Mental Health Bill [ Lords ] (Fourth sitting)

David Burton-Sampson Excerpts

Committee stage
Thursday 12th June 2025 Public Bill Committees

[Stephen Kinnock]

My hon. Friend raises a very valid point that, as he says, we will come on to in greater detail. Right across our health service, in every aspect, early intervention is always better than trying to pick up the pieces after a crisis. That is the same for both physical and mental health. We believe that the advance choice documents will be a helpful tool in building an earlier understanding of the challenges that a particular individual faces and, on the basis of that earlier understanding, enabling earlier intervention. Giving the opportunity to patients, while they are in a position to do so, to set out what their advance choices are will enhance their autonomy and enhance trust in the interaction between the patient and the system. That trust piece is so important to the entire picture.

[David Burton-Sampson (Southend West and Leigh) (Lab)]

It is a pleasure to serve under your chairship, Mr Vickers. I was interested to hear what the Minister has just said, but I think it goes much further. Can he give me assurances that we will take time to look at what is driving so many young black men in particular into these mental health crisis situations? We need to look much further back, at the start of the process, where something is pushing young black men into mental health crisis and they are ending up in a position where they have to be placed in a facility and go through a whole period of attempting to recover. Can the Minister give me his thoughts on what the Government are doing to prevent that from happening in the first place, particularly with this group of men?

[Stephen Kinnock]

My hon. Friend is absolutely right, and we could go into the question he has just raised in a profound way, because the social determinants of ill health are such an important part of the picture. Many people in our communities are dealing with all sorts of incredibly challenging and traumatic issues in their lives, often driven by a whole range of social determinants. We have to recognise that there is a need to build capacity in the system as well.

I am pleased that the Government reconfirmed in the spending review yesterday the 8,500 additional mental health specialists in the system, a mental health trained specialist in every school, 24/7 mental health hubs being opened around the country and £26 million being put into opening mental health crisis centres around the country. The fundamental drive of the Government is to move from sickness to prevention. We want to build a preventive state, and the mental health part of that is vital, for the reason my hon. Friend has just elucidated.

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[Jen Craft]

I rise to speak in support of clause 8, and I will briefly speak to the Liberal Democrats’ amendment 12. I have already flagged my concerns with the Opposition’s amendments 44 and 45.

Clause 8 introduces and puts front and centre the notion of therapeutic care for those detained under the Mental Health Act 1983. I strongly welcome clause 8, as drafted. For far too long, for people who have been deprived of their liberty and detained in a secure mental health setting, the main focus has been risk management and harm minimisation rather than therapeutic care.

[David Burton-Sampson]

The Lampard inquiry, which relates to my area of Essex, is ongoing. It highlights the issue of people being detained without any clear therapeutic plan or clinical justification. Does my hon. Friend agree that the clause will start to address some of the concerns raised by the inquiry?

[Jen Craft]

I thank my hon. Friend for highlighting the Lampard inquiry, and highlighting the impact of the treatment that the inquiry is looking at on the lives of the patients who were subject to it. I do not wish to get ahead of the inquiry because it is still under way, but I have met with some of the families involved, and there is a feeling that there has been a complete breakdown of trust in the care of patients in our part of the world. That trust is difficult to rebuild, particularly for people in a locked mental health setting, who have no choice but to trust that the providers of their care are acting in their best interests. The lack of trust is almost harmful to their continued recovery. I thank my hon. Friend for raising that particular point.

As I was saying, for too long the focus in a locked setting has been on management of risk and harm reduction, rather than actually treating the condition that the patient may have. Clause 8 looks almost to reverse that. It advances the idea that therapeutic care is the aim of detention under the Mental Health Act and that it is fundamentally important, when someone is deprived of their liberty, that there is a therapeutic benefit to the patient, and it places that aim in a prominent position at the start of the Act, so that it is not buried further down.

Although I understand that the Minister will probably state that the clause advances the principle of “therapeutic benefit”, I believe it also touches on two of the other key principles developed by the independent review: the principles of seeing “the person as an individual”, and of “least restriction”. We can all appreciate that if someone is in a setting for their own therapeutic benefit, rather than just being contained because of the risk that they might pose to themselves or others, then they are being less restricted, in a way that is real and important to them, and will have the benefit of being seen as an individual. For some individuals who have spent a significant amount of time in a locked unit, the prospect of them receiving therapeutic care is very low, and the prospect of them receiving therapeutic care that leads to them recovering sufficiently to leave those units is about nil.

The talking therapies taskforce highlights that some of the most severely complex patients with personality disorder—the most severe 1.5%—make up nearly one third of the annual spend on in-patient treatment costs. That group of people have very little prospect of receiving appropriate therapeutic care in an in-patient setting. A system-wide change looking at community-based care, sometimes intensive community-based care, would be much more effective than what they currently receive. The cost was looked at in areas in the south-west—in Devon—and in London, and it was found that a third of spending from hospital trusts was going towards this very tiny group of people. That is not to say that we should always look at the cost of care, because that can seem reductive to someone as an individual, but clearly, these people are not getting effective treatment that is good value and makes sense for them.

I would welcome the Minister’s thoughts on developing system-wide and community-based change for some of the most complex cases in an in-patient setting. How does he see the clause interacting with that? Does he believe that providing therapeutic benefit for all patients in a secure setting will have a positive impact on that complex 1.5% group of patients?

I will speak briefly to amendment 12, tabled by the Liberal Democrats. I may have slightly misunderstood the intent of the amendment. It was my understanding that naming the setting where medical treatment takes place—putting it on an equal footing with the treatment—was aimed at looking at the impact on people with learning disabilities and autism. For that specific group, detention in a secure unit is often counter-productive to their recovery. A review undertaken by Baroness Hollins found that there was no therapeutic benefit for long-term segregation of patients with a learning disability, and that attempting to deliver a therapeutic benefit for some of those patients in a locked setting is all but impossible. Although I support looking at whether a specific setting is appropriate for certain groups of people, there needs to be heightened awareness of the impact that a locked setting can have on people with a learning disability or autism.

I spoke about this on Second Reading. If someone is sensitive to over-stimulation and has an increased sensory need, need for routine and need for familiarity, taking them away from a place that feels safe and putting them in a ward with strip lighting—autistic people talk about strip lighting as being particularly harmful—that is noisy, unfamiliar and completely out of their routine can feel extremely harmful. Therapeutic care in that setting may never be effective enough for that group of people to be released. Not to read this against the earlier clauses that take autism and learning disability away from the definition of a mental health condition, which I strongly welcome, I would welcome the Minister’s thoughts on capturing how, for this specific group of people, detention in a secure mental unit is probably more harmful to them than it is for the majority of the population.

I cannot, however, support amendment 12, because of the catch-all nature of looking at the setting in which a treatment takes place. I speak as someone who has had lived experience of this issue and I have to say that quite often a secure unit is probably not conducive to anyone’s mental health; indeed, it is often a place of last resort, and I think that it poses a risk. If we have to take the accommodation into consideration, that might mean that it would never be an appropriate setting for someone to receive therapeutic care, even though we know that quite often it is the only setting where someone can be for a short period.

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[Dr Evans]

I am grateful for the opportunity to scrutinise clauses 13 and 14. Clause 13 will make significant amendments to how medical treatment is administered under the Mental Health Act 1983 in circumstances in which a patient refuses, or is deemed to have refused, that treatment. The clause points us to significant questions about autonomy, capacity and compulsion. I hope that we can explore those issues in a way that does justice to the patients affected and to the clinicians working under the framework.

Under current law, in particular section 63 of the Mental Health Act, a patient detained under the Act can be given medical treatment for their mental disorder without their consent, even if they have capacity to refuse. That includes in situations where the patient has made a valid and applicable advance decision, or where a donee under a lasting power of attorney, a court-appointed deputy or indeed the Court of Protection itself has indicated that the treatment should not be given.

That power is curtailed only for certain treatments, such as electroconvulsive therapy, which falls under section 58A, and some surgical procedures under section 57, where either consent or a second opinion is already required. We will be debating those separately. Moreover, in the case of psychotropic medication under section 58, treatment can typically be given for up to three months without any second opinion, even if the patient objects.

The clause will introduce a proposed new section 57A, significantly shifting the landscape. It will extend safeguards to cases in which a patient has capacity but refuses treatment, a valid and applicable advance decision refuses treatment, or a refusal is issued by a donee, a deputy or the Court of Protection. In such cases, treatment could be given only if a second opinion appointed doctor certifies that the treatment is clinically appropriate; there is a “compelling reason” to give it, such as no acceptable alternative; and the process has followed a newly required clinical checklist.

This is a clear move to give greater legal weight to patient choice and prior decision making, echoing the long-standing principles of the Mental Capacity Act 2005. It would also mark a significant tightening of powers under section 63, making it harder to override refusals of treatment, and in effect it would end the practice of giving compulsory medication in the first three months without external oversight, at least where a refusal or conflicting decision exists.

It is worth touching on the interaction between the Bill and the Mental Capacity Act. We have talked about that framework before, but it allows for advance decisions to refuse treatment and recognises the authority of donees under a lasting power of attorney, court-appointed deputies and the Court of Protection to look at best interests. Historically, however, the Mental Health Act 1983 has operated in parallel, and at times in conflict, by allowing compulsory treatment for mental disorder, even in cases where patients have capacity. By inserting proposed new section 57A, the clause attempts to bridge that gap by preventing certain treatments from being administered where they would conflict with an advance refusal or decision.

That represents a welcome shift, but there are some concerns to which we need to turn our attention. For example, the “compelling reason” threshold is undefined in statute and could allow significant variation in interpretation. There is a reference to the checklist in section 56A, but—forgive me—I do not believe that that quite covers the definition. There is also a risk that, in practice, time pressures or institutional cultures may erode the intended safeguards, in particular if urgent treatment provisions under section 62 are overused, so I will discuss those a little further in detail.

I recognise that the intent behind clause 13 is to place the principle of autonomy and choice at the heart of mental health care—that is a welcome and overdue shift—but given that it introduces the concept of compelling reason to override a refusal of treatment, will the Minister clarify how “compelling” will be interpreted in practice? Will statutory guidance define the term to ensure consistency, or will it be left to the discretion of individual clinicians and the second opinion appointed doctor?

Secondly, the clause strengthens the role of the SOAD, requiring not just clinical oversight but legal and ethical judgment, including engagement with advance decisions and decisions of legal proxies. What training and support will be provided to SOADs to equip them for the expanded roles? How will the Government ensure that the system is properly resourced to avoid delays?

Thirdly, will there be a clear right of appeal or review for patients or their legal representatives when an SOAD certifies treatment in the face of an objection? I am conscious that there are real-world examples. For instance, let us take the case of a patient with bipolar disorder who is detained under the Mental Health Act. When they are in a stable state, they might clearly and calmly refuse a particular medication because they have experienced harmful side effects from it in the past—the Minister even used that as an example. At that point, they have capacity and their decision is valid. However, during a later episode of acute illness, they might temporarily lose capacity, and in that window the clinician would potentially override their earlier decision, even if it was made with full understanding.

This amendment aims to protect such refusals, but unless the law is clear about how to treat prior capacitous decisions during periods of incapacity, there is a risk that well-considered patient choice could still be sidestepped. This problem will get only more common, given the number of people with dementia and acquired brain injuries.

Fourthly, the clause enhances safeguards, which is crucial, but it could result in unintended harms. What assessment has been made of the risk that necessary treatment may be delayed or denied in complex cases, especially where SOAD access is limited or where there is disagreement about whether an advance decision is valid or applicable? Although I support greater emphasis on patient autonomy, we must consider those at the greatest risk of harm. Do the Government believe that clause 13 strikes the right balance between protecting liberty and ensuring prompt, effective care for the most acutely unwell? Have they any concerns about what that could mean for public safety? Has an impact assessment been carried out on what that could mean in the real world and the implications, given the recent high-profile cases that we just talked about?

Clause 14 shortens the period before a second opinion is required for certain types of treatment from three to two months. That is a positive step in principle, and ensures that patients who either lack capacity or have not consented are not left too long without independent oversight. It also allows, where clause 13 applies, for a single certificate to be issued by the second opinion appointed doctor, which covers both standard review under section 58 of the Mental Health Act and the more complex safeguards in proposed new section 57A. That may help to reduce duplication and administrative burdens.

The table on page 25 of the explanatory notes gives an overview of how that might work, but I would welcome reassurance on a few points. How will the distinct legal tests, such as assessing a patient’s capacity, rather than determining a compelling reason for overriding an advance decision, be kept clear and robust in one single combined certificate? What safeguards will be in place to ensure that streamlining does not weaken the new protections in clause 13?

Let us imagine that a patient has made an advance decision to refuse a particular antipsychotic medication—let us call it medication A. They are detained under the Mental Health Act, and the clinical team wants to give them medication A anyway. Because the patient lacks capacity and the proposed treatment goes against a valid advance decision, the special safeguards under proposed new section 57A apply, yet at the same time it has been nearly two months since the patient started treatment, so a second opinion under section 58 is also needed to check whether any medication is appropriate more generally. Clause 13 allows for those two approvals—one for the general treatment under section 58 and one for treatment despite the patient’s known refusal under proposed new section 57A—to be combined into one certificate.

The concern is that, in streamlining, the different legal and ethical issues might be collapsed into a broader decision, making it harder to see whether the patient’s advance refusal was properly considered and whether the decision to override has met the compelling reasons test. Can the Minister specify how that might work, given that there will now be one certificate? Clinicians and reviewers might unintentionally treat the refusal as just another case of lack of capacity, rather than the serious, rights-based objections that require extra scrutiny.

On the issue of practicality, with the review period being brought forward by a month, are the Government confident that a second opinion system is resourced to meet the demands without compromising quality? I could go on, but for the sake of the Committee, I will not.

[David Burton-Sampson]

I rise to speak in support of clauses 13 and 14. I have talked briefly today about the ongoing Lampard inquiry. There are two examples that are now public. Patient A was detained under the Mental Health Act for more than five years without a clear therapeutic plan and was subjected to prolonged seclusion and chemical restraint. The inquiry found that, despite the family raising concerns, there was a lack of clinical oversight and a failure to review detention and treatment status regularly. Patient B, a young man detained for over two years, experienced frequent use of rapid tranquillisation and segregation. The patient’s condition deteriorated, and that was documented, but there was no change to his care approach and no treatment review at all.

I welcome the clauses, but I put to the Minister how vital it is that we ensure that these reviews happen. There is a three-month review process at the moment, but in those two cases it did not happen. I also welcome shortening the time to two months. It is vital that the three-pronged approach that is outlined in the Bill happens. We have heard that no one size fits all—individual care is so important. Establishing the capacity and competency of an individual is vital. Every patient is different and they should be treated appropriately.

It is important to have appropriate review mechanisms in mental health care. Shortening the review process to two months for patients ensures that the therapeutic and clinical treatment remains appropriate. Hopefully, it also helps to lead to the desired quicker recovery period for the patient, but if not, it helps to adapt the treatment if a stronger or different type of treatment is required. The key is looking at ways to get people out of care as quickly as possible. Reviewing care regularly is really important. I welcome clauses 13 and 14.

[Gregory Stafford]

I rise to talk briefly about clauses 13 and 14, which I generally and genuinely support. Clause 13 addresses a long-standing ethical and legal tension: how to balance the need for treatment with a patient’s right to refuse it, especially when they may have made advance decisions or have legal representatives.

Let me expand the point that my hon. Friend the Member for Hinckley and Bosworth made about the level of potential appeal around the compelling reasons test. If the patient he was talking about continued to have an episode where it was believed that they did not have the capacity to act and they did not have a legal representative or family members who could advocate on their behalf, has the Minister given any thought to there being an external or independent person who could advocate on behalf of that patient during that period of incapacity and who is not a medical professional? In the current drafting of the clause, that seems to be a potential loophole. When someone regains capacity, they could potentially instruct legal counsel, but that may be too late if the treatment they have received has had an adverse impact on their life. I would like to hear more on that element, if possible.