Mental Health Bill [ Lords ] (Fourth sitting)

Zöe Franklin Excerpts

Committee stage
Thursday 12th June 2025 Public Bill Committees

[Stephen Kinnock]

We have piloted culturally appropriate advocacy models, which ran up to March 2025. An evaluation of the pilot will be published in the summer, and that will feed into the evidence base for the impact and deliverability of culturally appropriate advocacy at local level. We will use the learnings from our culturally appropriate advocacy pilots to inform our understanding of how to increase uptake of advocacy for community treatment order patients from black communities, who are disproportionately likely to be put on a CTO. A lot of that evaluation and investigation work is happening, and I am sure that hon. Members across this Committee will read the findings in the summer with great interest.

The change in the criteria for a CTO is intended to reduce the number of inappropriate community treatment orders being given, reducing restrictions on patients and helping to protect against the disproportionate use of coercion among racialised communities. Only those for whom there is a risk of serious harm and who will benefit therapeutically should be subject to a community treatment order, and it should be removed when it no longer provides benefit.

I want to touch on some of the questions that have been asked. The Opposition spokesman asked about the number of CTOs being overturned at tribunal. According to Care Quality Commission data from 2023-24, 129 discharges by tribunal took place following 4,438 applications against CTOs. I emphasise that people are often discharged without going to tribunal, so those numbers are not a full picture.

On evaluation, we are developing a monitoring and evaluation strategy for the Mental Health Act, as the Bill will become once—one hopes—it gets Royal Assent. It will be important to monitor new processes such as discharges and changes to CTOs to assess whether reforms are being delivered as intended and to monitor uptake among patients. There was also a question about racial equalities, but I think I have answered that. With those remarks, I hope that the Committee will support Government amendment 30 and that the hon. Member for Guildford will withdraw amendment 11.

[Zöe Franklin (Guildford) (LD)]

I thank the Minister for his comments on our amendment 11 and the clarification regarding the fact that the Bill covers a lot of the issues we raised in that amendment. I am therefore willing to withdraw our amendment.

On Government amendment 30, I am grateful to the hon. Members for Hinckley and Bosworth and for Farnham and Bordon for their comments on the Government’s request to remove subsection (3). It is good to have consensus on these Benches on the important issues included in it. While I do appreciate the comments from the Minister about how he believes that the Bill covers these issues, I do feel that the subsection needs to remain and I would therefore like to vote on the Government amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Natasha Irons (Croydon East) (Lab)]

It is an honour to serve under your chairmanship, Mr Vickers. I will speak briefly in support of clause 20 and comment on some of the issues surrounding new clause 5. Clause 20 aims to update wording in the Mental Health Act 1983 in regard to a patient’s capacity and competence to consent to treatment. That is in line with terms that clinicians use in practice across the piece. It provides consistency with the Mental Capacity Act 2005.

Although the clause is not expected to create practical change in clinical care, it does something vital that I would like to draw out. These changes bring forward the recognised and well-established ways that we give people the power to inform their future care and treatment if they get ill in the future. As my hon. Friend the Member for Thurrock so eloquently put it earlier, the ability to plan ahead for one’s care speaks to the heart of what we are trying to do with the Bill, namely to put people at the centre of it, but allow dignity in treatment and authority over one’s own healthcare. That is an important point to draw out in this clause.

Let me turn to new clause 5. The shadow Minister teased out a lot of detail around the Gillick competence test, which is used not just in one setting, but across multiple settings. I completely understand the need to ensure that our young people are empowered to make decisions, but the new clause may have the unintended consequence of making it harder for young people to be involved in their own treatment and have control over what they want to do with their health. We are not quite in the place where we need that statutory test.

It would be helpful to tease out from the Minister a little more about the plans to review the code of practice, which he mentioned in his opening remarks. What does he hope to see when we consult with clinicians on this? How can we be confident that clinicians will feel empowered to allow young people to take some control in their healthcare?

[Zöe Franklin]

I rise to speak in favour of new clause 5, which would require the Secretary of State to undertake a review into whether the statutory competency test for under-16s would be expedited under the Mental Health Act. It has been great to hear so many contributions from colleagues on the Committee about the challenges that young people face when discussing their mental health and wellbeing and being involved in decision making around their health.

As my colleague Baroness Tyler noted in the Lords, and as the hon. Member for Hinckley and Bosworth noted in his early comments, the consistency with which Gillick competency is interpreted in the case of young people is a bit of a grey area. That is the key reason why we have tabled this new clause. We want young people to be empowered to be involved with decisions around their mental health. It is not hard to imagine how traumatic it must be for an under-16 to refuse treatment when they fully understand and object to it, yet be overridden because no one is quite sure how to assess their competency robustly. We believe that, at the very least, we owe it to young people to ensure that our legal framework is coherent, fair and protective of their rights.

The new clause would allow the Government to lead that conversation in a measured and consultative way. A statutory review would bring much-needed evidence and direction to a complex but critical issue. I am disappointed that the Minister will not consider the new clause, but I will withdraw it for expediency. However, it has been good to hear the commitment from the Minister to consulting on and reviewing this issue. The Liberal Democrats look forward to hearing more detail on it in the future and to being part of that conversation.

[Stephen Kinnock]

One theme raised by hon. Members on both sides of the Committee is the need for clarity and safeguards so that clinicians are clear on how best to assess competence. The Mental Health Act code of practice already provides guidance on establishing competence in under-16s. We will consult on the guidance for assessing competence in mental health settings in the revised code of practice, with the intention of providing further clarity to decision makers. That will include engagement with key stakeholders and clinical decision makers with experience of assessing competence in children.

We think it is better to focus on improving the practical application of Gillick and assessment of competency rather than reinventing the wheel, with the risk that that might cause confusion. The Department will work with NHS England, 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.

[Stephen Kinnock]

Absolutely. We must ensure that we act rapidly as soon as the Bill gets Royal Assent by launching the consultation process on the code of practice. It will be vital that the question of the practical application of Gillick and the need for clarity is universalised right across the system.

The shadow Minister asked about the interface between the Bill and the Mental Capacity Act. We recognise the complex nature of that interface, which presents challenges for decision makers. We will continue to consider this interface as we implement our reforms, and we will engage with stakeholders to understand what support and guidance could help to improve application of the interface when we consult on the new code of practice.

My hon. Friend the Member for Croydon East made some powerful and important points about the risk of unintended consequences if we try to reinvent the wheel on this. She is absolutely right. She asked what we want to see in the consultation on the code of practice. For me, the two key areas would be clarity and ensuring practical application of Gillick, by understanding the case law and the complexity of the interface between the pieces of legislation. It is about ensuring that we get that clarity. We cannot do that in an ivory tower. We have to do it with Social Work England and a range of partners with practical, hands-on experience to ensure that the code of practice is the bible for addressing these important issues.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Clause 21

Care and treatment plans

[Zöe Franklin]

I beg to move amendment 48, in clause 21, page 30, line 28, at end insert—

“(ab) containing steps to alleviate social and financial stressors contributing to the patient’s risk of requiring detention in future; and”.

This amendment would require social and financial stressors be addressed in care and treatment plans.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 14, in clause 21, page 30, line 39, at end insert—

“(iii) the discussion of the person’s finances and financial situation.”

This amendment ensures that the care and treatment plan includes matters relating to the patient’s financial circumstances.

Amendment 15, in clause 21, page 30, line 41, at end insert—

“(4A) The information authorised or required to be included in, or attached to, a care and treatment plan by virtue of regulations under subsection (3) must include provision to protect the patient’s housing and accommodation during and immediately after they are subject to a care and treatment plan.”

This amendment ensures that protection of housing and accommodation are considered as part of care and treatment plans.

Amendment 23, in clause 21, page 30, line 41, at end insert—

“(4A) Where a patient has autism or a learning disability, the care and treatment plan must—

(a) identify specific crisis prevention strategies appropriate to the patient's individual needs;

(b) identify suitable crisis accommodation options in the event that the patient's current placement becomes unable to meet their needs;

(c) specify how the patient's sensory needs will be met;

(d) specify communication approaches appropriate to the patient's needs; and

(e) record the views of the patient’s family members or carers, where appropriate and with the patient’s consent.”

This amendment would ensure that care and treatment plans for patients with autism or learning disabilities include specific components addressing their particular needs, including crisis prevention strategies and identification of suitable crisis accommodation options.

Amendment 50, in clause 21, page 30, line 41, at end insert—

“(4A) For the purposes of preparing a plan under this section, a discharge planning meeting must be held.

(4B) A meeting under subsection (4A) must include—

(a) the patient;

(b) the patient’s nominated person;

(c) any independent mental health advocate acting for the patient;

(d) a representative of the integrated care board;

(e) a local housing officer;

(f) a local authority social worker;

(g) a representative from the Department for Work and Pensions; and

(h) any other person or agency involved in the patient’s care or likely to support recovery in the community.

(4C) A care and treatment plan under this section must include—

(a) actions agreed by relevant agencies to support the patient’s recovery;

(b) provisions to address clinical, financial, housing, and social needs;

(c) steps to reduce the likelihood of readmission or further detention under this Act; and

(d) a record of any points of disagreement and how they are to be resolved.

(4D) Where an agency listed under subsection (4B) fails to attend a discharge planning meeting, the responsible clinician must take reasonable steps to obtain their input in writing and record it in the plan.

(4E) For the purposes of subsection (4A) to (4D), the Secretary of State must issue guidance on best practice for discharge planning meetings and multi-agency collaboration.’”

This amendment would require the clinician preparing a care and treatment plan to hold a multi-agency planning meeting to inform it, and specifies what must be included within the plan.

Amendment 16, in clause 21, page 31, line 26, at end insert—

“(g) following the patient turning 18 years of age during the course of a care and treatment plan.”

This amendment ensures that individuals turning 18 during a care and treatment plan have their plans reviewed to maintain continuity of care while transitioning from child to adult services.

Amendment 17, in clause 21, page 31, line 29, leave out from “so” and insert—

“(a) consult the persons mentioned in subsection (5)(f),

(b) ask whether there are children in the family and take actions to respond if the children need help or protection from harm.”

This amendment seeks to deliver earlier identification of children who might be in need of information, support, or protection from potential harm.

Clause stand part.

[Zöe Franklin]

I hope the Committee will forgive me if I take some time to address the various amendments in this group. Amendment 48 would ensure that care and treatment plans do not stop at clinical intervention and address the underlying social and financial stressors that contribute to the cycle of poor mental health, and crucially, to avoidable future detention under the Mental Health Act.

We know that treatment is not just medication and monitoring. For many, the tipping point for crisis is social and financial stressors. The relationship between debt and mental health has been well documented. Nearly half of those behind on their bills experience mental health problems. Those experiencing mental ill health are three times more likely to be behind on at least one key payment—such as rent, energy bills or credit cards—compared with those without mental health problems. Social stressors are likely to be even more severe for people from racially diverse communities and the LGBT community, and disabled people. Including these stressors in care plans will help to address disproportionate detention rates and support more equitable care.

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[Gregory Stafford]

Hear, hear!

[Zöe Franklin]

I thank the hon. Gentleman for that interjection, and I thank the Committee for considering these amendments. I hope the Government will either consider agreeing to them or give me an overview of how they will already be addressed in the detail of the Bill.

[Anna Dixon]

It is an honour to speak again in the Committee’s debates on the Bill. I really welcome clause 21, in that it introduces care and treatment plans, as well as a statutory requirement that all those patients formerly detained under the Act should have such a plan, apart from those who were only on short detention. It also brings England in line with Wales.

The clause fits with the fundamental purpose of the NHS. One of the founding principles in the NHS constitution is:

“The patient will be at the heart of everything”.

The constitution states:

“NHS services must reflect, and should be co-ordinated around and tailored to, the needs and preferences of patients, their families and their carers.”

It goes on to say:

“Patients, with their families and carers, where appropriate, will be involved in and consulted on all decisions about their care and treatment.”

Even though freedoms have, in a way, been taken from people through detention under the Act, it is so important that such detention should not remove all their choice, autonomy and ability to express preferences, whether that is simply over things in daily life, such as when they wake up, get up or go to bed. It is about making it really clear that patients can continue to express preferences and make choices over things that may give them a better quality of life, even while they are detained.

--- Later in debate ---

[Stephen Kinnock]

I did not know that, Mr Vickers. Thank you for clarifying that point.

To promote a patient-centred approach to discharge planning, we would prefer to avoid mandating in law which professionals should be present at discharge planning meetings. To formalise best practice, the Bill requires that the responsible clinician consults with another professional who has been involved in the patient’s treatment before discharge can take place.

I turn to amendment 16. We agree that a young person turning 18 is at an important transition point in their care and treatment, which usually involves the young person being transferred to adult services. Under the Bill, the responsible clinician is already required to review a person’s care and treatment plan following any change in their condition or circumstances that they consider significant. The transition to adult services clearly represents a significant change in circumstances, which rightly instigates a review of the patient’s plan by the responsible clinician. We intend to make that expectation explicit in the code of practice. In line with existing care standards and guidelines, we will also underline the importance of planning in advance of a patient’s transition to adult services and of collaboration between clinical teams, as well as other measures that seek to minimise disruption to the young person’s care and treatment journey.

We support the intention of amendment 17. However, there are existing provisions, both within the Bill and across other legislation and guidance, that aim to safeguard children and young carers. For example, statutory guidance on working together to safeguard children already sets out the importance of health and social care professionals acting proactively and in collaboration with other agencies to identify and respond to children in need, including where a parent requires mental health support. There is also an existing statutory duty on local authorities to assess the support needs of young carers.

The Children’s Wellbeing and Schools Bill contains provisions that will strengthen multi-agency working with children and families, helping to ensure that local authorities deliver on their child protection duties. We also plan to reflect key requirements in the revised code of practice to ensure that children and young carers are safeguarded.

We understand that sometimes, when a person is detained, young carers are not appropriately identified. To address that, we plan to encourage individuals to use their advance choice document to ensure that the appropriate services are made aware. Under the Bill, carers should be consulted on the preparation and review of a patient’s care and treatment plan, where appropriate. We will include guidance in the code to ensure that young carers are appropriately involved and supported. We therefore believe that an additional duty would be unnecessary.

Clause 21 will introduce statutory care and treatment plans for all patients detained under the Mental Health Act, including patients under community treatment orders and those who are subject to guardianship. Only those who are subject to extremely short detention periods, such as those lasting a matter of days, are excluded.

The clause sets out in broad terms what the plans should cover, and provides the Secretary of State with the power to specify the contents in regulations. Setting out the requirements in primary legislation and further details in regulations will ensure that every patient’s care and treatment plan is comprehensive and that there is consistency across plans, which we know is not currently the case.

Under the clause, the clinician must prepare and review the plan with the patient and their close contacts, such as family members, carers or their nominated person. That helps to ensure that the patient’s wishes, feelings, beliefs and values shape the plan, thereby increasing the likelihood of their engagement with it. To help to ensure that the plan is kept up to date, the clause specifies important trigger points at which the patient’s clinician should review the plan with a view to potentially revising it.

Beyond providing a clear strategy for how the patient will be supported towards their recovery, it is envisaged that the plan will provide an important audit trail of key decisions made by the patient’s responsible clinician. To embed those new statutory requirements in practice, the clause will place requirements on the managers of a hospital, or the relevant authority, to monitor compliance with the duties. Sir Simon Wessely described statutory care and treatment plans as the cornerstone of the proposed reforms, delivering on each and every one of the guiding principles.

For the reasons that I have outlined, I hope that hon. Members will not press their amendments and will support clause 21.

[Zöe Franklin]

I thank the Minister for going in detail through the points raised in our amendments. It is good to hear how each of them is being addressed through the code of practice and in the Bill. I am reassured, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)