the last Mental Health Bill in 2007—I can see one or two—will remember that the late Lord Williamson of Horton, former Convener of the Cross Bench Peers, made this issue his crusade with, unfortunately, only limited success. We are still living with the problem. The current Mental Health Act code of practice says that it is government policy for under-16s not to be admitted to an adult ward, which is fine as far as it goes—although, in my book, when we talk about children, we should include young people aged 17 and 18.

The Government promised to eliminate the inappropriate use of beds in adult wards, but that has not happened. Last year, the CQC reported that 196 children were admitted to adult mental health units in 2022-23. This is not a trivial matter. The patient group Blooming Change, which I have mentioned before, has provided me with some first-hand accounts from children and young people who have been placed on adult mental health wards and who have been through some harrowing experiences. One has said:

“As a child I spent over 50 days in a mixed gender crisis unit … There was some very scary stuff that happened … During my first day on the unit, I witnessed a team of police dressed in riot gear with riot shields and dogs doing a drug search … At one point my bedroom was next door to a man who broke a student nurse’s nose and smeared his own bodily fluids over his bedroom wall … I was constantly scared and on edge and the ward was constantly unsettled. The staff on the ward were not trained on child restraint, so I often ended up really hurt … it would be, like, really big men who were used to going up to forensics to restrain people and then coming to restrain me, a little girl at the time, basically. It was horrific”.


That may be an extreme case, and one trusts that it is, but there are many cases that fall not far short of that level of emotional damage. It certainly is not that extreme as regards the complete absence for a child of any therapeutic benefit.

Another witness said:

“The worst thing about adult wards is you can’t access any intervention at all. No art therapy, no psychiatrist, because you’re under 18, so they say they don’t have the appropriate training to work with you. When I was on an adult ward, all my medication went unreviewed. I wasn’t allowed to ask for anything, not even allowed outside”.


What is the best way of solving this problem? The approach I have taken in these amendments is to say that, when a person aged under 18 is in desperate need of in-patient mental health treatment, the clinical decision-making around admitting that person to a mental health unit should be as rigorous as it can be to avoid, as far as humanly possible, admitting that patient into an adult ward. There surely to be a determination around best interests. There also need to be procedural safeguards so that, if it is decided that an adult ward is the only available option in a particular case, there is appropriate transparency around that decision, such that the local authority is informed of the fact and the hospital itself publishes statistics in its annual report recording the number of instances during the year when this has occurred.

I also suggest that a report to the local authority is equally appropriate in a situation where a child is accommodated in a hospital or mental health unit situated outside the local authority area in which the child is ordinarily resident. In one of our earlier debates, we talked about the particular vulnerability of children who are treated in a hospital far away from home. Alerting the child protection officer working nearby would go some way at least to mitigating the risk of the child self-harming.

There may be some Members of the Committee who think I have been far too lily-livered in tabling these amendments and who feel I should have tabled much stronger amendments proposing the outright abolition of placements involving children on adult wards. I quite deliberately have not done that for the reason we touched on in earlier debates: we have to work with the world as we find it, not as we would ideally like it to be. We have to recognise that, in a few cases—sometimes desperate cases—a temporary stay on an adult mental health ward could be the only way of saving a child from death or serious injury and, in those cases, I suggest that it is not for us in Parliament to prohibit the practice outright.

On Amendment 142, a child being treated in a mental health in-patient unit who also has a physical disability can sometimes get a very raw deal. If the unit they are on has areas that are, in practice, inaccessible to that child, that simple fact can have a huge impact on their access to treatment. One member of Blooming Change has said:

“I am physically disabled, and for me, the room to speak to the psychologist was upstairs in the unit, and there was no way for me to access that space. I kept being told she would come down to see me somewhere else during my stay, but it didn’t happen, so for me, my physical impairments meant that I didn’t get equal access to the support”.


This is not the sort of amendment I would choose, in the normal way, to bring back on Report, but the questions it raises are important enough for me to ask the Minister whether the department and NHS England are sufficiently aware of that kind of problem and what, if anything, is being done to address it. I beg to move.

[Baroness Berridge (Con)]

My Lords, I rise to speak to Amendments 159 and 160. Amendment 159 is similar to Amendment 143. It merely proposes a different notification procedure where a child has been present on an adult ward, but it also requires notification to the local authority and applies to out-of-area placements, which were mentioned by my noble friend Lord Howe. It is important that that information is given to the local authority, as it has the duties to safeguard—particularly children in need. I will speak to this on Amendment 160.

I join with my noble friend’s comments on how the Bill treats those who are 16 and 17. We have raised the issue in relation to other areas of the Bill that, in law, they are children, and they are treated as children by the professionals, as outlined in the example of the psychiatrist saying, “I don’t have the training to do this”. Under-18s are treated as vulnerable young people and children. One can also draw attention to the fact that under-18s are no longer allowed to marry in our country. We are increasingly coming into line with the fact that you are a child, and have the protection of the law as one, until you are 18.

Amendment 160 relates to “children in need” under Section 17 of the Children Act. Recommendation 117 of the Wessely review said:

“Section 17 of the Children Act 1989 should be amended to clarify that any child or young person admitted to a mental health facility is regarded as a ‘child in need’ so that parents can ask for services from their local authority”.


That will, obviously, be particularly important if the child has been placed out of area.

That recommendation was rejected by the Government in their published response to the review, but I note that the review also asked for this provision to be if the child is admitted—that means as a voluntary patient, of course, as well as just being admitted under the Act. I have laid this amendment to clarify the Government’s response to this. That response stated that, basically, it is not necessary to amend the Children Act because disabled children, which includes children suffering from a mental disorder, are already deemed to be “children in need”, so there is no need for this recommendation.

--- Later in debate ---

With these reasons, I hope that noble Lords feel able not to press their amendments.

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who spoke in this short debate and grateful for the support that they have expressed for the amendments, both mine and the others in this group. My noble friend Lady Berridge drew my attention to an inadvertent slip of the tongue that I committed in my earlier contribution. When I sought to define a child, I meant of course to say that we should include young people aged 16 and 17. In that regard, I was particularly grateful for the powerful interventions from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Berkeley of Knighton, citing their own experiences.

I much appreciate the Minister’s comments in response to these amendments, particularly Amendments 143 and 144. I believe, from what she said, that she and I are on the same page when it comes to age-appropriate settings for child patients. It was reassuring to hear from her what is contained in the current code of practice and what is intended to be included in the revised service specification. I am also pleased to hear that the CQC has it as part of its role to report on these very important issues.

I will study what she has said in Hansard and consider what is best to do between now and Report, but, for now, I beg leave to withdraw the amendment.

Amendment 142 withdrawn.

--- Later in debate ---

Moved by

[Earl Howe]

146: After Clause 50, insert the following new Clause—
“Recording of use of force on mental health patients(1) Each NHS facility must keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder, by staff who work in that facility and in relation to the patient’s diagnosed or suspected mental disorder, in accordance with this section.(2) Subsection (1) does not apply in cases where the use of force is negligible.(3) Whether the use of force is “negligible” for the purposes of subsection (1) is to be determined in accordance with guidance published by the Secretary of State. (4) The record must include the following information—(a) the reason for the use of force;(b) the place, date and duration of the use of force;(c) the type or types of force used on the patient;(d) whether the type or types of force used on the patient formed part of the patient’s care plan;(e) name of the patient on whom force was used;(f) a description of how force was used;(g) the patient’s consistent identifier;(h) the name and job title of any member of staff who used force on the patient;(i) the reason any person who was not a member of staff in the facility was involved in the use of force on the patient;(j) the patient’s diagnosed or suspected mental disorder;(k) the relevant characteristics of the patient (if known);(l) whether the patient has a learning disability or autistic spectrum disorders;(m) a description of the outcome of the use of force;(n) whether the patient died or suffered any serious injury as a result of the use of force;(o) any efforts made to avoid the need to use force on the patient;(p) whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan.(5) The facility must keep the record for 3 years from the date on which it was made.(6) In subsection (4)(g) the “patient’s consistent identifier” means the consistent identifier specified under section 251A of the Health and Social Care Act 2012.(7) This section does not permit the facility to do anything which, but for this section, would be inconsistent with—(a) any provision of the data protection legislation, or(b) a common law duty of care or confidence.(8) In subsection (7) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).(9) In subsection (4)(k) the “relevant characteristics” in relation to a patient mean—(a) the patient’s age;(b) whether the patient has a disability, and if so, the nature of that disability;(c) the patient’s status regarding marriage or civil partnership;(d) whether the patient is pregnant;(e) the patient’s race;(f) the patient’s religion or belief;(g) the patient’s sex;(h) the patient’s sexual orientation.(10) Expressions used in subsection (9) and Chapter 2 of Part 1 of the Equality Act 2010 have the same meaning in that subsection as in that Chapter.”Member’s explanatory statement
This amendment would require NHS facilities to keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder.

[Earl Howe (Con)]

My Lords, I beg to move Amendment 146 standing in my name and that of my noble friend Lord Kamall. On the previous group of amendments, I cited the experience of a child held on an adult mental health ward being subject to restraint, where undue force was applied by the staff involved, causing unnecessary pain and distress to the patient.

In fact, the incidence of restraint being used on children being treated in mental health settings—and, indeed, general hospitals—is alarmingly high. This fact was recognised in the Mental Health Units (Use of Force) Act 2018, which came into effect in 2022. However, despite the provisions of that Act, not only has there been no drop in the number of restrictive interventions that children are subject to but there has been an increase.

In 2023-24, a total of 84,626 restrictive interventions were carried out on children, which is a 51% increase on the year before. That is the highest number of restrictive interventions recorded since figures were made available in 2019, despite what appears to be a drop in the number children being treated in mental health units. It is not only that restraint is being applied in these cases; all too often, because there is a physical struggle involved in the process of restraining someone, that patient ends up with an injury.

What lies at the root of this? Blooming Change believes that restraint amounting to abuse is entrenched in the system. Unfortunately, that rather depressing view was borne out last August by the Independent newspaper, which reported that children in a mental health in-patient unit in Coventry were captured on CCTV

“being dragged across the floor”

by the staff. There surely has to be something here about the need for staff in all mental health settings to receive training in the different techniques for de-escalating a crisis, with physical restraint being regarded as a last resort.

In fact, with the two very welcome principles set out in Clause 1, “least restriction” and “therapeutic benefit”, the training of staff in appropriate techniques of control will, one hopes, become an even more important priority than before. I hope the Minister can let me have some reassurance on this very troubling set of issues. I beg to move.

[Baroness Hollins (CB)]

My Lords, I declare my interest and my experience as a retired psychiatrist, working for the majority of my career with people with learning disabilities and autistic people.

In 2019, the then Secretary of State for Health asked me to oversee an important review of the use of another restrictive intervention, long-term segregation, known as LTS, for people with learning disabilities and autistic people. The Government published the oversight panel’s report of that review simultaneously with their quite positive response to its recommendations in November 2023.

Amendments 155 and 156 in this group address critical issues highlighted in the report about the use of LTS and the measures needed to eliminate its use for people detained under mental health legislation. The amendments aim to improve oversight and accountability in its use, while pointing to the urgent need for appropriate community services to prevent delayed discharges. The proposed changes are not merely administrative; they are a necessary response to urgent human rights questions raised by the use of LTS, and indeed these other restrictive interventions covered by the noble Earl, Lord Howe, whose amendment I support.

The report, aptly titled My Heart Breaks, found that the mental and physical health of children and young people and adults detained in long-term segregation deteriorates as a direct consequence of enforced isolation. In medicine, we call this iatrogenic harm, and it is unacceptable. LTS is often used in association with other restrictive practices. There is substantial research evidence pointing to the harms of such enforced social isolation, including in conditions of solitary confinement. Nor does it have therapeutic benefit. Oversight panel members considered that LTS should actually be renamed “solitary confinement” to avoid the normalisation of the practice in healthcare settings. Currently, rather less clear terminology is used, perhaps to disguise what is really happening in practice.

It is interesting to note that not all psychiatric hospitals have rooms in which to detain people. The type of accommodation used is sometimes totally unacceptable, with people being detained in rooms with no natural light, with a mattress on the floor and no toilet facilities.

Amendment 155 would require notification of LTS to the CQC within 72 hours of its commencement. It would require that the CQC must initiate an investigation if LTS was used for more than 15 days within any 30-day period, and if it were used for a person under the age of 18, or for a disabled person whose condition would be exacerbated by its use—for example, an already psychologically traumatised person who would be further traumatised by the sensory and social deprivation caused by its use, which is probably most people.

The amendment would require that the code of practice introduced minimum standards for LTS, including access to natural light, outdoor space and meaningful human contact. As I am sure most noble Lords would agree, these are basic necessities for dignity and well-being. Psychiatric hospitals still using LTS would be required to appoint a responsible officer to review and report on its use to the CQC. They would also be required to comply with recommendations from independent care (education) and treatment reviews, known as ICETRs, as they relate to LTS.

Amendment 156 seeks to ensure that therapeutic alternatives to LTS have been properly considered by requiring independently chaired reviews for any person detained in LTS. Since the end of the Department of Health’s programme of ICETRs in 2023, which reviewed 191 cases between 2020 and 2023, the CQC was commissioned to restart the programme. The new programme includes that the independent chairs must follow up to see whether the recommendations have been implemented, but funding has been committed only to the end of this current year, while LTS continues. These reviews must be kept in place until the use of LTS comes to an end, or for as long as it is in existence, so the amendment would require ICETRs to be continued, and it outlines the role, responsibilities and authority of the independent reviewer. I hope the Minister will be able to assure the Committee that the continuation of these independent reviews will be funded.

By limiting the duration of LTS, mandating independent oversight and requiring therapeutic alternatives, we could protect people’s rights and lay the groundwork for effective rehabilitation and reintegration back into their communities. Meeting minimum standards and reclassifying such segregation as “solitary confinement” would rightly underscore its appalling and often inhumane nature. I know many clinicians dislike that term because it is equated with punishment, but it describes the conditions that we sometimes saw.

The excuse is often given that LTS is the last resort for a person, but in fact it is usually the first resort and the first response, because no appropriate care and support have been provided. I have seen systemic failures that are leaving individuals in restrictive settings due to insufficient community-based support. While commissioners and clinicians often act with good intentions, they lack the co-ordination, resources and expertise needed to deliver the care that is needed to keep people safe.

The amendments simply aim to ensure therapeutic care close to home. They require that, by monitoring the continuing use of LTS and understanding the barriers to eliminating its use, the CQC would be able to identify the themes, trends and changes that are taking place over time in the use of this restrictive intervention. I urge the Minister to support the amendments.

--- Later in debate ---

[Baroness Merron (Lab)]

I understand that point, and the noble Baroness makes it very well. I simply refer her to the points that I made about needing to look at evidence, the outcomes and the value of those reviews, and whether that is the right approach for everyone. I take on board her point, but my comments probably tell the Committee that we feel that there is more work to be done in this area.

[Earl Howe (Con)]

My Lords, once again, I express my appreciation to all noble Lords who have contributed to this debate. I highlight in particular the speech of the noble Baroness, Lady Hollins, which I found extremely powerful and persuasive, as did other noble Lords.

It strikes me that this is an especially appropriate grouping of amendments. The overuse of restraint in mental health settings and the use of completely untherapeutic long-term segregation are equally pressing and emotive concerns.

The noble Baroness, Lady Barker, pulled me up slightly on the issue of protection for those undergoing gender reassignment. The concern that I had in drafting the amendment was to cover protected characteristics across the piece, but she has drawn my attention to a lacuna, and I am very grateful.

I was somewhat disappointed with the Minister’s reply on the issue of restraint applied to mental health patients, which, as the noble Baroness, Lady Barker, pointed out, is an issue affecting adult patients as well as children. The amendment was drafted with precisely that in mind. The point that I sought to make was that, despite the statute law to which the Minister referred, the incidence of restraint on children in particular has rocketed, which raises questions about clinical practice, staffing and training around the code of practice. To my mind, it was a pity that the Minister had little to say about those possible areas for practical follow-up.

I shall read again what the Minister said about my amendment between now and Report. For now, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I came in today particularly to support Amendment 149, as others, including the noble Lord, Lord Pannick, have clearly done. What we are asking for is either for the loophole to be closed or for clarification. I share with the noble Baroness, Lady Keeley, the view that the judges produced a somewhat narrow definition of the situation. I agree with everything that has been said, and I do not want to repeat it, but with a narrow interpretation by the courts and with some lawyers here in Parliament and others who have put things so beautifully, Parliament can put right what is happening. That is what I am here to support: Parliament putting right what at the moment is not clear, is a loophole and needs to be put right.

[Earl Howe (Con)]

My Lords, I should like first to speak to Amendment 160BC standing in my name. Although it may not look like it, this is a probing amendment. I have tabled it because I have been made aware of concerns that there is a serious lack of clarity around one aspect of the Mental Health Act 1983 that would greatly benefit from a clarifying statement from the Minister.

Let us imagine a patient who is detained in a mental health hospital under the Act and who requires urgent treatment in another NHS setting, such as a general hospital. The treatment, let us further imagine, is kidney dialysis—that is just a random example. Unfortunately, in this case, the patient is deemed to lack decision-making capacity for his own health and well-being, and the doctors therefore agree that if he is transferred to the other hospital, he will need to be restrained during the time that he is receiving the treatment, because if he is not, there is a likelihood that the treatment will not be deliverable.

The question then arises: in that particular situation, does the Mental Health Act 1983 allow for the patient to be deprived of his liberty in a setting other than a mental health hospital in order for necessary life-saving treatment to be administered? I am aware that there are contrary opinions among lawyers and clinicians as to the answer to that question. Some believe that, in that example, it would be necessary for the managers of the mental health hospital to apply to the court for a deprivation of liberty order under the Mental Capacity Act, which the court could grant under its inherent jurisdiction. I understand that this is standard procedure in a number of mental health hospitals. By contrast, other experts are clear that Section 17(3) of the Act already provides authority to place the mental health patient into the custody of the managers of the acute hospital and that there is therefore no need to apply for a DoL order under the Mental Capacity Act in order to achieve this.

Section 17(3) of the Mental Health Act says:

“Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital”.


Those words appear to confirm the opinion that I have just set out—that the responsible clinician can authorise “leave of absence” in another hospital, with the patient being kept in custody so long as this is seen to be in the patient’s best interests.

Unfortunately, it also appears that there is more than one way of interpreting Section 17(3). There are those who maintain that what one might call the carte-blanche interpretation is too broad a reading of Section 17(3), which they insist needs to be read with Section 63 of the Act. Section 63 says:

“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment”.


Taken together, those two sections say that the Mental Health Act authorises treatment only for mental disorders and physical disorders that are part and parcel of the treatment for the mental disorder; in other words, for treatment of physical disorders that are not directly connected to the mental disorder, a court would need to make the appropriate order under the Mental Capacity Act. Who is right? I should be very grateful if the Minister would use this opportunity to bring some clarity to bear on this area of the law, around which there appears to be a veil of fog. Whatever the answer, will she ask NHS England to examine the guidance contained in the relevant part of the code of practice to ensure that it is as clear as possible about what the current law permits?

Finally, I shall comment briefly on Amendment 149, which the noble Baroness, Lady Keeley, has tabled jointly with the noble Baroness, Lady Barker. I fully support this amendment. At the same time, I regret that it appears to be necessary, and I say that with some personal feeling. The issue addressed by this amendment is precisely the same as the one which in 2014, as a Health Minister, I endeavoured to close down by means of a government amendment to the Care Bill, which now forms Section 73 of that Act.

Mental Health Treatment: Waiting Times

Earl Howe Excerpts

Monday 3rd February 2025 Lords Chamber

[Baroness Merron (Lab)]

The noble Lord makes a very important point. This is one of the many areas where long waiting lists and delays in people receiving the necessary service are creating additional pressures on the individual, communities and the NHS. We are doing work in a number of areas, such as ensuring that NHS 111 can provide for those in crisis, or those concerned about a family member or loved one, so they can speak to a trained mental health professional. We are constantly looking at and providing new ways for people to get more instant access.

[Earl Howe (Con)]

My Lords, do the Government see a role for employers in promoting the mental health of their respective workforces?

[Baroness Merron (Lab)]

I certainly do, and with the NHS being such a large employer, that is one of the areas that we will be attending to. The long-term workforce plan will provide its report around the summer of this year and there will be much detail on how the workforce will be but also on the ways that we can improve its health and retention as well as recruitment.

Mental Health Bill [HL]

Earl Howe Excerpts

Committee stage
Monday 27th January 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, with this group of amendments, the noble Baroness, Lady Bennett, my noble friend Lady Berridge, the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, have exposed a crucial set of issues: in my judgment, one of the two or three most important issues that we shall be dealing with during our debates on the Bill. At their heart, I suggest, is the conflict, or perhaps I should say the high risk of a conflict if nothing is done, between the arrangements that the Bill seeks to put in place for the creation of nominated persons on the one hand and, on the other, the law of the land as set out in the Children Act 1989.

Both this group of amendments and those in the next group in the name of my noble friend Lady Berridge focus on matters of the highest significance for child protection and child safety in all its aspects. The assumption inherent in the Bill’s provisions for nominated persons is that the process for appointing a nominated person is rigorous enough to ensure that someone unfit to be appointed to that role will not in practice be appointed, or that, if they are, the system will find them out. I believe that it is evident from what we have heard in this debate that that assumption is a highly dangerous one.

A nominated person will be someone in a position of considerable power. They will be able to exercise all the functions exercised currently by a nearest relative, as well as availing of additional powers as set out in the Bill. Children and young people under 18 will be able to appoint a nominated person. That person will be someone of their own choosing. It could be a parent or someone other than a parent, but the principal qualification for such a person is that they must have the child’s best interests at heart.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, for the reasons that have been given I also support the amendments of the noble Baroness, Lady Berridge. Just to add to what the noble Lord, Lord Meston, said, I respectfully point out to the Minister that if she does get in touch with the Judicial College, which I think would be a very sensible move, she should also let the President of the Family Division know.

[Earl Howe (Con)]

My Lords, in this group of amendments my noble friend Lady Berridge has raised an armada of issues which I think it is clear to all of us cannot be ducked. These issues, as she said, were examined at length both during the independent review and by the Joint Committee, but it has to be said that in both instances it proved too much of a challenge to identify a satisfactory resolution to them. For that reason, as we observed in our debate on the previous group, the weight of these matters now rests on the shoulders of this Committee and of the Government.

In summary, we need arrangements that are robust enough to ensure that a nominated person’s appointment can be effectively challenged, and that, in certain circumstances, where necessary, the exercise of their powers can be legally contested and blocked. Without those measures, we shall leave an unacceptable lacuna in the law and, more pertinently, run a high risk of exposing children to personal danger.

My noble friend is to be thanked for assisting this Committee’s deliberations with the clear way in which she has set out the challenge, and I hope and trust that the Minister will wish to grip the challenge with her usual vigour.

[Baroness Merron (Lab)]

My Lords, like the noble Earl, Lord Howe, I am most grateful to the noble Baroness, Lady Berridge, for introducing an appropriately wide range of scenarios, questions and testing. That is important for the Committee but also for our ongoing work. As the noble Baroness, Lady Tyler, said, to describe this area as complex is to use too small a word, and I think we are all wrestling with that to get it in the right place. I know that noble Lords are aware that the work is ongoing, and I thank them for their engagement and interest in this issue. As I said previously, I very much understand the need for a robust process to keep children and young people safe and ensure that only appropriate individuals can take on the role of nominated person, while giving children and young people that right to choose.

I will respond collectively to the amendments put forward in this group. As I set out earlier, we agree that in the vast majority of cases there is an expectation that a parent or whoever has parental responsibility would take on this role, and that would include consideration of special guardians and child arrangement orders. We also agree that, where parental responsibility has been removed due to care proceedings, in the vast majority of cases it is unlikely to be appropriate for such a person to take up this role. My reference to this being a complicated area—

--- Later in debate ---

Moved by

[Earl Howe]

115: Clause 42, page 54, leave out lines 9 to 15 and insert—
“(1) An eligible patient shall have a right to create an advance choice document.(1A) For the purposes of this section, an “eligible patient” is a patient who—(a) has previously been detained under Part 2 or Part 3 of this Act, or(b) has been diagnosed with a mental disorder which may lead to the possibility they will be detained under this Act in the future.(1B) NHS England and each integrated care board must make such arrangements as it considers appropriate for—(a) ensuring that all eligible patients for whom it is responsible for the purposes of this section are informed of their right to create an advance choice document, and(b) helping an eligible patient to create an advance choice document.”Member's explanatory statement
This amendment gives all eligible patients the statutory right to create an advance choice document if they so wish.

[Earl Howe (Con)]

My Lords, Amendment 115 takes us to one of the features of this Bill which has been universally welcomed: the creation of advance choice documents or ACDs. An ACD is a means by which a person can record in writing their decisions, wishes and feelings about their treatment, should they be admitted to a hospital or a mental health unit as an in-patient, whether informally or detained compulsorily.

On that account, ACDs are a major component part of one of the Bill’s key strands, which is to give mental health patients better control over their own care—which, of itself, carries a therapeutic value. Giving that element of extra control also reduces the risk of discrimination creeping into any decisions about care and treatment.

The Explanatory Notes say that the people most likely to benefit from an ACD are those who may be detained in a mental health unit or who are likely to be hospitalised at some point in the future. This is because research has shown that ACDs have the potential to reduce time spent in hospital and, significantly, to reduce compulsory detention rates by up to 25%. So the creation of ACDs carries enormous potential.

Clause 42 sets out the duties of NHS England and integrated care boards in making the necessary arrangements for facilitating ACDs. Each of them is required to make information about ACDs available to the people for whom it is responsible, as defined in the clause, and to help such of those people as it considers appropriate to create advance choice documents.

--- Later in debate ---

[Baroness Merron (Lab)]

I would be very glad to share the date if I could put a date on it. It will be after Royal Assent, and I will keep noble Lords updated.

[Earl Howe (Con)]

My Lords, I very much appreciate the support from around the Committee for my Amendment 115. I support all the other amendments in this group, each of which is designed to bolster the rigour and thoroughness of the advance choice document process.

It is good to hear from the Minister that the code of practice will include guidance on how information on ACDs will be made known to relevant would-be patients. I shall need to reflect on this, but I confess I retain a worry in this area. The CQC in its annual report of 2020-21 on monitoring the Mental Health Act reported that many patients do not have their rights explained to them during their treatment. This is despite the existing requirement in the Mental Health Act code of practice for hospital managers to provide information both orally and in writing. Clearly, if someone without an existing ACD is admitted to a mental health unit for treatment, it will be too late for them to execute a valid ACD during that episode of care. The time to be informed that an ACD could be an appropriate thing for them to draw up is once they are discharged, to cater for possible future contingencies.

I suggest that the CQCs finding is still relevant, its point being that the NHS is not all that good at providing information to patients in a timely or appropriate way. Therefore, I think that creating a duty to do so would add value—perhaps not in the precise terms I have used in the amendment, but in similar language. That could, incidentally, be achieved quite easily if mental health patients were automatically invited to complete a debriefing report following discharge from hospital in the way that I suggested in an earlier amendment.

The prize, let us remember, could be significant. I refer noble Lords back to remarks by the noble Baroness, Lady Murphy, in an earlier debate, where she indicated that independent advocates have been proved as central to the success of advance choice documents—a facilitator, in other words. She referred to a study in North Carolina that showed that providing a facilitator in the form of an independent advocate increased the number of people making a psychiatric advance directive from 3% to 60%. That is a very powerful set of figures.

I hope the Minister will be open to further discussion on this and the other amendments in the group between now and Report. Meanwhile, I beg leave to withdraw my Amendment 115.

Amendment 115 withdrawn.