Mental Health Bill [ Lords ] (Third sitting)

Stephen Kinnock Excerpts

Committee stage
Thursday 12th June 2025 Public Bill Committees

[The Minister for Care (Stephen Kinnock)]

I beg to move amendment 26, in clause 5, page 11, line 22, leave out—

“by a constable or other authorised person”.

One of the tests for detaining a person under the mental health legislation is that harm may be caused, or that treatment is not possible, without detention. This amendment and amendments 27, 28 and 29 remove wording stipulating that the detention that is necessary must be detention by a constable or other authorised person (as defined).

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 27 to 29.

Clause stand part.

[Stephen Kinnock]

It is a pleasure to serve under your chairship, Ms Furniss.

Government amendments 26 to 29 seek to remove previous amendments to the clause tabled by Lord Kamall, Earl Howe and Baroness May of Maidenhead, which added police and other authorised persons to sections 2, 3 and 5 of the Mental Health Act 1983, giving the police additional powers to detain people under the Act where they currently have no powers to intervene. We do not support extending police powers in that way, and we understand that the police do not support an extension either. It would not be appropriate to involve police officers in clinical decision making about whether a person meets the criteria for detention for assessment or treatment under the Act, or to involve them unnecessarily in the temporary detention of patients who are already in hospital to enable a Mental Health Act assessment to take place. We also seek to remove clause 50 from the Bill; we look forward to discussing that at the appropriate time on a future day in Committee.

I will now move on to clause 5 in its entirety. The grounds for detention provide decision makers with criteria that must be applied when deciding whether it is appropriate to detain, or to continue to detain, a person under the relevant sections of part II of the Mental Health Act, covering civil patients. The clause will replace the existing criteria, which the independent review of the Mental Health Act found were too vague, and will take forward changes recommended by the review. It will strengthen and clarify the criteria to require a risk of “serious harm” to justify detention. Consideration must also be given to the nature, degree and likelihood of the harm. For a patient to be detained for treatment under section 3, there must be a “reasonable prospect” of therapeutic benefit.

The code of practice already directs clinicians to consider the “nature”, “likelihood” and “severity” of harm. We believe it is right to formalise those considerations by putting them in primary legislation. We have not defined serious harm in the Bill. We will work with stakeholders to provide guidance on that in the code of practice. We are not seeking to raise the bar on detention, which could put patients and the public at risk. However, we think that when the serious decision is taken to deprive someone of their liberty, and potentially to treat them against their wishes, there needs to be consistent consideration of the potential risk of harm to a person or to others to justify that.

The revised risk criteria will not apply to part 3 patients. There are already tailored risk criteria for patients in the criminal justice system. Those are considered by the court and the Secretary of State for Justice, and allow for all relevant factors, including public protection, to be considered on a case-by-case basis. For those reasons, I commend Government amendments 26 to 29 and clause 5 to the Committee.

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

It is a pleasure to be here on day two in Committee. I will first address clause 5 and then the Government amendments.

The clause marks significant reform to the legal foundations of mental health detention in this country. At its core, the clause seeks to update the grounds for detaining individuals under the Mental Health Act. It will amend several critical sections—sections 2, 3, 5, 20 and 145—to ensure that detention is used only when absolutely necessary and in line with the principle of least restriction, which was put forward in the Wessely review and is now in the Bill.

Let me outline what the changes will do in practical terms, as the Opposition see it. Under section 2 of the Mental Health Act, “Admission for assessment”, detention will now be justified only if “serious harm” may occur to the “health or safety” of patients or others. The decision must weigh the “nature, degree and likelihood” of that harm, a much more structured and risk-based framework than previously existed. Under section 3, “Admission for treatment”, we will see a clearer threshold. Detention will be permitted only if “serious harm” may occur without treatment, if the treatment is necessary, if the treatment cannot be provided unless the individual is detained and, crucially, if appropriate treatment is available.

Section 5(4), on emergency hospital detention, will be updated to align with the same “serious harm” test, recognising that even urgent situations demand clear legal justification. Section 20, which governs the renewal of detention process, will be brought in line with the same standards, such that they apply not just once but every time detention is extended. That is an important safeguard. A statutory definition of “authorised person”, those empowered to detain, will be introduced in section 145, ensuring that such persons are appropriately trained and regulated.

Those changes respond to real and long-standing concerns. The 2018 independent review of the Mental Health Act warned that our current criteria are too broad and that they allow for detention that is often unnecessary, sometimes prolonged and, in too many cases, distressing for patients and families. Clause 5 seeks to change that by grounding detentions in a clear, evidence-based assessment of risk and necessity.

The clause has significant advantages. It will introduce stronger safeguards against inappropriate detention and will shift the focus away from diagnosis alone and towards the actual risk of serious harm. It will offer greater clarity for professionals, giving them structured criteria for making decisions that are ethically and legally sound. It will enhance patients’ rights by aligning the law more closely with the principles of autonomy and proportionate care.

However, with every reform there are challenges, and we must not ignore them. The terms “serious harm” and “likelihood”, although essential, remain open to interpretation. We must ensure that the forthcoming code of practice offers clear, detailed guidance that minimises subjectivity and inconsistency in their application.

Furthermore, there is a question mark over public safety, which the Minister seemed to point to but which I want to explore a bit further. We have not tabled an amendment, but I am keen to understand how this works. Given that the definition is potentially ambiguous and in practice quite difficult to judge, has the Minister considered inserting the words “cumulative” or “escalating”? To be clear, this is a call not to water down those safeguards, but to shore them up with a safety net, so that this reform does not inadvertently trade off liberty against safety, especially in communities.

We need to ensure that we are not inadvertently introducing a real risk that someone, particularly someone on the margins of eligibility, may fall through the cracks. There are individuals whose behaviour is escalating and whose pattern of deterioration is known to services, but who do not yet meet the “serious harm” threshold at the time of assessment. I have seen this at first hand as a clinician—a picture that goes round and round. These are some of the most complex situations that one will ever have to deal with in one’s clinical career. The words “escalating” or “cumulative” may help to give further clarification to clinicians on the frontline.

For those on the margins, what consideration have the Government given to the notion of a duty for professionals to produce a risk management plan in any case in which detention is considered but not authorised, so that we do not simply assess and walk away, but assess and act in a community setting? That would not lower the threshold, but contextualise it. It would ensure that detention remains a measure of last resort, but not too late a resort.

--- Later in debate ---

[Gregory Stafford]

I confess that I do not entirely follow the hon. Lady’s argument. My understanding is that the people she has listed—for example, hospital security staff—are not covered at the moment, so I do not think that that is the case. As I said in response to my hon. Friend the Member for Hinckley and Bosworth, there are situations, in a number of settings, in which mental health professionals act in the capacity of restraining. With the correct and appropriate training, which is what I think all Opposition Members want, I do not think that the issue that the hon. Member for Thurrock is raising would necessarily arise. Having said that, if she really feels that the wording needs to be tweaked, I look forward to seeing and potentially supporting her amendment to the subsection, and I hope she tables it.

The second key problem is the risk of returning the burden to police officers. We have heard from Members on both sides of the House in the debate, and from police forces up and down the country for years, that the police do not have the expertise, training or capacity to be the first responders to mental health emergencies. Clause 5 finally reflects that reality, helping to move the response from law enforcement to healthcare. The Government amendments would muddy that distinction. They would result in the police once again becoming the default responders—not because it is right but because it is unclear who else is meant to act.

Thirdly, the amendments introduce legal and safe-guarding risks. Without a clear definition of who can detain, one risks inconsistency, poor practice and potentially unlawful deprivation of liberty. The amendments offer no alternative safeguards—just the deletion of the existing ones. That is not reform; it is abdication of responsibility. Finally, they undermine the spirit of the Bill. The Bill aims to modernise mental health legislation by making it more humane and effective, and more rooted in health than enforcement. The amendments point in the opposite direction. They strip away clarity, increase reliance on the police and risk compounding trauma for those already in crisis.

It is not just about legislative precision; it is about protecting people. When someone is in acute mental health crisis, they are at their most vulnerable. Turning up with police officers, sirens and handcuffs does not calm the situation; it escalates it. It creates trauma, damages trust and can lead to long-term disengagement from mental health services. Clause 5 offers us a path out of that pattern. It allows approved professionals—such as paramedics, mental health nurses and crisis practitioners —to intervene early, with care and dignity. It does not exclude the police, where there is a genuine risk to safety, but it rightly repositions them as the last resort, not the first response. The Government amendments may be well intentioned, but they threaten to unravel that balance. We cannot allow vague flexibility to become a smokescreen for inadequate planning or under-resourced services.

If the Minister pushes his amendments to a vote, and, as the parliamentary maths suggests they will, those amendments pass, what will he do to sort out the problem that we, on both sides of the House, have talked about today? He is currently planning to keep the status quo, which we all seem to agree is not appropriate. At least we and our noble Friends in the other place have attempted to improve the situation. What will he and his Department do?

The clause is part of a broader rethinking of how we response to mental health need. It supports community-based care. It pushes for better training. It honours patient autonomy and it places the right people—clinicians, not constables—at the centre of care delivery. We all want a system where people in distress are met with compassion, not criminalisation. Clause 5 helps us to get there. The Government’s amendments drag us backwards. Clause 5 is one of the most thoughtful and necessary parts of the Bill. It raises standards, reduces harm and finally begins to close the gap between what the Mental Health Act allows and what good mental health care demands.

[Stephen Kinnock]

I will touch on the questions that have been asked on cumulative and escalating behaviour, on having a review of public safety and on the training plan. The details will be provided for in a mixture of the code of practice and the annual written ministerial statement.

The code of practice will be based on consulting both those who use the new criteria, such as clinicians, approved mental health professionals and members of the tribunal and, then, of course, on the other side, those with lived experience, service users, families and carers. It will be shaped and drafted on that basis. It will then go out to public consultation and will be laid before Parliament so that Parliament will have an opportunity to debate it. It will be a comprehensive and detailed development of the code of practice, and will address the issues around cumulative and escalating behaviour, the public safety issues and training.

On cumulative and escalating, it is worth noting that under the reforms in both the Bill and the current Act, clinicians have the power to detain on the basis of a risk of harm that may occur, not that already has or is happening at the time. That power already exists.

[Dr Evans]

Maybe it is my clunky naivety as someone stepping into the legal statutory framework, but I was hoping the Minister would guarantee he could take that away to look at with the team. I know from my clinical experience and from speaking to colleagues that it is one of the hardest things to measure and look for. Later, we will discuss areas where there are good case examples of people who have shown the problem of escalating behaviour that is missed by the authorities. This might be a clumsy and clunky way of trying to highlight that point, which is why we have not yet come up with amendments, but I would appreciate the commitment to look further at that when the Government takes the point away. It is really important to make sure we can give clinicians more certainty around what this looks like.

[Stephen Kinnock]

I thank the hon. Member for the intervention, but I simply repeat that under both the Act and this Bill, which will reform that Act, clinicians have the power to detain on the basis of a risk of harm that may occur, not one that has already or is happening at the same time, so, in my opinion, this power already exists. What is the point of over-embroidering and adding more questions and considerations when those questions and considerations are already answered? Let us just try and streamline things, please, and make things simple rather than complicated.

We had a lengthy debate on the amendment. Let us just boil this point down to its essence: the majority of mental health incidents are managed without police involvement. Approved mental health professionals have powers under section 115, section 6 and section 137 to enter a person’s home and to assess and convey said person to a hospital. That is the first point: all the concerns that have been raised by the Opposition are very clearly addressed by the powers that already exist for AMHPs.

We support “right care, right person”. Policing is of course operationally independent, and those “right care, right person” arrangements are planned and developed through detailed multi-agency partnerships on the ground. We need to be pragmatic and recognise that “right care, right person” is the right way forward. The Government are committed to it, so let us let the practitioners, the experts and the police on the ground work in a practical and pragmatic way to address these incidents as they occur. In many cases, it is simply impossible to legislate for these incidents. By definition, every person experiencing trauma experiences it for different reasons, and it manifests itself in different ways, so top-down micromanagement of that would be deeply counterproductive and unhelpful.

Officials in the Department of Health and Social Care and in the Home Office have engaged with senior representatives of the police on these amendments in great detail. I can give the Committee an 100% assurance that the police do not support an extension of their powers to sections 2, 3 and 5. I am therefore baffled by the fact that Opposition Members appear to be claiming that they know better than the police whether their powers should be extended.

Let us stop trying to pretend that we have the police’s expertise. Let us please take a pragmatic approach to this. The police do not want an extension of these powers, and the Home Office is clear that that is the case. There seems to be a fundamental misunderstanding at the heart of the lengthy debate that we have just had. On that basis, I thank hon. Members for their interventions and I commend the amendments to the Committee.

Question put, That the amendment be made.