Mental Health Bill [ Lords ] (Seventh sitting)

Luke Evans Excerpts

Committee stage
Thursday 19th June 2025 Public Bill Committees

[The Chair]

I remind the Committee that with this we are considering clauses 43 and 44 stand part.

[Dr Luke Evans (Hinckley and Bosworth) (Con)]

I know that the Committee has been waiting in earnest for me to deliver this speech on clauses 42 to 44. As the temperature gets to almost 30° today, I will try to maintain the same gumption that President Trump had when introducing his flagpoles, because this is an exciting topic and I am keen to treat it with verve.

Clauses 42 to 44 will introduce new duties on hospital managers to provide information about complaints procedures to patients under different legal regimes within the Mental Health Act 1983. The clauses move important safeguards from the code of practice into primary legislation, thereby giving them statutory force, which is a welcome step. I acknowledge the Government’s intentions to strengthen patients’ rights and accountabilities within the mental health system.

Clause 42 concerns information for detained patients. Under the current law, section 132 of the Mental Health Act 1983 requires hospital managers to give patients information about their rights under the Act, including their rights to apply to the mental health tribunal and to access independent mental health advocates. Although complaint procedures are mentioned in the code of practice, however, they are not explicitly covered in statute. Clause 42 will amend section 132 to impose a new statutory duty to provide information on how to make complaints about: the carrying out of functions under the Act, any medical treatment received while detained, and the outcome of any such complaint, including routes for escalation such as through the Parliamentary and Health Service Ombudsman.

Importantly, the information must be provided both orally and in writing, and steps must be taken to ensure that the patient actually understands it. Those duties must be carried out on initial detention and then repeated either annually for restricted patients or on the submission of renewed report under section 20 of the Act. The Opposition welcome that positive and necessary step. We know from independent reviews, including the Wessely review, that many patients do not know how to complain or fear that doing so will affect their care. By placing these requirements in primary legislation, we provide more robust legal protection.

I would be grateful if the Minister clarified some points. How will “understanding” be assessed or evidenced in practice? For example, what guidance will be issued to ensure that the needs of patients with a learning disability, cognitive impairment or limited English are met? Will independent mental health advocate services play a formal role in supporting patients to understand the Act with regard to this information about complaints? Is that part of their expanded role? Will complaints about poor complaint handling, not just about the original matter, be clearly included in the framework, as implied in the explanatory notes? To whom would such complaints be reported: NHS England, the Department, the integrated care board or a regulator such as the Care Quality Commission?

As we are talking about complaints, I notice that paragraph 327 of the explanatory notes states:

“New subsection (2A)(c) ensures the duty covers information about the patient’s right to complain to the Parliamentary and Health Services Ombudsman about the maladministration of complaints about medical treatment.”

That is very welcome, but it brings up an entirely new set of questions about the role of the Parliamentary and Health Service Ombudsman in this guise—an institution that embodies the public’s right to accountability, redress and justice when our health and public services fall short. In essence, it is the final arbiter; at best, it is the final safety net for those who feel they have nowhere else to turn. In particular, I want to focus on its critical yet often underappreciated work in relation to mental health complaints and how it intersects with the new Bill.

The ombudsman investigates unresolved complaints about NHS services in England, including those related to mental health care, alongside complaints against Government Departments and other bodies. For many families affected by failings in mental health provision, be that in crisis care, discharge planning or secure settings, the ombudsman provides a route to independent evidence-based resolution. We must therefore ask whether it is functioning with the efficiency, compassion and authority that patients deserve.

To pick just some of the data, in 2022-23 the PHSO received more than 35,000 complaints, which was an increase of 20% on pre-pandemic levels. If we look at timelines, performance remains under pressure: only 32% of investigations were completed within 13 weeks, 50% within 26 weeks and 81% within 52 weeks—that comes from the annual report. In the mental health sphere, such delays can exacerbate trauma and deepen distrust in public systems, in particular if the complainant is already experiencing severe distress.

The PHSO has reported a rise in callers exhibiting suicidal ideation, a tragic indicator of the depth of need and the urgency of timely reform. Over the past few years, to its credit, the ombudsman has introduced reforms for a new case severity assessment framework to triage cases more effectively; investment in digital case management; training for frontline staff to deal more sensitively with mental health complaints; and a proactive push for transparency, including publishing more case outcomes and data.

That is important work, but there is still some way to go. What assurances can the Government provide that PHSO’s funding is sufficient to cope with increased volumes of complex mental health cases, especially as it has a somewhat unique structure? The PHSO reports to the Public Accounts Committee. It does not have a departmental home. It is appointed by the King on the advice of the Prime Minister, after scrutiny by the PAC, but it is funded through the House of Commons Commission. That makes the PHSO rightly independent, but we need to ensure that it has the ability to deal with the top level of complaints about severe cases of mental health issues.

Under this legislation, we will be creating more automatic referrals to tribunals; we are rightly empowering more patients to complain; and we are putting more reports in for accountability. We need to ensure that when there are complaints—as there could well be—they will still be dealt with. Therefore, has an impact assessment been carried out, or will one be carried out, about PHSO funding, capacity and ability to deal with more mental health complaints?

As we debate a new Bill, we must ensure that accountability mechanisms fully integrate with any legislative reform. The Bill will, rightly, enhance patient rights and restrict inappropriate detention, but the ombudsman must be equipped to robustly investigate breaches of those rights. We should also ensure a clear reporting pathway for detained individuals when their families go to the ombudsman. My overarching question for the Minister, which I hope he will address is: how will the Bill, empowered in this way, interface with the PHSO? Will it strengthen the ombudsman’s ability to investigate complaints relating to involuntary treatment or detention?

Clause 43, on information about complaints for community patients, will make an equivalent amendment to section 132A of the Mental Health Act, which governs patients subject to a community treatment order. Again, patients are currently told about their rights to tribunal and IMHA support, but not necessarily about how to raise concerns or complaints about their care in the community. The clause will therefore require hospital managers to provide information about how to make complaints about functions carried out under the Act, about medical treatments for mental disorder while on a CTO, and about the outcome of any such complaint.

Clause 43 will also add a new requirement to repeat the information as soon as practicably possible after the CTO renewal. Again, that seems sensible and overdue, because clear repeat information can help to balance the power dynamics and support the patient voice. However, what steps will be taken to ensure that community patients who do not have regular contact with hospital staff are still given the information promptly and meaningfully? Will that be the duty of the new community clinician, for example? What is the role of community mental health teams or primary care staff, such as GPs or community psychiatric nurses, in delivering or enforcing the duties? Will the Minister confirm whether patient carers or families beyond the nominated person will be supported in understanding how someone can make a complaint?

Finally, clause 44, on information for conditionally discharged patients, will introduce proposed new section 132B of the Mental Health Act, extending the same principles to patients who are conditionally discharged, including restricted patients under section 42, 73 or 74. Such individuals often remain subject to significant restrictions in the community, such as curfews, reporting conditions or residence in supervised accommodation, and they can be recalled to hospital at any time, yet under the current law they have no statutory right to be informed of how to complain about or challenge decisions that affect them.

Clause 44 will require hospital managers to inform those patients about which section they are discharged under, how the Mental Health Act continues to apply, their rights to apply to a tribunal, and—crucially—how to make complaints about the carrying out of MHA functions, medical treatments and complaints outcomes. That requirement must be met as soon as practicable, in both oral and written form. A copy must also be given to the nominated person.

The explanatory notes state that the duty applies to

“patients subject to transfer directions”

from prison, and that the information should be given before discharge if possible. That is welcome, but it raises a question why, unlike clause 42, clause 44 does not impose a duty to repeat that information periodically. Given that conditionally discharged patients may remain under conditions for many years, have the Government considered adding a requirement to re-provide the information, say, annually? What support or advocacy will be available to conditionally discharged patients, particularly those in forensic or community forensic services, to help them to make complaints or understand their rights? Finally, will the Minister clarify how the provisions will work for patients who lack capacity, or who have no nominated person? Will there be a fall-back or safeguard in those cases?

In clauses 42 to 44, the Government are rightly seeking to embed the right to complain, and to understand that right, into the framework of the Mental Health Act. These are technical but powerful reforms. As ever, however, the challenge lies in not what is required but how it is delivered, especially for the patients who are most marginalised, restricted or isolated. I hope that the Minister can provide some reassurances about monitoring for compliance, clear statutory guidance, and the support of the advocacy structure, particularly at the very top, for dealing with complaints.

[The Minister for Care (Stephen Kinnock)]

It is a pleasure to serve under your chairmanship, Sir Desmond. I will respond to the questions that have been asked.

The hon. Member for Farnham and Bordon asked what training would be provided to staff on communicating the information clearly and compassionately. We will seek to clarify the complaints process and, when we come to revise the code of practice, we will consult on the guidance for how information on complaints should be provided. The Department will work with the NHS, Social Work England and other partners to develop appropriate training for staff on the reforms. Once the code of practice has been updated, professionals working under the Act will be required to undergo training to maintain their competence and awareness of the Act.

The hon. Member also asked how to ensure that information is genuinely accessible. It is important that the complaints process is accessible to all patients. Hospital managers must take practicable steps to ensure that patients have understood complaints procedures, and information about complaints must be provided both verbally and in writing. We expect all healthcare organisations to meet people’s communication needs to support equitable access, experience and outcomes, including when someone is in hospital for their mental health.

NHS England sets out guidance for providers on how to support individuals with their communication needs. That support may involve providing access to interpreters, providing information in a range of formats—such as in translation, large print, braille and easy read format—or the use of augmentative and alternative communication, video clips and visual diagrams to aid understanding. The accessible information standard requires all applicable organisations to identify, record, flag, share and meet the information and communication support needs of patients, service users, carers and parents with a disability, impairment or sensory loss.

On the question of whether there will be an audit of whether patients feel genuinely informed and empowered to complain, we know that some service users are not aware of the avenues by which they can make a complaint. The changes in clauses 42 to 44 seek to address that problem, and to increase awareness of the complaints system. To ensure that patients are supported and empowered to exercise their rights, we are expanding the right to an independent mental health advocate to all mental health in-patients. Complaints information must be provided to both the patient and the nominated person. Family and carers also have a right to complain about care and treatment given under the Mental Health Act.

The hon. Member for Solihull West and Shirley asked for reassurance on oversight, and that feedback from complaints will identify issues. I think that the hon. Member for Chester South and Eddisbury also asked about that, as well as asking what mechanisms will be in place to give feedback on how the system is working. Complaints data enables CQC Mental Health Act reviewers and mental health inspectors to understand trends and focus on areas of concern in their respective monitoring and inspection activities. Focused activity— for example, a focused Mental Health Act visit or inspection activity—can also be scheduled in response to concerns raised in MHA complaints. When looking at trust and provider-level MHA inspection activity, complaints information informs the CQC’s questioning of trusts or independent providers about their complaints processes.

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Advance choice documents

[Dr Evans]

I beg to move amendment 46, in clause 45, page 57, leave out lines 5 to 11 and insert—

“(1) All eligible patients 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,

(b) has been diagnosed with a mental disorder which may lead to the possibility they will be detained under this Act in the future, or

(c) is an English qualifying informal patient (see section 130CA).

(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.”

This amendment gives all eligible patients the statutory right to create an advance choice document if they so wish.

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 32 and 33.

Amendment 18, in clause 45, page 57, line 33, at end insert—

“(3A) An ‘advance choice document’ under subsection (3) should include consideration of the person’s financial circumstances.”

This amendment ensures that the advance choice document includes matters relating to the patient’s financial circumstances.

Government amendments 34 and 35.

Clause stand part.

[Dr Evans]

I am grateful for the opportunity to speak to clause 45 and amendment 46. I will also speak to the amendments from the Government and the Liberal Democrats.

The Bill introduces advance choice documents as a new tool to empower people with lived experience of mental health conditions. This is a significant development in mental health law and policy. Currently, people who are detained or treated under the 1983 Act often have limited ability to influence decisions about their care at times when they lack capacity. Although the Act includes some mechanisms such as advance statements, they have been criticised for their limited legal weight and inconsistent application.

Clause 45 will insert proposed new sections 130M and 130N into the Act, and place duties on NHS England, integrated care boards in England and local health boards in Wales to facilitate access to information about ACDs and to provide support to individuals who want to create such documents. As the Government’s explanatory notes state, ACDs are written statements

“made by an individual while they have capacity or competence …setting out their decisions, wishes and/or feelings about matters that may be relevant to their assessment for admission…and treatment”

should they lack capacity. That extends the scope of patients’ involvement in care planning and respects autonomy in a way that the current law does not fully achieve.

I commend the Government for recognising the importance of enabling people to set out their wishes in advance, especially when they have previously been detained or treated informally. That can help to reduce stress, improve trust between patients and professionals, and potentially prevent crisis escalation to detention. Nevertheless, I have some constructive questions that I hope the Committee will consider.

On the strength of duty on the NHS bodies, proposed new section 130M(1) will require NHS England and each ICB to

“make such arrangements as it considers appropriate”

to provide information about and support with ACDs, which leaves considerable discretion. Will that discretion lead to inconsistencies across regions and vulnerable populations? Should the Bill include clear minimum standards or benchmarks for what constitutes “appropriate” arrangements, for example by mandating proactive outreach to high-risk groups, such as those in secure children’s homes or immigration centres, where awareness of rights or access to support is often poor?

There is then the legal status and practical use of ACDs. The clause defines ACDs but does not specifically set out their legal weight in decisions about treatment or detention. How will clinicians balance these documents with their clinical judgment or clinical care needs? The explanatory notes mention that ACDs may include

“advance decisions under the Mental Capacity Act 2005.”

The Bill could clarify how conflicts will be resolved; this is a recurring theme in our discussions. It would be helpful to have explicit guidance on safeguards to ensure that ACDs are given full weight and respect while maintaining clinical safety.

I turn to the issues of training, resourcing and monitoring. This is a big change, and supporting people to make meaningful ACDs requires skilled staff and resources. Who is expected to provide that support? Is it the CPN, the community clinician, the IMHA or even the GP? Will there be training programmes for clinicians and care staff on how to discuss, record and use ACDs effectively? Furthermore, will there be monitoring and reporting requirements so that Parliament and public can hold the services to account? Who will those requirements sit with if NHS England is abolished? Will it be the CQC, the ICBs or even the Department of Health and Social Care?

We then have the issues of access and equity. We have already identified that people with learning difficulties and certain racial groups find themselves in contact with mental health services more than other groups. These groups can be less keen then to interact with services, either by choice or due to ability, so how do the Government intend to ensure that ACDs are accessible to people from diverse backgrounds, including those with communication difficulties, learning disabilities or limited English? What consultation will there be with charity and representative groups to ensure that documentation is accessible enough for all, yet thorough and robust enough to properly reflect wishes correctly?

Clause 45 is a welcome step towards enhancing patient autonomy and improving mental health care, but to ensure that the new powers deliver real benefits, the Government should consider how to strengthen the duties placed on various bodies. That leads me to amendment 46, tabled in my name. Embedding ACDs into mental health is long overdue, but the clause places duties on NHS England and integrated care boards only to “make such arrangements” as they consider “appropriate” for providing information and support for ACDs. The intention is good, and a marked step from where we were, but the language risks creating a postcode lottery in which patients’ access to this important right depends on where they live or how proactive their local systems happen to be.

That is why my amendment seeks to move from discretion to entitlement. It would replace the current discretionary wording of the clause with a clear legal right for eligible patients to create an advance choice document. The amendment defines “eligible patient” as a patient who has previously been detained under parts II or III of the Act, who has a diagnosis that may lead to future detention, or who qualifies as an informal patient under proposed new section 130CA. It would also require NHS England and ICBs to proactively inform eligible patients of their rights and offer them support in exercising them. This is a targeted and proportionate amendment. It would not mandate ACDs for all, nor would it impose burdensome new duties; it would simply create a right to be offered and supported to make an ACD.

The letter of 3 June from Baroness Merron to my colleague in the Lords appears, in part, to address the issue, so I will talk a little about what she wrote. I thank Baroness Merron for the letter and the tone of the letter, which reflects genuine engagement on the issue and acknowledges the importance of reflective care after detention. She notes:

“The impact assessment for the Bill accounts for multiple hours being spent with the individual by health and care professionals to inform and support them to make choice in advance of a potential future mental health crisis.”

That is welcome. She also stated that the Government had tabled an amendment that day that

“requires commissioners to make arrangements for bringing information and help available regarding ACDs, to the attention of people…especially those in the 12 months following their discharge from hospital.”

I believe that that is a reference to one of the Government amendments to this clause. I hope I am right; if so, I will return to that amendment once I have set out the position on ours. As set out in the letter, the Government amendment is another step forward, and I acknowledge that the Government have appeared to move in response to concerns raised by my colleagues in the Lords and by many stakeholders, but I gently suggest that it falls short. It retains the same permissive language—duties to do what is a “appropriate”, decided locally by commissioners. That may allow for good practice in some areas, but it does not create enforceable rights for individuals. Without a clear entitlement, patients who need this the most may never even be told that it was an option.

Let me give a practical example to illustrate why statutory rights matter. A person with bipolar disorder may be detained under the 1983 Act during an acute episode, but once well, they may want to specify in writing that in future they do not want a particular medication or that they want to be admitted to a specific hospital near family. Those are reasonable, clinically relevant requests, but unless the person is informed of the right to make an ACD and offered support to do so, that opportunity could be lost, especially for those facing health inequalities or language barriers, or those who have a history of mistrust with services.

The Government have said that those conversations will happen anyway within the care planning or under the community mental health framework, but the reality is that the systems are patchy. People discharged from hospital often face month-long waits to be re-engaged by community teams. They may not have a named worker. They may receive support only from overstretched primary care. ACDs must not rely on assumptions about care pathways, which too often do not work as intended.

On trauma and mandating reflection, I want to take seriously a point that Baroness Merron raises in her letter: for some individuals, reflecting on past detention may be traumatic, and that support should be user-led. Absolutely—that is why my amendment would create a right, not an obligation. No one should be forced to make an ACD, but people should be informed that they can, and they should receive its support if they so choose. Choice is not trauma; it is autonomy.

Let us remember that, for many, reflecting on what went wrong in past care is not re-traumatising but restorative. It is how people regain control and how the services learn. I believe this is a thoughtful and sensible amendment. It would strengthen clause 45 by creating clear, predictable entitlements for those most at risk of future detention. It would respect clinical discretion while affirming patients’ rights. It would not undermine the Government’s intent but fulfil it. We all agree that ACDs could be transformative. Let us give them the best chance to succeed by ensuring those who need them the most are offered them, not just as a maybe.

I will touch quickly on amendment 18, tabled by the Liberal Democrats, and spend the rest of my speech addressing the Government amendments. I am grateful to the hon. Member for Winchester for highlighting an important part of dealing with mental health, but I simply wonder whether primary legislation is the correct place to do what he suggests. Could it be done in codes of practice? What if people are admitted, but when they produce plans do not want to disclose their financial arrangements? Might compulsions have to be created for them to do so? I wonder about the unintended consequences of amendment 18, and I look forward to the hon. Gentleman’s addressing them.

I think the Minister in the other place was referring to Government amendments 32 and 33, so I am grateful to be able to address what has come forward. Government amendment 32 appears to be a step in the right direction. It seeks to insert new paragraph (c) into proposed new section 130M(1), with the following wording:

“bringing the availability of that information and help to the attention of such people as it considers appropriate.”

That is welcome, as it moves beyond simply making information available, which could mean leaving a leaflet in a waiting room or uploading something to a website, and instead encourages proactive communication. However, the language still leaves a significant loophole: it is limited to

“such people as it considers appropriate”.

That allows NHS England or integrated care boards to withhold communication for individuals who may be eligible, based on subjective judgment or resource constraints. Although it improves the duty, it still falls short of a universal and consistent approach to ensure people with serious mental health needs know their rights.

Government amendment 33 will insert two further subsections, (1A) and (1B). Proposed new subsection (1A) states:

“The arrangements that must be made…include such arrangements…for people to be given information or help by having a conversation with someone who is suitably qualified”.

Proposed new subsection (1B) states:

“NHS England or an integrated care board must have regard to the particular benefits to a person of making an advance choice document within 12 months of their discharge”.

The amendment rightly recognises that a conversation, not just a form, is often essential for meaningful care. It also acknowledges that the post-discharge period is a crucial window in which individuals are stabilising and may be open to shaping a future care plan in a thoughtful way, but again the language is discretionary. There is no guarantee that the conversation will happen, even where a person is recently discharged from hospital and known to be at high risk of readmission. Who is “suitably qualified”? Is it the clinician, an independent advocate or a voluntary sector worker with lived experience? If the amendment is to be meaningful, the Government must provide clarity in the codes of practice or in regulations.

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[Anna Dixon (Shipley) (Lab)]

The hon. Gentleman makes some very good points about the importance of patients being offered advance choice documents and being supported to make them, as the Bill describes. The evidence submitted from the General Medical Council makes it clear that it supports the duties as set out in the Bill, and it says that they are in line with the current good medical practice guidelines for professionals. Does the hon. Gentleman agree that the Bill, as it stands, fits very well with current medical practice?

[Dr Evans]

I am grateful for the hon. Lady’s point. It would be interesting to know if that advice came when the Bill was debated in the Lords, because these clauses were not in place, but were introduced through the Government’s amendments. This is an extension to that. Our amendment to give a right to a patient would be a further strengthening. I entirely agree that the Bill is a good step forward, but if we are not going to address this again in the next 40 years, the Opposition would like that right to be enshrined. To be offered the opportunity is the key bit here—no mandation. It is good practice to let people know their rights, and we are affirming that. The worry is that while there is good intention to allow it based on the system, what happens if times are stretched? The amendment would give someone a statutory chance to say they have that right, and that it is upheld in law. That is what the Opposition are pushing for.

In essence, we are both trying to solve the same problem, but taking different approaches. The key distinction between the approach of the Government and that of the Opposition is that the Government’s creates a duty on the system, but no individual entitlement, while the Opposition’s proposes a patient right matched by a clear responsibility to inform and support the individual. The Government’s clause says that NHS England and ICBs must make arrangements as they consider “appropriate”. We say all eligible patients should have an informed right to create one. I anticipate that the Government might turn around and say, “Well, this is too rigid,” or that it imposes unfunded burdens on the ICB. I argue that it is targeted; we are not extending the right to everyone with a mental health condition but only to those at the most risk of future detention.

[Sojan Joseph (Ashford) (Lab)]

As a clinician, I hope that the hon. Gentleman will understand what I am trying to say. There are many mental health patients who do not have any insight into their illness and often refuse to take medications. It is important that, as the clause says,

“‘qualifying person’ means a person who has capacity or competence to make the statement,”

so that people do not make inappropriate decisions in their advance choice documents. It is important to keep the clause as it is, whereby a qualifying person is someone who can make a competence decision.

[Dr Evans]

The hon. Gentleman is spot on. We do not want people making decisions about their care when they do not have capacity. The whole point of what we are trying to do—as is the Government’s intent—is to allow people to make advance care decisions when they have capacity, so that when they are not lucid in the future and come back into contact, their preferred decisions are already set out. The clause does allow for a handbrake mechanism for clinical safety, to overstep them. However, what I am worried about is finding ourselves in a situation where patients never even find out that they have the right to create one of these ACDs.

The hon. Gentleman will know, as I do from my time, that good clinical practice is to ensure that patients have a plan. We do that for asthma: we expect patients to have an emergency plan for what happens, who they contact, where they go, what they take and what it looks like, personalised to them. Why should mental health be any different? My amendment actually gives ACDs legal footing, rather than simply saying that the system should offer it to them.

The amendment is cost-effective. Evidence suggests that ACDs can reduce the use of coercive powers, prevent relapse and improve continuity of care. That reduces costs, not adds to them. It is already good clinical practice; many mental health trusts already encourage care planning conversations. Our amendment would simply raise the standard across the country.

The Opposition understand that the Government have the numbers on this Committee. Will the Government clarify the role of the code of conduct? Do the Government intend to issue national guidance or benchmarks to ensure that ICBs do not apply widely different criteria for who is appropriate to be informed or held? Could the Government explain further, in response to the letter and in this Committee, why they do not accept ACDs as a basic right, narrowly defined, for only the most vulnerable individuals to be offered this opportunity? What mechanism will be used to monitor compliance with these new duties? How will patients know whether they are being fulfilled?

To my eyes, Government amendments 34 and 35 will do the same as amendments 32 and 33, but covering the Welsh system and local health boards, so I will not rehearse the arguments that we have just had. However, I would be interested to know whether this creates an issue for data collection on compliance across the two countries. We touched on this in relation to clause 2, but if different health authorities take different approaches to monitoring data, does that not risk making it even more opaque when we try to see both good and bad performance? Could the Minister address that point?

[Jen Craft (Thurrock) (Lab)]

I rise to speak briefly to clause 45, Government amendments 32 and 33, Lib Dem amendment 18 and Opposition amendment 46. I am very supportive of clause 45. The ability to make an advance choice document is incredibly important to people who may come under the scope of the 1983 Act and be subject to detention under mental health legislation.

We have spoken at length about the importance of patients’ input into their care and the improvements in outcomes when they feel that they have been involved and their wishes and feelings are taken into account. An advance choice document allows someone at risk of being detained under the Act to set out their choices, thoughts and opinions before becoming so unwell that they may need to be admitted to hospital. Other hon. Members have spoken about how an advance choice document can help prevent detention in a mental health unit, as it can stop issues escalating to the point where there is no option but detention, to ensure patient safety or the safety of others. I am broadly supportive of clause 45, and I urge the Committee to be.

I turn briefly to Opposition amendment 46. I have heard the thoughts of the hon. Member for Hinckley and Bosworth. My understanding is that clause 45, along with Government amendments 32 and 33, will effectively create the rights for those who should have an advance choice document to be able to take advantage of them. Government amendments 32 and 33 will go further in ensuring that people who may benefit most from an advance choice document are informed of their ability to do so.

I note that Government amendment 32 will put a duty on an integrated care board to bring information to such people as it deems appropriate. I welcome the duty being on an integrated care board or commissioner locally, particularly because there are such nuances in localised care and localised populations. There are areas of the country in which the prevalence of things like learning disability and autism is higher than in others. The amendment will allow an ICB or local commissioner to consider what may be appropriate for the population in their area.

[Dr Evans]

I appreciate what the hon. Lady is saying. There are differences—rightly so—and regional variation. By definition, different regions will take different approaches to dealing with this issue. My argument is simply that someone with a learning disability should have the right to decide to make an ACD, as should someone with bipolar disorder or anorexia. There should be no regional variance in that; it should be a right given to the individual there and then. Regional discrepancy should not come into the system to deal with this. I appreciate that there will be regional discrepancy, but, fundamentally, we want to engage the right, not just the responsibility for the ICB to decide who it thinks is appropriate. I am interested in the hon. Lady’s take—I think this goes to the heart of what we are trying to do.

[Jen Craft]

I agree on the notion of a right; where we vary is that I think that the Bill as written, and Government amendments 32 and 33, enshrine the notion of a right without it having to be spelled out as such. Local variation includes localised populations, such as those from marginalised communities. We might consider different translations of support that is available. That will not be the case across the board—it will vary from area to area. This does not remove people’s ability to make an advance choice document; it simply gives local commissioners the ability to determine what is most appropriate for their area, how that support should look and how it will be targeted.

Without getting ahead of the Minister, I hope that he will say what guidance on best practice for local commissioners and ICBs will be set out, particularly in relation to those with learning disabilities and autism. We have spoken about easy-read documents, for example, which should probably be made available, as should advice on how commissioners can best make sure that all those who might benefit from an advance choice document are meaningfully engaged and informed of their right and ability to do so.

The Minister has agreed previously to make sure that he works with disabled people’s organisations, including those run by and for people with learning disabilities and autism, on bringing forward a code of practice on the Mental Health Bill. Input on patient experience into how best to contact and meaningfully engage people who would benefit from an advance choice document would be particularly beneficial.

Very briefly, the aim of Liberal Democrat amendment 18 is to include consideration of financial circumstances in an advance choice document. I have looked into this—in my opinion, it is outside the scope of what an advance choice document does. An advance choice document sets out how an individual would wish to be treated if they became so unwell that they were unable to make those decisions for themselves. I am not fully sure how one’s financial circumstances fit into how one would be treated relative to detention or, potentially, in a community-based setting. I understand that financial circumstances have an impact on people’s mental health—we have talked about that in debates on other clauses—but they do not necessarily have a place in this specific part of the Bill.

I encourage the Committee to support clause 45 and to adopt Government amendments 32 and 33. This is, once again, a big step forward in ensuring that those with serious mental illnesses are able to input into their care and treatment in a real and meaningful way.

--- Later in debate ---

[Stephen Kinnock]

I will speak first to amendment 46. We agree with the principle of the amendment, but do not think it necessary. Under the Bill, if an individual who is likely to benefit from making an advance choice document approaches services to create one, they should be offered information and appropriate support to do so. The approach that we have taken in the Bill is therefore functionally equivalent to a right to request an advance choice document.

[Dr Evans]

If I am correct, the Minister said “if” a patient “approaches”. That is the fundamental point: that the onus is on the patient to know what their right is to approach the authorities. We are trying to do it the other way, by saying that their right is to be told about what is going on. Will the Minister clarify what he meant, because this is essentially what we are concerned about?

[Stephen Kinnock]

What I meant is what I said. I will read it again: if an individual who is likely to benefit from making an ACD approaches services to create one, they should be offered information and appropriate support to do so. The approach that we have taken in the Bill is therefore functionally equivalent to a right to request an advance choice document.

We are also concerned about prescribing that commissioners inform and support some of the groups of individuals identified by the amendment. For example, it may be practically challenging and not always appropriate to contact people who were detained or admitted informally many years ago about making an ACD. We agree, however, that that there is a good rationale for encouraging past voluntary and involuntary patients, especially those discharged in the past 12 months, to create an ACD. That is reflected in the Government amendments to strengthen the duties on health commissioners, which I will come to shortly.

The approach is based on research findings that suggest that the optimal time to write an advance choice document is shortly after discharge from hospital. That also recognises that many of the individuals are likely still to be under the care of mental health services and therefore well positioned to receive support and advice from services to make their ACD. Ultimately, the amendment was debated in the other place and not considered workable. In recognition of concerns expressed by Earl Howe and Lord Kamall, however, my noble Friend Baroness Merron made a commitment to strengthen duties on health commissioners in relation to the advance choice documents.

Government amendments 32 to 35, which we tabled in response to the amendment, will strengthen the duties in three ways. First, they will require that health commissioners proactively make arrangements to bring information on and help with making an advance choice document to the attention of the appropriate people. That is to prevent the risk of commissioners taking a minimal approach to discharging the duties.

Secondly, the Government amendments will require that information and help is provided through discussion with a suitably qualified person, such as a health or care professional, advocate, support worker or peer support worker. That is to ensure that people can rely on the guidance and support of a professional, where they wish to receive it.

Lastly, the Government amendments will encourage commissioners to have regard to the benefits of a person making an advance choice document within 12 months of discharge from a mental health hospital. That builds on research findings that suggest the optimal time to write an advance choice document is shortly after detention.

Government amendments 32 to 35 will help to further secure the success of advance choice documents by ensuring that people who are at risk of contact with the Act are given the opportunity to make an ACD, as well as being offered the dedicated support that they may need to do so.

On amendment 18, we agree that there is value in encouraging people to include details of any relevant financial matters within their ACD. Financial matters, such as problem debt, can worsen or even trigger a person’s mental illness. We expect that doing so will help to ensure that people receive the care and support that they need if they later experience a mental health crisis. We feel that it is important for individuals to have autonomy over what they include in their ACD, however, rather than prescribing the contents in legislation. We therefore think that the intention behind the amendment is better achieved by other means.

We plan to develop guidance and a template ACD to support service users in making their document. Those will include prompts to consider any relevant financial matters. Furthermore, the guidance that we plan to include in the code of practice for mental health professionals will cover the need to support the person to consider any relevant financial matters that may be important to their mental health recovery.

Finally, I turn to the clause in its entirety. Advance choice documents provide a place for people to set out their wishes, feelings, decisions, values and beliefs, while they are well, regarding their care and treatment. That is in preparation for the scenario in which they are too unwell and lack capacity to express such things at the time. At that point, the contents of their ACD should be considered by mental health professionals to inform their decision making regarding the person’s admission to hospital, detention under the Act, and care and treatment.

Research shows that ACDs can have a range of benefits, including reducing the risk of hospital admissions. To help to unlock those benefits and ensure the uptake of ACDs among service users, the clause will place duties on health commissioners to make appropriate arrangements so that relevant individuals are informed and supported to make an ACD. The duty aims to ensure that individuals who are likely to benefit most from making an ACD are proactively given the opportunity to make one while they are well.

Other clauses create the framework to ensure that the contents of a person’s ACD have a real impact on care and treatment decisions, for example the clinical checklist, the compelling reason test and the new framework for creating a nominated person. I therefore ask the hon. Member for Hinckley and Bosworth to withdraw amendment 46, and I ask Liberal Democrat Members not to press amendment 18. I commend Government amendments 32 to 35 and clause 45 to the Committee.

[Dr Evans]

I would like to press amendment 46.

Question put, That the amendment be made.

--- Later in debate ---

[Stephen Kinnock]

My hon. Friend is absolutely right. In many ways, the best way to look at the issue of discharge is to start thinking about it almost as soon as the patient is admitted. We need to be thinking holistically about what place they are in, what the aftercare plan might look like and how it might relate to the discharge plan. The earlier we do so, the better. In so many cases, upstream intervention is important to avoid having to scramble to deal with a crisis further down the line. My hon. Friend is absolutely right to raise that point.

I turn to clause 47. Section 117 of the Mental Health Act places a duty on the NHS and local social services authorities to provide aftercare to certain patients who have been detained under the Act once they leave hospital. Aftercare services seek to reduce the risk of readmission, and they must be provided until the NHS and local social services authorities are satisfied that the person is no longer in need of such services. However, there is currently no requirement to notify the person when that ends. Clause 47 requires that the provision of aftercare lasts until the NHS and local social services authorities jointly give notice to the person in writing that they are satisfied that the person is no longer in need of such services. This will clarify when aftercare services have ended.

Decisions on entitlement to and responsibility for aftercare services are heavily contested. Deeming rules are used to deem a person to be ordinarily resident in one area, even though they are living in a different area. They ensure continuity of financial responsibility when a person is placed in a local authority area and prevent the local authority from placing someone out of area to ease its financial burdens. Currently, section 117 does not contain any deeming rules.

Clause 47 will apply existing deeming rules under social care legislation to identify which local authority is responsible for arranging aftercare for an individual patient. This change will add clarity and consistency to an often litigious system and more closely align local authority social care and NHS rules for determining ordinary residents. This aims to support organisations to work together to provide and plan for aftercare services and reduce the number of disputes that have arisen in recent years.

Finally, I thank the hon. Member for Guildford for tabling new clause 21, which seeks to place a duty on the responsible integrated care board to ensure that advice and support is offered to the family or carers of the patient being discharged. The statutory guidance on discharge from mental health in-patient settings sets out how NHS organisations should exercise duties to co-operate under sections 72 and 82 of the National Health Service Act 2006 in the discharge process. This includes providing information or support on housing, social services provision and financial support. The Mental Health Act code of practice also provides statutory guidance on the information that should be provided to patients, families and carers.

We do not believe that it is necessary to place additional duties on integrated care boards to provide information and support, as existing duties are sufficient. We will consider whether to use the revised code to bring together guidance on discharge into one place and explore how to clarify best practice on information and support to carers. I hope that what I have set out satisfies the hon. Member for Guildford and that she will not press new clause 21. I commend clauses 46 and 47 to the Committee.

[Dr Evans]

I will speak to clauses 46 and 47 and then to new clause 21. Clauses 46 and 47 form a significant part of the Government’s effort to strengthen discharge planning in continuity of mental health aftercare. Clause 46 extends tribunal power. Under the current Mental Health Act, when a first-tier tribunal considers a patient detained under part II of the Act and decides not to discharge them, it may still make non-binding recommendations, for example that the patient be transferred to another hospital or given leave of absence.

--- Later in debate ---

[Zöe Franklin]

The hon. Member makes a really good point. There is definitely a place for ensuring that we work on this further to make sure that it covers that. I will come on to that later, if she will allow me.

We know that early intervention is key. We know that families, carers and those around an individual are often the first to spot the warning signs, and that they need to feel empowered, not sidelined. I hear time and again, as I am sure hon. Members across this Committee Room have heard, from people who have been left out of the discharge planning for their loved ones. They say that they have received no clear information and that they feel unsupported and unable to fully support their loved one when they return home.

Importantly, the new clause sets out a process whereby, if a family member wants to raise a concern, the team must consider whether that individual should be added to the register of persons at risk of detention under part II of the Mental Health Act. We believe that this is a sensible, joined-up approach to prevention, spotting risks early and acting before a crisis point is reached. Finally, the new clause would require the Secretary of State to publish national guidance and ensure consistency and clarity across the system.

We often speak of carers as the invisible workforce of our NHS. The new clause would make their contribution visible by recognising their role and giving them the information and support they need to fulfil it well.

[Dr Evans]

Forgive me if I missed it, but I did not hear any discussion of this point. I am slightly concerned about the way the new clause is written, as it could be a duplication of the support, protections and duties put in place through the Care Act 2014. Could the hon. Member set out how the new clause would run in parallel with the Care Act? Is it complementary, or does it work against it?

[Zöe Franklin]

In my final comments, I was going to say to the Minister that, having considered the points he set out in his opening statement in relation to this clause, I am prepared not to press the new clause. I appreciate that some of the information already exists in the Bill and in the existing documentation to which the shadow Minister referred. I also acknowledge the point made by the hon. Member for Thurrock, that some aspects around consent must be dug into.

However, I ask the Minister to work with me, my hon. Friend the Member for Winchester and other hon. Members with an interest in the issue, so that he can hear our constituents’ experiences of where the current guidance is clearly not working, and ensure that appropriate additions are made to the supporting documents for the Bill to address the concerns that we have raised in the new clause.

Ordered, That the debate be now adjourned.—(Taiwo Owatemi.)