Mental Health Bill [ Lords ] (Eighth sitting)
Stephen Kinnock ExcerptsThursday 19th June 2025
(1 day, 23 hours ago)
Public Bill CommitteesRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 June 2025 - (19 Jun 2025)
Dr Neil Shastri-Hurst (Solihull West and Shirley) (Con)
It is a pleasure to serve under your chairmanship, Mrs Harris. Having taken your clear instructions, I will be very brief in speaking to clauses 46 and 47.
Clause 46 is a positive step in principle, but there are concerns that the recommendations remain non-binary and may therefore lack the practical effect—or the teeth —without enforcement or review mechanisms. I have three questions that I hope the Minister will address. First, will he clarify whether there are any plans to give legal weight to tribunal recommendations, perhaps by requiring a written response or justification where those recommendations are not followed? Secondly, how will the Government ensure that resource-constrained local authorities can implement recommended aftercare plans promptly and fully? Thirdly, could he please provide data on the expected impact of this provision on readmission rates?
Clause 47 clearly sets out and improves on the legal clarity, which is welcome, but I have a couple of questions. What steps will be taken to ensure that frontline practitioners understand and consistently apply the revised ordinary residence test? Has the Department conducted an assessment of the administrative burdens or delays that may result from the implementation of the clause? Apart from those questions, I welcome the provision.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship this afternoon, Mrs Harris. I will go through the questions that have been asked.
The shadow Minister, the hon. Member for Hinckley and Bosworth, asked whether there will be any duty on ICBs or local authorities to respond to recommendations. The tribunal will have the power to recommend that plans are put in place for a patient’s aftercare. To assist in ensuring that these recommendations are followed, the tribunal can reconvene if its recommendations are not acted on, ensuring accountability from aftercare bodies.
The shadow Minister asked what mechanisms are in place to resolve disputes between authorities. There is already a process in place under the Care Act 2014 for resolving disputes and an opportunity to escalate decisions to the Secretary of State and Welsh Ministers, if required. He also asked what the notice must contain. We will absolutely look at the guidance in the code on the process for ending aftercare and notifying the person.
The hon. Member for Solihull West and Shirley asked about plans for legal weight, resourcing and data. I will write to him on his questions about plans for legal weight and data. I think that resourcing will be a constant theme. Obviously, we have to assess all the resourcing implications once the Bill receives Royal Assent, and we will develop an implementation plan on that basis. The first annual written ministerial statement will be the hon. Gentleman’s opportunity to hold the Government to account on that.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Clause 47 ordered to stand part of the Bill.
Clause 48
Tribunal powers in guardianship cases: burden of proof
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
Currently, where an application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship, the patient can be discharged only if they can prove to the tribunal that they do not continue to meet the guardianship criteria. The burden of proof is on the patient. The clause will amend the Mental Health Act so that it will now be for the local authority responsible for the guardianship to prove to the tribunal that the patient continues to meet the guardianship criteria. As the independent review pointed out, the current burden of proof is “out of line” with all other applications to the tribunal. The Government consider that this should be remedied.
Dr Shastri-Hurst
I fear that I may test your patience a little further on this occasion, Mrs Harris, but I rise to address clause 48. Although much of the Bill aims to modernise and humanise our mental health framework, and in many ways it does so commendably, clause 47 presents not only an opportunity, but a challenge: to ensure that we get the balance right between liberty and protection.
The clause will make an amendment to section 72(4) of the Mental Health Act 1983. As the Minister said, it will shift the burden of proof in tribunal proceedings concerning patients who are subject to a guardianship order. Under the current legal framework, it is the patient who must demonstrate that the criteria for guardianship are no longer met, by showing either that they are no longer suffering from a mental disorder or that continued guardianship is no longer necessary for their welfare or the protection of others.
Clause 48 would reverse that burden. It would place the onus instead upon the local authority to demonstrate, in the mental health tribunal, that the individual still meets the statutory test. The tribunal would be required to direct a discharge unless the authority can prove otherwise.
Let me be clear: I am not opposed to the principle of this reform. On the contrary, I believe that there is a strong case for rebalancing the legal dynamics in favour of the individual, particularly when we reach situations in which their liberty and autonomy are at stake. The principle of least restriction is not, or should not be, merely aspirational; it should be foundational to any mental health regime in a liberal democracy.
I say with equal conviction that the practical operation of such a change requires careful thought and adequate resourcing. It must be done under clear legal parameters. Precisely on those fronts, I seek clarification from the Minister and, if I may be so bold, I seek some improvements to this aspect of the Bill.
First, we must consider the legal principle at play. A reversal of the burden of proof in this context is not technical or incidental; it marks a constitutional shift in the relationship between the citizen and the state. Traditionally, as the Minister well knows, the burden of proof lies on the party making an assertion that departs from the status quo. In this case, that would ordinarily be the patient applying for discharge from the guardianship. However, when the state exercises more coercive powers—particularly powers that have an impact on an individual’s liberty and private life—it is appropriate that the state be required to justify those powers afresh, especially when challenged. That is the logic that clause 48 seeks to embrace. In broad terms, as I say, I support it.
The approaches are reinforced by our obligations under article 5 of the European convention on human rights, which protects the right to liberty and security of the person. It is clear that any deprivation of liberty must be justified not just initially, but on an ongoing basis. Jurisprudence from Strasbourg has repeatedly emphasised that periodic review mechanisms must be substantive and not merely procedural in nature. The state must show continuing justification and must not rely on past assessments or presumptions in its favour.
Clause 48 helps us to move closer to compliance with those principles, but the legislation, as drafted, does leave some important questions unanswered. What, precisely, is the standard of proof that local authorities must meet? Is it the civil standard on the balance of probabilities, or is it something higher, given the gravity of what is at stake? If we are to take this shift seriously, we must also give tribunals clear statutory guidance on how to interpret the new burden. Otherwise, we will fall into the trap of risking inconsistency in decision making, confusion among professionals and a potential increase in appeals and legal challenges.
Secondly, and crucially, I would like to press the Minister on the question of practical implementation. Changing the legal burden is not merely a matter of legislative drafting; it requires a systematic adjustment in how evidence is gathered, how professionals prepare for tribunal hearings, and how decisions are reviewed internally within local authorities. As hon. Members will know, local authorities are already operating under intense financial and operational pressures. Mental health social workers are often working with caseloads that stretch the limits of what may be considered reasonable. Legal teams within councils are often overstretched and under-resourced; if we now place them under a legal obligation to present a comprehensive, evidentially sound case for continued guardianship—perhaps at multiple intervals across an individual’s care pathway—we must ensure that they are adequately supported to do so.
What assessment have the Government made of the financial and operational impact of clause 48? Will local authorities receive new funding to enable them to meet that duty? Will social care professionals receive specific training on the evidential requirements now expected of them? Without such support, we risk not only undermining the intent of the clause, but creating a perverse outcome in which discharges may occur not because the patient no longer meets the criteria, but because the local authority lacks the capacity to make the evidential case in time.
I also caution against the risk of overcorrection. Although I fully support the principle that individuals should not bear an unfair evidential burden, we must not move so far in the other direction that we weaken the legitimate protective mechanisms that should be in place. Guardianship is not detention; it is a community-based measure designed to provide oversight and structure for individuals who may struggle to live independently due to serious mental illness. It is used infrequently and only where strictly necessary.
Dr Luke Evans (Hinckley and Bosworth) (Con)
It is a pleasure to follow my hon. Friend the Member for Solihull West and Shirley. I would expect nothing less from him than a fantastic canter through this important clause. I will not repeat a lot of what he said, but I will try to emphasise it.
Although clause 48 is short, it speaks to the much larger principle of the balance between public protection and individual liberty. I will not go through all the details, as the Minister laid out the changes, but the burden of proof is currently on the patient to convince the tribunal that they no longer meet the criteria for guardianship. The clause will change that. Instead, the burden will fall on the local authority or relevant public body to prove that guardianship remains justified. The Government’s explanatory notes put it plainly:
“the patient should be discharged by the Tribunal unless the local authority can prove that the patient continues to meet the guardianship criteria.”
The clause is not just a technical amendment; it is a fundamental realignment of legal principle. It reinforces the presumption of liberty. It aligns guardianship cases with the principle that when the state restricts an individual freedom, it is for the state to justify that restriction, not the individual to justify their freedom. It echoes the evolution of mental health law towards a less restrictive approach, a principle we put in place on the first day of our deliberations on the Bill. Although clause 48 amends only a few words, it reflects a big change in principle: liberty is the default, and restriction must be justified and not presumed.
There are some important questions that I want to echo and emphasise, again leading on from my hon. Friend the Member for Solihull West and Shirley. Are local authorities prepared for the reversal of burden? Have they been consulted? Do they have the legal resources, documentation, standards and evidential processes to meet the burden before the tribunal? On top of that, we have already agreed that there will be automatic referrals. We would therefore expect more referrals to the tribunal as well as a change in how they operate. This is a huge undertaking. If they fail through a lack of capacity organisation, we risk a situation in which patients are discharged not because they no longer meet the criteria, but because the case was poorly presented. How will the Government ensure that that does not happen?
Secondly, will the Government issue statutory guidance or regulations to ensure that consistency in how the burden is discharged? We do not want a postcode lottery in the quality of guardianship applications or tribunal evidence. Thirdly, we must always consider public protection. The guardianship regime is not designed for high-risk individuals, but it can still apply in cases where behaviour poses a serious risk to self or others—for example, individuals with profound learning difficulties who might place themselves in danger if not properly supported.
We also talked about cumulative or escalating behaviour in one of our first debates. The reason for doing so is that we are at the fringe of significant cases. What safeguards are in place to ensure that public safety considerations are given due weight in cases where the evidence might be incomplete or borderline? Finally, do the Government intend to monitor the impact of the clause? Will data be published on whether tribunal discharge rates increase following this reform, and whether that leads to any unintended consequences?
I want to be clear that His Majesty’s Opposition support the principle behind the clause. We support a mental health system that is rights-based, person-centred and built on the presumption of liberty. But that principle must be matched by a system capable of meeting the duties it imposes. Rights on paper are meaningful only if public authorities are resourced and able to support them and uphold them in practice. I look forward to the Minister addressing those points.
Stephen Kinnock
On the assessment of impact, it might be useful for the Committee to know, for context, that the use of guardianships under the Act is small: the number of new cases has declined from 470 in 2004-05 to just 40 in 2024-25. The number of open cases has also fallen in recent years. I think pretty much all the questions from the hon. Member for Solihull West and Shirley and the shadow Minister are addressed by that point. We are talking here about small numbers, so the cost would be relatively minor.
Dr Evans
That is a staggering drop in numbers. Is there a reason behind it? Is it that the burden of proof was always put on the patient, so they did not feel that they were in a position to do something? If we are inverting that, does the Minister expect the numbers to go back up?
Stephen Kinnock
I do not have any data to suggest that the numbers will go back up. That relates to the question that the hon. Member for Solihull West and Shirley asked about having a statutory review. We will be vigilant. As with all the changes in the Bill, we will closely monitor implementation and impact. That goes right across the board and, hopefully, addresses the Member’s questions.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clause 49
Removal of police stations and prisons as places of safety
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
Police stations are not appropriate places to hold people in need of mental health treatment. The Mental Health Act 1983 (Places of Safety) Regulations 2017 amended the 1983 Act to set a high threshold for using police stations as places of safety. Uses have reduced from over 8,000 in 2012-13 to just 322 in 2023-24 across England and Wales. While that number is mercifully low, the Bill will, under the principles of therapeutic benefit, end the use of police cells as places of safety. Instead, when police exercise powers to remove a person from a public space or private premises for the purpose of a mental health assessment, they will take them to a suitable place of safety, such as a hospital.
Anna Dixon (Shipley) (Lab)
I declare an interest: my sister practises as a psychiatrist within the NHS, as the Minister knows. She has seen the important shift away from the use of police stations as places of safety and towards making sure that all patients have access to a place of safety in a healthcare setting. I know from my local police that, while they do their best to support people in distress in a police station, it is not the right place. This is the right thing to do, and I support the Government’s move.
Stephen Kinnock
I ask my hon. Friend to pass on our thanks to her sister for the vital work that she does in what I know can often be a challenging environment—we appreciate it. My hon. Friend is absolutely right that this is an important principle. There has been a remarkable drop in the use of police cells, which is to be warmly welcomed. We think that now is the time to make it clear, on the face of the Bill, that a police cell is not an appropriate place for these purposes.
The clause’s amendment to sections 135 and 136 of the Mental Health Act will not change the police’s ability to intervene when someone is in a mental health crisis, nor their ability to detain someone in a cell when exercising their powers in relation to criminal, or suspected criminal, activity. The clause will prevent courts from temporarily detaining people with severe mental illness in prison as a place of safety while they are waiting to access a bed for treatment or assessment under the Mental Health Act. Under the reforms, a defendant or convicted person who meets the criteria for detention under the Mental Health Act for treatment or assessment must be transferred directly to hospital, or, in the case of children, to a hospital, surgery, community home or other place that the court considers suitable, ensuring that they receive swifter access to the care they need. I commend the clause to the Committee.
Dr Shastri-Hurst
You will be pleased to know that I will be briefer this time, Mrs Harris; I want to leave room for my Opposition colleagues. The intent of the clause is entirely sound: to treat mental health as a health issue, not a criminal one. However, the capacity of NHS services to provide timely and suitable alternatives remains in question.
With that in mind, I have three questions that I hope the Minister will be able to address. First, will the Government commit to publishing the implementation plan for ensuring adequate numbers of health-based places of safety across regions before the clause comes into force? Secondly, what contingency measures are currently in place or foreseen if no place of safety is available and police powers have been limited? Thirdly, can the Minister commit to an annual publication of data on hospital-based places of safety, their capacity and their use?
Dr Evans
As we have heard, the proposals set out to remove police stations and prisons as places of safety. It does this in both relation to people detained under civil powers—sections 135 and 136—and in respect of certain part III patients involved in the criminal justice system, who may currently be held in such settings when a hospital bed is not available. The Government’s explanatory notes describe the rationale clearly:
“This is in response to evidence that suggests these settings are not suitable environments for individuals with a severe mental health, in crisis, awaiting assessment and treatment.”
As we have discussed in some of the earlier clauses, it is not just treatment, but the environment that plays a part in helping harbour a holistic care approach, so this is very much welcome. To that end, the Opposition can agree on this position in principle. A police station or prison cell is no place for someone with acute mental distress. They are not therapeutic environments; they can be frightening, disorientating and, in some cases, re-traumatising, particularly for children and young people. The clause aims to remove that contradiction in the law.
As the law stands, when police officers encounter someone in a public place who appears to be suffering from a mental disorder and is in immediate need of care or control, they can detain them under section 136 and take them to a place of safety. Under section 135, a magistrate can issue a warrant to remove a person from their home or another place to a place of safety. Currently, that place of safety includes a police station, although section 136A limits that to exceptional circumstances—for example, when the individual poses an imminent risk of serious injury to themselves. Similarly, under part III of the Act, a person appearing before a criminal court can be held in a place of safety, which can currently include a police station or prison, pending hospital admission.
Clause 49 will remove that. It amends section 55 to redefine “place of safety” and exclude police stations and prisons. It alters section 35, repeals section 136A, which has previously allowed police stations to be used in limited situations, and retains transitional protections for individuals already detained under early directions before the clause comes into place. That is a bold and principled legislative step, and I acknowledge that it builds on progress under the last Government. The 2017 Conservative Government, following public outcry and recommendations from the Care Quality Commission and the Wessely review, pledged to eliminate police cells as a place of safety for children. Since then, the numbers of such detentions have significantly decreased. Data from NHS Digital shows a downward trend in the use of police stations under section 136, which is evidence that change is possible with the right investment and inter-agency collaboration. That work deserves credit, so I thank the Minister for that.
Clause 49 must not only move the law forward, but ensure that the practice can be followed. I therefore want to raise a number of questions, which I hope the Minister will take in good faith. The classic one is “Where would people go instead?” The explanatory notes are right to say that hospitals and healthcare-based settings are more appropriate, but do those settings exist in sufficient numbers, with trained staff, beds and security protocols to receive safely all those who would otherwise have been taken to police stations? If they do not, we risk creating a gap between the law and the real world—a dangerous vacuum, whereby someone in crisis may end up in an ambulance bay, in a police car or in a general A&E without specialist support. It could have wider impact on the safety of not only the individual patient suffering, but other patients in healthcare settings such as A&E, interacting with an acutely ill mental patient. Without proper capacity, we risk many more police officers having to be at health settings to keep the mental unwell patients safe from themselves and others.
I appreciate that the Government have said that it will take 10 years to implement the Bill fully, but this clause will come into force immediately. What assurances can the Government give that there will be not only capacity, but capacity in the right places, so that, for example, people are not transferred to other areas of the country to ensure that the legal requirement is met? Although it is welcome not to be in a police station, being miles from family and support circles would be just as detrimental.
What provisions are being made for children and young people? The clause rightly states that for minors, the place of safety must now comply with the Children and Young Persons Act 1933, but excluding police stations. Are there sufficient CAMHS—child and adolescent mental health services—crisis beds and child-friendly places of safety in each region? What guarantees are there that children will not end up in adult settings, or worse, in informal or unlawful detention?
I turn to the transitional support given to the police. Officers may no longer be able to use their custody suites, but what training, resources and alternative pathways are being made? What happens in the middle of the night in a rural police force, where there is no mental health professional on call and the nearest hospital bed is 80 miles away? How would the Government monitor performance? Will the Government commit to publishing annual data on delays in finding a place of safety, the use of inappropriate settings post reform, and outcomes for those detained under sections 135 and 136? Will the CQC or another body be tasked with auditing local compliance?
Clause 49 reflects a consensus that mental healthcare belongs in health settings, not custodial ones. I urge the Minister to answer the questions in the good faith in which they were asked, because we all want to see this become a reality.
Stephen Kinnock
I think it is probably right to say that the questions asked by the hon. Members for Solihull West and Shirley and for Chester South and Eddisbury and the shadow Minister basically all relate to building capacity to ensure that we are ready to absorb this change. We have committed to lay an annual report on implementation, which will set out progress made and future plans for implementation. We are working closely with the Home Office, the police and NHS England to better understand the implementation requirement for switching on this change. There is considerable variation across the country in the way in which police stations are being used, so there is a need to target support.
I would add that the number and shape of dedicated health-based places of safety that are needed in a local authority will depend on the mental health needs of that population and the wider mental health crisis pathway provision. We are taking steps to ensure that people in crisis receive support and treatment sooner, so that fewer people need to be taken to a place of safety. It is worth noting that the Government have hit the ground running on this issue since we came into office last July. We are committing £26 million in capital investment to open new mental health crisis centres, which will aim to provide accessible and responsive care for individuals in mental health crisis.
Evidence from systems with established crisis centres indicates that they can help to streamline urgent mental health care pathways and reduce unnecessary conveyance to A&E by ambulance, health-based transport or the police. We have also selected six areas to trial a new approach to mental health support by providing 24-hour neighbourhood mental health centres, seven days a week, bringing together all aspects of community mental health services.
Dr Evans
The Minister has partially answered my question. He talked about the £26 million investment being targeted at certain areas of the country, but will that be based on the areas of highest priority? The danger is that if the highest priorities are all in the north, the south will be left out.
Stephen Kinnock
We have selected six areas, but off the cuff I cannot tell the shadow Minister exactly what they are or whether they have been announced yet. If they have not been announced, I will not be able to tell him, but if they have been, of course I can share that information. I suspect that the areas will primarily be based on assessed need, but they are trial pilots, so there is no reason to suspect that they will be limited to six. Let us see how much traction they get.
Question put and agreed to.
Clause 49 accordingly ordered to stand part of the Bill
Clause 50
Removal of patients by authorised persons
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
We have previously discussed Government amendments 26 to 29, which seek to overturn amendments tabled in the other place by Lord Kamall, Earl Howe and Baroness May, which added police and other authorised persons to sections 2, 3 and 5 of the Mental Health Act. As I said in the earlier debate, the police currently have no powers under those sections, and the decision makers on whether to use those sections are health and social care professionals. We do not support extending police powers to health and social care professionals in this way, and the police do not support such an extension either. We are therefore seeking to remove clause 50 from the Bill.
The clause extends legal powers currently held by the police under sections 135 and 136 to other professionals. That would enable other professionals to enter premises by force, if necessary, to remove a person believed to be suffering from a mental health disorder under section 135. Under section 136, other professionals would have the power to remove a person from a public space to a place of safety. Both those changes would represent a major shift in roles and responsibilities for health and care professionals.
Indeed, the co-chair of the approved mental health professional leads network has said that extending police powers in this way to health and care professionals would have
“disastrous unintended consequences for both individuals in crisis and those responding to mental health emergencies.”
Nine organisations, including the Royal College of Psychiatrists, the Royal College of Nursing, the Royal College of Emergency Medicine and the Association of Ambulance Chief Executives, have made a joint statement of concern about extending police powers to health and care professionals in this way.
Anna Dixon
It is clear from what the Minister is saying that there are widespread concerns among health professionals about the change that was proposed in the other place, which would effectively give police powers to health and care professionals. Can he reassure psychiatrists such as my sister, and others working in mental health services, that they will always be able to rely on and work closely with their police colleagues to have that back-up when they are entering somebody’s home to potentially detain them?
Stephen Kinnock
I absolutely can give my hon. Friend that assurance. There has to be a team-based approach to this work. In any successful team, it is about ensuring that everybody knows their role and that everybody’s role within that team is appropriate. There has to be good collaboration and co-ordination.
That is why I must say that I am quite taken aback by the attempts in the other place to insert these clauses; I do not think that is a safe way to make legislation. That is why it is so important that we remove the clause from the Bill.
The statement that I referred to earlier, by all those eminent organisations, called it a
“radical proposal with a number of serious and potentially dangerous consequences”.
It also says:
“Delegating police powers to professionals without consulting them, or patients would be a very damaging way to make policy.”
It is important to restate what I said in an earlier sitting, namely that the majority of assessments under the Mental Health Act happen without police involvement, and that action is already under way to further reduce the amount of police involvement. However, we of course recognise the pressures that the police are facing and that police involvement can be stigmatising for people who are detained. Almost all police forces in England and Wales are implementing the “right care, right person” approach, a police-led initiative to reduce inappropriate police involvement in cases where people have health or social care needs. There has already been a 10% decrease in section 136 detentions in the year ending March 2024.
There remain certain circumstances in which the police play a vital role in keeping particular people and the wider public safe. A blanket approach of extending powers in sections 135 and 136 to other professionals may not necessarily address the issues being faced by police officers and could create other unintended challenges. For example, while the current Act deliberately sets out who has what powers in what situations, a blanket extension of the police’s powers under sections 135 and 136 to other professionals—giving multiple agencies the same powers—risks confusion over who should respond in an emergency situation and could lead to delays in action as services try to decide who should act. That would be counter to our shared aim of ensuring that people in a mental health crisis get the right support as rapidly as possible.
We are also concerned that giving health and social care staff statutory powers that increase the number of situations in which they may have to use reasonable force could have unintended risks for the safety of staff, patients and the public.
Dr Shastri-Hurst
I rise to speak briefly to clause 50, which expands the authority to remove individuals under Mental Health Act powers by allowing trained and authorised non-police personnel to carry out removals that previously could be carried out only by police constables. A couple of key changes arise from the clause.
First, the clause provides for the inclusion of authorised persons by amending sections 135 and 136 of the 1983 Act. That will allow individuals other than police officers, if they are authorised—“authorised” is the important word—to remove and transport people under Mental Health Act powers. That provides wider operational flexibility, and includes removals under warrant, by virtue of section 135, and without a warrant in public places. It is predicated on the fact that those authorised persons are appropriately trained and designated. Prior to the clause being inserted into the Bill, only police officers could carry out removals.
Stephen Kinnock
Extending the police powers in section 135 and 136 to other authorised persons would represent a major shift in the roles and responsibilities of health and social care professionals. Our key health and social care stakeholders have warned us that extending the powers could have dangerous consequences, and that making changes to them without proper consultation is not the right way to go about making policy. I again extend my thanks to those stakeholders for their efforts to share their views on the role of police in mental health-related incidents.
We of course recognise the pressures that police face. However, I must emphasise that the majority of assessment under the Mental Health Act already happen without police involvement. Action under the “right care, right person” approach is already reducing that further: there was a 10% decrease in section 136 detentions in the year ending March 2024.
Simply taking the blanket approach of extending the powers may not actually address the issues the police face and could have unintended negative consequences, such as risks for staff, patients and the public, and delays in response. The Government are profoundly concerned about making such a change without proper engagement with the groups that would be impacted. I therefore do not commend clause 50 to the Committee.
Question put, That the clause stand part of the Bill.
Stephen Kinnock
Clause 51 will reform the Bail Act 1976 to prevent courts from remanding a defendant for their own protection where the only concern relates to their mental health.In response to the independent review, a commitment was made to end the use of prison as a place of safety. Those reforms were welcomed, but concerns were raised about the use of a similar power under the Bail Act 1976 to remand a defendant to prison for their “own protection”. That power can sometimes be used when the court is concerned that the defendant’s mental health presents a risk to their own safety.
Nobody should be sent to prison because they are struggling with their mental health, so the clause will amend the Bail Act to prevent the remand of a defendant for their own protection solely on mental health grounds. Instead, courts will be directed to bail the defendant and work with local health services to put in place appropriate support and care to address risks to their safety.
The clause does not amend the court’s power to refuse bail in respect of a child or young person for their own welfare, because it is already the case that youths cannot be subject to a custodial remand solely for mental health reasons. However, in exceptional circumstances it may still be necessary for a court to remand a child to local authority accommodation for their mental wellbeing, and for that reason the power is preserved.
On clause 52, patients from the Crown dependencies—the Channel Islands and the Isle of Man—currently cannot be transferred to England and Wales under sections 35, 36 and 38 of the Mental Health Act. The clause will introduce new powers to enable the Crown dependencies’ courts to send patients who are subject to their equivalent of remand under sections 35 or 36, or an interim hospital order under section 38, to suitably secure hospitals in England and Wales for treatment and assessment. The changes will ensure that that vulnerable cohort of patients can receive appropriate and secure treatment in England and Wales, while enabling the Crown dependencies’ courts to maintain control of the criminal proceedings, so that justice can be done swiftly and efficiently.
Finally, clause 53 will ensure that where provisions in the Mental Health Act provide for the processing of personal data, any such processing, including the sharing of data, is subject to data protection legislation, including the Data Protection Act 2018 and the UK general data protection regulation principles. For example, personal data—including special category data such as health data—is likely to be contained in a report produced under clause 4, which inserts clauses specific to people with a learning disability and autistic people, so that their care, treatment and differing support needs are identified, and recommendations are made to ensure that those needs can be met. That report will be shared with the bodies set out in the clause, including the patient’s responsible clinician, the relevant integrated care board and the local authority.
Clause 53 will ensure that such processing of personal data must comply with the controls and safeguards in the legal framework that governs the use of personal data. That includes compliance with key principles such as lawfulness and fairness, and adherence to high standards of information security, privacy and transparency.
In essence, the provision means that where there is a duty or power under the Mental Health Act to process personal data, the processing—including the sharing—of the information must be done in a way that will not contravene data protection legislation, including the UK GDPR and the Data Protection Act 2018. In turn, among other things, that requires personal data to be processed lawfully, fairly and transparently, and confers certain rights on data subjects to access that data and have any errors rectified. That gives vital reassurance to patients about the processing of their personal data under the Mental Health Act. For those reasons, I commend clauses 51 to 53 to the Committee.
Dr Shastri-Hurst
I ask for a series of clarifications from the Minister about all three clauses. On clause 51, how will the courts be supported in identifying community-based alternatives to remand? What training or guidance will be provided to judges in applying the provisions effectively? What assurances can the Minister give that support pathways will be available before and after the changes have taken effect?
I accept that clause 52 is a technical a change to the legislation, but it is an important clarification none the less. It will require some robust co-ordination between jurisdictions and clearer procedural safeguards. How will the Government monitor the implementation of proposed new schedule A2 to ensure that patients’ rights are preserved during transfers? Will guidance be issued to courts and practitioners in the UK and the Crown dependencies about the new procedures, particularly their cross-jurisdictional nature? What consultation has taken place, and will continue to take place, with authorities in Jersey, Guernsey and the Isle of Man before the measures are implemented in law?
Finally, I recognise that clause 53 is arguably a sensible safeguard. The challenge will be to ensure compliance on the frontline, especially where legal duties to share information and duties to protect confidentiality can butt against some degree of tension. With that in mind, what support or training will be given to health and care professionals to navigate overlapping legal duties? Will the Minister publish sector-specific guidance on data sharing as a consequence of the Bill? How will the Government assess whether the legal framework strikes the right balance between patient safety and privacy?
Stephen Kinnock
The hon. Member for Solihull West and Shirley asked how the courts would be supported in training for judges and so on. To safely enact that reform, it is vital that the appropriate pathways are in place from first contact with the criminal justice system into the right care and support, whether that is community mental health services or receiving treatment in hospital under the Mental Health Act, where appropriate. We will work with courts, health service commissioners and clinicians to ensure that sentencers have the confidence to bail vulnerable defendants into the community, with the appropriate package of support and smooth pathways into treatment in a healthcare setting for those who need it. We will confirm the timelines for commencement in due course.
The shadow Minister, the hon. Member for Hinckley and Bosworth, asked about people who are under 18. Custody should be a last resort for children, and the legislative threshold for remanding a child to custody is already very high. Under-18s are not included in this provision, as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 already precludes the remand of children to custody solely for mental health reasons. When the court’s concerns relate only to the child’s welfare, the preferred option would usually be bail. In exceptional circumstances, a court might remand a child to local authority accommodation, such as a children’s home or foster care, for their own mental wellbeing. Including children in this provision would remove that important safeguard.
On the question of legal limbo, courts in England and Wales will not be able to exercise any criminal jurisdictional powers in relation to these patients. Their powers are restricted to renewal of the remand or interim order, ancillary powers and recommendations for the patient’s return, as well as obligations to inform the Secretary of State. We have included additional provisions in the Bill to allow courts in England and Wales to order a section 36 for treatment for a patient who has previously been transferred from the Crown dependencies on the equivalent of a section 35 for assessment. That is aimed at enabling access to treatment for the patient and preventing the need for the patient to be required to travel back and forth between jurisdictions.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clauses 52 and 53 ordered to stand part of the Bill.
Clause 54
Review of duty to notify incidents
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
New clause 12—Age-appropriate treatment for children—
“(1) Section 131A of the Mental Health Act 1983 is amended as follows.
(2) After subsection (1), insert—
‘(1A) A patient to whom this section applies must not be detained in, or admitted to, an adult ward unless the managers of the hospital consider that—
(a) there are exceptional circumstances which justify the patient’s detention in, or admission to, an adult ward; and
(b) the decision is in accordance with the best interests of the child.’
(3) After subsection (3) insert—
‘(3A) Where a patient has been detained in, or admitted to, an adult ward, the managers of the hospital must record in writing the reasons for the admission, including—
(a) the reason, or reasons, why other options for accommodation were not available or suitable for the patient;
(b) details of the measures to be taken by the hospital to ensure that, while the patient is detained or otherwise accommodated in the adult ward, the patient is provided with care in a safe environment; and
(c) unless it has been determined that an adult ward is the most appropriate environment for the patient in accordance with subsection (1A), the steps being taken by the hospital to transfer the patient to more appropriate accommodation.
(3B) Where a patient to whom this section applies is—
(a) detained in, or admitted to, an adult ward or placed out of area; and
(b) the detention or admission is of more than 24 consecutive hours’ duration,
the managers of the hospital must notify the regulatory authority immediately, setting out why they consider that the requirements under subsection (1A) above are met and providing the information set out in subsection (3A).
(3C) Subsection (3D) applies when—
(a) the managers of a hospital accommodate a patient to whom this section applies in an adult ward for a consecutive period of at least 28 days; or
(b) detain or admit a patient to whom this section applies who—
(i) was ordinarily resident immediately before being detained or admitted in the area of a local authority other than the local authority within whose area the hospital is situated, or
(ii) was not ordinarily resident within the area of any local authority.
(3D) Where this subsection applies, the managers of the hospital must immediately inform the appropriate officer of the responsible local authority—
(a) of the patient's detention or admission, and
(b) when the patient's detention or admission ceases.’
(4) Leave out subsection (4) and insert—
‘(4) In this section—
(a) “adult ward” means a ward in a hospital to which persons aged 18 or over are detained in or admitted to;
(b) “the appropriate officer” means—
(i) in relation to a local authority in England, their director of children's services, and
(ii) in relation to a local authority in Wales, their director of social services;
(c) “hospital” includes a registered establishment; and
(d) “the responsible authority” means—
(i) the local authority appearing to the managers of the hospital to be the authority within whose area the child was ordinarily resident immediately before being detained or admitted, or
(ii) where it appears to the managers of the hospital that the patient was not ordinarily resident within the area of any local authority, the local authority within whose area the hospital is situated.’”
This new clause seeks to ensure that children are only placed on adult wards where there are exceptional circumstances, and it is in their best interests. It includes procedural safeguards for determining the reasons behind (and suitability of) admitting a child to a hospital environment in which adults are simultaneously accommodated or in an out of area placement.
New clause 17—Children detained on adult wards—
“(1) The Mental Health Act 1983 is amended as follows.
(2) After section 131A (Accommodation, etc. for children), insert—
‘131B Children detained on adult wards
(1) The Secretary of State must reduce to zero, within five years of the passage of the Mental Health Act 2025, the number of children detained on adult wards.
(2) The Secretary of State must publish, within six months of the passage of the Mental Health Act 2025, a report to outline how the duty under this section will be met, including how provision for treatment under this Act will be increased.’”
This new clause would require the number of children detained on adult wards to be reduced to zero within 5 years, and for the Secretary of State to produce a report on how this will be achieved.
New clause 20—Report and Guidance: Transition to Adult Mental Health Treatment—
“(1) The Secretary of State must, within 18 months of passing of this Act, prepare and lay before Parliament a report on improving provision for patients transitioning from treatment in a hospital environment for children and young people to one for adults when they attain the age of 18.
(2) The report under subsection (1) must include an assessment of—
(a) the current pathways and outcomes for young people transitioning between hospital environments for children and for adults;
(b) any gaps in care or support experienced by patients during this transition;
(c) best practices for ensuring safe and effective transitions.
(3) Following the report under subsection (1), the Secretary of State must publish guidance for integrated care boards, local authorities, and providers of mental health treatment on improving outcomes and ensuring continuity of care for patients transitioning to a hospital environment for adults.
(4) The guidance under subsection (3) must include—
(a) specific steps to guarantee continuity of care for patients transitioning between treatment in a hospital environment for children and young people and one for adults;
(b) measures to identify young people requiring transition support at an appropriate stage;
(c) provisions for joint working and information sharing between providers of treatment for children and young people and for adults;
(d) requirements for the review and updating of care and treatment plans to reflect the needs of patients transitioning to a hospital environment for adults.
(5) Integrated care boards, local authorities, and providers of mental health treatment must have regard to guidance published under subsection (3).
(6) In preparing the report under subsection (1) and the guidance under subsection (3), the Secretary of State must consult—
(a) young people with experience of transitioning between children and young people’s and adult mental health services, and their carers and guardians;
(b) relevant professional bodies;
(c) integrated care boards;
(d) local authorities;
(e) providers of mental health treatment;
(f) such other persons as the Secretary of State considers appropriate.
(7) The Secretary of State must update the guidance under subsection (3) at regular intervals, and no less frequently than every three years.”
This new clause would require the Secretary of State to review and report on the transition of patients from children's to adult mental health settings for treatment at age 18 and publish guidance for relevant bodies on improving provision and ensuring continuity of care during this transition.
Stephen Kinnock
I rise to speak to clause 54 and to a number of new clauses relating to the treatment of children and young people.
I turn first to clause 54. The Care Quality Commission (Registration) Regulations 2009 require the CQC to be notified of specified events, one of which is where a child is placed in an adult psychiatric unit and the placement has lasted more than 48 hours. When the CQC is notified, the circumstances are reviewed and the risk is assessed. These notifications can trigger further assessments and inspections, and require the trust to provide regular updates and give assurance that the children concerned are being safeguarded.
Dr Shastri-Hurst
You will be disappointed to know, Mrs Harris, that the notable contributions from my hon. Friends the Members for Chester South and Eddisbury and for Farnham and Bordon mean that my contribution will be even briefer than usual. [Interruption.] Rapturous support across the Committee—exactly the consensus-building that we are seeking to achieve.
I rise to speak in support of new clause 12. It necessarily addresses the inappropriate placement of children on adult wards, which is not just distressing but deeply damaging to those involved. The issue is about having child-centred safeguards. It is essential that we ensure that children under 18 are placed on adult wards only when it is absolutely necessary and there is no alternative. The new clause would not only support best practice—it aligns with clinical guidelines on age-appropriate care—but provide welcome legal clarity. It would strengthen and clarify the existing provisions within the Mental Health Act. For those reasons, I encourage all hon. Members to support it.
On clause 54, the Minister would be disappointed if I did not put a couple of questions to him.
Dr Shastri-Hurst
That is an invitation that I will remember as we go on in this Committee. On this occasion, I have just two questions. First, will any interim guidance be issued while the review is ongoing? Secondly, can the Minister commit that the consultation will be undertaken on a wide basis, and include patient advocates, child psychologists and safeguarding boards?
Because I cannot count, I will add a third question: did the Government consider an alternative to a two-year review period, either through an immediate extension of regulation 18 or perhaps a shorter period, so that these important changes can be put in place without delay?
Stephen Kinnock
The hon. Member for Guildford asked about timelines. There is the timeline for the review on the face of the Bill, and then there is the broader question about implementation and how all the moving parts fit together. We have now had the spending review, which will provide a financial envelope for mental health more broadly, and for implementation of the Bill. We will be ready to move forward with implementation on that basis, which will include the code of practice.
My hon. Friend the Member for Hertford and Stortford asked about a time limit for notification. It is already a legislative requirement for the CQC to be notified when a child or young person is placed on an adult ward for a continuous period of longer than 48 hours. In addition, the previous Government assessed that the current requirement of 48 hours was sufficient. As part of the review that is mentioned on the face of the Bill, we will consider whether that remains the case for receiving notifications, and whether it remains appropriate.
My hon. Friend also asked about further safeguards for children and young people, including those in inappropriate settings. Obviously, the placement of a child or young person on an adult mental health ward only happens following a thorough clinical assessment. Trusts are required to have robust local safeguarding protocols in place, including mandatory staff training on safeguarding and incident-reporting mechanisms, to ensure accountability and oversight. Staff are appropriately trained in child and adolescent mental health care, and they must meet level 3 competency in safeguarding children.
The hon. Member for Farnham and Bordon asked about data. The CQC already publishes “Monitoring the Mental Health Act”, a statutory annual report that must be laid before Parliament, in which it reports on the number of people under 18 who are admitted to adult wards. Additionally, it reports qualitative information on placements for children and young people, such as placements on children’s general wards. I hope that I have addressed that point.
Stephen Kinnock
The new clause takes forward a commitment made in the Lords by Baroness Merron to address issues relating to the unequal application of the Human Rights Act 1998 for some mental health patients. Sadly, this issue was highlighted following the death of Paul Sammut. I extend my deepest condolences to his family.
We now wish to take action to ensure a more equal application of the Human Rights Act, with the aim of extending its protection to certain mental health patients. Under this amendment, private providers will be taken to be exercising a function of a public nature for the purposes of section 6(3)(b) of the Human Rights Act when they are carrying out certain services and when those services are arranged and/or paid for by either local authorities or the NHS. Those functions are section 117 aftercare; services provided in pursuance of arrangements made by a local authority in Scotland, discharging its duty under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003; and in-patient treatment and assessment for mental disorder, whether or not a patient is detained under the Mental Health Act.
When carrying out those services, private providers will be required to act compatibly with the convention rights set out in the Human Rights Act. Many patients in private facilities already have those protections. Private providers are already taken to be exercising a function of a public nature for the purposes of section 6(3)(b) of the Human Rights Act when caring for patients detained under the Mental Health Act or providing care for patients due to the effect of section 73 of the Care Act 2014. The new clause seeks to extend those protections to other mental health patients in private provision, where care is arranged and/or paid for by the NHS or a local authority. As the new clause is a modification of the Human Rights Act, this is a reserved matter and the amendment will therefore apply in all four nations.
Government amendments 37 and 38 are minor technical amendments to the Bill’s extent provision in clause 57 to ensure that our amendment—new clause 10—relating to the Human Rights Act extends UK-wide. The Human Rights Act, which the new clause 10 seeks to modify, extends UK-wide. The amendments are therefore necessary to ensure that the same Human Rights Act protections extend to all four nations. I hope that hon. Members feel able to support the amendments.
Dr Evans
I welcome the opportunity to speak on these important provisions, which apply the Human Rights Act 1998 to certain private care providers delivering mental health services. At present, the Human Rights Act applies directly to public authorities and to those exercising functions of a public nature. However, an increasing proportion of mental health care and aftercare services are delivered by private providers, under arrangement with NHS bodies and local authorities. The current legislation leaves some ambiguity about whether private providers are legally bound to comply with the Human Rights Act when delivering such services. That creates a potential accountability gap that risks undermining the protections that we want to guarantee to vulnerable patients.
The Government’s proposal to explicitly extend the application of the Human Rights Act to registered private care providers when they deliver specific services commissioned or paid for by public authorities is a welcome step towards closing the gap. By doing so, it will ensure that these providers are treated as performing public functions under section 6 of the Act. That means that they will be directly accountable for upholding the rights enshrined in the Human Rights Act, including the rights to liberty, dignity, privacy and freedom from inhuman or degrading treatment.
This approach is not without precedent. For example, in the case of prison outsourcing, courts have established that private companies running prisons are subject to the Human Rights Act because they perform public functions. Similarly, private care providers delivering publicly funded mental health services should be held to the same standard as NHS bodies or local authorities.
It is worth noting that although this explicit statutory extension of the Human Rights Act to private providers is a new provision in the Mental Health Act 1983 for England and Wales, similar principles already apply in Scotland through case law and existing legislation. Under the Mental Health (Care and Treatment) (Scotland) Act 2003, local authorities have a statutory duty to provide aftercare services, which may be delivered by private providers. Scottish courts recognise that when private providers perform public functions, such as delivering those statutory services, they are subject to the Human Rights Act, following key judgments such as YL v. Birmingham City Council.
This Government proposal provides much-needed clarity and an explicit statutory footing across all four nations of the UK. It also ensures consistency across the four nations, referencing equivalent legislation in Scotland, Wales and Northern Ireland. This helps to remove ambiguity and ensure consistency. However, we must also consider the practical impact. Although these changes strengthen rights and protections, they also increase the regulatory burden on private providers. Providers may face new compliance costs, legal challenges and the need for enhanced training and oversight. That could have a knock-on effect on service availability, particularly in a market already facing staffing pressures and financial constraints.
The Government should therefore consider how to support providers to meet the new obligations without destabilising service provision. There is also a need to ensure that commissioners and regulators have the necessary resources and powers to monitor and enforce compliance effectively. In that spirit, I will pose some questions to the Minister for clarification and look for reassurance.
How will the Government monitor compliance with the Human Rights Act among private providers, and what enforcement mechanisms will be used? Has there been any consultation with private care providers about the potential operational and financial impacts of this extension, and will the extension apply only to services arranged or paid for by NHS bodies? What protections exist for patients receiving private mental health care outside these arrangements? How do the Government plan to ensure consistency in application across all four nations? Do the Government foresee private provision of mental health-related services expanding? If so, by how much?
I agree that the final two amendments look like two small consequential amendments that clarify and ensure that the human rights extension applies equally across England and Wales, Scotland and Northern Ireland. The insertion of “subject to subsection (2)” appears to be technical. I would just welcome confirmation from the Minister that it will not inadvertently limit the scope of the new protections. Otherwise, Opposition Members will support them.
Stephen Kinnock
I thank the shadow Minister for those questions. I will have to get back to him in writing, because the questions that he asks obviously have an important legal dimension, and it was physically impossible to get the information in the time between his sitting down and my standing up to speak. I am not a human rights lawyer either, so it is best if I write to him on those points.
Question put and agreed to.
New clause 10 accordingly read a Second time, and added to the Bill.
Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)
Mental Health Bill [ Lords ] (Seventh sitting)
Stephen Kinnock ExcerptsThursday 19th June 2025
(1 day, 23 hours ago)
Public Bill CommitteesRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 June 2025 - (19 Jun 2025)
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.
Gregory Stafford (Farnham and Bordon) (Con)
It is a pleasure to serve under your chairmanship, Sir Desmond. You and the Committee will be pleased to know that my hon. Friends have made most of the points I wanted to flag.
In poll after poll and survey after survey, patients feel they do not get information in a timely and constructive way. Our amendment 46 would give patients a stronger say in their future care if they lose capacity. It clarifies that patients must be given clear, proactive support to understand, prepare and use the documents. It is about ensuring that advance choice documents are not just theoretical paperwork, but living, respected statements of a patient’s wishes.
I therefore support the clause and the amendment, and I ask the Minister three questions. How will NHS England and local integrated care boards ensure that commissioners are trained to respect and use ACDs in practice, especially in emergencies? Secondly, what oversight will ensure that ACDs are not simply ignored at the bedside, when a patient is most vulnerable? Will the Government consider a review mechanism so that we can assess how well ACDs are working in a few years’ time, after the Bill is passed?
I turn briefly to Liberal Democrat amendment 18. Like other hon. Members, I feel that the inclusion of financial information in an ACD is not appropriate, both from a practical and a personal security, safety and information point of view. I do, however, completely support the hon. Member for Winchester’s overall view that there is a significant problem with how financial stress can affect a person’s mental health. Like him, I call on the Minister to think about how we as a country, whether in this Bill or somewhere else, can address the impact of financial stress on mental health.
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.
The Chair
With this it will be convenient to discuss the following:
Clause 47 stand part.
New clause 21—Duty to provide advice and support to families and carers—
“(1) The Mental Health Act 1983 is amended as follows.
(2) After section 117B, insert—
‘117C After-care: provision of support and advice to families and carers
(1) The responsible integrated care board must ensure that, as part of the provision of after-care services under section 117 of this Act, advice and support is offered to the family or carers of the person discharged.
(2) This support must include—
(a) information about the person’s condition and recovery;
(b) guidance on how to support their recovery at home and avoid relapse;
(c) access to financial, housing, and social care advice services relevant to the situation of the person’s family; and
(d) procedures for family members or nominated persons to notify the integrated care board of concerns that the person is at future risk of detention under Part 2 of this Act.
(3) Where a concern is raised under subsection (2)(d), the integrated care board must—
(a) consider whether the individual meets criteria to be included on the register of persons at risk under section 125D of this Act; and
(b) take reasonable steps to involve the family or nominated person in planning of subsequent support, subject to—
(i) the person’s consent; or
(ii) if they lack capacity, the person’s best interests.
(4) The Secretary of State must publish guidance under section 125B of this Act on the format and provision of support under subsection (3)(b).’”
This new clause would require the integrated care board, as part of the aftercare services offered under the Mental Health Act 1982, to offer support and advice to the family or carers of the person being discharged from treatment.
Stephen Kinnock
I will set out the details of two important clauses relating to aftercare. Clause 46 will provide the tribunal with an important new power to recommend that plans for aftercare arrangements are undertaken for patients who are not yet ready to be discharged from hospital. Under the Mental Health Act, the tribunal can make decisions about discharge, but it does not have a role in recommending aftercare while a patient remains detained. Giving the tribunal the power to make recommendations that aftercare planning should take place will encourage earlier planning for a patient’s eventual discharge from hospital.
Those recommendations are particularly important for complex cases in which patients may require intensive support following their discharge. Early aftercare planning ensures that the necessary health and social care services are co-ordinated and in place when the patient is ready to leave the hospital. This will help to reduce the likelihood of delayed discharges or failed transitions back into the community.
Although the tribunal’s recommendations are not legally binding, they are intended to carry significant weight with aftercare providers. If recommendations are not taken forward, the tribunal retains the power to review the patient’s case. That will ensure that there is both encouragement and accountability in the aftercare planning process, enhancing patient outcomes by making sure that care is appropriately planned and delivered.
The clause will strengthen the role of tribunals in overseeing the care and treatment of patients under the Mental Health Act, ensuring that a patient’s needs are addressed holistically and in a timely manner. By encouraging earlier and more co-ordinated aftercare planning, we will reduce the risk of patients being discharged without the necessary support in place, leading to better overall patient outcomes and smoother transitions from hospital to community care.
David Burton-Sampson (Southend West and Leigh) (Lab)
It is a pleasure to serve under your chairship, Sir Desmond. Again, I reflect on stories that I have heard from local constituents on the issues that are being addressed in the Lampard inquiry. Does the Minister agree that these provisions will help to avoid the too early discharges that have led people either to go back into care or to get into even more difficult situations? One of my constituents ended up taking his own life because he was discharged too early from care.
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.
Statutory Learning Disability and Autism Training
Stephen Kinnock Excerpts(1 day, 23 hours ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Care (Stephen Kinnock)
Today I am pleased to lay in Parliament the Oliver McGowan draft code of practice on statutory learning disability and autism training. The launch of this code represents a significant moment in the journey towards improving the care and treatment of people with a learning disability and autistic people. With its clear focus on ensuring that people receive tailored and compassionate support, it is especially fitting to be launching this code after recently celebrating World Autism Awareness Day in April and during Learning Disability Week, which this year is focusing on ensuring that people are seen, heard and valued. An easy-read version of the code is also available.
The purpose of the code is to ensure that service providers registered with the Care Quality Commission have the necessary guidance to meet the legal requirement introduced in the Health and Care Act 2022. The effect of the requirement is that, from 1 July 2022, CQC-registered providers are required to ensure that their staff receive training on learning disability and autism, appropriate to their role. To aid those who need to comply with the training requirement, the Secretary of State is obliged by the 2022 Act to issue a code of practice. Therefore, this code sets out the standards that training needs to meet to comply with the legislation and guidance on what providers need to do to meet those standards.
As set out in the code, the Oliver McGowan mandatory training on learning disability and autism is the Government’s preferred and recommended training package to support CQC-registered providers to meet the new requirement. The training is named after Oliver McGowan, a young autistic teenager with a mild learning disability, who very sadly died after having a severe reaction to medication given to him against his and his family’s strong wishes. Oliver’s parents, Paula and Tom McGowan, have tirelessly campaigned for better training for health and care staff to improve understanding of the needs of people with a learning disability or autistic people. The training has been trialled with over 8,000 participants and independently evaluated to ensure that the final package is robust and high quality. A long-term, independent evaluation on its delivery and impact is also now under way.
People with a learning disability and autistic people experience disparities in the quality of care they receive. Research indicates that a lack of understanding and knowledge of learning disability and autism likely contributes to this. This government have set out three big shifts needed to make our health service fit for the future, including shifting from treatment to prevention and from hospitals to communities. Ensuring that health and care staff have the right knowledge and skills to provide informed care for people with a learning disability and autistic people will help to meet these goals and improve health outcomes.
The legislative requirement and the code must be the catalyst for positive cultural change. With them we can help to deliver care and support that is tailored to the person, making sure that staff have the right attitudes, skills and behaviours to support people with a learning disability and autistic people safely, confidently and respectfully.
[HCWS715]
Mental Health Bill [ Lords ] (Sixth sitting)
Stephen Kinnock ExcerptsTuesday 17th June 2025
(3 days, 23 hours ago)
Public Bill CommitteesRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2025 - (17 Jun 2025)
Gregory Stafford
I thank the hon. Lady for her point, but I shall continue in the same vein unless I am told to do otherwise.
Clause 27 will ensure that when community treatment orders are considered, with all the restrictions they bring, the nominated person’s voice must be heard and an objection must be properly countered with evidence. Clause 28 addresses hospital transfers, recognising that being moved to another hospital can uproot fragile support networks and compound distress. By embedding a consultation duty here, too, the Bill will make it harder for patients to be moved arbitrarily or without explanation.
In summary, the clauses and the schedule empower patients, embed transparency and build trust, but they do so through a lens rightly focused on adults—capable, consenting adults who make choices freely. That brings me to my fundamental point: we must be absolutely certain that this approach will not inadvertently erode a bedrock of child protection: that a parent is the default legal protector for their child. For an adult, autonomy means freedom of choice, but for a child, especially one under 16, autonomy must never mean being left alone to navigate a labyrinth of legal forms and healthcare powers without the protection of a parent. That is why I strongly support amendments 54 and 55, which would ensure that for under-16s, parents remain the lawful decision makers and the first safeguard for their child’s welfare.
Let us imagine for a moment a vulnerable 14-year-old who, in the confusion and fear of a psychiatric admission, is persuaded by a well-meaning adult—or, worse, someone with a hidden agenda—to appoint them as the nominated person. That child may be separated from their parents—the very people who know the child best and have a legal duty to care for them—while an outsider gains rights to object to treatment or discharge decisions. Once that nomination is made and witnessed, it carries weight in law and could marginalise the very people who brought that child into the world and have a moral and legal duty to protect them.
This is not just theoretical. We know from real cases in family courts that unscrupulous individuals can exploit vulnerable young people. The risk that the new system could unintentionally open the door to manipulation must be taken seriously. Let us not be naive about how exploitation works: groomers, traffickers and abusers thrive in grey areas of the law; they will find loopholes and drive a coach and horses through them. If we do not make it crystal clear that no child under 16 can override parental responsibility without a court’s explicit order, we risk creating an invitation for abuse.
Can the Minister assure the Committee that no child under 16 will be permitted to override parental responsibility simply by nominating someone else without a full and proper process? Schedule 2 does include fall-back arrangements and eligibility checks, and those are welcome, but unless the law is explicit that only a court can displace a parent’s right to act for their child, those safeguards are not watertight.
Amendment 54 addresses a related area, the notification of incidents. It would require the Secretary of State to review whether the law should be strengthened so that all admissions of children and young people for mental health treatment trigger mandatory incident reporting, and whether the timeframes for that reporting are still appropriate. It would require the Secretary of State to review whether incident reporting requirements are robust enough for all under-18s in mental health settings. Are all incidents of restraint, seclusion, injury or absconding being reported promptly and comprehensively? If not, what must change?
We have seen far too many tragic cases in which harm or abuse in children’s mental health units came to light only after a scandal broke, because the system did not catch it in time. Proper oversight is not an optional extra; it is essential for the trust of families. In my view, a review alone is not enough, so I urge to the Minister to confirm that, if the review finds gaps, the Government will legislate swiftly to close them. In the meantime, what interim steps will be taken to ensure that no child is left unprotected?
Amendment 55 is the final safeguard in this suite of amendments. It would allow the Secretary of State to make consequential amendments to other laws to implement the Bill cleanly. That is good housekeeping, but it must not become a blank cheque. When it comes to parental rights or child safeguarding, no technical tweak should be done behind closed doors by negative procedure; Parliament must approve it in full daylight, on the record. Will the Minister confirm without ambiguity that any consequential amendment that touches on parental powers or child protections will come before both Houses under the affirmative procedure?
To illustrate things in the starkest terms, let me paint one more scenario for this Committee. A 15-year-old girl, already vulnerable, is detained following a self-harm incident. Her parents, distressed but committed, wish to be involved in her care plan and discharge, but in her fragile mental state the child is persuaded by an older friend—perhaps well-meaning, perhaps not—to nominate them instead. That friend, now a legally recognised nominated person, blocks discharge, disagrees with treatment and excludes the parents from updates. The clinicians are caught in a legal tangle. The child is caught in the middle, and the parents must fight in court to reclaim their rightful role. As I said before, that is not a theory; it is the sort of real-life pitfall that sloppy drafting can enable. If we see it coming and fail to stop it, we will have failed as legislators.
I wish to be clear that I support clauses 24 to 28 and schedule 2 because they modernise mental health law for adults in a way that is respectful and empowering. I support amendment 54, because it would strengthen transparency and accountability where children’s lives and safety are at stake. I support amendment 55, because it would keep our statute book coherent, but it must never be misused to erode rights by stealth. Above all, I support the amendments because they ensure that the new nominated person system does not inadvertently weaken the oldest and strongest protection we have, which is the legal responsibility of parents to care for their own child.
I urge this Committee to adopt the clauses, the schedule and amendments 54 and 55 as essential guardrails to ensure that what we pass here is not just legally sound, but morally right. Let us modernise this law and strengthen patient voice, but let us never allow a child to lose their parents’ protection by accident or bureaucratic slip. Let us be in no doubt: when the state removes or limits parental rights, it must do so under the strictest scrutiny of a court of law, with evidence tested and the child’s welfare paramount. A signed piece of paper at a bedside should never be enough. That is the dividing line between a humane, modern health system and one that risks creating new injustices in the name of progress.
I ask the Minister again: will the Government enshrine in this Bill or elsewhere that parents are the legal representatives for under-16s unless a court directs otherwise? Will he guarantee rigorous checks to prevent the manipulation of young minds at their most vulnerable? Will he commit that any necessary changes found by the incident review under amendment 54 would be acted on without delay? I commend this package of reforms to the Committee, and I trust that the Government will listen carefully to these warnings and act to make the legislation watertight.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mrs Harris, not least because I understand you have just returned from New Zealand, where you had duties as the Government’s trade envoy. I thought perhaps we should do a haka in your honour to mark it, but you might rule against that.
Stephen Kinnock
I have no comment on that, and we are not going to divide on it either.
Let me address the questions raised in this morning’s debate. First, I was asked how disputes will be resolved when the nominated person and clinicians disagree. Where a specific nominated person, power or right is being used, the nominated person’s decision applies, because these are statutory powers and rights under the Mental Health Act. However, clinicians will have discretion and can overrule a nominated person’s decision, if there is a danger to the patient or others. That will be clarified in the code.
Secondly, I was asked how we will ensure that nominated persons are aware of their powers. In addition to the broader training and familiarisation required alongside the reforms for clinicians, the statutory forms used to appoint a nominated person will set out that the witness should explain the role of the nominated person and make sure that the nominated person and patient understand the powers and requirements of the role. I think my hon. Friend the Member for Southend West and Leigh raised that point, too.
Thirdly, I was asked whether there is a mechanism to appoint an interim nominated person, and yes, there is. The interim nominated person is the nominated person appointed by an approved mental health professional when a person lacks the competence or capacity to appoint their own nominated person. While the legislation does not refer to the term “interim nominated person”, that in practice is what they are.
A lot of the discussion today has focused on how the provision will apply to children and young people. I understand the concerns raised and the importance of getting this right. In summary, we object to amendments 54 and 55, which would require nominated persons for patients under 16 to have parental responsibility for the child, whether chosen by the child or appointed for them, on the basis that children with the relevant competence should have the ability to choose their own nominated person. That is in line with the recommendations of the independent review, and in keeping with the principles of choice and autonomy and treating the person as an individual. We have put safeguards in place to ensure that their selection is appropriate and to remove anyone who does not exercise those powers in the best interests of the child.
Stephen Kinnock
I can assure my hon. Friend on that. We have safeguards in place both to ensure that the selection is appropriate in the first place and that, if there are behaviours that indicate that the person is not right for the task, they will be removed and their powers taken away.
Dr Luke Evans (Hinckley and Bosworth) (Con)
Can the Minister clarify where these powers are and what they look like? For example, if a 15-year-old decides to appoint someone who is 23—maybe a boyfriend, maybe not—the problem is that once they make that nomination, we are waiting for something to happen. The idea behind the clauses we have been debating, and the use of exceptional circumstances to try to solve this problem, is to ensure that we prevent any problem from happening in the first place. That is the bit I am not clear on. I thought that Government amendments 40 and 41 were possibly intended to address that point, but my worry is that once the person is chosen, we do not know how they will behave. The whole idea is to give parental responsibility first. Could the Minister address where this is in the Bill, or what it looks like in the code? This is the critical bit to get right for children.
Stephen Kinnock
With all due respect to the hon. Gentleman, I am not going to spend time shuffling my papers around. If he cares to look at schedule 2, I think he will find it there.
Government amendments 40 and 41 have been tabled because we believe that it is not necessary to specify in legislation which person the parental responsibility the approved mental health professional must appoint as nominated person for an under-16-year-old. We have committed to clarify this in the code of practice. We have committed to establishing an expert taskforce to support the development of a statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process.
The fourth question was whether we need parental responsibility by default. The current nearest relative provision assigns an automatic relative according to a hierarchical list, which does not reflect modern family structures. For instance, step-parents and parents who live abroad are not included. That can mean that children and young people may have a nearest relative who can make decisions about their care but who may not know the child well or engage with the role, or who could even be a risk to them. Without formal care proceedings, the child would be left to be represented by a relative who will not act in their best interests.
Fifthly, questions were raised about how to ensure that young patients are not isolated from family support if needed. Engagement with children and young people suggests that they are most likely to appoint their parent as a nominated person. If they appoint someone who is not their parent, then parents could still be involved in their care and treatment where appropriate. Safeguards are in place to allow for the overruling and displacement of the nominated person if they are behaving in a way that is not in the child or young person’s best interests.
Similarly, where a child is under a care order and parental responsibility sits primarily with the local authority, the local authority will retain its parental responsibility for the child even if the child chooses a nominated person who is not the local authority. The code of practice will provide guidance on how practitioners should include those with parental responsibility and care in key processes and decisions.
Sixthly, in cases where there are safeguarding concerns, what safeguards exist to ensure that the nominated person acts in the best interests of the child? The witness will determine whether the child’s nomination is suitable. Clinicians will also have the power to overrule decisions made by a nominated person if they think there is a danger to the patient or to others. The patient, an approved mental health professional, parents and anyone with an interest in the child’s welfare can apply to the court to displace the nominated person if they think they are behaving in a way that is not in the child’s best interests.
Finally, there was a question about how we will ensure that there is no coercion, including in the example involving an older partner. We will provide guidance to the witness on how to check that no coercion has taken place, as well as wider suitability criteria. A nominated person cannot be appointed if coercion or undue pressure has taken place. We intend to state in the code, subject to consultation, that an advocate should be involved early on to provide support to the child or young person throughout the nomination process. Advocates could work with witnesses to ensure that they have the relevant information about the child to make an informed appointment.
I hope that hon. Members are satisfied with those answers and will not press their amendments. I commend Government amendments 40 and 41, clauses 24 to 28 and schedule 2 to the Committee.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Schedule 2
Nominated persons
Amendment proposed: 54, in schedule 2, page 77, line 21, at end insert—
“(3) Where the patient has not attained the age of 16 years, a nominated person must have parental responsibility for the patient.”—(Dr Evans.)
This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.
Dr Evans
This morning, we touched on amendment 49, so I will not repeat my remarks. I will simply ask a pithy question of the hon. Member for Winchester. He rightly talked about the incredible work that his local citizens advice bureau carries out. How will the amendment blur the lines between social workers, caseworkers and the independent advocates who are already doing this work? How does he perceive that working? I worry about the complexity that it would create. I would be grateful if the hon. Member addressed that point.
Stephen Kinnock
I am grateful to the hon. Member for Winchester for bringing this issue before the Committee. The intention of his amendment is to extend the support offered by independent mental health advocates
“to cover social and financial stressors and support for family carers and other members of the household when the patient is discharged.”
It would amend paragraph 18 of schedule 2, which deals with amendments relating to nominated persons. It should more properly be inserted into schedule 3, which deals with independent mental health advocates.
The Bill will already extend the support that advocates can provide to help patients to be involved in decisions about their care and treatment, to be able to make a complaint and to be provided with information about other available services. Those other services could include support following discharge from statutory or voluntary organisations, which may cover social and financial issues, and help to support carers. Those organisations would be better placed to support patients with these specific needs, rather than independent mental health advocates, whose skillset is specific to supporting patients to understand their rights under the Mental Health Act and participate in decisions about their care and treatment. We will consult on guidance in the code of practice to help independent mental health advocates to understand their extended role.
In addition to policy regarding independent mental health advocacy, advance choice documents give individuals the chance to give instructions about practical aspects of their life. Examples of such aspects include domestic, financial or caring responsibilities, such as children or pets. This provision allows the individual to be looked after when unwell and aims to ease additional anxieties. For those reasons, I ask the hon. Member for Winchester to withdraw his amendment.
Dr Chambers
I appreciate the valid points that hon. Members have made. The point about running a pilot was a sensible suggestion. We have had something that could be viewed as a pilot in Winchester for two years. We know that it works well, and every £1 spent on it saves £14.08. If I have suggested this amendment in the wrong part of the Bill through my naivety and inexperience, or if mental health advocates are not the right people to deliver a solution that we know works, may I ask the Minister whether there is a more appropriate part of the Bill in which to include it or another way to implement this proven system, such as by amending a different Bill, before I decide whether to press the amendment to a vote?
Stephen Kinnock
I thank the hon. Gentleman for that question. Fundamentally, our view is that the role that he is proposing is not the right one for an independent mental health advocate. The role of an independent mental health advocate is to work with the patient around their legal rights, rather than to deal with some of the more practical issues that he is talking about here. Our sense is that there are both statutory and voluntary organisations who are better placed to carry out that work. I do not think that a pilot would work with IMHAs, because by definition that is not the right role for IMHAs.
Dr Chambers
In that case, can we have a discussion outside the Committee about how to do this?
Dr Chambers
indicated assent.
Amendment 49 negatived.
Schedule 2, as amended, agreed to.
Clauses 25 to 28 ordered to stand part of the Bill.
Clause 29
Detention periods
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
Currently, under the Mental Health Act, a person detained for treatment can be kept in hospital initially for six months before the responsible clinician must make an assessment to decide whether to continue their detention or to discharge them. The independent review raised concerns that six months is too long. It heard evidence that patients were sometimes detained longer than necessary and were only considered for discharge when a tribunal hearing was due. It found that in up to 17% of cases referred to the mental health tribunal, discharge happened in the 48 hours before the hearing. That suggests that some patients are being detained longer than is necessary.
The review recommended reducing from six months to three months the initial detention period for people admitted for treatment, so that a patient’s detention is reviewed sooner to ensure that patients are not detained when they are no longer benefiting from treatment and can be safely discharged.
Clause 29 will mean that patients detained for treatment have their detention reviewed three times—up from twice—in the first year: at three, six and twelve months from the date of detention. The new renewal periods will not apply to part III patients, except in very specific circumstances when an unrestricted patient changes status. I commend the clause to the Committee.
Gregory Stafford
I have some brief questions for the Minister about this important clause, which has serious implications for patient liberty and for public protection. We must ensure that decisions are clinically and legally sound. First, how will the proposed changes to initial and renewal detention periods help conditions and services and manage public risk more effectively, particularly in forensic or high-risk cases? Secondly, do longer detention periods after revocation of a community treatment order reflect a higher perceived risk, and if so, is there clear clinical evidence supporting that extension to six months? Thirdly, are we confident that the new timelines strike the right balance between protecting the public and ensuring patients are not detained longer than necessary? Finally, and as an adjunct to that, what other considerations are there in the clause or the Bill to keep the public safe and to make sure that decisions are correct in the context of clause 29?
Stephen Kinnock
The aim of the clause is to ensure that a patient’s detention is reviewed sooner. The planned reforms will not change the fundamental power and purpose of the Act, which is to detain and treat people when they are so unwell that they become a risk to themselves or others. Where a patient continues to meet the criteria, their detention will be renewed.
Opposition Members have asked about extra paperwork and workload in general for both clinicians and tribunals. In the impact assessment that we published alongside the Bill, we set out the estimated costs and benefits of the reforms and the expected workforce requirements that are critical to our implementation planning. That includes consideration of the impact on clinicians of additional detention reviews, which we have calculated is estimated to be around four hours of additional workload by the clinician for each patient who is detained beyond three months.
On the clinical evidence for shortening the detention period, in the independent review we found that in 17% of cases referred to the mental health tribunal, discharge happened in the 48 hours before the hearing, which strongly suggests that some patients are being detained for longer than is necessary.
Stephen Kinnock
I did not catch the question to which the hon. Gentleman is referring. Could he repeat it, please?
Dr Evans
The issue is about resetting. As the legislation is written, it would suggest that because people are moving from one place to another, the clock resets. Clinically, that could make sense, but part of the problem is that every time the clock resets, so does the person’s detention. That is a key part. Fundamentally, in this clause we are trying to stop people being detained when they do not need to be. In fact, the Minister has just said that 17% of people were discharged before the tribunal could happen. The question is around specifying, when it comes to admission and transfer, that the clock resets. What safeguards do we have to make sure that we are counting the number of times it is reset, that it is clinically appropriate and, most importantly, that we are not substituting one way of dealing with this with a back-door way of creating a reset motion?
Stephen Kinnock
I am struggling a little to understand what the hon. Gentleman is driving at. I pointed out in my opening remarks that the review clearly recommended reducing the initial detention period for people admitted for treatment from six months to three months, so that a patient’s detention is reviewed sooner to ensure patients are not detained when they are no longer benefiting from treatment and can be safely discharged. The clause means that patients detained for treatment will have their detention reviewed three times in the first year: at three, six and 12 months from the date of detention—up from two, as it was previously. I do not think that there is any implication that it is resetting the detention; it is just a rolling set of reviews.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
The Chair
I will not tolerate any further speaking outside the structure. It is the second time that it has happened this afternoon, and I will not tolerate it any further.
Clause 30
Periods for tribunal applications
Stephen Kinnock
Clause 30 will introduce important reforms to the tribunal process by adjusting the timeframes for when patients can apply to the tribunal regarding their detention. Section 2 patients will now have 21 days rather than the current 14 to apply. This reform addresses concerns that patients in crisis often need more time to fully understand their rights, access legal advice and make an application.
For section 3 patients and transferred guardianship patients, clause 30 will reduce the initial application period from six months to three months. This aligns the application period with the new, shorter initial detention period of three months, reduced from six months, for these patients. This change maintains the current rights for these patients to make an application once during each successive period of detention.
For conditionally discharged restricted patients, clause 30 provides different application periods. These vary depending on whether the patient has been conditionally discharged with or without conditions that amount to a deprivation of liberty. Conditionally discharged restricted patients who are subject to deprivation of liberty conditions—also known as patients on a supervised discharge—can make an application to the tribunal sooner, between six months and 12 months from the date that they become subject to said conditions, and thereafter every two years. In contrast, conditionally discharged restricted patients who are not subject to deprivation of liberty conditions will have application periods between 12 months and two years, and thereafter every two years.
The different application periods reflect the need to consider a patient’s detention more frequently and earlier where more restrictive deprivation of liberty conditions are present. These changes improve access to the tribunal, ensuring greater protection for some of society’s most vulnerable individuals.
Clause 31 will strengthen the system of automatic referrals to the tribunal for patients detained under the Mental Health Act. It ensures that patients who may not be able to make an application to the tribunal themselves are still afforded regular judicial oversight. For patients detained under section 2, this clause reduces the automatic referral period from six months to three months. This improves the current safeguard by bringing the trigger for the automatic referral sooner. This will apply when a section 2 patient’s detention has been extended beyond 28 days and no application or referral has been made to the tribunal for review of the patient’s detention.
The clause will also improve the automatic referrals for patients detained under section 3. It does this by triggering referrals on the expiry of three months and 12 months and annually thereafter, where the tribunal has not considered the patient’s case. Additionally, this clause removes the automatic referral trigger on revocation of a community treatment order. It was found in practice that the automatic referral was an ineffective safeguard, as often the patient either was back in the community and subject to a new CTO or had reverted to being a section 3 patient before the tribunal reviewed their case. Now, where a patient’s CTO is revoked, they will be automatically referred at three months and 12 months after revocation, and then every subsequent 12 months. This allows the automatic referral periods to apply afresh from the date on which the CTO is revoked.
The clause will ensure that patients detained under the Mental Health Act are subject to regular and timely tribunal reviews, particularly when they are unable to advocate for themselves.
Clause 32 will deliver important tribunal oversight for the small cohort of restricted patients discharged into the community under conditions that amount to a deprivation of liberty, who are also known as supervised discharge patients. The clause will require patients subject to supervised discharge to be referred initially at 12 months after deprivation of liberty conditions are imposed, followed by a further referral every two years, where the patient’s case has not been heard by the tribunal in this period. The clause will also provide a safeguard for patients who may fluctuate between conditional and supervised discharge, to ensure that no supervised discharge patient will go more than four years without their case being considered by the tribunal. Automatic referrals to the tribunal ensure that patients under some of the most restrictive conditions have routine oversight of their detention where independent review would otherwise be absent.
The clause will also clarify the powers of the tribunal when considering the application or reference of a conditionally discharged patient, which include the power for the tribunal to impose conditions amounting to a deprivation of liberty. Deprivation of liberty conditions may be imposed or retained only where the tribunal is satisfied that they are necessary to protect another person from serious harm and are no less beneficial to the patient than a recall to hospital. This test preserves public protection, while enhancing the safeguards in place for conditionally discharged patients, ensuring that their care and liberty are subject to regular independent scrutiny.
Together, these changes will promote a more robust system of oversight for patients subject to long-term detention and restrictive conditions, ensuring that their rights are respected and their detention is regularly reviewed.
Clause 33 will extend the same principles of regular, proportionate scrutiny to restricted patients who are not conditionally discharged subject to deprivation of liberty conditions. For restricted patients detained in hospital, section 71 will be amended to reduce the automatic referral period from three years to one year. That amendment aligns with the amendments to increase the frequency of automatic referrals introduced in the Bill for part II patients. Through annual tribunal reviews, it is intended that those individuals are safeguarded against inappropriate detention. That aligns with the broader principles of fairness and accountability, ensuring that individuals in long-term detention are subject to appropriate judicial oversight.
Dr Evans
That is a difficult balance to get right. I appreciate that the Government have said that the Bill will take 10 years to implement, but if these measures come into force from day one, we will start to see automatic referrals come through. There will be a lag as the transition happens, but my hon. Friend is absolutely right: we can foresee scenarios where patients who want to be referred into the tribunal are waiting in inappropriate care places, which may be to the detriment of their personal care and may actually make their recovery worse. He is right to highlight that question, which is why having a broad understanding of how many extra referrals are coming would be useful.
Clause 32 focuses on conditionally discharged restricted patients who are subject to deprivation of liberty conditions. It rightly ensures that those patients are brought within scope of automatic referral, first after 12 months and then every two years. Again, that is a positive step, ensuring that even those not detained in hospital will still have access to a review of their conditions. Crucially, the clause also gives the tribunals the power to vary or remove those DoL conditions.
Can the Minister say more about how that important power will be used? What criteria will the tribunals apply to assess whether a condition is genuinely necessary and proportionate? Will patients be legally represented in those hearings by default? Will another advocate be there, or will it be someone else in their place? Here, too, I would welcome some clarification from the Minister. I hope he will forgive my legal naivety, but my mother always said, “It’s better to ask a dumb question than stay dumb forever.”
The explanatory notes talk about DoL conditions. The current legal framework for authorising the deprivation of liberty for individuals who lack capacity is complex and in transition. Under the Mental Capacity Act 2005, deprivation of liberty safeguards have been the established mechanism since 2009 to ensure lawful deprivation of liberty in care settings. However, the Mental Capacity (Amendment) Act 2019 introduced liberty protection safeguards as modernising replacements, designed to simplify and broaden protections.
LPS are widely seen as an improvement to DoLS, because they extend safeguards to a wider range of settings, including hospitals and people’s own homes where deprivation of liberty might occur. They also streamline the assessment process, reducing bureaucratic delays and better reflecting person-centred decision making. The Law Commission and various stakeholder groups have supported LPS as a way to address the significant practical and legal challenges posed by DoLS, including the so-called DoLS backlog, where assessments have been delayed for many vulnerable individuals.
Despite that, I do not believe that LPS have yet been implemented, leaving DoLS still in force. I wonder if we are therefore creating ambiguity as we update the Mental Health Act through the Bill’s clauses, such as those addressing conditional discharge and deprivation of liberty, without clarity on how those will intersect with the forthcoming LPS framework that will be introduced under separate legislation. That raises important questions about the sequencing and co-ordination of legislation reform. How will the Government ensure coherence and avoid conflicting provisions when different statutes address overlapping issues at different times?
Given that context, have the Government abandoned the planned implementation of LPS, or do they remain committed to bringing them into force? If the implementation is still planned, will the Government provide a clear timeline for when LPS will replace DoLS? How do the Government intend to ensure that the provisions we are debating will align with or adapt to the introduction of LPS? What steps are being taken to ensure that vulnerable individuals and professionals who navigate this complex legal landscape will have clear, consistent safeguards and guidance through the transition? Clarification on those points is essential to avoid legal uncertainty and to ensure that the reforms provide coherent protection for those deprived of their liberties.
Clause 33 deals with patients who are not under DoLS conditions. It will ensure that even those who are under DoLS conditions, such as detained restricted patients or conditionally discharged patients with lesser restrictions, receive automatic tribunals. It will reduce the current three-year referral intervention for detained restricted patients to 12 months and introduce automatic referrals for non-DoL conditionality discharge patients after two years and then every four years. Again, that is a step forward, but four years feels like a long gap between reviews for those discharged with conditions that still significantly affect their daily lives. Will the Minister explain the thought behind the chosen timeframe? If a person’s condition changes, is there a mechanism to trigger an early referral outside the normal cycle?
The clauses show progress. They reflect a clear intention to strengthen patients’ rights, increase oversight and address historical injustices, particularly for those living under deprivation of liberty conditions in the community. But with complexity comes risk, and we need to ensure that patients understand their rights and the legal support available. The tribunal system must be properly resourced to uphold the safeguards that we place in the legislation.
Stephen Kinnock
I will try to answer some of the questions. On tribunal capacity, people who are conditionally discharged and those with restrictions that amount to a deprivation of liberty represent only a small fraction of tribunal business—well under 1% of all mental health tribunal cases. The modest increase in hearings is therefore expected to be absorbed within existing capacity, while delivering significant rights benefits to the individuals concerned. It is worth noting, too, that the mental health tribunal continues to perform strongly. Amazingly, it is one of the very few areas of our public services not to be left with a massive backlog by the previous Government. The open caseload has remained stable at approximately 3,700 cases for a decade, despite 31,226 appeals in 2024-25.
I was asked about LPS and replacing DoLS. The previous Government paused the implementation of the liberty protection safeguards; they decided to focus on other priorities. In the absence of LPS, the deprivation of liberty safeguards system will continue to apply. The Department has made it clear that all bodies with legal duties under the DoLS must continue to operate these important safeguards to ensure that the rights of people without the relevant mental capacity are protected.
Stephen Kinnock
We have made it clear that we are going to continue with DoLS. Basically, we have to look at whether replacing them with LPS will achieve the stated objectives of the exercise, and I am not entirely convinced about that. It is under review.
On supporting patients, the independent mental health advocate will ensure that patients are aware of their rights. Throughout the Bill we are ensuring that patients have support by moving to an opt-out model. Additionally, if a patient does not bring a case, they will be referred automatically to the tribunal if a specified period has passed. Patients will be supported in getting tribunal oversight, as the referrals are made by a hospital manager.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clauses 31 to 33 ordered to stand part of the Bill.
Clause 34
Discharge: process
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
The clause seeks to strengthen the protocol on discharging individuals under the Act by introducing a statutory requirement on the person who makes the discharge decision to consult with another. Currently, a patient’s responsible clinician can, in law, unilaterally decide to discharge a hospital in-patient from certain powers of the Act. Under our amendments, they will be required to consult someone else who is professionally concerned with the patient’s treatment, whether that be in the hospital or in the community. Where the responsible clinician is a consultant psychiatrist, the consultee may be a nurse, psychologist or occupational therapist. That is to ensure a more rounded perspective on the patient’s readiness for discharge from the Act.
The clause will introduce a similar protocol for the discharge of people under guardianship, guardianship orders and community treatment orders. For guardianship and guardianship orders, the person who makes the decision to discharge from the powers under the Act may need to consult either the responsible local social services authority or a person’s designated social worker. For patients under a community treatment order, the responsible clinician is required to consult the community clinician, in recognition of the fact that they will likely have a much clearer understanding of the patient’s progress in the community and whether they are ready for discharge under the Act.
Although multidisciplinary-based decisions represent best practice, we know that they are not always taken. The clause seeks to change that by helping to make sure that the decision to discharge is carefully considered and receives greater professional oversight.
Aphra Brandreth
I rise to speak to the implications of clause 34 for clinical decision making, patient safety and the operation of the Mental Health Act more broadly. The clause introduces a new requirement for the responsible clinician to consult another professional, from a different professional discipline, who is involved in the patient’s care before they make a decision to discharge a patient from detention or from a community treatment order under section 23 of the Mental Health Act 1983. If the patient is on a community treatment order, the clinician must consult the relevant community clinician.
At its heart, the clause seeks to ensure that decisions about discharge are not taken in isolation. It reflects a wider shift in mental health care towards collaborative, multidisciplinary approaches. We should welcome that in principle. These are often complex decisions that involve vulnerable individuals, and a single viewpoint may not always capture the full clinical picture. By requiring consultation with someone from another discipline, be that a nurse, an occupational therapist or a psychologist, we can help to ensure that decisions are more thoroughly considered and less likely to overlook risks.
The clause provides an important safeguard against premature or inappropriate discharge, particularly in cases where a patient may continue to pose a risk to themselves or others. It builds in a degree of professional scrutiny that supports safer and more consistent practice and, in doing so, should improve confidence among patients, families and practitioners.
I would be grateful if the Minister provided further clarity on a few practical points about how the clause will operate. First, it requires consultation but does not appear to specify whether the consulted clinician must agree with the responsible clinician’s decision in order for discharge to proceed. In cases where there is disagreement between clinicians of different professional backgrounds, what is the expected course of action? Is the responsible clinician ultimately free to proceed, or will there be an escalation mechanism? It would be helpful to understand how differing professional opinions are to be balanced and how potential deadlock is to be managed.
Secondly, although I welcome the intention to improve the rigour of decision making, will the Minister reassure the Committee that the additional consultation requirement will not introduce unnecessary delays into the discharge process? It is, of course, essential to get these decisions right, but it is also important that we do not create new barriers to discharge when a patient is clinically ready to move on. Delays in discharge can have a negative impact on patient outcomes, as well as increasing pressure on services. Although the consultation must be meaningful, it should also be proportionate, timely and clearly understood by all involved.
Will the Minister comment on how the requirement will be implemented in practice? For example, will guidance be issued to support clinicians in understanding their duties under the clause and to ensure consistency across services?
Overall, the clause represents a thoughtful and measured reform. It strengthens patient safety, promotes professional collaboration and introduces a safeguard that is both reasonable and necessary. Notwithstanding the clarifications I have raised, I hope that it will help to ensure that discharge decisions are made with greater confidence and care without becoming unduly bureaucratic.
Dr Evans
I rise to speak to clause 34, which inserts new consultation requirements into section 23 of the Mental Health Act 1983. The requirements relate to the discharge of individuals detained under parts II and III of the Act, as well as those subject to community treatment orders or guardianship.
Currently, under the Act, the responsible clinician has the power to discharge patients detained under sections 2 and 3, as well as unrestricted patients subject to a hospital order under part III, without any formal requirement to consult other professionals. This is already considered outdated practice in most clinical settings, where decisions are typically made within the multi-disciplinary team. However, that is not required by law. By contrast, discharge decisions for restricted patients remain with the Secretary of State for Justice or the mental health tribunal and are not affected by the clause.
Clause 34 seeks to change the current situation. It will insert proposed new subsections (2A) to (2C) into section 23 of the 1983 Act, placing a statutory consultation duty on responsible clinicians, local authorities and, in some cases, the patient’s nominated person. The aim, as outlined in the Government’s explanatory notes and by the Minister, is to formalise best practice and ensure that no discharge decision is made unilaterally without appropriate professional oversight. The Opposition welcome the intention behind the clause—strengthening safeguards, encouraging multidisciplinary collaboration and protecting patients from unsafe or premature discharges are all necessary and overdue steps—but we have a few questions about it that I hope the Minister will address.
First, proposed new subsection (2A) requires the responsible clinician to
“consult a person—
(i) who has been professionally concerned with the patient’s care or treatment, and
(ii) who belongs to a profession other than that to which the responsible clinician belongs”.
That is a sound principle, but there is an ambiguity in the phrase “has been professionally concerned”. Who do the Government have in mind? The Minister set out that it could be a nurse or a counsellor, but would it stretch as far as a GP or a practice nurse? Will there be a codifying list, either in statute or in the code of practice, so that we know who is expected to speak to that person? Does it require current involvement in the patient’s care? For example, could a professional who saw the patient only briefly many months ago qualify? If so, is that adequate to meet the clause’s intention? We would welcome clarification from the Minister on whether a definition of who and what an appropriate consultee looks like will be covered in guidance or regulations.
Secondly, I fully understand the good intent behind proposed new subsection (2B)(c), but as a good Opposition we should point out a possible unforeseen problem. It states that when the nominated person—that is, the person chosen by the patient to act in their interests—is making a discharge decision under guardianship, they
“must consult the responsible local social services authority.”
That raises both legal and practical questions. Is it appropriate to place a statutory duty on a layperson, who may be a relative, a friend or a carer with no formal training or professional support? What is the consequence if they fail to consult? Would their decision be invalid, or could it be legally challenged?
I know that the Government are trying to ensure that relatives and advocates are consulted, which is commendable. I am sure there will be no issue in the vast majority of cases, but there is a risk that the duty may unintentionally create legal uncertainty and administrative burdens for families. Has the Minister thought about whether it might be better framed as a duty on the local authority to advise or support the nominated person, rather than vice versa? I am sure we both agree on the motive and principle of shared decision making; it is simply a question of where to place the burden.
Thirdly, under proposed new subsection (2C), if someone is on a community treatment order, the responsible clinician and hospital managers must consult the community clinician before they discharge the person from that order. Again, that seems sensible, but what happens if there is no identified or available community clinician? As we have discussed, they are legally named, so could that requirement create a bottleneck to discharge? Will there be provision for proceeding with discharge if consultation is not practicable within a reasonable time? Without such a safeguard, there is a risk that patients remain subject to detention, such as conditions under a CTO, even when all parties agree that discharge is clinically appropriate.
Furthermore, the clause does not appear to require the consultation outcome to be documented, nor any disagreement to be recorded. If the responsible clinician consults someone and then disregards their view—as we heard earlier, according to the Minister they have precedence—that may be entirely justified, but surely transparency demands the recording of the reasons. Will the Government consider adding a requirement to document consultation, perhaps in the code of practice, to ensure that reasons are given when discharge proceedings are taken against clinical advice?
The clause represents an important step towards improving safety, accountability and multidisciplinary care in discharge planning, but the Opposition believe that to realise its full potential and avoid creating uncertainty or delay, the Government should look again at the clarity of key terms, such as “professionally concerned”; the appropriateness of placing duties on laypeople, such as the nominated person; the practical challenges around consultations when key professionals are not available; and the need for clear documentation requirements to uphold transparency and safeguarding in decision making. I look forward to hearing the Minister address those points.
Stephen Kinnock
The hon. Member for Chester South and Eddisbury asked about differences of opinion. The second professional does not have to agree. The ultimate decision in such cases sits with the responsible clinician, to ensure the clear accountability of decision making.
The hon. Lady also asked about delays. We see consultation with another professional as important to making a more informed decision on whether the patient is ready for discharge under the Act. It is especially important that the second professional involved in discharge decisions is from a discipline different from that of the responsible clinician. That will ensure a broader perspective, particularly when the second professional, such as a nurse, may have had more frequent contact with the patient.
Aphra Brandreth
On the discipline of the second clinician consulted, is there any guidance as to who might be appropriate? I mean not just the list of potential professions but whether there is guidance on who would be appropriate in different situations. We welcome the multidisciplinary approach, but I would like some clarification. Given your earlier response, saying that they need to agree, it is not really clear how this would add to the process. It would help if there were clarity on the professions.
Stephen Kinnock
We will absolutely provide guidance on that in the code, but the consultee in the case of a detained person is someone who is professionally concerned with the patient’s treatment, whether that be in the hospital or in the community, and who is from a discipline different from that of the responsible clinician. Those criteria will be applied throughout the process.
Finally, on the question from the Opposition spokesman, the hon. Member for Hinckley and Bosworth, yes, reasons will have to be given whenever there is a difference of opinion. All the relevant documentation and how that should work will be set out in the code of practice.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35
Ascertaining and learning from patients’ experiences of hospital treatment
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
This amendment seeks to overturn the previous amendment tabled—sorry, I should have said “the clause”. The clause seeks to overturn the previous amendment, tabled by Earl Howe and Lord Kamall. Although we support the intention of the amendment, our view continues to be that it would be duplicative.
There are already many ways in which service user feedback is used to inform policy and practice. For instance, every year the Care Quality Commission conducts thousands of interviews and visits with people detained under the Mental Health Act 1983. That may result in the CQC investigating a complaint or requiring an action statement from providers about service improvements. Although there may be room to enhance existing feedback mechanisms, we would prefer to improve what we have rather than create something new that would risk confusion.
If the objective is to provide time and space for the person to reflect on their past experiences post-discharge, I reassure the Committee that that should already form a part of co-producing a person’s care in the community plan. We also intend to create space for individuals to reflect on past experiences when making their advance choice document, with facilitation from a suitably qualified person.
Josh Dean (Hertford and Stortford) (Lab)
Young people who have been through detention often report challenging circumstances following that detention. Rather than supporting them, that sometimes increases their trauma. Can the Minister assure me that, as part of the changes he just set out, we will still ensure that young people have the opportunity to feed their experiences back? What specific work will the Government undertake to gather those views from young people?
Stephen Kinnock
My hon. Friend makes an important point. We are absolutely committed to ensuring that we create a space for young people to provide feedback. Some of that will be around past experiences when making their advance choice documents, but much broader opportunities for feedback will absolutely be built into the system. We want this to be a learning process. It is important that the code of practice is not just a document that sits on the shelf gathering dust; it should be a live document. That is why the feedback is so important.
It should be noted that although reflecting on past experiences may be therapeutic for some individuals, for others it can be traumatic, so the measure should be entirely service-user led. We also continue to be concerned about the burden that the amendment would place on independent mental health advocacy services, which are already under strain.
Gregory Stafford
I apologise—this may be due to the terminology of “amendment” versus “clause”—but is the Minister saying that the Government are likely to vote against clause 35 as it currently stands? He is talking about amendments and clauses, and that is slightly confusing me. [Interruption.] His officials are nodding.
Stephen Kinnock
Yes, but the issue may have a bearing on a potential Division. The challenge that I am facing is that my notes said,
“This amendment seeks to overturn”,
but we are talking about a clause that is seeking to overturn a previous amendment. Are we speaking in favour of a clause that will overturn an amendment? [Interruption.] Confusion reigns.
The Chair
Clause 35 was added by a Lords amendment; maybe that is where the confusion has come from. The Government tabled an amendment to leave out clause 35.
Stephen Kinnock
We will figure it out as we go along. I have now lost my place. [Interruption.] My answer to the hon. Member for Farnham and Bordon is that the Government are voting against clause 35 stand part.
Stephen Kinnock
Right. Advocates have told us that implementing what is set out in the clause would raise logistical and resourcing problems, as it would require a significant shift from their current role. They have also raised concerns that if they acted in effect on behalf of the hospital to collect feedback, their independence and impartiality in the eyes of the patient might be undermined. We would prefer to direct resources to increasing access to advocacy services among in-patients, as proposed by the Bill. Advocates play a crucial role in promoting and protecting the rights of patients. We do not wish to detract from that or to dilute their role. I do not commend the clause to the Committee.
Jen Craft
Like many Committee members, I was deeply confused about how we were proceeding.
On the face of it, the clause broadly seems as if it should be part of any Act about mental health care, including post discharge. I have spoken about my own experience of interacting with the Mental Health Act as it stands. I might have found the clause fairly helpful post discharge and others might have found it useful as well. However, I have just heard the Minister’s description of the limitations of the clause, and the speech that I was about to make has been thrown into complete disarray by the confusion just now. But I implore the Minister to consider the fact that, when it comes to encouraging participation, understanding, and co-designing and co-producing services, capturing the experience of those recently detained under the Mental Health Act can be extraordinarily useful. Clause 35, which was added by an amendment from the Lords, seems a fairly useful way to do that.
Stephen Kinnock
Fundamentally, we do not support the clause because it is overkill. It simply puts too much burden on to a system that is already carrying out the tasks that the clause seeks to impose on the system, particularly through the CQC. Given that advocates currently have no role in relation to discharged patients, it is clear that the clause would present a new burden; that has been confirmed through my officials’ engagement with advocates and other stakeholders. One hospital manager said that within their small trust alone, the clause would result in contacting and interviewing more than 1,000 individuals discharged from the Act each year.
Dr Evans
The Minister says that advocates had no role in discharge, but they do when advising patients about their rights—that is fundamentally what they do. At the point of discharge, they enable patients to know what their rights are. I take his point about capacity issues. If the Government want to take the clause away, how will they hardwire patients’ feedback into the heart of the Bill?
Stephen Kinnock
The CQC visits and interviews thousands of detained patients each year under its statutory duty to monitor the use of the Mental Health Act. Those visits can lead to the CQC requesting improvements from service providers. The CQC publishes annual reports highlighting key findings and themes from those visits.
Trust boards are responsible for collecting and acting on service user feedback to improve services. Under the NHS contract, the patient and carer race equality framework requires trusts to have clear and visible systems in place for gathering and responding to feedback from patients and carers. What is more, Healthwatch England and its local branches also play a key role in representing the views of health and social care users. I do not really know what more the system could do. The clause simply over-embroiders and over-complicates; when that happens, we usually end up with vast numbers of unintended consequences.
We appreciate that concerns have been raised around the CQC’s role in collecting in-patients’ views. As I said, we would prefer to work with stakeholders to understand those concerns and improve the feedback mechanisms that we have, rather than reinvent the wheel and create something new. We recognise that, although there are multiple aims to the clause, the primary one is to provide a space for people to heal from their experiences of being detained. We are strongly of the view that inviting the individual to share their experiences as part of their advance choice document or care plan—
Jen Craft
I am glad that the Minister is explaining how capturing feedback and experience is being allowed for in other parts of the Bill. To clarify, in my own head I feel that the clause aims to capture the experience immediately after it has happened, just as hospitals offer women who have just given birth the opportunity to talk through their experience. It is healing for the patient to understand what happened to them, and it provides immediate feedback to the hospital. Is that kind of level captured in other parts of the Bill?
Stephen Kinnock
I understand and recognise my hon. Friend’s concerns, but we can rattle through all the different forums where feedback can be captured: the CQC, the trust boards, the patient and carer race equality framework, Healthwatch England and all the other informal channels in the mental health ecosystem. Our view is that adding another layer into all that would in the end be counterproductive. That is the Government’s position.
Natasha Irons
The Minister mentioned the complex network of ways in which patients can give their feedback; perhaps the aim of the clause is to try to simplify that and, as my hon. Friend the Member for Thurrock mentioned, make it a bit more direct and immediate after treatment. Are there any plans to simplify the process in another way? The complex cobweb that the Minister described is perhaps the reason why the patient voice is not always captured and utilised in a way that we would want if the services that people rely on are to be improved.
Stephen Kinnock
My hon. Friend raises an important point. I do worry about the list of different organisations and agencies throughout the system, and not just in mental health—so many parts of the system have had layer upon layer of bureaucracy added in. That is one of the reasons why we are abolishing NHS England: we want to try to find greater simplicity and clearer channels of communication.
Through the development of the code of practice and the consultation process, simplifying and clarifying the system will be a key objective. Adding another layer would have the opposite effect. But my hon. Friend makes an important point, which will definitely be a part of the process of consultation and development of the guidelines and code of practice. On the basis of those answers, I recommend that we do not adopt the clause.
The Chair
Order. I am expecting four Divisions imminently, so I will suspend the Committee.
Stephen Kinnock
Clause 36 will introduce a subset of the current conditional discharge power where deprivation of liberty conditions are expressly allowed, otherwise known as supervised discharge. The aim of the clause is to prevent a small group of criminal justice patients with specialised support needs from remaining in hospital unnecessarily, while ensuring the risk they pose in the community is robustly managed. The reform responds to a Supreme Court decision, which found that there was no power under the current Act to impose discharge conditions that amount to a deprivation of liberty. Prior to the judgment, such conditions were used in a small number of cases in which patients with specialist needs required stringent arrangements to protect themselves and the public from harm.
Careful consideration has been given to the ethical and legal balance of the arrangements. We are clear that the threshold for use of the power is very high, and it will be accompanied by appropriate safeguards. A stringent test will be applied. The conditions will only be applied if the tribunal or Justice Secretary views the conditions as necessary to protect others from serious harm and, for the tribunal, if it considers the conditions would be no less beneficial than if the patient remained in hospital. We are also introducing additional safeguards, which ensure that supervised discharge patients are automatically referred to the tribunal after 12 months and every two years thereafter. That is more frequent than patients subject to conditional discharge, given the restrictive nature of the conditions being placed upon them.
I turn to clause 37. Prisoners and other detainees who become acutely mentally unwell in prison or another place of detention, such as an immigration removal centre or youth detention accommodation, can be transferred to hospital for treatment under sections 47 and 48 of the Act. Clause 37 will make two minor changes to those provisions.
Currently, the criteria for detention under the Act provides that appropriate treatment must be “available” for the patient or other detainee. The Court of Appeal, however, ruled that due to the specialised provision and security requirements relating to this cohort of patients, treatment must be available in practice for the detention criteria to be met, meaning that a hospital place must be identified. That diverges from how “available” treatment is interpreted across the rest of the Act, and it risks creating an additional barrier for this cohort of patients in accessing the care they need.
We are therefore clarifying the detention criteria to ensure that they can still be met, based on the patient’s clinical need, even when no hospital place has yet been identified. The change is also necessary for the effective implementation of the statutory time limit in clause 38, so that the Secretary of State is not delayed in issuing a transfer warrant when a specific bed space has not yet been identified. Clause 37 will also update the list of immigration legislation provided in section 48 to expand the scope of immigration detainees who can be transferred under that section.
Stephen Kinnock
On safeguards, supervised discharge will only be used when necessary, given its restrictive nature and significant resource demands. A stringent test will apply. It must be deemed necessary by the tribunal or Justice Secretary to protect others from serious harm, and the tribunal must deem it to be no less beneficial than hospital care. Additional safeguards include automatic tribunal referrals after 12 months and every two years thereafter, if not previously reviewed.
On capacity, our expectation is that this will not have a significant impact on other restricted patients. The small cohort who are likely to be subject to supervised discharge will free beds, and that could positively impact any patient who needs a bed, but the numbers remain small and are unlikely to lead to widespread bed availability.
On demand for secure beds, clause 37 will correct a discrepancy in detention criteria caused by a Court of Appeal decision. Rather than creating further disparity, it aligns the criteria for sections 47 and 48 of the Mental Health Act with the consistent interpretation of available treatment used throughout the rest of the Act. Clause 37 does not alter the approach to clinical prioritisation of in-patient care, or the fact that a person will only be transferred once an appropriate bed has been found, in terms of both therapeutic care and level of security. That also addresses the question on implementation from the hon. Member for Farnham and Bordon.
I turn to the questions asked by my hon. Friend the Member for Shipley. She asked about the 28-day limit. Any change to the time limit would require an enhanced level of parliamentary scrutiny. Therefore, the power shall be subject to the draft affirmative procedure to ensure that both Houses are given the opportunity to debate any decision.
On dual tests, the Secretary of State for Justice applies a slightly different test from that of the tribunal in order to preserve their discretion in the interests of public protection, but conditions for patients must still be appropriate and proportionate. We will publish operational guidance to make it clear that the Secretary of State for Justice should have regard to the principle of therapeutic benefit and only use this type of discharge when the evidence indicates that it is in the best interests of the patient.
Under section 120 of the Mental Health Act, the Care Quality Commission and Health Inspectorate Wales have a duty to monitor the use of the Act. Patients subject to supervised discharge will be captured by section 120 for the purpose of regulatory oversight as a subset of conditionally discharged patients who are liable to be detained under the Mental Health Act.
I turn to the questions asked by the shadow Minister, the hon. Member for Hinckley and Bosworth. The Ministry of Justice considers that these measures are compatible with article 5 of the European convention on human rights. In 2018, the Supreme Court case of Secretary of State for Justice v. MM established that there was no lawful basis under the Act to impose conditions that amounted to a deprivation of liberty. The new provisions will provide a statutory basis for the Justice Secretary and the tribunal to impose such conditions.
The Chair
With this it will be convenient to discuss the following:
Amendment 19, in schedule 3, page 91, line 13, after “patient” insert
“or English qualifying informal patient under 18”.
This amendment extends the provision of opt-out advocacy services in England to informal inpatients under 18.
Government amendments 42 and 43.
Schedule 3.
Stephen Kinnock
I will first discuss clause 41 and schedule 3. Independent mental health advocates are specially trained advocates who can support patients detained under the Mental Health Act to understand their rights and participate in decisions about their care and treatment, but not everyone who would benefit from an independent mental health advocate currently has access to one. In view of the benefits that advocacy can bring, we are expanding the right to an independent mental health advocate to all mental health patients, including informal or voluntary patients who are not detained under the Act.
We know that some informal patients are not told about their rights and legal status. Informal patients in Wales already have the protection, and we want to extend it to patients in England. It will help ensure that the voices of individuals are heard and their rights respected, and that potentially vulnerable groups, including children and young people, do not go without important advocacy protections.
Moreover, the Bill provides an additional enhanced mechanism for ensuring that the most vulnerable mental health patients, those compulsorily detained under the Mental Health Act, are able to benefit from advocacy. We are introducing an opt-out system for that particular cohort, to put the onus on hospital managers rather than patients themselves to request independent mental health advocacy services. Hospital managers must notify providers of advocacy services about the patients who are eligible for IMH advocacy. Advocacy providers must then arrange for independent mental health advocates to interview those patients to find out whether they want to use their services.
The right to an independent mental health advocate will also be expanded to include part III patients who are subject to the new supervised discharge, which allows for part III patients to be conditionally discharged into the community and still deprived of their liberty. The Bill also enables independent mental health advocates to provide extra help to patients to have a greater say in their treatment or to make a complaint. Together, these changes increase the access that patients have to advocacy, which contributes to improved patient rights.
I will next address amendment 19. We appreciate that people under 18 are a vulnerable group who would benefit from advocacy representation. For this reason, the Bill extends the right to an independent mental health advocate to informal patients, including under-18s, who are often admitted on a voluntary basis. We are introducing a duty on hospital managers to inform them of this right. That means that hospital managers will be expected to proactively approach all children and young people, and others, such as their parents or carers, to make sure they know that they are entitled to an advocate and help them to appoint one.
We will make it clear in the code of practice how independent mental health advocates should support children and young people with their particular needs. However, we think it is right that detained patients, including under-18s—rather than informal patients—receive advocacy on an opt-out basis. This is because they are subject to greater restrictions, meaning that it is even more important that they are supported to exercise their rights.
Finally, I will address Government amendments 42 and 43. Schedule 3 introduces the concept of “English qualifying informal patients”, who, for the first time in England, will be eligible for independent mental health advocacy services. We are amending this measure to change the definition of both English and Welsh qualifying informal patients. Amendments 42 and 43 are minor amendments to address a technical issue with the legislation. There is case law saying that the term “informal patient” would cover anyone there on a voluntary basis and not subject to any compulsory legislative framework. However, as currently drafted, the Bill’s definition is wider, defining an informal patient in England or Wales as an in-patient in hospital who is receiving assessment or treatment for a mental disorder at the hospital but not subject to the Mental Health Act. A person deprived of their liberty under any other legislation such as the Mental Capacity Act 2005 or under a court order would therefore be classed as an “informal patient”, which would be incorrect, as people who are detained cannot, under case law, be informal patients.
That would lead to complications in practice. A patient subject to the deprivation of liberty safeguards would be eligible for independent mental health advocacy as well as independent mental capacity advocacy. However, an independent mental health advocate cannot provide any help or support in relation to the Mental Capacity Act. The amendments address that issue by changing the definitions of “English qualifying informal patient” and “Welsh qualifying informal patient”, to be an in-patient receiving assessment or treatment for a mental disorder who is not detained under any other legislation or court order.
For those reasons, I hope that the hon. Member for Winchester is satisfied not to press his amendment, and I commend Government amendments 42 and 43, clause 41 and schedule 3 to the Committee.
Aphra Brandreth
I rise to speak to clause 41, which brings into sharper focus two pillars of a fair and rights-based mental health system: the provision of clear information to patients and the strengthening of independent mental health advocacy. It rightly recognises that, when a person is detained under the Mental Health Act 1983, often during a period of acute crisis and difficulty in their life, they need to feel that their clinical needs are being met, but in a way that respects them as individuals, with the same entitlements to dignity and agency as any other member of our society.
The clause provides for informal patients to be eligible for an independent mental health advocate. I welcome the extension to enable more individuals to access this vital advocacy. It empowers patients to know that independent advocacy is available, but we must ensure that there are sufficient resources so that those who choose this help are given sufficient support when they are in a potentially vulnerable position. As someone representing a constituency that is in England but borders Wales, I also welcome that these changes bring care into line so that advocacy help is offered to informal patients, regardless of which side of the border they are accessing treatment.
The clause places a renewed duty on services to ensure that information is given to patients clearly, promptly and in a form that they can understand. It introduces an obligation for advocacy providers to determine, through an interview, whether a qualifying patient wishes to use the service. This support is important; no person should be expected to navigate the complexities of mental health legislation, or their rights under it, without proper guidance. However, where there is a duty
“on hospital managers and others to notify providers of advocacy services about qualifying patients”,
can the Minister clarify who is meant by “others”? Will there be a list of people and roles who are given this responsibility?
The role of an independent mental health advocate is vital. These individuals can be a lifeline. They can help people to understand their rights and any medical treatment, and crucially, can support an individual to have their say about any treatment. Clause 41 rightly reinforces the importance of independent mental health advocates, and it is important that we match that ambition with the legal and practical steps to support them.
It is entirely right that we welcome the recognition of the role of independent mental health advocates, who serve a vital function in ensuring that patients’ voices are heard and their views represented, especially when navigating what can be an incredibly complex legal and clinical environment. Their independence is fundamental to not only their effectiveness but the confidence that patients and families can place in the system, which brings me back to my point. It is therefore important that we support independent mental health advocates with the resources that they need to do their job effectively.
If we are to rely further on advocates, we need to ensure that they are in a position to deal with that, so that we do not create statutory entitlements that are difficult to act upon. Actions, as well as words, are needed. At present, many areas already struggle with advocacy coverage. If we now place additional expectations on the service, and I believe that we will through this provision, we must ensure that there are sufficient numbers of trained, experienced independent mental health advocates across the country to meet rising demand. Can the Minister reassure the Committee that the necessary people with the skills and training are available to fulfil this expanded role?
We must also consider the patients’ experience, as has been the focus of so many of the remarks made in the Committee today. Again, I emphasise the vulnerability of patients at times of crisis. If we are to tell patients that support in the form of an advocate is there for them, we need to ensure that it is accessible and easy to reach and understand. Clause 41 moves us in the right direction, but implementation is everything. It must be backed by local accountability, adequate funding and clear operational guidance. This includes ensuring that all patients, regardless of background, language or capacity, are given support that is appropriate and effective.
It is vital to consider the wider implications of this clause. The reinforcement of the independent mental health advocate’s involvement should be mirrored by greater investment in advocacy services, stronger integration with care planning and more regular engagement with patients themselves on how these services work in practice. In our earlier discussions, my hon. Friend the Member for Farnham and Bordon suggested that we use trials, which could also be considered here to ensure that, as changes are brought in, they are matched by appropriate service levels.
I am largely supportive of clause 41, which I think moves us in the right direction towards a transparent mental health system that is there for patients, ensuring that they have a voice and are not an afterthought. As long as it is deliverable in practice, and does not give false hope to patients, the clause strengthens the Bill.
Dr Evans
The hon. Gentleman identifies exactly what the point of an IMHA is. The way the Bill is written, the IMHA determines whether a patient has capacity or competence to make a decision. That determining means that they are making the choice, which is quasi-clinical. According to the definition that the hon. Gentleman has just given, that would fall out of the IMHA’s scope, because that would involve the ability to make decisions about capacity.
My concern is whether we have scope creep here. If so, we should be explicit about it—perhaps it is something we want to consider—but the way it is written, IMHAs will make capacity-based decisions about whether a person has the capacity to decide whether they need help. I would argue that that should be done by someone who is qualified as a doctor, a psychiatrist or community psychiatric nurse, as currently happens. That is the clarification that I am looking for from the Government. If I have the wrong end of the stick, I will happily back down, but this area of the Bill needs clarifying.
To that end, and if the Bill is written as I fear, I would welcome it if the Minister can tell us how IMHA providers will be supported to make best interest decisions appropriately, especially in cases involving fluctuating capacity or complex presentations. Will there be clinical oversight or statutory guidance to avoid inconsistency or overreach in these assessments? Although I support the principle of proactively offering advocacy, we must ensure that the decisions made on a person’s behalf are done with the appropriate checks and accountability, and by the right people.
My third point is about the exclusion of emergency section patients. The welcome change in the clause and the schedule expands the pool of support, but we should also pay attention to those who are, by definition, excluded. Paragraph 317 of the explanatory notes make it clear that individuals detained under sections 4, 5, 135 and 136 will not benefit from IMHA support. Those are often people detained in crisis situations, sometimes in police custody, or brought in under emergency powers.
For completeness, will the Minister clarify why that group is being left out, given their heightened vulnerability and the likelihood of distress or disorientation? Are the Government satisfied that patients under these emergency powers are receiving adequate information and support at the most critical moments of intervention? Is there a mechanism to support the nominated person if the patient does not have capacity, so that the nominated person receives the information they need to make a fully informed decision? If the answer is that the duration of detention is too short to justify IMHA involvement, I ask the Minister: how short is too short when a person’s liberty and medical autonomy are in question?
It may be that Government amendments 42 and 43 address some of those points, so I will return to this in a second before moving on to my fourth point. In terms of information sharing and patient autonomy, I welcome the retention of the duty to inform patients, especially informal patients, of their right to advocacy, and for that provision to be given both orally and in writing. However, I note that the responsible person must also—except where the patient requests otherwise—be provided with written information to the nominated person. What safeguards are in place to ensure that that does not inadvertently breach the patient’s privacy, such as in situations involving estranged family members, controlling relationships or very personal health issues, which could be disclosed but are not relevant to mental health? It is essential that the nominated person framework enhances advocacy and support and does not undermine the person’s right to control who knows about their care.
Finally, I would welcome clarity from the Minister about how the uptake and impact of expanding the IMHA system will be monitored. Will there be reporting requirements on providers? If so, will that be through the integrated care boards, or is that part of the CQC? Will patients have the opportunity to feed back on the effectiveness of the support they receive?
Before I turn to the amendments, I reiterate that the Opposition support the principle of strengthening advocacy in mental health services. Clause 41 is an important step towards a more rights-based and person-centred system, but the detail of the implementation is key.
I note that proposed Government amendments 42 and 43 to schedule 3 specifically change the definition of “English qualifying informal patient” and “Welsh qualifying informal patient” to exclude patients detained under any
“legislation or by virtue of a court order”,
rather than limiting exclusion to those detained solely under the Mental Health Act. That important clarification partly improves on one of the problems I mentioned when discussing clause 41.
In simple terms, those amendments try to address the issue of clarity and coverage for patients detained under other laws, and I believe that this is how they do that. Originally, the Bill excluded only patients detained under the Mental Health Act from being classified as informal patients eligible for IMHA services, but some patients might be detained under other laws or court orders, such as criminal justice laws, which the original wording did not cover. The amendments change the definition to exclude anyone detained under any legislation or by a court, not just the Mental Health Act. In practice, this means that patients detained under other laws will not mistakenly be considered informal patients eligible for IMHA services under this part of the Bill.
The proposals close a gap so that the right groups get advocacy services, and there is less confusion for hospitals and advocates about who qualifies. In essence, by broadening and bettering the definition and defining the exclusion, this will ensure that patients detained under other legislation, such as the Criminal Justice Act, or other court-mandated detention powers, are not mistakenly classified as informal patients eligible for IMHA services under those provisions. That reflects a more comprehensive and legally coherent approach to defining eligibility.
This clarity is welcome, as it reduces potential ambiguity in respect of providers. That said, will the Minister comment further on how these changes will interact with existing IMHA provisions or advocacy entitlements for those detained under other legislation? Are there parallel safeguards or advocacy rights for those groups? What guidance will be provided to practitioners and IMHA providers to navigate the complexities of overlapping detention regimes, especially when a patient’s status might shift rapidly between voluntary Mental Health Act detention and court orders? Will this amendment necessitate any further changes in regulations or operational policies to ensure smooth implementation and clarity for patients, families and service providers? Ensuring that no patient falls through the cracks due to definitional nuances is crucial for integrity in our mental health advocacy services.
Finally, Lib Dem amendment 19 would insert after “patient”, in schedule 3, page 91, line 13,
“or English qualifying informal patient under 18”.
As the hon. Member for Hertford and Stortford and Opposition Members rightly pointed out, it is quite hard to see why the Government would not want to put that in place. The explanatory statement says that it aims to extend
“the provision of opt-out advocacy services in England to informal inpatients under 18.”
It seems clear in what it does and is a well-defined amendment to that end. I am keen to understand why the Government do not want to support it. Do they believe that this is currently balanced elsewhere in the system? Are there already provisions elsewhere? If not, why—if it is good for adults and we are strengthening their opportunities—should it not be the same for our children?
I will finish on that point. I would be grateful for answers on the clause, the schedule, the Government amendments and the Lib Dem amendment.
Stephen Kinnock
The hon. Member for Chester South and Eddisbury asked who can make referrals in addition to hospital managers. The list of responsible persons is in proposed new section 130CC, in paragraph 6 of schedule 3. In addition to hospital managers, the responsible local social services authority is also required to notify providers of advocacy services about qualifying patients; whether it is a matter for the hospital or the local authority depends on the patient.
I was asked whether there are enough people to fulfil the tasks of the IMHA. The impact assessment gives our current best estimate of likely workforce and funding requirements and sets out the expected expansion required for each workforce group. We will recruit approximately 330 additional IMHAs.
Aphra Brandreth
Does the Minister have any more detail on that? Is there a timeframe for recruiting these advocates and putting the training in place? That would help reassure the Committee that there is provision to ensure that the timing will fit with the introduction of the changes in the Bill.
Stephen Kinnock
As has been discussed, as soon as the Bill gets Royal Assent we will launch an extensive consultation around the code of practice. The code of practice will cover everything from training to recruitment to capacity building, and the plan will be set out in the first annual written ministerial statement, which will take place one year after the Bill receives Royal Assent.
My hon. Friend the Member for Hertford and Stortford asked about children admitted informally. We are introducing a duty on hospital managers to inform informal patients of their right to a mental health advocate. We will set out the importance of independent mental health advocate representation for children and young people in the code of practice. That could include the importance of a proactive approach for hospital managers.
We will also describe in the code the new role for independent mental health advocates in relation to informal patients, including vulnerable in-patient groups, such as children and young people, people from ethnic minority backgrounds and people with a learning disability or autism.
The hon. Member for Farnham and Bordon asked whether we have the money for it. The funding requirements will, I think, be related to our best estimate of likely workforce and funding requirements. If we are going for 330 additional IMHAs, the funding requirements will be defined by that number.
The shadow Minister, the hon. Member for Hinckley and Bosworth, asked whether it will be local authority funding. We are obliged to fund new burdens on local authorities to resource this expansion of the independent mental health advocates. He then asked a blizzard of additional questions; I got lost in the thread of them all. We will go through Hansard and write to him.
Stephen Kinnock
No, I have finished.
Question put and agreed to.
Clause 41 accordingly ordered to stand part of the Bill.
Schedule 3
Independent mental health advocates
Stephen Kinnock
The clauses will amend section 132 of the Mental Health Act in relation to detained patients, and section 132A in relation to community patients, and insert a new provision in relation to conditionally discharged patients. They place a statutory duty on hospital managers to supply complaints information to detained patients, community patients and conditionally discharged respectively, as well as to their nominated person.
Patients, their family and carers have a right to complain about the treatment they receive, including care and treatment under the Mental Health Act. The patient’s rights to complain are enshrined in the NHS constitution. Although the code of practice currently sets out that information about complaints should be provided to patients when they are detained, there is no statutory duty to do so. Under the clauses, hospital managers will be required to provide information on how to make a complaint about: first, functions under the Bill; secondly, any medical treatment for mental disorder received during their detention; and thirdly, the outcome of any complaint about medical treatment. That includes providing information about how to make a complaint to the Parliamentary and Health Service Ombudsman about the mismanagement of complaints about medical treatment, where the person believes their complaint to another body—for instance the hospital or CQC—was not appropriately investigated.
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. The duty requires that information must be provided as soon as practicable after the patient is first detained, when the section that they are detained under changes, when the detention is renewed, or every 12 months for restricted patients under part III of the 1983 Act. For community patients, a duty is triggered as soon as it is practical after being placed on a community treatment order and as soon as practical each time the community treatment order is renewed. For conditionally discharged patients, it is triggered as soon as practicable after being conditionally discharged. I commend clauses 42 to 44 to the Committee.
Gregory Stafford
I rise to speak in favour of clauses 42, 43 and 44, which together strengthen the duty to inform patients—whether detained in the community or conditionally discharged—about how to make a complaint about their treatment and the outcome of that complaint. The Mental Health Act has long included duties to tell patients their rights, but too often that information has been patchy, hard to understand or buried in paperwork. The clauses tackle that by requiring clear, repeated information about not just detention, but treatment and the complaints process.
Clause 42 relates to information about complaints for detained patients. Section 132 of the Mental Health Act 1983 originally required hospitals to inform detained patients of their rights, but that was often inconsistently applied. This clause responds to long-standing concerns about transparency and patient empowerment, aligning with the broader goals of the Bill to enhance autonomy and dignity in mental health care. Specifically, there is an expanded duty of information. Hospital managers must now ensure that detained patients understand how to make complaints, not only about their detention, but about their treatment, along with the outcomes of any complaints.
There are some timing requirements, i.e. that the information must be provided as soon as practicable after detention begins and be repeated annually for restricted patients, or after each section 20 report for others. That will improve patient’s awareness of their rights and how to seek redress. It will promote accountability and mental health services by encouraging feedback and complaints, and support better outcomes by addressing grievances early and constructively.
Mental Health Bill [ Lords ] (Fifth sitting)
Stephen Kinnock ExcerptsTuesday 17th June 2025
(3 days, 23 hours ago)
Public Bill CommitteesRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2025 - (17 Jun 2025)
The Chair
With this it will be convenient to discuss the following:
Clause 23 stand part.
New clause 4—General duty to secure sufficient resources for services in the community—
“(1) It is the general duty of integrated care boards to ensure, insofar as is reasonably practical, that services in the community responsible for delivering care, treatment, or detention provisions under the Mental Health Act 1983 and this Act have the necessary resources, including financial support, to meet service demands.
(2) Additional forms of resource may be determined by integrated care boards in consultation with relevant local authorities or health care service providers and may include—
(a) sufficient numbers of trained medical professionals;
(b) purpose-built facilities for patient care;
(c) community services responsible for out-patient care.
(3) Each Integrated Care Board must conduct an assessment of its resources every two years to evaluate its ability to deliver services in the community effectively.
(4) Each Integrated Care Board must publish a report outlining its findings upon completing the assessment in subsection (3). The first reports must be published within one year of the passage of this Act.”
This new clause places a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand on services to ensure that the provisions of the Bill function as intended and to assess and report on this every 2 years.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairmanship, Sir Desmond. I will discuss a number of issues concerning community treatment orders and ensuring sufficient resources for community-based care.
Clause 22 will add the community clinician as a third key decision maker for community treatment orders, alongside the responsible clinician and approved mental health professional, ensuring additional professional oversight. Involving the community clinician in the initial request for a community treatment order will improve the planning and implementation of community treatment orders by ensuring good communication between ward and community doctors, aiding continuity of care. It should also help to prevent the inappropriate use of community treatment orders, for instance to free up beds where there are pressures on acute wards.
Making sure that only those who need to be on a community treatment order will be put on one supports the principles behind the reform of the Mental Health Act 1983, including the principles of least restriction, of therapeutic benefit and of treating the person as an individual. It should also positively impact the racial disparities that have been seen in the use of community treatment orders. The community clinician’s opinion is important when a patient is under a CTO, because the clinician may have a better understanding of the patient’s progress, including how well the patient is engaging with their treatment while in the community. Their insights are valuable in deciding whether the patient should be discharged to a community treatment order or recalled to the hospital if their symptoms worsen. Those who are supporting the patient in the community should be a part of the decision of whether the restrictions of the CTO are still required.
I turn to clause 23. In addition to reducing the number of people placed on CTOs, as has been referred to in relation to clauses 6 and 22, we aim to provide greater protection to those subject to them. CTOs extend the coercive powers of the Mental Health Act into people’s lives beyond hospital. CTOs should be used only when necessary, with conditions tailored to the individual rather than applying blanket restrictions. Currently, some CTO conditions display an overreach of power, such as requiring abstinence from alcohol even if this is unrelated to the person’s mental health condition. The clause will remove the ability of the responsible clinician to apply conditions to a person’s community treatment order which are appropriate but not necessary, giving a higher threshold for conditions to be set.
The clause will allow the mental health tribunal to recommend that the responsible clinician reconsider the necessity of conditions specified in a CTO if the tribunal determines that the patient is not yet suitable for discharge. For example, while not set out in the Bill, the tribunal may use this power if it finds the conditions imposed in a CTO to be possibly disproportionate, overly restrictive, lacking clinical benefit or not treating the person as an individual.
New clause 4 would place a general duty on integrated care boards in England to ensure that community services have the necessary resources to meet demand, and to report on this every two years. This duty to commission local services based on local need is already placed upon integrated care boards by the National Health Service Act 2006, as amended by the Health and Care Act 2022. An integrated care board must arrange for the provision of services as it considers necessary to meet the reasonable requirements of the people for whom it is responsible. Integrated care boards and their mental health trusts are required to prepare a joint forward plan that describes how the ICB will arrange for NHS services to meet their population’s physical and mental health needs. For that reason, we do not think the new clause is necessary, and it could place a disproportionate burden on ICBs and mental health providers. I therefore hope that the hon. Member for Winchester will be satisfied not to press it. I commend clauses 22 and 23 to the Committee.
Dr Evans
The hon. Member rightly talks about resources and about the cuts as a proportion—although small, it is a cut in NHS spending. The last Conservative Government brought in the mental health investment standard to try to ensure parity between physical health and mental health in investment so that, regardless of how big the pot was, mental health was prioritised. Does the hon. Member agree that there is a concern that that could be slipping under this Government? Does he agree that that needs to be addressed in the context of the community provision that we are discussing?
Gregory Stafford
I rise to speak to clauses 22 and 23 and to Liberal Democrat new clause 4.
As my hon. Friend the Member for Hinckley and Bosworth said, the Opposition support clauses 22 and 23 generally. Clause 22 addresses the concern that community clinicians—essentially, those responsible for overseeing a patient’s care outside hospital—have historically had limited formal input into decisions about community treatment orders, even though they are central to the patient’s ongoing care. It ensures that community clinicians not only are consulted but, in some cases, must provide written agreement before key decisions are made. It aims to improve continuity of care, ensure decisions reflect the realities of community-based treatment, and reduce inappropriate and poorly co-ordinated use of CTOs.
The benefits of the clause are obvious, but they are worth restating. Clearly, it improves the continuity of care and ensures that clinicians with direct knowledge of the patient’s community care are involved in those key decisions. It enhances safeguards, adding an additional layer of professional oversight before coercive measures are imposed or suggested. It promotes collaboration by encouraging joint decision making between the hospital-based and community-based clinicians, and it reduces the risk of inappropriate CTOs by ensuring they are used only when genuinely appropriate and supported by those delivering care.
However, I ask the Minister to touch on three points. First, requiring a written agreement or consultation could delay urgent decisions if not managed efficiently, so will he explain how, under the clause, any potential delay—a disagreement or just administrative inertia—can be removed to ensure treatment is not delayed?
That moves me on to the administrative burden. Clearly, the clause adds a level of complexity and requires more documentation and co-ordination. Although I understand that that is a necessary outcome, I would again be grateful for the Minister’s thoughts on how to ensure effective and speedy implementation.
As my hon. Friend the Member for Hinckley and Bosworth said, the ambiguity in the roles of the two clinicians may create confusion or disputes over responsibilities if they are not clearly defined or agreed. My reading of the clause is that there is no such clear definition; will the Minister look to provide one through other agencies, or will he put something into the clause in Committee or later in the Bill’s proceedings?
Clause 23, on the conditions of community treatment orders, addresses the concerns that the threshold for imposing conditions on community treatment orders has been too low, allowing conditions that may be clinically unnecessary or overly restrictive. By removing the “appropriate” test, the clause will tighten the legal standard to ensure that only necessary conditions are imposed.
Additionally, the clause will empower tribunals to play a more active role in scrutinising CTO conditions by allowing them to recommend that clinicians review specific conditions, even if the patient is not discharged. This reflects the Bill’s broader aim of enhancing patient rights and removing unnecessary restrictions.
The clause is a welcome addition. It will ensure that CTO conditions are imposed only when strictly necessary, meaning that there are stronger safeguards, and it will enhance the role of tribunals in protecting patient rights without requiring full discharge. It will reduce clinical overreach by preventing the use of overly broad or vague conditions that may not be clinically justified.
However, as with the previous clause, I have some questions. First, the tribunal power is limited in that it can only recommend, not require, the reconsideration of conditions. Is that the intention, or will the Minister strengthen the clause at some point to ensure that the tribunal can require a reconsideration of conditions? If he will not, what issues does he see arising from there not being a reconsideration?
Secondly, as I mentioned in my intervention on my hon. Friend the Member for Hinckley and Bosworth, I have a concern about the potential ambiguity in the shift from “appropriate” to “necessary” leading to uncertainty or dispute over interpretation. As we touched on in relation to other clauses, clinicians will need additional guidance or training to apply the revised standard consistently. Where will that revised training and guidance be located, and what is the timeframe for its implementation? We need to ensure that all clinicians are fully trained and ready to use this new power.
I will briefly touch on new clause 4, tabled by the Liberal Democrats, because although I understand that the hon. Member for Winchester may not press it, somebody else might. It would place a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand such that the provisions of the Bill function as intended, and to assess and report on this every two years. As my hon. Friend the Member for Hinckley and Bosworth mentioned, the Opposition generally support the overall aims of the new clause, but as ever, there are some issues with the detail, so I have five questions for the hon. Member for Winchester if he responds, or for the Minister to answer in his summing up.
First, if we imposed a statutory duty on ICBs to ensure sufficient resources for the CTOs, what mechanisms would there be to monitor and enforce compliance? Secondly, what would be the consequences if an ICB failed to meet this duty? Would there be formal accountability or a sanction process? Thirdly, how would the duty interact with existing NHS budgetary constraints and competing priorities? Would it become a statutory obligation with no clear means of redress if unmet? Fourthly, could the duty set a precedent whereby Parliament mandates resource guarantees without providing additional central funding? Finally, what constitutes “sufficient” resources in the context of the CTOs? Who defines that standard, and it is defined locally or nationally?
Stephen Kinnock
The term “unreasonable delay” is subject to review by the courts, and further guidance will be given in the code of practice. On what happens if the responsible clinician and the community clinician disagree, the addition of a third decision maker is not about overruling the responsible clinician, who continues to have overall responsibility for the patient on the community treatment order. Including the community clinician at the point of putting someone on a community treatment order helps to ensure continuity of care for the patient. Involving the community clinician in other decisions around the community treatment order, particularly recall, revocation, renewal and discharge, means they can provide an additional insight into the patient’s status while in the community.
Dr Evans
I am grateful for the clarification. Does it mean that, in essence, there will be a hierarchy, so the responsible clinician is above the community clinician and trumps them? If a community treatment order cannot be signed off, it does not exist. I want to explore that angle; is that what the Minister is suggesting?
Stephen Kinnock
Yes, the responsible clinician has primacy.
On the workforce impact, our impact assessment, which was published alongside the Bill, sets out the additional hours of required clinician activity. We will invest in implementing these reforms.
On the meaning of the word “necessary”, we will provide further guidance in the code of practice to provide for a range of scenarios to help to clarify necessary conditions, as well as to clarify that failure to meet those conditions should not always result in recall to hospital.
On the requirement for a responsible clinician to respond to recommendations, we considered giving the tribunal the power to change or remove conditions on a person’s community treatment order. However, the outcome of our stakeholder engagement was that tribunal colleagues did not consider that it was appropriate for them to make clinical judgments, for example whether a condition is of clinical benefit. Providing the power to recommend that the responsible clinician reconsiders the conditions allows the tribunal to provide additional scrutiny but also allows for clinical discretion in decision making.
The hon. Member for Farnham and Bordon asked about training. The training plan will be in the first written ministerial statement.
On where the terms are defined, clause 10 defines responsible clinician and clause 22 defines community clinician. We will define the distinction between the roles in the code of practice.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23 ordered to stand part of the Bill.
Clause 24
Nominated person
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 54 to schedule 2, page 77, line 21, at end insert—
“(3) Where the patient has not attained the age of 16 years, a nominated person must have parental responsibility for the patient.”
This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.
Amendment 55 to schedule 2, page 80, line 13, after “2(2))” insert
“, has parental responsibility for the patient (see paragraph 2(3))”.
This amendment would stipulate that the nominated person for a patient under 16 must have parental responsibility for the patient.
Government amendments 40 and 41.
Schedule 2.
Clauses 25 to 28 stand part.
Stephen Kinnock
I will discuss a number of issues concerning the topic of the nominated person, one of the Bill’s key reforms. I will first address clause 24 and schedule 2, which seek to replace the current nearest relative provisions with the nominated person, chosen by the patient, who can protect their rights when they are detained. The independent review found the nearest relative provision to be outdated and inappropriate. It allocates someone based on a hierarchical list, which does not reflect modern families and could result in someone unfamiliar or potentially risky to the patient being given the role.
We have ensured that appropriate safeguards are in place to protect patients as well as to enable choice. A health or social care professional or an advocate must witness the nomination and confirm in writing that the nominee meets the criteria and that no undue pressure has been put on the patient. Children and young people with the relevant capacity or competence can choose their own nominated person. We expect this will be their parent or guardian, but sometimes a step-parent or other relative over 18, without parental responsibility, may be more suitable to protect a patient’s rights. Safeguards will be put in place to support children in making this choice.
If a patient of any age lacks capacity or competence to make a nomination, an approved mental health professional will appoint a nominated person on their behalf. For children under 16, this will be someone with parental responsibility, including the local authority if the child is subject to a care order. This appointment is temporary until the patient has capacity or competence to make their own appointment.
For all patients, the responsible clinician or approved mental health professional can temporarily overrule the use of a particular nominated person’s power, for example to discharge the patient, if the patient is likely to act in a manner that is dangerous to themselves or others. A nominated person can be removed by the county court if deemed unsuitable—for example, if they misuse their powers or neglect the patient’s welfare or the public interest. Anyone with an interest in the patient’s welfare, such as their parents, can apply to the court. The Bill extends the nominated person safeguard to some restricted part III patients, but their nominated person’s powers will be limited, as appropriate, in the interests of public safety and criminal justice.
Amendments 54 and 55 would require nominated persons for patients under 16 to have parental responsibility for the child, whether chosen by the child or appointed for them. The Bill currently requires this if the child lacks competence to appoint their own nominated person. However, where a child has competence to decide, we think it is right that they can choose the person to represent their interests. That view was supported by the majority of respondents to the White Paper consultation on reform of the Mental Health Act, and it is in keeping with the principles of choice, autonomy and treating the person as an individual.
Like the current “nearest relative” provision, which the nominated person will replace, the amendments do not take into account the greater diversity of modern family structures—for example, where a step-parent may play a vital role in a young person’s life but does not have formal parental responsibility. Our engagement with children and young people during the development of the Bill suggests that the vast majority will appoint a parent as their nominated person. However, we think having choice is important to prevent children from having to have a nominated person who may not engage with the role or act in accordance with their best interests, just because they have formal parental responsibility.
Where children have competence to choose their own nominated person, a health or social care professional, or advocate, will be required to witness the nomination and confirm in writing that the nominated person is over 18 and suitable to take up the position. Regardless of nominated person status, parents should be involved in a child’s care and treatment, and they will retain their legal rights under parental responsibility. Safeguards are in place to allow for the overruling and displacement of the nominated person if they are behaving in a way that is not in the child or young person’s best interests.
Government amendments 40 and 41 will remove paragraph 11(3) to 11(5) of schedule 2 from the Bill, as it is unnecessary to specify in legislation which person with parental responsibility the approved mental health professional must appoint as nominated person for an under 16-year-old. A prescriptive list of who an approved mental health professional must appoint for a child under 16 may prevent a more suitable adult from being chosen as the nominated person. The Bill states that for under-16-year-olds lacking competence, an approved mental health professional must appoint a parent, or whoever has parental responsibility, to be the child’s nominated person. This would include consideration of special guardians and child arrangement orders.
The Government do not agree that a person with residual parental responsibility should always be blocked from being a nominated person, as the child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child. For example, the parent might struggle with their own health issues, but that does not necessarily mean that they would not be an effective nominated person. The situation is different in the case of a care order because the local authority is being given lead parental responsibility. We have engaged with the Children’s Commissioner on that point.
If there is no suitable person with parental responsibility willing to act, the approved mental health professional must take into account the patient’s past and present wishes and feelings, so far as reasonably ascertainable, when deciding who to appoint. We will establish an expert taskforce to support the development of the statutory code of practice to provide clear guidance for professionals involved in the nominated person appointment process for children and young people.
Clause 25 will require the approved mental health professional to consult the nominated person before they make an application for admission for treatment or guardianship. This is an existing right for the nearest relative. However, currently if the nearest relative exercises one of their powers, such as the ability to block admission, but the professional believes their objection is unreasonable, the only means of overruling them is to remove or displace them as the nearest relative. This can leave patients without someone to represent their interests during detention.
Clause 25 will allow the approved mental health professional to make use of the existing barring order to temporarily overrule the nominated person, if the patient would be likely to act in a manner dangerous to other persons or themselves if their admission was blocked. This is a well-established process. Although the nominated person can continue to represent the patient in other ways, they can still be displaced by the court from the role entirely if their actions indicate they are unsuitable for the role—for example, if they are repeatedly objecting to admission without considering the welfare of the patient or the interests of the public. Approved mental health professionals can continue to use that process.
Clause 26 will transfer the nearest relative provisions relating to the power to order discharge of a patient to the new nominated person role. The power can be temporarily overruled by a responsible clinician if they think that the patient’s discharge would result in danger to themselves or others. It is a well-established process that allows for clinical discretion, but means that the nominated person can continue to represent the patient’s rights in other ways. Clause 26 also reduces from six months to three months the time period during which the nominated person cannot make another order for discharge. That reflects the changes in detention periods under clause 29.
Clause 27 will give the nominated person a new power to object to the use of a community treatment order. We also recognise, however, the importance of protecting patients and the public, so if the responsible clinician is concerned that without a community treatment order, there would be a risk of danger to the patient or others, they can overrule the nominated person’s objection. Those changes will help both to reduce the number of inappropriate community treatment orders and to ensure that safeguards are in place for patient safety and public protection.
Finally, clause 28 provides that before deciding to transfer a patient, the person responsible for taking that decision must consult the patient’s nominated person, unless consultation is not reasonably practicable or would involve unreasonable delay. The nominated person will not be able to object to a transfer, because there may be good reasons for transferring a patient—for example, if a different trust can provide better care, such as a specialist eating disorder unit. Consulting the nominated person, however, means that they are aware of the reasons for transfer and how it will benefit the patient. That will help the nominated person to remain actively involved in protecting patients’ rights and kept informed about a patient’s care and treatment.
Dr Evans
I welcome the chance to contribute to the debate on clauses 24 to 28. I will then turn to Government amendments 40 and 41 and to amendments 54 and 55, tabled by my hon. Friend the Member for Runnymede and Weybridge (Dr Spencer).
Clauses 24 to 28 represent a significant reform to the Mental Health Act 1983. They seek a shift from the traditional concept of a nearest relative to giving patients more control by allowing them to nominate a person to act on their behalf. Clause 24 is the cornerstone of the reform, establishing the role of a nominated person as the patient’s chosen individual to take over certain rights and responsibilities previously held by the nearest relative. It represents a fundamental change from a fixed family-based system to one centred on patient choice and autonomy.
Currently, the nearest relative, often by blood relation, holds a range of statutory powers under the Mental Health Act, regardless of the quality of their relationship with the patient. The clause will enable patients, especially adults, to nominate a trusted person—a family member, friend or advocate—who can act in their best interests. That is a progressive and patient-focused change relating to modern social realities, where family ties are complex and a biological relative is not always the best supporter.
Empowering patients to select their nominated person can enhance trust, improve communication and ultimately lead to better care outcomes. It does, however, raise pressing questions. For children and young people, particularly those aged 16 and 17, who gain legal capacity to nominate, what safeguards ensure that parental concerns and children’s welfare remain adequately considered? How will disputes between nominated persons and relatives, or between the nominated person and clinicians, be resolved? Part of that might be addressed in Government amendments 40 and 41, but I am keen to understand a little more. What training and oversight will ensure that nominated persons understand their duties and, importantly, their boundaries? Finally, for a patient who does not or cannot nominate someone, will the nearest relative still have a role, and how will that be managed?
Clause 25, on applications for admission or guardianship, builds on clause 24. It will require the approved mental health professional to consult the nominated person before making applications for admission or guardianship, except where consultation is not reasonably practicable or would cause unreasonable delay. It will also allow the nominated person to object to such applications, requiring a barring report from the approved mental health professional if an objection is made.
The clause will formalise the nominated person’s involvement at a critically early stage of the intervention, ensuring that their voice can influence decisions that deeply affect the patient. The power to object introduces an important check, though it is balanced by the professional’s ability to override objections on the grounds of safety. The Opposition agree with that, but there are still some questions. How will professionals navigate conflicts between their clinical judgment and objections by the nominated person? Will there be clear guidance to avoid delays that could jeopardise patients or public safety?
Oral Answers to Questions
Stephen Kinnock Excerpts(3 days, 23 hours ago)
Commons ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Charlotte Cane (Ely and East Cambridgeshire) (LD)
The Minister for Care (Stephen Kinnock)
After years of underfunding, the Government agreed a record uplift of £3.1 billion for ’25-26 for the pharmacy sector. The pharmacy access scheme provides £19 million to support pharmacies in areas with fewer pharmacies, including in rural areas, but funding must always come with reform. Our hub and spoke legislation, if it is passed in the other place today, will allow pharmacies to streamline their dispensing processes, and it is a major step in the right direction in marrying reform with investment.
Caroline Voaden
I recently visited Modbury pharmacy, where owner Phil Dawes highlighted the challenges facing small rural pharmacies. He explained how the current funding model does not take into account the lower footfall and limited referral rates that are common in rural areas. We know that if a pharmacy in a small market town closes, it can cause extreme difficulties for people to access advice and medicines, particularly where there is little or no public transport and they have to go a long way. Will the Government consider introducing rural exceptions or adjusted funding thresholds so that we can keep community pharmacies open?
Stephen Kinnock
The pharmacy sector is facing huge challenges after massive cuts over the past 14 years. We are beginning to rebuild, but the hon. Lady is right that there are particular challenges for rural pharmacies. We are looking at comprehensive reform in the pharmacy sector involving the better use of technology, hub and spoke dispensing, and a range of other options that would enable better remote dispensing for rural pharmacies.
Charlotte Cane
I have visited pharmacies across my constituency. They are all struggling to provide a service, but are all very keen to take on the new services that the NHS is suggesting. Will the Minister commit to ensuring that rural and community pharmacies are properly staffed and equipped to deliver those community services, such as diabetes testing and weight management treatments, so that patients are not left behind just because of where they live?
Stephen Kinnock
The hon. Lady is right that pharmacies will play a central role in the shift from hospital to community that we will be putting at the heart of our 10-year plan. An important part of that, of course, is Pharmacy First. The take-up of Pharmacy First is not what we would like it to be, so we are looking at options to increase awareness of Pharmacy First and to free up pharmacists to be able to operate at the top of their licence. Part of that is about streamlining the dispensing side of what they do, and the hub and spoke legislation that I mentioned earlier will be really important in that context.
Steve Yemm (Mansfield) (Lab)
The Minister has spoken many times about the importance of shifting from hospital to the community. I have visited many local pharmacies and met the chair of Community Pharmacy Nottinghamshire, seeing at first hand the important work they do to support communities in Mansfield. Does the Minister agree that community pharmacies have a key role to play in that shift and could help to take pressure off GP surgeries?
Stephen Kinnock
My hon. Friend is absolutely right, and I commend him for the work he is doing in his constituency, including with pharmacies. In many ways, what we want to see is a culture change, because the interface between general practice and community pharmacy is not where it should be. We believe that pharmacists have a huge amount more to offer, but that requires a better digital interface and better information sharing—a single patient record. That sort of vehicle will be really important for delivering some of those reforms.
Dr Luke Evans (Hinckley and Bosworth) (Con)
I am pleased to hear the Minister speak about Pharmacy First, which was brought forward by the previous Government and welcomed by communities, the public and the pharmacists. Although I am pleased to see the Government continue it, why have they decided to cap the number of consultations that a pharmacist may do?
Stephen Kinnock
Part of that is about the financial arrangements for Pharmacy First, which need to be set at a level that incentivises pharmacists. Sadly, given the way in which the scheme was set up under the previous Government, those incentives were not working, which is one reason why the take-up of Pharmacy First has not been what it needs to be. It is a question not of capping but much more one of getting the right level of financial compensation for Pharmacy First so that it works and incentivises the system.
Dr Evans
I am grateful to the Minister for his answer, but part of the problem is that once pharmacists hit that cap, they are no longer paid the £17 per consultation. In turn, that means that either patients will be turned away, or the pharmacist must take the hit and pay for it themselves. That disjoins the system and could create extra costs, because patients who are turned away will turn up in other areas of primary care, such as their GP surgery. How does that fit with Darzi’s push towards community-based services?
Stephen Kinnock
The hon. Gentleman will have seen—and I am sure will welcome—the record uplift of £3.1 billion that we are putting into the pharmacy sector after years of underfunding, incompetence and neglect from the Conservative party. A big part of this is ensuring that the shift from hospital to community takes place, and we want pharmacists to be taking pressure off primary care. We have to make Pharmacy First work effectively, which means getting the allocation of funding right. That is what we are working on in terms of reforms. Now that we have the spending review and the package, that is what we will be delivering.
Sadik Al-Hassan (North Somerset) (Lab)
Tim Farron (Westmorland and Lonsdale) (LD)
The Minister for Care (Stephen Kinnock)
I know this is an important issue for the hon. Member from the meeting we had about it last year. This Government are supporting local providers by recruiting an additional 8,500 mental health workers by the end of this Parliament. We are also expanding NHS talking therapies and piloting six new 24/7 neighbourhood mental health centres, including Hope Haven serving Whitehaven and rural Copeland.
Tim Farron
I thank the Minister for his reply, but this month the Care Quality Commission found high levels of staff vacancies in the already understaffed psychiatric intensive care units and acute mental health wards in South Cumbria, concluding that this is putting patient safety “at risk”. Yet, worryingly, the ICB in South Cumbria is making additional cuts of £142 million this year, with North Cumbria also making cuts. In the light of that, what is his plan to intervene to ensure that mental health staffing in Cumbria is increased to safe levels?
Stephen Kinnock
I thank the hon. Member for that. There is no doubt that the NHS, universities and others need to do more to get students, trainees and qualified doctors and mental health specialists in places where the NHS and patients need them. We will publish a refreshed workforce plan later this year to ensure that the NHS has the right people in the right places to care for patients when they need it.
Chris Kane (Stirling and Strathallan) (Lab)
The SNP has cut mental health services across Scotland, while failing to recruit the necessary workforce in rural communities such as those in Stirling and Strathallan. What assessment has the Department made of how devolved mismanagement of mental health services is affecting outcomes for patients in rural Scotland?
Stephen Kinnock
If we were to make an assessment of the way in which the SNP has mismanaged its responsibilities in Scotland we would be here for a very long time. I am not sure I can answer my hon. Friend’s question in the round, but I am sure that colleagues from the SNP will be welcoming the record investment that the UK Government have made in Scotland. I am certainly looking forward to the improved outcomes that they will be delivering as a result.
Andrew Rosindell (Romford) (Con)
The Minister for Care (Stephen Kinnock)
The spending review announced increases in NHS spending alongside more money for adult social care. By investing in DEXA scanners, we can more rapidly treat conditions such as osteoporosis, which particularly affect elderly women. Our urgent and emergency care plan promotes falls prevention technology for longer independent living and fewer hospital admissions. GPs are now incentivised to improve continuity of care, benefiting patients with long-term conditions.
Andrew Rosindell
I thank the Minister for his reply, but as the Secretary of State knows only too well, my borough of Havering contains one of the highest numbers of elderly people in the entire London region, yet Queen’s hospital in Romford remains chronically underfunded, overstretched and struggling to meet the growing healthcare needs of an ageing community. Will the Minister commit today to the serious investment that Queen’s hospital so desperately requires to ensure better health outcomes for older people across Romford?
Stephen Kinnock
I carefully note the fact that the Secretary of State for Health and Social Care, who is sitting next to me, has an interest in this issue, so I will tread very carefully with my answer. I understand that the hon. Gentleman has discussed this matter with the Minister for Secondary Care. The North East London health and care partnership integrated care board is responsible for delivery, implementation and funding decisions for local services, but the hon. Gentleman’s representations have been carefully noted today, not least by the Secretary of State for Health.
Mr Toby Perkins (Chesterfield) (Lab)
One of the most important things we can do to support the health of the elderly is to ensure that they can get to see their local doctor. It is great to hear the Health Secretary talk about the improved access to appointments—we are seeing that in Chesterfield—but he is also right to say that it is the first step back up the mountain. The Government inherited a real crisis in GP access and the situation is particularly difficult in more deprived areas. Will my hon. Friend tell me what more we will do to ensure that people are able to see a GP, and in particular that practices that serve the most deprived communities can get access to the extra GPs they need?
Stephen Kinnock
My hon. Friend will know that when we came into Government we inherited the absurd situation where the additional roles reimbursement scheme was weighed down by red tape and it was not actually possible to recruit GPs. We changed that. We invested an extra £82 million and as a result we have well over 1,000 more GPs on the frontline, but that is just the beginning. We have contract reform and £889 million of additional investment in general practice, and we are moving forward with an online booking system, which will be obligatory by 1 October. We have much more work to do—for example, around the interface with pharmacy; we are working hard on that. There is a lot more to do, but my hon. Friend is right that the first step up the mountain has been taken.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Last health questions, I asked about delays to crucial medications in A&E and the Secretary of State said he was interested to hear more, but his office said he would delegate it to a Minister and we still have not been offered a date, so could I encourage him to look into that, please? The U-turn on winter fuel will help the elderly to stay warm and healthy this winter, but another way to help elderly people would be to protect them from the respiratory syncytial virus. Will the Government extend the vaccination to the over-80s?
Stephen Kinnock
I thank the hon. Lady for that question, but I did not quite catch the word she used. The virus was called? [Interruption.] Oh—RSV, yes. We are certainly looking at increasing the coverage of the RSV vaccination. I do not have the statistics to hand at the moment, but I would be happy to write to her on that point.
Dr Johnson
Many of those on waiting lists are elderly and have chronic conditions; rather than seeing consultants at regular intervals, which may coincide with them being relatively well, they are often kept on open appointments so that they can call when they are ill. This is efficient and responsive care. Is the Minister aware that this provision is being stopped in some areas in order to improve figures? I will quote from a letter about an elderly patient:
“I regret cannot keep him on my waiting list under the open appointment”
for treatment, and,
“I have explained the politics of everything and where we are at.”
Being re-referred to a GP each time is expensive and a waste of time. Can the Minister explain why doctors are being asked to make decisions for political reasons, instead of clinical ones?
Stephen Kinnock
I do not think any decisions are being made for political reasons—our medical and health staff are very much focused on doing the right thing from a clinical point of view. The hon. Lady raises an important point about continuity of care, with people constantly having to be re-referred into the system. Part of the reason for that is the utter incompetence with which the previous Government managed our primary care system, which has resulted in people being passed from pillar to post, the additional roles reimbursement scheme not actually being about having GPs on the frontline, but about having other staff, which creates more friction in the system, and poorer continuity of care. This Government are going to bring back the family doctor—that is the way to get our general practice back on its feet.
Mark Ferguson (Gateshead Central and Whickham) (Lab)
Laura Kyrke-Smith (Aylesbury) (Lab)
The Minister for Care (Stephen Kinnock)
We are getting the NHS back on its feet and making it fit for the future by shifting care to the community with £889 million more for GPs, 1,700 additional frontline GPs, 700,000 extra urgent dental appointments annually and a 19% uplift to the community pharmacy contract. Looking to the future, our commitment to building a neighbourhood health service is right at the heart of our 10-year plan.
Laura Kyrke-Smith
I am delighted by the Government’s commitment to moving healthcare closer to the community, including through the establishment of neighbourhood health centres. That is exactly what we need in Aylesbury, and I am pleased that all our key healthcare providers, including the NHS trust and several GP practices, are already working together to better integrate their care, which is an important step in the right direction. Will the Minister update me on his progress towards the model of neighbourhood-based healthcare? Can he advise what more Aylesbury’s healthcare providers can do to ensure that my residents benefit from the Government’s work in this area?
Stephen Kinnock
It is really good to hear about the fantastic work going on in my hon. Friend’s constituency. We are working with systems to move to a neighbourhood health model by building on existing good practice, particularly around the development of multidisciplinary teams. Aylesbury is an outstanding example of that. Ahead of the 10-year health plan’s publication, local communities can continue to make progress by utilising the neighbourhood health guidelines that were published back in January.
Graham Stuart (Beverley and Holderness) (Con)
Dental patients with untreated need end up in hospitals. In places like Hedon in my constituency, we have seen more and more dental practices moving away from the NHS. I have a constituent who found it took her three years to get her child their first check-up, and that dental practice has now ceased to look after NHS patients. She also cannot get the NHS treatment she deserves herself, even though she had a child in February. What in the 10-year plan will change that and ensure that everyone can get access to NHS dentistry?
Stephen Kinnock
The right hon. Member is right to point to children’s dental health. After we won the election in July, I looked across my portfolio and it was pretty much a car crash in every aspect, thanks to the incompetence of previous Governments. Perhaps the most shocking statistic of all is that the biggest reason five to nine-year-old children are admitted to hospital is to have their rotten teeth removed. That is a Dickensian state of affairs. We are working with the British Dental Association on contract reform. We have got to incentivise NHS dentistry, do away with the false economy set up under the last Government and get dentistry back to where it needs to be.
Michelle Welsh (Sherwood Forest) (Lab)
The saying goes that it takes a village to raise a baby, meaning that those in our community provide families with vital support. Does the Minister agree that we need to invest in more community midwives to ensure that families are properly supported through the whole of pregnancy and after birth?
Stephen Kinnock
I thank my hon. Friend for that important question. The role that midwives play, alongside other community health services such as district nurses, has been chronically underfunded and neglected over the past 14 years. She will be pleased to know that the role of community healthcare is front and centre in our 10-year plan, and I think she will be interested in and pleased with what she sees when that plan is published.
Ellie Chowns (North Herefordshire) (Green)
The Darzi report pointed out that 13% of hospital beds are occupied by people who are fit for discharge but who cannot get out because social care is broken. Lord Darzi said that we cannot fix the NHS until we fix social care. It is nearly six months since the Secretary of State promised cross-party talks and a commission, but the talks were cancelled and never rescheduled and the commission is delayed. Please, when will the Government stop going slow on social care? Please, when can we all get around the table to talk about fixing social care so that everyone gets the care they deserve?
Stephen Kinnock
I have to correct the hon. Lady: the commission is up and running, Baroness Casey has started meetings and she had a roundtable just a few weeks ago with people who have lived experience. The hon. Lady is therefore not correct on that point and I am sure that she will want to correct the record.
On the point about delayed discharge, the hon. Lady is absolutely right. We are reforming the better care fund to get much better interface between hospitals, care and local authorities. That system and those relationships can and should work much better, but there are pressing, long-term challenges. We are conscious of that and are working at pace with Baroness Casey to ensure that those reforms are delivered.
Helen Morgan (North Shropshire) (LD)
As we have just heard, it is widely acknowledged that the crisis in social care is a cause of dangerously high occupancy rates in hospitals that lead to the horrors of corridor care, the dreadful ambulance waiting times that we have seen and a knock-on effect on the community. When I was contacted by the family of a terminally ill man in Wem in my constituency last month, I was reminded that not only is care often provided in the wrong place, but it is often not available at all. Will the Government bring forward the timeline for the horribly delayed Casey review to report back, get it done this year and heed Liberal Democrat calls for cross-party talks so that we can agree on a long-term solution for the crisis?
Stephen Kinnock
May I just tackle the idea that we are not working at pace on these issues? We have had the unpaid carer’s uplift from £151 to £196, which is the biggest uplift in carer’s allowance since the 1970s when the policy was brought in; hundreds of millions of pounds’ uplift in the disabled facilities grant; and groundbreaking legislation for a fair pay agreement for care workers. Those are just some of the immediate steps that we have taken. The first phase of the Casey review will report next year and we continue to work closely with Baroness Casey to deliver the reforms that are so desperately needed after 14 years of neglect, including a number of years when the Liberal Democrats were in government.
Charlie Dewhirst (Bridlington and The Wolds) (Con)
The Minister for Care (Stephen Kinnock)
I am sorry to hear about the issues that my hon. Friend’s constituents are experiencing. I understand that he has raised the issue with the North East and North Cumbria ICB, which is investigating his concerns. I would be happy to be kept informed, and if he is not happy with the outcome of that investigation, he should certainly come back to me. This Government are committed to supporting community pharmacies after a decade of underfunding and neglect. We recently agreed a record uplift to £3.1 billion for 2025-26.
Bob Blackman (Harrow East) (Con)
The Secretary of State may well be aware of the greater awareness among young people of nicotine pouches. That seems to be a gap in the Tobacco and Vapes Bill currently going through Parliament. Will he commit to look at this issue to ensure that it is covered and that we bar this alongside other forms of tobacco and nicotine?
Stephen Kinnock
We have provided hospices in England with a record £100 million in capital funding, as my hon. Friend will know. ICBs are responsible for commissioning palliative and end-of-life care services, including hospices, to meet the needs of their local populations. NHS England has published statutory guidance to support that. I would of course be more than happy to meet my hon. Friend to discuss that further.
Adrian Ramsay (Waveney Valley) (Green)
The British Dental Association recently published analysis showing that the proportion of NHS funding spent on dentistry more than halved under the Conservatives, who failed to account for inflation and demand to the cost of £1 billion. It is no wonder that we have dental deserts across much of the country. Will the Secretary of State ensure that dentistry receives its fair share of funding from the new NHS funding allocated in the spending review?
Stephen Kinnock
The hon. Gentleman is absolutely right to point to the neglect and incompetence of the past 14 years. We are fighting to get NHS dentistry back to where it needs to be. An important first step, of course, is the 700,000 additional urgent appointments and supervised tooth-brushing programme, but long-term contract reform is what is needed, alongside the investment that will come through the spending review.
Ben Coleman (Chelsea and Fulham) (Lab)
According to the Trussell Trust, the impact of hunger and hardship on people’s health is driving an extra £6.3 billion in Government healthcare spending. What part is the Department playing in reducing hunger and hardship—and thus the related healthcare cost—in my constituency and across the country?
Stephen Kinnock
My hon. Friend is right to raise that important point. It is truly shameful that 4.5 million children in the UK now live in poverty. We are developing an ambitious strategy that tackles root causes, and we are already taking action. Alongside cross-Government work on free school meals, breakfast clubs and funded childcare, the Department is investing £56 million in Start for Life services and supporting healthy diets for 358,000 people through Healthy Start.
Mr Gagan Mohindra (South West Hertfordshire) (Con)
Opticians are important medical professionals for our community. Unfortunately, when I spoke to the Hertfordshire and West Essex integrated care board, I was told that it will not allow opticians to perform vital services such as treating minor eye injuries, as doing so is deemed too expensive, despite that being the norm in the areas surrounding my constituency. Will the Minister meet me to discuss how we can ensure a fair system across the country, rather than a postcode lottery?
Stephen Kinnock
The hon. Gentleman is right to point to the anomalies in the eyecare system. There are concerns about the role that some aspects of the independent sector are playing, particularly in the light of the lucrative nature of cataract operations. If he writes to me, I will be happy to set out the issues, and I guarantee that he will get the response in due course.
James Wild (North West Norfolk) (Con)
In March, the Minister for Care told me that no decision could be taken on a new dental school at the University of East Anglia until the spending review settlement was known. Now that we know it, will he instruct the Office for Students to allocate new training places at the UEA from 2026?
Stephen Kinnock
The spending review has just been published. The key now is to secure the allocations within the overall financial envelope. That will take a matter of weeks, and I will be happy to report back to the hon. Member once we have that clarity.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Between 2001 and 2011, the 15% health inequalities weighting in NHS allocations made a positive, measurable difference to the health of deprived people. Unfortunately, it was cut to 10% in 2015. With the spending review’s increase in funding to the NHS, when will the health inequalities weighting reach 15%?
Claire Hazelgrove (Filton and Bradley Stoke) (Lab)
The challenge of finding and keeping an NHS dentist is raised with me time and again across the Filton and Bradley Stoke constituency, and I welcome the early action that this Labour Government have taken to introduce more than 19,000 urgent care appointments across our integrated care board area. What will be the next steps to help ensure that NHS dentistry is opened up again to everybody?
Stephen Kinnock
I thank my hon. Friend for that question and her relentless campaigning on this issue. She is right that the 700,000 urgent dental appointments are a first step, and we are looking to embed that so that it goes forward every year of this Parliament. The broader issue is around contract reform. There is no perfect contract system—the current one clearly is not working—and we are looking at options around sessional payments, capitation, and getting a contract that works and brings dentists back into the NHS.
Blake Stephenson (Mid Bedfordshire) (Con)
The Secretary of State will know that my local ICB in Bedfordshire, Luton and Milton Keynes is set to merge with Hertfordshire, Cambridgeshire and Peterborough. The new ICB will cover a population of about 3 million people. Given the difficulties we have had securing a GP surgery in Wixams, will the Secretary of State set out how supersizing that quango will help rural mid-Beds to get the local healthcare it needs?
Terminally Ill Adults (End of Life) Bill
Stephen Kinnock ExcerptsFriday 13th June 2025
(1 week ago)
Commons ChamberRead Full debate Terminally Ill Adults (End of Life) Bill 2024-26 View all Terminally Ill Adults (End of Life) Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 16 May 2025 - large print - (16 May 2025)
Dr Kieran Mullan (Bexhill and Battle) (Con)
May I start by offering the condolences of His Majesty’s Opposition to all those affected by the Air India plane crash, including the families of the very many British citizens who, very sadly, lost their lives. Our thoughts are with all of them.
As is well understood now, the Opposition remain neutral on the principle of whether assisted dying should be introduced. That will depend on the Bill’s progress through its remaining stages in this and the other place. However, I wish to raise two important matters. First, on the matter of time, all of us understand the considerable challenges that Mr Speaker faces in having to balance the desire of colleagues to speak on this matter with the limited time available for private Members’ Bills—I know that he is doing his best to strike that balance. A number of Members have pointed out that the time being given to this Bill is significant and more than that normally allocated to even quite substantial Government Bills. None the less, it is right to acknowledge that this is far from an ordinary Bill.
It is hard to think of a more deeply consequential and highly contentious piece of legislation for our society. The reality is that, both today and in previous sittings, a number of Members have been unable to speak. There has been an informal time limit on speeches, and interventions have necessarily been limited as a result. Debate in this House is important not just because it decides how we vote, but because it is used by the courts to help interpret legislation. A more limited debate limits the scope for that.
Ordinarily, a Minister would have significant time at the end of Report to deal with amendments, provide clarification and explain intention, in a way that the promoter of the Bill will not. Again, a majority of Members may be satisfied with that, but very many are not. Although what we decide on the business of the House is ultimately determined by majority vote, how we reach a decision and how we allow alternative views to be explored matters. We should all consider whether we want a debate of such importance to be curtailed in the manner that it has been.
I ask the Government to consider assisting Mr Speaker by making more time available for us to ensure that, on Third Reading, we have the fullest debate possible, with every Member having a reasonable opportunity to speak and take interventions in the way that they would like.
Secondly, Members will be aware that the Bill, although extensive, is not the full picture. As others have highlighted, significant elements of how assisted dying will operate are due to be determined by future delegated legislation. The Government’s delegated powers memo notes that the Bill contains 38 delegated powers, including Henry VIII powers, and more powers are contained in the promoter’s amendments that are scheduled for decision today. They include matters such as the content, form and thoroughness of doctors’ reports, regulations for replacing a co-ordinating doctor who is unable or unwilling to continue, and decisions on who will be notified of the panel’s decision, which has been raised as an important potential safeguard. Those are not trivial matters. These pieces of legislation cannot be amended and MPs can vote only yes or no. In some cases, they are unlikely to be debated, and they almost certainly will not be on the Floor of the House. It is important for Members to fully understand that. MPs often have to weigh up the consequences of rejecting such legislation when they disagree with it, because it could leave a void.
Members are well within their rights to be content to proceed regardless. Certainly, a majority of the Committee have presented a Bill to the House with the composition as described. That is, of course, a legitimate choice for Members to make. We have heard in the debate today about amendments to curtail these powers, and Members will need to decide their views on that. I urge the Government, in the interests of helping Members to have the clearest possible idea of how a scheme they are being asked to vote on will operate, to provide as much detail as possible on what these future regulations might consist of. Although we will not be able to have all the answers, I think most Members would agree that it is better that we vote with more detail, rather than less, even if they are satisfied to support assisted dying in principle. This is something that only the Government can do. I ask that the Minister reflects on that challenge in his closing remarks, alongside giving the Government’s response to those asking for more Government time to allow wider debate with more Members able to speak.
I emphasise again that the Opposition remain neutral on whether we should introduce assisted dying, but it is incumbent on us to at least draw attention to matters of procedure that can be addressed only by the Government. I look forward to the Minister addressing the concerns of Members along the lines reflected in my remarks today.
The Minister for Care (Stephen Kinnock)
I associate the Government with the words of the Opposition spokesman regarding the tragic incident in India.
As Members will know, the Government remain neutral on the passage of the Bill and on the principle of assisted dying. We have always been clear that this is a decision for Parliament. However, the Government are responsible for ensuring that the Bill, if passed, is effective, legally robust and workable.
Let me start with a brief observation about the process and, in particular, the time made available to Parliament to scrutinise the Bill. The Bill has received over 90 hours of parliamentary time, which is more than most Bills receive. More than 500 amendments were tabled and considered in Committee. I thank Members on all sides of the debate for their contributions during the extensive consideration and scrutiny that the Bill has received.
Given the time, I will confine my remarks on the amendments to those about which the Government have significant legal or operational concerns, and those tabled by my hon. Friend the Member for Spen Valley (Kim Leadbeater) to address significant workability concerns. Before I get into the detail, I remind the House that a full list of amendments tabled by my hon. Friend that the Government deem essential or highly likely to contribute to the workability of the Bill can be found in the letter sent to all Members by me and the Minister of State at the Ministry of Justice, my hon. and learned Friend the Member for Finchley and Golders Green (Sarah Sackman), on 15 May.
Let me start with amendments tabled by my hon. Friend the Member for Spen Valley. New clause 13 and amendments 69, 53 and 72 would allow the Government to create or change legislation to set out the end-to-end process in relation to approved substances to be used for assisted dying. They would allow for monitoring and for a regulatory regime to be designed that will offer robust oversight of approved substances and the devices used to administer them, specifically in the context of assisted dying.
Amendment 54 and new clause 15 would replace clause 35, which is currently unworkable in the wider legal context. They would align the scrutiny and certification of assisted deaths with the existing process for deaths that are not deemed unnatural. That means that assisted deaths would be scrutinised by a medical examiner rather by a coroner unless reported to the coroner by anyone who has concerns about the death.
Amendments 92 to 94 would ensure that the Secretary of State and Welsh Ministers have powers to make necessary regulations to approve assisted dying services in Wales. Amendment 95 would bring the Welsh commencement powers in line with the devolution settlement and remove the requirement in clause 54 for Welsh Ministers to lay commencement regulations before the Senedd for approval, to align with usual procedure.
I now turn to amendments tabled by other Members that the Government assess as creating potentially significant workability challenges. Amendment 97 would require the MHRA to license the approved substances to be used in assisted dying. That may present workability challenges, as licensing is not possible if the approved substances do not meet the definition of “medicinal product” under the current relevant legislation. Furthermore, licensing is reliant on the manufacturer applying to the MHRA for a marketing authorisation for that indication and providing the necessary evidence of safety and efficacy in support. Should the Bill pass, the Government would work to put in place an appropriate regulatory regime for the approval of substances. It may be helpful to note that my hon. Friend the Member for Spen Valley has tabled new clause 13, which recognises the need for a robust regulatory framework and would provide the powers needed to introduce such a framework.
Amendments 105 to 107, amendment (a) to new clause 13 and amendment (a) to new clause 14 would restrict the scope of Henry VIII powers available to the UK and Welsh Governments to make provision about assisted dying services. They would further restrict the use of powers in relation to the regulatory framework for approved substances and the devices used to administer them, and to the prohibition on advertising. I point Members towards the delegated powers memorandum published by the Government, which sets out our consideration of the Henry VIII powers in the Bill. As with legislation more broadly, the Government recognise the need, in appropriate cases, for amendment by Henry VIII powers. Members will be aware that the Delegated Powers and Regulatory Reform Committee will issue its own consideration of the Bill, which will of course be made available to all parliamentarians.
Amendment 3 seeks to shorten the commencement period to three years. Should the Bill pass, an entirely new service with robust safeguards and protections will need to be carefully developed and tested, with input from a range of delivery partners. The Government’s view is that the Bill, as amended in Committee, with a four-year backstop for commencement would be more likely to provide for safe and effective implementation.
Tom Gordon
One of the key things that the Bill’s sponsor, the hon. Member for Spen Valley (Kim Leadbeater), has said throughout is that four years, in the Bill as it currently is, would be a backstop. Can that be the case if the Minister is talking about a requirement of four years and that it could not have been delivered sooner?
Stephen Kinnock
I can confirm that it is absolutely the policy intent of the sponsor for that to be a backstop. The Government are working on that basis to ensure that it is a backstop and not a target.
Amendment 42 seeks to remove the four-year backstop. Although that is a matter for Members to decide, we note that if both that amendment and amendment 94, tabled by my hon. Friend the Member for Spen Valley, were accepted, nobody would have the power to commence reserve provisions in Wales. That would create major workability concerns for the service in Wales.
Dr Johnson
The advocates of the Bill talk about the point of choice and autonomy in the decision about when and where a person will die. Can the Minister confirm whether we have enough doctors to provide a service for people to die at home at the time of their choosing?
Stephen Kinnock
I refer the hon. Lady to the impact assessment, which is of course not a forecast but a set of scenarios. In it, detail is given on expected numbers and the capacity of the system to deal with the service.
Amendments 13 and 82 to 85 relate to the appointment of the voluntary assisted dying commissioner and panel members. The amendments would put the process for the appointments out of kilter with standard practice for public or non-judicial appointments and could significantly limit the pool of individuals available. Amendment 86 would give the panel the same powers, privileges and authority as the High Court, which are significant in scope and are set out across different court rules and legislation. It is unclear how those would apply to panels in practice. They may be unworkable given that the panel is not designed to be a court.
New clause 4 and amendment 28 would put various responsibilities on the chief medical officers for England and Wales. Imposing duties in primary legislation on an individual civil servant may cause difficulties in the future if the role does not exist or if the title changes. It is usual practice for duties in primary legislation to be conferred on the Secretary of State, who may decide to delegate to the chief medical officer.
I would like to briefly respond to a number of questions directly asked of the Government. The hon. Member for South Antrim (Robin Swann) asked about medicines regulation in Northern Ireland. The amendments will not affect the application of EU law; they will instead ensure coherence between the different legislative frameworks. The sponsor will lead engagement with the devolved Governments, supported by officials.
The hon. Member for Richmond Park (Sarah Olney) asked about the equality impact assessment. The EQIA considers the nine protected characteristics alongside socioeconomic background, geography and mental health. The hon. Member for West Worcestershire (Dame Harriett Baldwin) asked about the Suicide Act and advertising. I can confirm that encouraging or facilitating suicide will remain a crime under the Suicide Act. On advertising, new clause 14, if passed, would oblige the Secretary of State to make regulations prohibiting certain forms of advertising that promote voluntary assisted dying services. The exemptions to that, which may be provided under subsection (2), will not cut across the criminal offences elsewhere in the Bill or in the Suicide Act.
I hope that those observations were helpful to Members in their consideration of the technical workability of the amendments that we have debated today.
Kit Malthouse (North West Hampshire) (Con)
claimed to move the closure (Standing Order No. 36).
Question put forthwith, That the Question be now put.
Question put and agreed to.
New clause 13 accordingly read a Second time, and added to the Bill.
New Clause 14
Prohibition on Advertising
“(1) The Secretary of State must by regulations make provision prohibiting—
(a) the publication, printing, distribution or designing (anywhere) of advertisements whose purpose or effect is to promote a voluntary assisted dying service;
(b) causing the publication, printing, distribution or designing of such advertisements.
(2) The regulations may contain exceptions (for example, for the provision of certain information to users or providers of services).
(3) Regulations under this section may make any provision that could be made by an Act of Parliament.
(4) But regulations under this section—
(a) may not amend this Act, and
(b) must provide that any offence created by the regulations is punishable with a fine.
(5) In this section “voluntary assisted dying service” means—
(a) any service for or in connection with the provision of assistance to a person to end their own life in accordance with this Act, or
(b) any other service provided for the purposes of any of sections 5 to 27.”—(Kim Leadbeater.)
This clause imposes a duty to make regulations prohibiting advertisements to promote services relating to voluntary assisted dying under the Bill.
Brought up, and read the First and Second time.
Amendment proposed to new clause 14: (b), in subsection (2), leave out from “exceptions” to the end of subsection (3) and insert—
“( ) for the following—
communication made in reply to a particular request by an individual for information about a voluntary assisted dying service;
(b) communication which is—
(i) intended for health professionals or providers of voluntary assisted dying services, and
(ii) made in a manner and form unlikely to be seen by potential service users.
(3) Regulations under this section may make provision that could be made by an Act of Parliament, but may not amend this Act or the Suicide Act 1961.”—(Paul Waugh.)
This amendment would limit the exceptions that can be created to the advertising ban set out in NC14 and also provides that regulations cannot amend the Suicide Act 1961, which includes the offence of assisting and encouraging suicide.
Question put, That the amendment be made.
Mental Health Bill [ Lords ] (Third sitting)
Stephen Kinnock ExcerptsThursday 12th June 2025
(1 week, 1 day ago)
Public Bill CommitteesRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 June 2025 - (12 Jun 2025)
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.
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.
Mental Health Bill [ Lords ] (First sitting)
Stephen Kinnock ExcerptsTuesday 10th June 2025
(1 week, 3 days ago)
Public Bill CommitteesRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2025 - (10 Jun 2025)
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Mr Vickers.
I thank the many hon. Members who spoke on Second Reading. It is clear that in this place, as in the other place, the Bill will proceed in a collaborative and constructive spirit, with the single motivation of getting the reforms right. On Second Reading, we heard numerous powerful accounts from hon. Members arising from their personal experience of supporting family, friends or constituents with a serious mental illness, a learning disability or neurodiversity, or drawing on their own experiences to underscore the importance of the need for reform. I was heartened to hear from so many Members who set out the positive impact of the changes that the Bill will introduce, particularly the vital changes to ensure that patients’ voices are heard and that—as we would expect in any modern mental health service—the patient is at the heart of all decision making.
In our manifesto, we committed to modernising the Mental Health Act 1983 to give patients greater choice, autonomy, enhanced rights and support, and to ensure that everyone is treated with dignity and respect throughout their treatment. I am proud that we included this critical Bill in our first King’s Speech, and I look forward to constructive engagement with the Committee on this important legislation.
I will also take a moment to thank the Liberal Democrat Member, the name of whose constituency escapes me, and other MPs who have shone a light on the experiences of Fiona Laskaris and other families. No one should lose a child in that way. I thank Fiona for meeting me and I commend her tireless campaign efforts. The engagement that my officials and I have had with Fiona and the hon. Member has been incredibly valuable. Unfortunately, the Bill is not the appropriate vehicle to address those concerns, but I have committed to continuing engagement with Fiona and the hon. Member to further explore those issues and how we might tackle them.
Dr Danny Chambers (Winchester) (LD)
I know that my hon. Friend the Member for Dorking and Horley (Chris Coghlan) has been pushing forward on that very emotive and difficult issue of capacity; he brought it up in his maiden speech and has been campaigning tirelessly on it. My hon. Friend said that the Minister was very constructive in his engagement on the issue, which we very much appreciate. Even though we cannot include it in the Bill, we look forward to working on it.
Stephen Kinnock
I thank the hon. Member for that intervention, not least because it gave me the opportunity to remember the constituency of the hon. Member for Dorking and Horley—please pass my apologies to him for forgetting that important point. He has been a tireless campaigner and I believe that we can find a way forward; this Bill is just not the correct vehicle for it.
Dr Luke Evans (Hinckley and Bosworth) (Con)
I also want to assess the amendment that could potentially have been tabled. The Opposition were struggling to see how it would fit in, and it looks as if there is a crossover with the Mental Capacity Act 2005. Can the Minister set out why he felt that it did not quite fit into this area and how it could be taken forward, so that with cross-party work outside this Committee we can see how we can make it happen?
Stephen Kinnock
There were a number of technical and drafting issues. The Public Bill Office ruled that the amendment, as drafted, was out of scope. One of the key concerns was about the unintended consequences of the relationship between physical disability and mental disorder. The drafting of the amendment could have caused confusion, because it could have started to bring physical disability into the scope of the Bill, which is clearly not what it is about. There were a number of technical and drafting issues, but I do not think that they are insurmountable. We can get to where we need to be, just not through a legislative vehicle.
Gregory Stafford (Farnham and Bordon) (Con)
I support the comments of the Minister and the hon. Member for Winchester on the issue. On a cross-party basis, I know that my right hon. Friend the Member for Godalming and Ash (Sir Jeremy Hunt) has taken a close interest. Could he also be included in those discussions?
Stephen Kinnock
Yes, absolutely. We had a very constructive meeting with the right hon. Member for Godalming and Ash, along with the hon. Member for Dorking and Horley, and we are certainly open to working with that team of people, who are clearly focused on getting the results that we all want to see.
Clause 1 will make it a statutory requirement for the Secretary of State to include, in the statement of principles in the Mental Health Act code of practice, the wording of the four principles identified by the independent review. Those principles are choice and autonomy, least restriction, therapeutic benefit and the person as an individual. This will ensure that the review’s principles underpin the implementation of the Mental Health Act 1983 and are considered when making decisions related to care, support or the treatment provided to patients under the Act.
Embedding the principles in day-to-day practice will help to drive the culture change envisaged by the independent review. We are including the principles in the Act so that they govern the content of the code of practice and can changed only by Parliament. The Government are firmly supportive of the four principles, which were co-designed with service users during the independent review. They have informed every decision made in developing the Bill. We have embedded the principles in measures throughout the Bill, such as via the inclusion of therapeutic benefit in the detention criteria and several measures to improve patient choice and autonomy, including new treatment safeguards, introducing advance choice documents and the right to choose a nominated person.
I turn to clause 2. The code of practice for Wales already includes a statement of principles, although it is not a statutory requirement under section 118 of the Mental Health Act 1983 for Welsh Ministers to do so. Clause 2 will amend section 118 to extend subsection (2A) to Wales, along with the new subsection (2B) inserted by clause 1. To do so, clause 2 will also make amendments elsewhere in section 118 to clarify the application of each subsection, which will be to the Secretary of State in relation to England, to Welsh Ministers in relation to Wales, by virtue of the transfer of devolved functions, or to both.
The extent of the Mental Health Act is England and Wales, and there are separate codes of practice for England and Wales. Both codes of practice currently include a statement of principles, although the principles themselves vary slightly. Clause 2 will place a statutory requirement on Welsh Ministers to include the wording of the four principles identified by the independent review in the statement of principles when preparing the Mental Health Act code of practice for Wales.
As in clause 1, we are putting these principles explicitly in the Act so that they govern the content of the code of practice and so that they cannot be changed except by Parliament, or by the Senedd in respect of Wales. The Welsh code is already required to undergo scrutiny by Senedd Cymru, but clause 2 will also update the position in relation to the Senedd Cymru scrutiny procedure for the Welsh code. I commend clauses 1 and 2 to the Committee.
Dr Evans
It is a pleasure to serve under your chairmanship, Mr Vickers. I thank the Minister for his collaborative tone on some of the difficult amendments that we have discussed.
I will open where the shadow Secretary of State, my right hon. Friend the Member for Melton and Syston (Edward Argar), left us on Second Reading. As he rightly emphasised, the importance of updating the Mental Health Act cannot be overstated. I fully share his view that it was right to take the necessary time to get this legislation right. The cross-party commitment to reform in this area, spanning both previous and current Governments, reflects a shared recognition of the urgent need to modernise our approach to mental health, particularly for those who are most vulnerable.
I welcome the Bill’s focus on enhancing patients’ voice and autonomy, including through the expansion of independent advocacy and the shift away from using police and prison cells as a place of safety. Those are positive and overdue steps. At the same time, as my right hon. Friend outlined, the Opposition’s role is to engage rigorously and constructively with the details of the Bill. Over the next few weeks, I look forward to working with colleagues on the Committee to ensure that, for example, the principle of patient choice is embedded not only in policy but in practice, such as through the use of advance choice documents.
We will continue to scrutinise the Bill in good faith, proposing improvements where needed, with the aim of delivering the strongest possible protections and outcomes for patients, their families and the community. How we begin a conversation often determines whether it becomes dialogue or dispute, so I hope that the Committee can take a constructive and productive look at what lies ahead of us.
I support clause 1, which will rightly update section 118(2B) of the Mental Health Act 1983 and embed a refreshed code of practice at the very heart of the mental health framework. This is not merely a procedural amendment; it is a statement of values, placing humanity, dignity and recovery at the centre of how we treat some of the most vulnerable people in our society, who are profoundly affected by mental health legislation. It is vital that the framework guiding professionals be clear, principled and rooted in respect for individuals.
Why do we need these changes? For too long, the Mental Health Act has been criticised as outdated and insufficiently centred on patient autonomy and dignity. Concerns raised by successive independent reviews, clinicians and, crucially, by people with lived experience have pointed to inconsistencies in how decisions are made, which can often result in over-restriction, lack of patient involvement and insufficient therapeutic focus.
The independent review of the Mental Health Act, which was published in 2018, made a landmark contribution by recommending the adoption of the four core principles in front of us today: choice and autonomy, least restriction, therapeutic benefit and recognition of the person as an individual. These principles are designed to shift the culture and practice towards one that respects autonomy while safeguarding wellbeing and public safety.
The historical context is that the Mental Health Act has undergone several amendments since its introduction—notably, in 2007, updates were made to some of the detention criteria and safeguards—but it was clear that the Act remained predominantly paternalistic. The 2018 independent review was a comprehensive, evidence-based re-examination of the entire Act, informed by extensive consultation, including with patients, families and clinicians. It concluded that embedding the principles formally into the law and code of practice was essential to modernise and humanise mental health law.
The four key principles—choice and autonomy, least restriction, therapeutic benefit and the person as an individual to be treated with dignity—are not abstract ideals. They are the foundations of compassionate, lawful and effective care. They echo the spirit of the UN convention on the rights of persons with disabilities and signal a move away from paternalism and towards genuine co-production of care plans. Involvement ensures that decisions are not made about patients without them. The principle of choice and autonomy reminds us that the mental illness must not be a justification for blanket restrictions. The principle of least restriction challenges us to find community-based alternatives before defaulting to detention. Therapeutic benefit ensures that care is not custodial, but meaningful healing. These principles are what most of us would hope to see for our own family.
Stephen Kinnock
I thank the shadow Minister for his questions. I will answer to the best of my ability, but I may need to write to him on one or two points.
On enforcement and accountability, the code of practice is underpinned by the Bill and is therefore legally binding. Any divergence from the code of practice would need an extremely strong justification. That could well end up being a matter for the courts. I think that we will see a fairly strong line of sight from this primary legislation through to the code of practice and its implementation. Enforcement and accountability will be provided on that basis.
On balancing conflict, we will consult on the code of practice. Consultation will launch as soon as the Bill becomes an Act. That will be an important part of getting to the nub of some of these nuanced issues. It is quite difficult to put all that down in a document—a lot is about the culture, as the shadow Minister said—so we need an approach that has sufficient flexibility, but with clear outcomes and accountability. The consultation process will help us to get that.
Dr Evans
I agree with the Minister. Does the Department have a rough idea of the timetable for putting in place the code of practice? How long will the consultation need to take? When will it be implemented? How many rounds go with it? How wide is it to be—will it consult across England and Wales, or just in England?
Stephen Kinnock
We expect the entire process to take about a year from Royal Assent. My colleague Baroness Merron made a strong commitment from the Dispatch Box in the other place that we will present a written ministerial statement to the House every year. That will be the opportunity for us to report on the progress of all the measures that need to be implemented. A pressing task is to build the community capability required in this shift from hospital to community, which is very much part of the Bill and of our broader strategy for mental health and, indeed, health across the board. We need to report every year on that, but the first year will also be a report on the consultation and its conclusion, including the conclusion of a draft code of practice. We expect that to take approximately 12 months.
That, in some ways, has also answered the shadow Minister’s question about training and resources. A big part of the reason for the 10-year implementation period is the time that it will take to do the training and the training needs analysis, to identify trainers to deliver the training, and to get the system up to speed. That will be a fairly large chunk of the 10-year process.
Dr Evans
The Opposition appreciate the timescale taken to skill-up in this area, but the workforce plan is soon to be announced by the hon. Member’s Government. Has any consideration been made of what the capacity might look like, and of the crossover between having this legislation not quite in place—although likely to happen, upon Royal Assent—and its impact on updating the workforce plan on mental health?
Stephen Kinnock
The shadow Minister is tempting me to reveal the details of the workforce plan. While I have a huge amount of respect for this Committee, I do not think that it is where we will launch it. Absolutely, however, that is built into our thinking about the plan. There is a huge mental health challenge in our country, and those with acute and severe disorders and conditions which the Bill is designed to address are absolutely a part of that. A skilled and compassionate workforce is required, and I pay tribute to the amazing staff, mental health professionals and others who work in this area, often in incredibly challenging circumstances. We recognise and value that. The Bill does need to hook up with the workforce plan, and we are focused on that.
On Wales and the risk of divergence, the shadow Minister makes an interesting point. I guess it is about ensuring that that there is devolution, but not divergence, in the sense that we have a framework here—much of the legal framework is reserved—but the delivery of mental health services is devolved. That balance has to be right, but it is something that the two Governments have been working on since devolution started in 1998. There is a fairly mature and sophisticated culture in the interface between the two Governments. The shadow Minister is right to flag that point, and I am more than happy to seek some assurances from officials and write to him. However, as things stand, I do not see any particular risks.
Dr Evans
The Minister is right that there is shared working. However, part of the problem between devolved nations, such as Scotland and Wales, is that the datasets and definitions of data are often changed. Actually, the comparison of data across the UK can be quite hard to manage. Given that we are talking specifically about mental health, including some of the most at-risk people with the most severe mental health illnesses, will the Government commit to pushing for shared data that is comparable between Scotland and Wales, which we are legislating on in this case, to ensure that there is data transparency, so no one country can hide behind a different comparison or by saying, “We are looking at apples and pears”?
Stephen Kinnock
It is important that we do not see devolution as a wall between the two countries; in fact, we should be sharing information and best practice—nobody has a monopoly on good ideas. The Welsh Government have achieved some things, particularly in mental health, that England could learn from, and vice versa. There is no reason why the data cannot be shared from my own practicable and pragmatic point of view. There may be some issues with data protection, but data protection law really should be implemented in the same way right across the board because it is reserved.
Dr Evans
I entirely agree, and I hope that data is and will be shared. The question is about the definitions and standards, such as those used for waiting times. We often use the A&E waiting time of four hours. When it comes to the most vulnerable patients who will potentially be on waiting lists, or looking at specific data, if it is categorised differently in Wales, Scotland and England, that makes it very hard to see where best practice is so that it can be shared. That is the Opposition’s concern. I know that both sides of the House have shared that concern in my five years in Parliament. Is there a mechanism to address that issue either in the Bill or in the Minister’s wider portfolio?
Stephen Kinnock
I see. I am sorry; I had misunderstood the shadow Minister’s point. I thought it was about sharing data on particular patients, especially those who are crossing borders. The point about waiting lists is a more difficult issue. The Welsh Government have taken a view on how best to define them. For example, I know that ambulance waiting times have been quite controversial because there is a different definition in Wales to England. Many feel that the definition adopted by the Welsh Government sets the bar at a higher standard, which can then sometimes framed, in the hurly-burly of politics, as failing more than they would be if they had used a different metric, but they have chosen to use that metric.
In the context of devolution, it is up to the Welsh Government to decide how best to evaluate the Welsh health service and its performance. I take the shadow Minister’s point on having the best alignment that we can, but when it comes to this UK Government, we will determine how performance is evaluated for England, and the Welsh Government will determine how best to evaluate performance for Wales. I think that the Welsh media, the UK media, this Parliament and the Welsh Parliament will then decide who is failing and who is succeeding.
Aphra Brandreth (Chester South and Eddisbury) (Con)
I represent an English constituency on the border with Wales; on some streets, one side is considered Welsh and the other English. Does the Minister recognise that it matters to people in England and Wales that there is consistency across both parts of our fantastic country, and that it is not sufficient to say that what happens in Wales will affect only Welsh people, or what happens in England will affect only English people?
Stephen Kinnock
I absolutely accept the point that there are deeply integrated communities on that border. A huge number of people live in England and work in Wales, or live in Wales and work in England. However, the fact of the matter is that health is a devolved policy area. It is, therefore, up to the devolved Administrations to determine how they want to measure the performance of their respective systems. It would be a violation of the principles of devolution if one Government in our United Kingdom were to dictate to another how they should evaluate their devolved policy areas—whether that is health, education or any other devolved area. I hope that I have responded to the best of my ability.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2 ordered to stand part of the Bill.
Clause 3
Application of the Mental Health Act 1983: autism and learning disability
Dr Evans
The hon. Member is correct about the way in which the world looks at this issue. The problem is that we are sat here debating definitions in legislation that is 40 years old. Will we be here in 40 years debating definitions that have moved on? The amendment suggests that, somehow, we need to try to ensure that legislation is flexible and updated enough, and has the scrutiny and safeguards in place. That relates to not just health, but any part of government that we tend to look at in the House.
I wanted to speak to the amendment to probe the Government on how they will safeguard the legislation. I do not have all the answers, but this is important. I do not want to see my successors—the hon. Member for Hinckley and Bosworth from whatever party—sat here debating this issue in 40 years’ time because the definitions that we happen to set today have become outdated and have unintended consequences.
That is the balance that I am looking for. I do not see a body across the UK, given that this is UK legislation, that fulfils this role. It could be a transitory role or fully established. A psychiatrist could take it on, or it could come under NICE. With the abolition of NHS England, it could be a new role for the Department of Health to take on. All those are viable vehicles that could potentially look into the definitions. I want to ensure that what we pass in Parliament actually translates into the real world for clinicians, patients and the public.
The Opposition can see the argument both ways, as I mentioned. Perhaps it would be useful to have an expert panel, with representatives of clinicians, legal experts and service users to support regulatory updates. I put those questions to the Minister and I look forward to his answers.
Stephen Kinnock
I am grateful to the hon. Member for Solihull West and Shirley for moving the amendment on behalf of the hon. Member for Runnymede and Weybridge, and to the shadow Minister for speaking to it.
As this regulation-making power would amend primary legislation, it would signify a Henry VIII power that the Government consider to be unjustified. We have significant concern that it could change the way in which the Bill applies to people with certain conditions without appropriate consultation or parliamentary scrutiny. The serious matter of detention for compulsory treatment should be considered in primary legislation.
The hon. Member for Solihull West and Shirley spoke about the need to stay in touch with our evolving understanding of these terms and conditions. My view is that the Bill does that. We have modified the meaning of mental disorder by including new definitions of autism, learning disability and psychiatric disorder. That acknowledges the advancement in our understanding of learning disabilities and autism, and how the Bill should apply in respect of those conditions. Any future change to the definitions should be a matter for Parliament, informed by strong evidence and consultation with the public.
For those reasons, I ask the hon. Member for Solihull West and Shirley to withdraw the amendment.
Dr Shastri-Hurst
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Stephen Kinnock
Currently, a person with a learning disability can be detained for treatment under section 3 of the Mental Health Act when their learning disability
“is associated with abnormally aggressive or seriously irresponsible conduct”.
A person can be detained under section 3 on the basis of being autistic, which is classed as a mental disorder under the Act. However, we know that people with a learning disability and autistic people may sometimes be detained because of needs that have arisen due to insufficient community support, rather than for treatment of a mental health condition, and compulsory treatment in hospital settings is rarely likely to be helpful, particularly for autistic people.
Clause 3 and schedule 1 will insert new definitions in the Act and make amendments using those definitions throughout the Act. Those amendments will remove, for the purposes of part 2 of the Act, learning disability and autism from the conditions for which a person can be detained for compulsory treatment. It will be possible to detain someone for treatment under part 2 only if they satisfy the conditions set out in section 3, as amended by the Bill. These include that they have a “psychiatric disorder”, which is a
“mental disorder other than autism or learning disability”.
The changes will not apply to section 2 of the Act, under which a person can be detained for a maximum of 28 days for assessment to understand whether they have a psychiatric disorder that warrants detention under section 3. The revised detention criteria will not apply to part 3, so people in the criminal justice system can continue to be diverted to hospital, where appropriate, to access the specialist support they may need.
We recognise the importance of implementation in ensuring these reforms have their intended effect. For this reason, the proposed changes will be commenced only when there are strong community services in place. I commend the clause and schedule to the Committee.
Stephen Kinnock
The red thread that goes through all those questions, from both my hon. Friend and the Opposition spokesman, is very much about how we are going to build a clear and strong understanding of what good community support looks like, and then build towards it so that we achieve the aims that we set out for ourselves. In many ways, that is a difficult question to answer in this Committee, because an important part of the answer will come from the consultation on the code of practice that will be launched as soon as the Bill gets Royal Assent.
The Government believe passionately in making policy on the basis of evidence, so we need that consultation and input for the code of practice. We need a clear definition based on engagement with those who are at the cutting edge of delivering these services, so that we can define the new reality that we want to work towards, and then implement it step by step.
I apologise to Committee members for the fact that in some ways that is a step beyond what we are doing here in scrutinising the Bill. We will, I hope, pass the Bill, and then it will get Royal Assent. From that day, we will be straining every sinew to get community services to where they need to be.
Jen Craft (Thurrock) (Lab)
I do not want to speak outside the scope of the clause, but I would very much welcome a commitment from the Minister on ensuring that people with learning disabilities and/or autism are part of the process of the consultation to produce guidance on what good community services look like, and that they are engaged with from the start in a very real and meaningful way.
Stephen Kinnock
Absolutely, and I pay tribute to my hon. Friend for her outstanding work in the all-party parliamentary group; I am looking forward to meeting with the APPG as soon as diary time can be organised.
There is absolutely no point in the Government making policy in an ivory tower in Westminster or Whitehall. Policy must be evidence-based and based on the real, lived experience of patients—we are very committed to building a patient-centric national health service—and practitioners. If we try to make policy without involving the voices of those people, the policy will fail; we know that from bitter experience.
David Burton-Sampson (Southend West and Leigh) (Lab)
It is a pleasure to serve under your chairship, Mr Vickers. I, too, have received messages from organisations in my constituency that welcome clause 3 and clause 4, which I will speak to later. On the implementation, however, they have made it very clear that it is really important to hear the voices of the individuals who will be impacted and their families. As we work with the ICBs, local authorities and commissioners to implement these new regulations, I seek an assurance that the voices of the community will be heard.
Stephen Kinnock
My hon. Friend is absolutely right that those voices must be heard. One example is that we must produce a code of practice to ensure that approved mental health professionals are better supported in their decision making, including when assessing whether somebody with a learning disability or an autistic person has a co-occurring mental disorder. At the heart of the process are the assessment and the definition, and the pathway that flows from that. That code of practice can be developed only on the basis of dialogue and engagement with precisely the people he has talked about.
Dr Shastri-Hurst
Building on the Minister’s last point, can he reassure the Committee that any consultation will have a strong focus on ensuring that practitioners have the training and, most importantly, the resources that they need to achieve a seamless transition from one set of regulations to another?
Stephen Kinnock
I can give the hon. Gentleman that assurance. We are moving to a nuanced position that is about defining where there are co-occurring conditions and where there are not. I think everybody recognises that that is, by definition, a complex process, so the training and the code of practice that go around it will be vital.
Sojan Joseph (Ashford) (Lab)
In the past, many people with mental health disorders have been detained in hospitals for months or even years because of a lack of proper social care provision in the community. Will the Minister also ensure that local communities, which will be providing social care for patients who are discharged from hospital, are part of that discussion?
Stephen Kinnock
It is absolutely a team effort. Sadly, when people have severe and acute mental health disorders, a multi-agency effort is often required to support them and to help them to get the treatment they need. The process should not be about trying to isolate people. We are keen to ensure that people stay in mainstream society and remain as integrated as possible, because that is often an important part of supporting their mental health condition.
All of that means that local authorities, mental health professionals, social workers, and often children’s social care professionals or adult social care professionals are important in the process—it requires a team effort. That integrated approach will be really important as we build the community services that we want to see.
Gregory Stafford
On the point made by the hon. Member for Ashford about local authorities, given that the Government are devolving and reorganising local government structures across parts of the country, how will the Minister ensure that the standards around this issue—and other health and social care issues—are maintained? That restructuring means that we will have a whole load of new local authorities that do not necessarily have experience of dealing with this area.
Stephen Kinnock
The devolution Bill and the process of reorganising and restructuring are based on two really strong principles: that it is up to us through legislation to create the outcomes that we need to see delivered across the country and that there are clear standards and targets that we need to see met. But the implementation work needs to be done to deliver those desired outcomes and targets. Local authorities are empowered to do that, which is why we are seeing, for example, a lot of breaking down of ringfencing. The Government are keen to massively reduce the amount of ringfencing, because that has become a straitjacket for local authorities, integrated care boards and others in how they can best manage their portfolio of activities and deliver that devolved power and responsibility.
The answer to the hon. Gentleman’s question is that we want to devolve. We are absolutely committed to decentralising and we believe that is an important part of modern governance. Of course, that has to be done within a framework of set targets and the development of community services that the Bill commits to. All of that will come together to enable those at the coalface, who are best placed to understand them, how to deliver those services to their communities.
Stephen Kinnock
I just need to turn to the question asked by my hon. Friend the Member for Shipley. On strong duties, the code of practice flows from the primary legislation and therefore has a statutory power. There is no stronger power to ensure that people with learning disabilities and autism get the treatment, service and support that they require. The system will have a statutory duty to ensure that that happens within the framework of the legislation.
My hon. Friend is right that the transition from children’s to adult services is a major challenge. I am engaging with colleagues in the Department for Education about that to ensure that conversations about the transition happen upstream. We do not want a situation where an individual is looked after until they are 18 and then handed over without any prior conversations and engagement. We want the handover from one service to the other to be as seamless as possible. Our commitment to dynamic support registers will help in this context. They will be an important tool for understanding the needs of individuals who are at risk of admission and for getting that information into the system across the board prior to any detention.
My hon. Friend also asked about carers who so often pick up the baton in the gaps in community provision. She is absolutely right to flag that. We owe a huge debt of gratitude to the millions of unpaid carers across our country, many of them dealing with extremely challenging family situations. The system would simply collapse without them, so she is right to pay tribute to those people.
Dr Evans
I want to expand a little on the practicalities and respond to the question asked by my hon. Friend the Member for Farnham and Bordon about local authorities. I declare an interest because Leicestershire is one of the 21 county councils going through a devolution process. About 85% of its budget deals with special educational needs and social care. It is part of an ICB where the mental health team and primary and secondary care come together, but there is oversight from NHS England.
With so many moving parts, including the legislation we are putting in place, the budgetary constraints for ICBs, and the fact that we are getting rid of NHS England, there is a real worry among Opposition Members that things could drop through the gap, or more likely, that because we are moving all these things at the same time, we do not decide which is the fixed point that leads where others follow. If we are trying to cut costs in the ICBs, if NHS England is going over the next two years, and if devolution of responsibilities is also happening over the next couple of years with unitary councils forming, we will create a sticky situation for who is actually leading on this issue. At the heart of it are the clinicians and the patients who could fall through the gap.
What consideration has been given to the top-down strategy for how to incorporate all that? The Minister has talked about a red thread that runs through it all, but is there a running plan? Different Departments, agencies and areas of the country are involved. They are trying to come together to manage their budgets, legislation and policies. It is a complex situation to work through. The imperative part—the legislation—is almost the easier part to get in place; it is the delivery that is all-important. Can the Minister explain further how those three things tessellate?
Stephen Kinnock
I do not know whether I will be able to answer the hon. Gentleman’s question in its entirety, because quite a lot of that is being led by my colleagues in the Ministry of Housing, Communities and Local Government—in the English devolution Bill, for example. On the part of his question relating to the Department of Health and Social Care, we came to the view following the general election last year that NHS England was an unnecessary layer of bureaucracy. We think it is important that there is a clear line of accountability from the Secretary of State to Ministers, to ICBs, to trusts and to the system per se for delivery. That line of accountability was being blurred by NHS England, which is why we have removed it from the equation.
The hon. Gentleman is right that there are a lot of moving parts, but, by definition, a reform agenda creates change and some turbulence. We believe that is the only way we will get the system to where we need it to be so that we can deliver the three big shifts in our 10-year health plan: the shifts from hospital to community, from sickness to prevention and from analogue to digital. Many of the questions he is asking will be answered in the 10-year plan. He does not have long to wait for that to be published; it is coming very soon.
I reiterate that the principle underlying all of this is about empowering, devolving and giving agency to those closest to the communities they serve, because they are best placed to deliver. That all has to fit into the Bill, but the fundamental principle underpinning the Bill is the right one: it is about devolution, and about being patient-centric. The Bill deals with a cohort of people whose needs should drive the services that we design and deliver.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 4
People with autism or learning disability
Dr Chambers
I beg to move amendment 1, in clause 4, page 4, line 41, at end insert—
“(iv) housing.”
This amendment ensures that housing needs are considered as part of care, education and treatment review meetings.
Mental Health Bill [ Lords ] (Second sitting)
Stephen Kinnock ExcerptsTuesday 10th June 2025
(1 week, 3 days ago)
Public Bill CommitteesRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2025 - (10 Jun 2025)
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 51, in clause 4, page 4, line 41, at end insert—
“(iv) accommodation and relocation, and”.
This amendment ensures that the impact of accommodation and relocation is considered in care and treatment reviews for patients with autism or learning disabilities.
Amendment 2, in clause 4, page 5, line 23, at end insert—
“(v) the patient,
(vi) the patient’s nominated person, and
(vii) the patient’s independent mental health advocate.”
This amendment would ensure that nominated persons and independent mental health advocates receive copy of a care, education, and treatment review meeting report for children and young people with autism or a learning disability.
Amendment 3, in clause 4, page 5, line 31, for “12” substitute “six”.
This amendment would shorten the length between care and treatment reviews from 12 months to six months.
Amendment 4, in clause 4, page 7, line 6, at end insert—
“(iii) housing, and”.
This amendment ensures that housing needs are considered as part of care and treatment review meetings.
Amendment 5, in clause 4, page 7, line 32, at end insert—
“(v) the patient,
(vi) the patient’s nominated person, and
(vii) the patient’s independent mental health advocate.”
This amendment ensures that nominated persons and independent mental health advocates receive a copy of a care and treatment review meeting report.
Amendment 6, in clause 4, page 7, line 40, for “12” substitute “six”.
This amendment would shorten the length between care and treatment reviews from 12 months to six months.
Amendment 7, in clause 4, page 8, line 12, leave out “must have regard to” and insert
“have a duty to carry out”.
This amendment ensures that integrated care boards and local authorities responsible for a patient's treatment and care have a duty to implement recommendations arising from a care and treatment review.
The Minister for Care (Stephen Kinnock)
It is a pleasure to serve under your chairship, Ms Furniss.
I thank the hon. Members for Winchester and for Guildford for tabling this group of amendments. I will address each in turn, beginning with amendments 1, 4 and 51. We recognise that a lack of appropriate housing can be a barrier to discharge for some patients. That is why we have put the important reviews on a statutory footing. I am pleased to provide an assurance that the Bill already makes provision for any relevant recommendation about a patient’s discharge, including meeting their housing needs.
Statutory guidance will assist the responsible commissioner to determine who to involve in review meetings. That will include guidance on when the involvement of partners such as housing departments and organisations may be appropriate. Placing a specific requirement to consider the housing needs of every patient would mean that housing would have to be considered in every case, even if it is not a relevant issue. Potentially, that could divert focus from factors more relevant to the patient’s care and treatment.
On amendments 2 and 5, the Bill makes it clear that a copy of the review report must be provided to those who have a legal duty to have regard to the review recommendations, so that any recommendations are implemented as appropriate. The patient should receive the report, in line with good practice. However, we are concerned that requiring a longer list of people to receive the report in every case might increase the chance of patients withdrawing their consent for a review to be held, especially if they do not wish for those people to see the report. We recognise that it is often appropriate for the report to be provided to other people, such as those listed in the amendments, but the Bill was amended in the other place to make it clear that a copy of the report may be provided to other persons not listed in the legislation, with the patient’s consent.
Amendments 3 and 6 are unnecessary. The current drafting provides that review meetings take place at least once every 12 months. That is in addition to the requirement that arrangements must be made for an initial review meeting to take place within 14 days of admission for children and for some people aged 18 and over, and within 28 days for other adults. We also know that more frequent reviews may not be appropriate for all patients. For example, for a patient who is unable to be discharged for a long time, reviews that focus on discharge may be rather distressing.
Commissioners should use their judgment to determine whether the individual needs of a patient might mean that a more frequent review is appropriate. NHS England policy makes it clear that patients, their families and advocates can request a review meeting at any point. Statutory guidance will provide commissioners with further information on factors to consider when determining whether more frequent reviews should take place. For example, current practice, in line with NHS England policy, is that children under 18 should have a review meeting at least every three months—that will be made clear in the guidance. We consider it preferable to set out that information in statutory guidance, which can provide detailed case studies and be readily updated in line with emerging best practice, including on frequency and considering particular circumstances.
Dr Luke Evans (Hinckley and Bosworth) (Con)
The Minister makes a fair point about best practice. However, did the Government consider any mechanism for how best to share best practice across areas? Especially as the Bill also covers Wales, as heard this morning, it might be useful—across the integrated care boards—to understand the Government’s thinking on how to ensure that best practice in exemplar places, where care is really good, can be shared to help places where care might not be so good.
Stephen Kinnock
The shadow Minister is right, and one of the overarching objectives of this Government is to take the best of the NHS to the rest of the NHS. We are very keen to ensure that we identify best practice right across the board in all the services that we provide, and that it is then replicated and scaled up. We also recognise, though, that every community and area of the country is different, so it is not about exporting and importing best practice. It is more about looking at those exemplars and asking, “How could we use some of this, without reinventing the wheel?” That is absolutely the culture of how we want our health service to run—I think it is a cultural point.
Dr Evans
The Minister makes a good point about the differences in the country, one of which is how the Care Quality Commission looks at the standards. Especially as the CQC is under new leadership, will it be taking a role in looking at how best practice is implemented while ensuring standards?
Stephen Kinnock
The CQC has a key inspection role, which is an important check and balance in the system. I would rather see the incremental building of a culture of excellence across the board, including within upstream institutions, ICBs, local authorities, healthcare professionals, mental health professionals and social workers. We need to create a collaborative approach across the board so that best practice is developed within a culture of excellence. One would hope that the CQC, when it does its inspections, is then finding positive results. Of course, it also plays an important role in identifying, investigating and holding to account when things are not going as they should.
Finally, I will address amendment 7. The Bill requires named persons and bodies to have regard to the review recommendations. This is a well-established duty that clinicians, integrated care boards and other public bodies are used to applying and already exists within the Act. Where effective care and treatment is the central aim, we expect careful consideration of all recommendations. Where these bodies decide not to accept a relevant recommendation, we expect them to have a very good reason.
It is inappropriate to place an absolute duty on a body to follow recommendations in every case, as flexibility is required to depart from a recommendation where appropriate, for example if a recommendation is outside the body’s purview or not in the patient’s best interests. As currently drafted, the Bill already requires that certain named persons or bodies carefully consider the recommendations and give them appropriate weight. Where a body does not consider a recommendation appropriately, that may be subject to review by the courts. In the light of all this, I therefore thank the Liberal Democrats—
Dr Evans
The Minister is right about the absolute nature of the Liberal Democrat amendment, but we talked about the duty to respond requiring a body to set out why it has decided to take action or not. The Minister seemed to allude to that, but he then jumped to talking about being challenged in court. Is there a hybrid version within that duty to respond so that it could stipulate the setting out of why the body is accepting the recommendations or not, because that may well help transparency?
Stephen Kinnock
I see where the shadow Minister and the amendments are coming from, but there is a risk of over-embroidering the Bill if we try to load additional duties on to something that we believe is already happening. It is a very well-established duty that clinicians, integrated care boards and other public bodies are used to applying, and this already exists within the Act. I think there is an element here of “If it ain’t broke, don’t fix it.”
If there is compelling evidence that it is not working, clearly we need to intervene as a system, which is about real leadership at the ICB level. As things stand, we feel that this amendment is surplus to requirements for the reasons I have set out. I thank the hon. Members for Winchester and for Guildford for this exchange of views, and I hope that they are content to withdraw amendment 1.
Dr Danny Chambers (Winchester) (LD)
It is an honour to serve under your chairpersonship, Ms Furniss. I know that the hon. Member for Farnham and Bordon will have spent his lunch time anticipating the responses to his long series of questions. The tension is palpable— I hope he is excited to hear our replies.
Gregory Stafford
My hon. Friend is right; although a number of the Liberal Democrats are entirely worthy, there are some concerns about the drafting, which could give rise to ambiguity, legal loopholes and definitional issues. In that example, I do not think that “seek to ensure” is helpful. When the hon. Member for Winchester is summing up, perhaps he might explain how “seek to ensure” can be robustly defined within the law, or if it cannot be, suggest a different form of wording that he may wish to use in a future amendment if this amendment fails to be agreed.
Part II of the Mental Health Act 1983 covers the powers to detain individuals for assessment and treatment. Detention can clearly be traumatic, especially for children and young people. Amendment 9 reflects a growing consensus that detention should be the last resort— I think hon. Members on both sides of the House agree with that—and that community-based preventive and therapeutic alternatives should be prioritised. Again, I think it would be very hard to disagree with that ambition.
On the positive side, community-based care is clearly better than detention in most cases, and, if we can get to a point where people are assessed earlier, as is the intention of some of the other amendments, clearly—hopefully—that would lead to community-based care and not detention. The amendment would also protect children’s rights and support the trauma-informed approaches to mental health that were raised previously regarding amendment 47.
The amendment could also reduce the long-term harm associated with institutionalisation and potentially coercive treatment. As we have heard from Members on both sides, that would align with best practice in child and adolescent mental health services and it would promote and encourage a system of accountability by making ICBs and local authorities responsible for proactive care planning. All of that is extraordinarily laudable.
On the potential downsides, there is an ambiguity about the enforcement of the amendment, as my hon. Friend the Member for Solihull West and Shirley said, because of the lack of legal force or clarity in some of the phraseology. There would be also resource implications and, if there are resource limitations at the ICB or local authority level, that might hinder their ability to provide adequate, community-based alternatives.
I do not say that as an excuse for not supporting the amendment, but the hon. Member for Winchester has to understand the reality of the world we live in. Although I want local authorities and ICBs in every area to be entirely fully funded and resourced—and frankly, I do not think the Government’s cut of 50%, or indeed more in some ICBs, will do anything to help community-based care—there would be resource challenges. There would also be implementation challenges in areas where mental health services are already underfunded or overstretched that could lead to delays in care.
This is the key question that I ask the hon. Member to respond to in his summing up. Members on both sides of the House want to ensure that all people of all ages get the best, most appropriate mental health care as early as possible. But in an imperfect world, if there are potential delays in care because community services are struggling to find alternatives to detention, the unintended consequence could be that someone may not be treated at all because of the onus on defined community-based care rather than detention. Will the hon. Member explain how that would work?
I draw my remarks to a close by saying I, certainly, and the Opposition, entirely agree with the ambitions of the amendments. However, some practical and legal issues would need to be ironed out before I could wholeheartedly support them.
Stephen Kinnock
Again, I thank the hon. Member for Winchester for his amendments. I understand the intent behind amendments 8 and 9, but the clauses on registers and the associated duties on integrated care boards and local authorities are specifically aimed at people with a learning disability and autistic people, because of the detrimental outcomes that these groups of people may suffer when detained.
We recognise the concern around the treatment of children and young people, which is why we have several provisions in the Bill aimed at improving their care. However, dynamic support registers are particularly tailored to the needs of people with a learning disability and autistic people, and have been established in NHS England’s policy for some time. We do not have evidence that they would be an appropriate mechanism for wider cohorts.
We do recognise that bereavement, miscarriage, the experience of trauma and difficult life transitions can all have a bearing on mental health. However, access to mental health support is based on clinical need, not on the circumstances that might give rise to that need.
Dr Evans
The Minister is right about the registers, but I did notice that the Children’s Wellbeing and Schools Bill introduced the unique identifier number. That came about after the Lord Laming report into Victoria Climbié, who was “lost in the system.” It also builds on the work of the Children’s Commissioner, which found that around 10,000 children are not in school. Is there a role for getting some of the identifiers that we are looking at here in place along with that unique identifier number?
Equally, how does that unique identifier input into the Bill’s provisions on risk registers, now that that piece of legislation has passed Third Reading? There will be an interaction, but the unique identifier is much broader and the dynamic support register is held slightly differently. What work have the Government done to ensure that there is bridging and understanding about what that would look like, not only in the short term but in the long term?
Stephen Kinnock
The dynamic support register is specifically focused on people, both children and adults, who have learning disabilities and people who are autistic. I think it is quite a separate thing. I am not familiar with the detail of that education legislation but, as the hon. Gentleman says, it is a very broad identifier not based at all on the clinical conditions of the persons, as I understand it, whereas this is very focused and specific for people with the conditions that we are debating. I do not think that there would be a connection between the two.
Dr Evans
Let me take the example of a young person with deteriorating or fluctuating problems. They may be in school or out of school. We know that people with autism and learning disabilities are at greater risk of abuse and of being taken advantage of. If the Minister is not aware of it, would he look at how this duality could work, because clearly there is scope?
One benefit that the Government argued for in having this unique number was that it could be shared across these registers. It sounds as if there is work that could be done. The Minister is absolutely right, and I am not suggesting merging the two, but on the risk register, there could be a nice piece of crossover work to pull that all together, so that the information moves across agencies. What we know from people with severe learning disabilities, autism and mental health issues is that they are often in contact with multiple agencies at multiple times—from social services to, potentially, the police, the NHS, dentistry and, of course, educational settings, which might be multiplicitous. Is that a consideration that the Minister will take forward?
Stephen Kinnock
The hon. Member makes an interesting point. I am certainly happy to discuss that with officials, just as long as everybody is clear that there are two very different things going on here, with different types of risk and therefore different agencies. But I am all in favour of joined-up government wherever we can deliver it.
I turn now to amendment 47. It is important that robust measures are in place to support people with a learning disability and autistic people who are at risk of admission. That is why the Bill will, for the first time, put dynamic support registers on a statutory footing and, via regulations, set out the factors that the Secretary of State considers increase the probability of someone being detained. That is the most appropriate approach in order to provide sufficient flexibility for updates in line with emerging best practice, evidence and clinical and commissioner understanding.
As the factors are likely to be updated regularly, returning them to Parliament at every such instance would be disproportionate and unmanageable. Additionally, although putting them in primary legislation would not prevent the Secretary of State from providing and updating a longer list in regulations, having some factors but not others in the Bill could be perceived to give them primacy—for example, having a history of in-patient admissions or presenting in A&E in crisis. That could have unintended consequences and divert support from those most at risk.
We will of course engage with expert stakeholders, who are best placed to advise on what the list of risk factors for detention should be, taking into account the existing NHS England policy on dynamic support registers. I am pleased to provide assurance to the Committee that current NHS England policy provides examples of factors such as those in the amendment—for example, having no fixed address, having drug and alcohol addiction and having had significant life events such as bereavement and abuse. For those reasons, I hope the hon. Member for Winchester will not press his amendments.
Dr Chambers
I know how much the hon. Member for Farnham and Bordon enjoys speaking in Bill Committees—we were on the Tobacco and Vapes Bill Committee together a few months ago—and I am really pleased that our amendments have given so much material for discussion. I really appreciate the input from Members on both sides of the Committee; it has been really insightful, useful and constructive.
It has been rightly pointed out that the current state of local authorities—their funding and their capacity—means that they might not be able to deliver the more holistic care we are pushing for in the amendments, but I do not think that the Mental Health Bill should be limited by the current state of local services and funding. If that is the underlying problem, that is what should be addressed, not the measures in the Bill.
Aphra Brandreth
I rise to make a few remarks on new clause 11, which would require a costed plan to ensure that ICBs and local authorities are able to provide adequate community services for individuals with learning disabilities and autistic people at risk of detention under part II of the 1983 Act.
We need to ensure that there is a fully cost-effective plan with accountability to support those with learning disabilities. For instance, Cheshire West and Chester council, one of the local authorities in my constituency of Chester South and Eddisbury, has let down parents, families and those with learning difficulties because of its poor management. It has come at the cost of adequate provision, particularly in school places, and therefore puts more people at risk of mental health problems because they are not getting the support they need in the community.
With the measures outlined in new clause 11, we could go a long way to ensuring accountability. I am sure the Minister will agree that we need to ensure that commitments are backed by funding for the good of those who need SEND support. I urge all those on the Committee to reflect on the value of the new clause. Crucially, it would also require the costed plan to be informed by a consultation with a range of stakeholders. That is incredibly important, because we need to listen to the lived experience of those who are often extremely vulnerable to ensure that they receive the right support. In my intervention, I referred to some of the important groups in my constituency. Down Syndrome Cheshire and the Cheshire West and Chester SEND Accountability group are just two examples, but there are so many more. They are clear that they value being listened to, so that they can inform the process.
The new clause would ensure a costed plan, where commitments are not just words, but backed by funding. Crucially, it would mandate a formal consultation process to inform the plan, incorporating the view of a broad range of stakeholders, including those with lived experience such as those I mentioned in my constituency. There are individuals, carers, healthcare providers and advocacy groups whose voices all matter. We need a plan that is costed so it can be delivered, and that, crucially, reflects the needs and rights of those most affected. I fully support the new clause.
Stephen Kinnock
I thank hon. Members for this set of amendments, which draw attention to the important matter of implementation and community support for people with a learning disability and autistic people. I heard this issue raised many times on Second Reading.
I will begin with amendment 20. I am grateful that this important issue has been raised. Although he has not been appointed to the Committee, I know that the hon. Member for St Neots and Mid Cambridgeshire has spoken powerfully and movingly about the tragic circumstances surrounding the death of Declan Morrison, his constituent, and the need to ensure effective and timely community-based support.
Proposed new section 125E of the Mental Health Act, provided within the Bill, already requires integrated care boards and local authorities to seek to ensure that the needs of autistic people and people with a learning disability can be met without detaining them. That should be driven by the specific needs of the local population, informed by the dynamic support register. That requirement already covers any relevant needs for crisis accommodation. We expect, and will set out in statutory guidance on dynamic support registers, that they will cover any relevant needs for crisis accommodation.
In contrast, the amendment seeks to place a prescriptive legal requirement to ensure provision of a specific service in all circumstances, irrespective of what people in the area actually need. That would have the unintended effect of restricting integrated care boards in designing provision and allocating resources in the most effective way to meet people’s needs.
Anna Dixon
I thank the Minister for setting out so clearly the importance of the annual ministerial statement. Does he envisage that the statement will also give an update on the extent of community provision available and the execution of the transition of people with learning disabilities and autism from institutional settings to community settings closer to home? Is that within scope of the statement?
Stephen Kinnock
I think the short answer to my hon. Friend’s question is yes. The written ministerial statement will be an update on the work done over the preceding 12 months, but it absolutely will also be a forward plan, so it will set out the next actions that the Government will take, what the broader, long-term change delivery process will be, the institutions that will need to change and how they will change.
A number of colleagues have also asked the question, “What does good look like?” In many ways, it is absolutely right that we, as a Government, are being held to account on the content of the Bill, but there will be a really important accountability moment 12 months after it gets Royal Assent, which will be that written ministerial statement. I fully expect every colleague in this room to read that in great detail and hold the Government to account, both on what has been achieved over the preceding 12 months and, importantly, on what the forward plan looks like.
I think that covers most of what I wanted to say, although one additional point I would make is that the amendments could have the unintended consequence of requiring Government and local areas to set out unfunded or speculative plans ahead of any funding settlements, which would affect their credibility. It is more effective to set out plans when they are ready, when we have a clear line of sight on funding and deliverability.
We also need time to engage with expert stakeholders to inform implementation planning. We know that sufficient community services cannot be achieved without wider system reforms beyond health, and details contained in any plan must also consider the context of the 10-year health plan and the independent commission into adult social care, chaired by Baroness Casey. For that reason, I thank hon. Members for their contributions and invite them to withdraw amendment 20 and not to press amendments 24, 10, 22, 21 and new clause 11.
Dr Chambers
I thank everyone for all their insights into our amendments; they were very useful and constructive. I will address a couple of them briefly.
First, I thank the hon. Member for Ashford; we totally agree that we want to be moving mental health care—any care, actually, but mental health care specifically—back into the community and have more community care. We are not advocating for more hospital care. There is a specific point to amendment 20: my hon. Friend the Member for St Neots and Mid Cambridgeshire, who is in the Public Gallery, had a tragic case of a constituent, which resulted from there not being enough available safe places for someone in crisis to be cared for.
A lot of our amendments have rightly been criticised for possibly being outside the scope of the Bill, because this Bill is for when people are in a mental health crisis, and a lot of our amendments are about how we can improve community care. To me, amendment 20 appears to be very in scope, because it addresses a failure of someone who was admitted for mental health care.
I thought that the insightful comments on most of our amendments from the hon. Member for Solihull West and Shirley, given his legal and medical background, were very useful, and we will take those on board. The only one that I would disagree with, and I think he might feel the same, is on amendment 20 specifically. His main criticisms of that were that it might result in variability across the nation, that there are currently staff shortages and that there could be implementation delays. I do not see any of those three reasons to be strong enough to not want to maintain crisis accommodation.
I thank the Minister for his comments and his serious consideration of all our amendments. We will press amendment 20 to a vote, but will not press any of our other amendments.
Question put, That the amendment be made.
Sojan Joseph
Not at all. I am not claiming that there should not be training for people who work in any settings; I am saying that more and more training has been added every time we learn something and yet compliance with the training requirement is not being monitored. That is the point I am making—not that we do not need the training.
I support training, because appropriate training is necessary, but we also need to ensure that the people who work in those settings are compliant with the training. That is the larger point I am making. This is not about the amount of training we might want to add to this legislation; we need to ensure that existing training is completed by the staff working in those areas.
Stephen Kinnock
The Health and Social Care Act 2008, as amended by the Health and Care Act 2022, already requires that all CQC-registered health and adult social care providers ensure that their staff receive specific training, appropriate to their role, on learning disability and autism. The associated code of practice has been consulted on and is expected to be published and laid before Parliament soon.
The code sets out four standards that outline minimum training requirements, including expectations of training content at different levels; that training is co-produced and co-delivered alongside people with a learning disability and autistic people—that addresses the point made by my hon. Friend the Member for Thurrock about co-production and things not being done in an ivory tower; and that staff complete training at least every three years. To set out separate standards in secondary legislation, as the amendment asks, would cut across that existing legal requirement and the forthcoming code. Inadvertently, that could lead to confusion. I hope that that satisfies the hon. Member for Guildford enough to persuade her to withdraw the amendment.
Zöe Franklin
Having had a conversation with my hon. Friend the Member for Winchester, I can say that we will withdraw the amendment. However, we hope that the Minister will ensure that the provisions addressing the need for training in such situations will come soon, and with a timeline, so that all members of the Committee understand when we will see the statutory guidance. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Gregory Stafford
Given that we have discussed the proposed new sections in depth, I do not intend to dilate upon this clause for long. Suffice it to say that the Opposition, notwithstanding the questions asked by the shadow Minister, support the clause, which is essential to ensure the safeguards and progress that we are trying to achieve through the Bill.
Clearly, the clause is prevention-focused and helps avoid unnecessary and traumatic hospital admissions. It leads to better planning because it supports tracked admission of services tailored to individual needs. It also has an element of legal accountability, given that it makes it a legal duty for ICBs to monitor and support at-risk individuals. It is also data driven because it encourages the use of real-time data to inform care decisions.
That being said, a number of the concerns that we raised during debate on the amendments apply to the clause itself. In the Minister’s summing up, can he touch once again on the privacy concerns, as well as the resource demands and the risk of stigma? By that, I mean that being placed on a register could be seen as labelling or pathologising. How do we ensure that the register does what it is supposed to without that risk? Can he also touch on some of the vague criteria and definitional phrases, such as “at risk”, and how they might potentially lead to inconsistent application?
Stephen Kinnock
I am conscious that we will be voting imminently, so I will try to rattle through. Going back to my phrase “the red thread”, the thread running through all the shadow Minister’s questions is delivery. The proof of the pudding in all legislation is whether we convert it into action in a way that best delivers for the interests of the British people, and in a way that absorbs the risks, builds resilience in the system and ensures that we are constantly monitoring, evaluating, reviewing and learning from what is happening on the ground and, through a constant process, improving delivery.
The shadow Minister asks some very good questions, but the problem is that so many will relate to the work that we need to do at pace as soon as the Bill receives Royal Assent. This is a sequential process; we first need the legislation and the comprehensive spending review, so that we know our funding package. We then need to start work consulting on the code of practice, getting that feedback and shaping a plan that defines what good community services look like, because we all know that we are a million miles from having good community services at the current time. We are in a state of crisis and the system is on its knees; we are very conscious of all those facts. There is an immense urgency with all this.
The shadow Minister asked about evaluating and updating pathways and CETRs, duty to respond, the information collected, managing the risks, preventing paternalism and ensuring that people do not get labelled. All those things will have to be set out and explained in the project plan. That is something we will all be working very hard on as soon as the Bill gets Royal Assent.
One of the shadow Minister’s factual questions was on how many CETRs have been issued. I cannot give him that number, but I can tell him that, as set out in the impact assessment, 86% of in-patients received a CETR in the last year. If my answer that this is about delivery does not satisfy him and he thinks there are issues that relate directly to the Bill rather than to the implementation plan, I am happy to write to him on that.
Dr Evans
I appreciate what the Minister is saying. The blue threat, or blue and yellow thread, running through the debate is the question of how much needs to be in the primary legislation. The argument from the Conservative side has been that, while some of the Lib Dem amendments are too restrictive, the danger is that the freedom and flexibility at the Government’s end is too loose. I trust the Minister implicitly—but, having seen Ministers on our side come and go, there could be a change within Government or a change of colour of Government, and no Government are bound by the one that went before.
I am trying to get the balance right by asking questions around procedure to assess whether some of these things should be in the legislation. I agree that there has to be a balance. That is why the Opposition chose to say 18 months, as opposed to four months; it was to have accountability and safeguards in place and to urge good delivery, but not to curtail the ICBs or clinicians—the people delivering stuff—and make them simply check boxes.
I appreciate the Minister’s offer to write to me. I would be grateful for that data, because where we find it will be important in future debates and in his future written or oral statements. I hope he understands that these probes are to make sure that we get the balance right between primary legislation, what is going in the code of practice and what is well intentioned, but could be left to blow in the wind.
Stephen Kinnock
That is a valid question, and one that has probably been asked in pretty much every Bill Committee that has ever taken place. It is always a challenge to get the balance right, having the right level of steer to the system in primary legislation without tying the hands of the system. Everything is constantly evolving, particularly in the age of technology in which we live, so it would be foolish to tie our hands too tightly given the changing nature of the landscape we are working in.
My answer to the question—I say this personally and from the point of view of the Government—is that we are satisfied that we have the balance more or less right. That is in the eye of the beholder, and not everybody will agree, but we feel that clause 4 gets that balance right, and sends clear signals to the system through primary legislation. The proof of the pudding will then be in the eating, and that is for the code of practice, the regulations and the programme planning. On that basis, I commend the clause to the Committee.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Grounds for detention
Dr Shastri-Hurst
I beg to move amendment 52, in clause 5, page 11, leave out lines 20 to 22 and insert—
“(b) in the case of a patient who lacks capacity or competence to consent to admission for assessment (or for assessment followed by medical treatment), serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained by a constable or other authorised person, or in the case of a patient who does not lack capacity or competence to consent to admission for assessment (or for assessment followed by medical treatment) serious harm may be caused to the health or safety of another person unless the patient is so detained by a constable or other authorised person; and”
Stephen Kinnock
My understanding was that we would all come back after the final vote, which was on Third Reading.
The Lord Commissioner of His Majesty’s Treasury (Taiwo Owatemi)
I am the only one who can move the Adjournment.
Gregory Stafford
I thank my hon. Friend for his extraordinarily helpful intervention. I was not aware of the changes, and I certainly had not heard of fusion before, or about what is going on in Scotland. Of course, if the new clause had already been enacted in another part of the United Kingdom in some form, I would be much more comfortable with it. But, as I said in relation amendments 52 and 53, if the new clause is to pass in its current form in this Bill or in some future form in another Bill, there has to be a focus on proper training and guidance. Because there is potentially such a legal quagmire, we must ensure that people understand the legal framework within which they can do this.
Stephen Kinnock
Once again, I am grateful to the hon. Member for Solihull West and Shirley for moving the amendments and the new clause on behalf of the hon. Member for Runnymede and Weybridge.
I will first speak to amendments 52 and 53. The new detention criteria explicitly require decision makers to consider the risk of serious harm and the likelihood of harms occurring in order to justify detention. It is right that clinicians have the power to intervene when a patient is at risk of seriously harming themselves, both when they do and when do not have mental capacity.
If we were to accept the amendments and the new clause, we think that patients would be left without the protections that the Mental Health Act provides. For example, let us consider a patient with a serious eating disorder who is assessed as having capacity but is refusing treatment. If there were no longer an option to detain that patient under the Mental Health Act, that could leave clinicians and families without a route for treatment, potentially leading to tragic results.
The pre-legislative scrutiny Committee highlighted concerns about cases where the concept of capacity had been used to justify denying individuals care that they had sought voluntarily, particularly in relation to very ill and potentially suicidal patients. That goes against the spirit of the Mental Health Act and could fall short of professional standards.
Patient choice is, of course, critical, and the changes that we are making recognise that when patients have a say in their treatment, they are more likely to engage. We also think that it is right that when those decisions put people at risk of serious harm, including risk to their own life, there is a duty to intervene.
We recognise that detaining and treating patients with capacity without their consent is a very serious step to take. However, we think that it is right that we intervene when someone is a risk to themselves, not just to other people. That is in line with the Government’s commitment to delivering a cross-sector suicide prevention strategy for England. We should deprive somebody of their liberty and detain them only as a last resort. The threshold of serious harm in the new criteria reflects the gravity of that decision.
Dr Evans
I am grateful to the Minister for how seriously he is taking this issue, and I agree that there is not necessarily a consensus even within the Opposition. Having the debate is therefore really important. It may be useful to collect data on the number of incidents and where these handovers are. Would the Government commit to that? We would be better able to have this debate, and to decide how much of a problem this is and to work out what the solutions are. Again, I struggle to find data that indicates where this is an issue, but I have spoken to clinicians who I know and colleagues who I have worked with when I have seen it. It happens enough that I was aware of it as a bog-standard GP who has worked in A&E, but it is clearly not rampant and we are not seeing it every single day. Would the Government commit to collecting data on it? If so, in what format would it come?
Stephen Kinnock
I ask the hon. Gentleman to clarify his question about data collection. Is he looking for clarity on the number of people who are judged to have mental capacity but who trigger the deprivation of liberty condition because they are seen to be either of severe risk of harm to themselves or to society?
Dr Evans
That would be a very useful piece of data, but I was in fact talking about new clause 24 and the grey area of hospital detentions. That data is probably easier to collect. I specifically ask the Minister to keep in mind the collection of data on those who turn up to A&E but end up having to be taken out of the hospital to be sectioned, for example. That is the nub of the issue and the practicality of what is going on. In a number of incidents, although the law is set in a way that is supposed to be helpful, the interface unfortunately becomes very difficult.
The Minister has rightly pointed out that there are different ways to deal with this. The new clause is one such potentially heavy-handed way of dealing with it. At the same time, it comes from the good place of trying to address what clinicians deal with in A&E day in, day out. However, we need some data and some teeth behind that to understand and appreciate how much of a problem it is and to then come up with a solution. I hope that clarifies my question.
Stephen Kinnock
That does clarify it. I will absolutely discuss that with officials. It is clear that we need a complete picture of the prevalence of people reporting to emergency departments and then having to be extracted from them and put into other facilities. That is an important point. We clearly need to think more about this issue and consult further. Obviously, understanding the data is a very important part of that. I cannot give the hon. Gentleman a nailed-on commitment to do that, but I give him a nailed-on commitment to discuss it with officials. It is possible that the data is already out there. We need to find that out.
We have heard concerns that there is a lack of clarity about what legal powers are available to health professionals to hold someone in emergency departments until they can be assessed. However, it is a complex issue that requires extreme care and caution. We have committed to continue to explore the issue. We will engage with stakeholders to understand how the current legal framework is applied, and identify solutions to the problems raised. We will provide further guidance on the existing legal framework, including the handover process from police to health, in the next revision of the code of practice. We are also taking steps to address current operational pressures. NHS operational and planning guidance for this year tasks local health systems to improve patient flow through mental health crisis pathways and to reduce waits of more than 12 hours in emergency departments.
Anna Dixon
Will the setting up of more health settings—places of healthcare and of safety—help to address the issue?
Stephen Kinnock
Yes, I think that is right. We have a commitment to creating—either building or repurposing—facilities for more acute mental health settings. We have also created the 111 mental health line. We have a commitment to 8,500 more mental health specialists. We are committed to having a mental health-trained person in every school in the country.
I hope that all those wraparound measures will help in the overall role that we play in the community, and identify people with challenges in a way that will help to support them and, one hopes, avoid them getting to the acute stage. My hon. Friend is absolutely right to point to some of the wraparound measures that the Government are pushing forward.
For the reasons that I have outlined, I ask the hon. Member for Solihull West and Shirley not to press amendments 52 and 53 and new clause 24 to a vote.
Dr Shastri-Hurst
I have listened carefully to the Minister, who has addressed the issue with his usual thoughtfulness. I ask that he looks into sharing that data, particularly around new clause 24, but on the basis of the reassurances that he has provided, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned.—(Taiwo Owatemi.)