Mental Health Bill [HL]

Committee (3rd Day)

16:40:00

Clause 8: Appropriate medical treatment: therapeutic benefit

Amendment 46

Moved by

46: Clause 8, page 14, line 17, at end insert— “(iii) seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma;”

My Lords, as well as moving Amendment 46, I will speak also to Amendments 47, 53, 54 and 95 in this group. These amendments have one central aim in common, which is that of maximising the therapeutic benefit of being cared for in a secure mental health unit. That aim should be common to all mental health patients, young or not so young, but it is largely the concerns of younger mental health patients which have prompted these amendments. Blooming Change is a small independent charity whose membership is comprised of children and young people who have experienced detention in mental health in-patient units in England as children. It is at their urging that I have tabled Amendments 46 and 47. I have done so after hearing some first-hand accounts of incidents in which children in mental health settings have been treated in a fashion that is the very opposite of therapeutic, by which I mean treated with a lack of understanding, with an obvious vindictiveness, sometimes, and sometimes even with outright cruelty. It is perhaps hard to imagine this happening when we know how professional and caring most staff in mental health units are, but I am absolutely persuaded that it does happen, and not just rarely. Medical interventions such as nasogastric feeding or sedation are threatened and used as punishments. Patients who have raised concerns with their parents have been silenced by their parents being told by staff that they should take no notice of the concerns, because the child was either unwell or lying. One young person reported as follows: “Young people on section were essentially incarcerated, yet still not able to voice views or share how they felt or generally engage with their treatment. This would lead to overuse of medical interventions or the threat of this, leading to young people living in fear and not having a way to raise concerns. Many of these things had a long-lasting impact on me. Had this coercion not occurred and medicalisation not been used as punishment, I would have been able to access treatment and recover, instead of the treatment compounding my illness and in many ways contributing to me being stuck in the cycle”. Blooming Change has pointed out the significance of childhood trauma as a factor underlying a large number of mental health admissions involving young people and the challenging behaviour that they then exhibit. The problem is that, all too often, the link between childhood trauma and the way that a patient behaves is not recognised or understood. As a result, someone with autism or a severely troubled and traumatised young people person going into meltdown —as was well described, incidentally, by my noble friend Lady Browning during our first day in Committee —is simply viewed as wilfully disruptive or downright disobedient, with punishments doled out in response.

16:45:00

What can be done about this? The Minister will not thank me if all I do is come up with problems without suggesting answers. The best answers must surely lie in promoting greater transparency and greater patient empowerment. Alongside that, we must find ways of fostering that vital degree of understanding on the part of mental health staff as to the root causes of certain challenging behaviours, to enable them to respond in the right way.

As far as greater transparency goes, part of the remedy may lie in the lap of the CQC. In part to assist the CQC, I suggest in Amendment 95 that, after discharge from hospital, there is a place for a debriefing process, whereby children in particular are given an opportunity to feed back their experiences during their time as in-patients—first, as a way of holding institutions accountable and, secondly, to enable those individuals to heal from those experiences by being listened to and taken seriously.

This debriefing process need not be resource intensive. There is a clear case for using technology as much as possible to facilitate the feedback. However, the hospital management then needs to assimilate the feedback in whatever way it sees as appropriate, and on the back of that to instigate necessary change. What often gets lost in hospitals is institutional memory. This would be one way of building an institutional memory and protecting it.

There is a need for such a process. Again, Blooming Change quotes one of its members as saying:

“I’ve never felt more unsafe than when I’ve been on wards. I think they’re the most scary place that a child or young person could ever be. It’s a catchphrase, ‘hospital makes you worse’ … Everyone makes jokes about going into hospital with one problem and then leaving with trauma, new behaviours, new diagnoses, assaults, PTSD – it’s awful”.

It is depressing to put this on the record, but there is research that shows that the experiences of in-patient care from children and young people are consistently poor. A survey conducted by Mind in 2023 found that 69% of young people surveyed said that their experiences in hospital had not been positive. The Children’s Commissioner has uncovered similar stories.

One part of the story, as I have indicated, is children receiving poor therapy; the other part is children receiving no therapy—or no therapy that is appropriate. Blooming Change has told me that it has members who have been child patients in mental health in-patient units who had no access to therapy of any kind. One said: “In the wards I’ve been on, they just drugged us and restrained us … we left with even more trauma and no help in place, so then we would end up back in hospital and the cycle would repeat. So much pain could have been prevented had the wards had better things in place”. Another put it even more succinctly: “Without therapy, mental health unit become prisons”.

Hence my Amendment 53, which proposes that, where suitable therapy is available to a particular patient, there should be a duty on the part of the hospital to offer the treatment to that patient, without any compulsion for the patient to accept and receive it. Therapy should not be used coercively. The best safeguard against this happening is the presence of psychologists in the in-patient unit as the professionals best placed to ensure that the environment of the unit is genuinely therapeutic.

In that same spirit, I am proposing in my Amendment 54 that, for a patient with autism or a learning disorder, there should be a higher hurdle than usual to allow any departure from the patient’s wishes as to a preferred treatment, as expressed either in an advance choice document or by the patient’s nominated person. The hurdle should be a requirement that two appropriately qualified clinicians would need to agree that such a departure was right for the patient.

There could, of course, be circumstances in which two clinicians might conclude in good faith that a patient’s express wishes should be overwritten—for example, where there was a doubt over the bona fides of the patient’s nominated person. But the point of the amendment is to add an extra layer to patient autonomy when the morale and mental equilibrium of the patient is so very shaky. I hope the Minister can provide some words of reassurance on these very troubling and sensitive matters. I beg to move.

My Lords, my Amendments 50 and 51 are both about the importance of non-drug-based interventions. As the noble Earl, Lord Howe, said, this group is all about maximising therapeutic benefit. I am very supportive of all the amendments in this group and my amendments are complementary to those just introduced very powerfully by the noble Earl. I am the first to admit that I am not a clinician, and it is, of course, vital that individual decisions about treatment are made by qualified clinicians. But I am firmly of the view that, in the right circumstances and where clinically appropriate, non-drug-based interventions can be highly beneficial. New Section 56A establishes a clinical checklist. An approved clinician will be required to go through this checklist when making treatment decisions to ensure that any given treatment is appropriate. Amendment 50 would make it clear that non-drug-based interventions are included in the alternative forms of medical treatment available, which must be identified and evaluated as part of the checklist. In short, it will establish beyond doubt that clinicians must consider and evaluate the use of non-drug-based interventions when they make decisions about treatment. Non-drug-based interventions can cover many things, such as psychological and talking therapies, counselling, occupational therapies, art and creative therapies, physical exercise, physical activities—the list goes on. It is vital that evidence-based non-drug-based interventions are thought about, identified and considered equally when treatment decisions are made. As I said in our discussions on Monday—this point was also just made in the introduction to this group—autistic people and people with a learning disability are too often overmedicated in hospital settings. Again, although medication may be appropriate in many places, people cannot and should not be left on their wards with little to no other meaningful therapeutic input other than that medication. People must be seen as human beings in the round when these treatment decisions are made. That should be reflected in the type of treatment offered, including non-drug-based interventions, such as talking therapies, which are adapted to the individual and have a real prospect of offering therapeutic benefit, either in place of or in addition to medication. I readily acknowledge that treatment can involve either. That judgment is for a clinician to make. I was very encouraged that the Joint Committee on the Bill recognised in its report the importance of non-drug-based treatment and recommended that the code of practice makes clear that appropriate treatment includes non-drug-based treatment. However, to ensure the Bill aligns with the principle of therapeutic benefit, it is important that this emphasis on non-drug-based interventions is reflected in the Bill. It is well known that the transition from children’s services to adult services can be particularly difficult when it comes to overmedication and failing to adequately deliver non-drug-based interventions. This has included cases where young autistic people on children’s wards have been provided with some level of speech and language therapy, arts and crafts, and general help with establishing a routine. However, when the transition is made to post-18 adult services, the quality of care can drop off markedly, with no non-drug-based therapeutic treatment delivered, leading to a decline in well-being. In many ways, as has already been said, this is little different from being held in a cell. Having a wide range of these interventions means that in-patients can have greater choice and control over their care—another key principle of the Bill. The use of non-drug-based therapies in hospital is important, not only to provide a therapeutically beneficial environment during detention but to ensure some essential continuity of support after discharge. My Amendment 51 differs from Amendment 50 in that it would apply only to autistic people and those with a learning disability detained under Part III. It would ensure that the clinical checklist is followed when treatment decisions are made when making those decisions includes specific consideration of whether non-drug-based interventions are more appropriate in place of, or in addition to, medication. As we have already discussed, one of the most significant changes in this Bill is the change to the detention criteria in Part II, Section 3. This means that autistic people or people with a learning disability cannot be detained under Section 3 unless they had a co-existing psychiatric disorder. However, this is not being applied to Part III patients—that is, those detained through the criminal justice system. This means that autistic people and people with a learning disability can continue to be detained for “treatment” in mental health hospitals under Part III, even if they do not have co-existing psychiatric disorders. One of the concerns about the Bill, as we have heard, is that a consequence of poor implementation could mean that more autistic people and people with a learning disability are diverted into the criminal justice pathway to get round, frankly, the new detention criteria for Section 3. It could well be the case that Part II patients who are autistic or have a learning disability will exhibit behaviours that challenge, for which certain psychotropic medications can be prescribed. These medications can include anti-depressants, anti-seizure or anti-psychotic medications, sedatives or stimulants. NHS England’s website states: “People with a learning disability are thought to be 16 times more likely and autistic people 7 times more likely to be prescribed an antipsychotic than the general population”, despite existing guidance that people should be given psychotropic medication for only the right reasons, in the lowest dose and for the shortest time. I simply conclude by saying that the focus on non-drug-based interventions in these amendments is not about saying that medication should not be used. Indeed, it can be highly beneficial in many cases. It is about ensuring that other factors that contribute to therapeutic benefit are always considered and put on an equal footing.

My Lords, I will speak to Amendment 148, which is in my name and that of my noble friend Lady Hollins. I also support all the amendments in this group. Indeed, on the ones introduced by the noble Earl, Lord Howe, I very much support the stories that we have heard and which he spoke about at Second Reading. I also note the points made by the noble Baroness, Lady Tyler, about non-drug therapies, which relate very much to what I will talk about. I will make one general point: a generational change in the whole field of mental health is happening globally, with a shift towards more social interventions and preventions. This wider context needs to be recognised a bit more in the Bill. Amendment 148, which is about withdrawal from dependency-building drugs, is part of that context. I also agree very much with the point that the noble Baroness, Lady Tyler, just made that drugs are needed, and with the powerful points raised by the noble Baroness, Lady Fox, in the last day in Committee on the real pressures and problems that people within the NHS and beyond face in working with some of the people they end up having to work with, and on the conditions that they are working in. This emphasis on social interventions, therefore, is not at the expense of other aspects of mental health. Some of these interventions do harm. I will come on to the point about withdrawing from drugs. On reducing prescribing and supporting withdrawal, I do not understand why this Government, through the Bill or otherwise, are not making changes that could help to reduce costs and improve services, which would take pressure off all services and, indeed, improve people’s economic position by enabling them to be fit to work.

17:00:00

The highest-profile issue here is antidepressants because, very sadly, of recent tragedies that have been very much in the news. I shall talk about antidepressants, where it seems the best evidence is available. Over the past 12 years, antidepressant prescriptions alone have almost doubled in England, from 47 million to 89 million last year. Nearly one in five people over 18—adults—in England is now prescribed them annually and, sadly, nearly 450,000 children and young people, almost 4,000 of them under 10, were prescribed antidepressants in 2022-23.

I am going to talk not about unnecessary prescribing and the tragic deaths associated with some of these prescriptions but withdrawal. The figures that we have managed to obtain show that up to one-quarter of adults on these drugs report their withdrawal, their coming off the drug, as being severe, and a significant proportion—while there are no particularly accurate figures here, the best estimates are about 10% of them—will experience withdrawal that is both severe and protracted. If one takes that as a minimum, we are talking about something like half a million people. What we mean by protracted withdrawal is withdrawal that lasts many weeks or months or longer as they try to come off these drugs. They are often in mental and physical pain and unable to work. Of course, this is a largely hidden crisis affecting patients one by one in the privacy of the home and often known only to relatives, close friends and service providers.

Focusing not just on antidepressants, reviews by the previous Chief Pharmaceutical Officer and others show that possible reductions in the use of dependency-forming drugs, not just antidepressants, could save £500 million in drugs alone, without taking any account of other savings to the NHS and the contribution that people could make to the economy.

This is a very practical amendment. Its purpose is what I have described so far. There is evidence now of what works in helping people to withdraw from these services. The amendment calls for four things. First, integrated care boards should provide local withdrawal services based on this evidence. Secondly, they should ensure that relevant professionals know about and are trained in these services. A number of GPs have talked to me about how individuals have had to try to manage without support, and the GPs feel without support as well. Thirdly, there needs to be reporting to Parliament on progress with this. Fourthly, at the national level, there needs to be a 24-hour helpline to provide support to patients.

I suspect that the Minister and the Government understand and support the intention behind this amendment but, in the language of your Lordships’ House, will be minded to resist it. I do not think this issue is going to go away. The prescription of antidepressants, as I have already said, has become far more high-profile in recent weeks, and the Government may yet find themselves forced to act. This amendment provides the opportunity to do precisely that. This is a story of both human tragedy and an unnecessary financial drain on the country.

A final point I shall make is that it is strange that there is no requirement on the NHS to deal with problems that have been caused by drugs that have been, with the best intentions and often successfully, administered to patients, but have led to harm thereafter. With cytotoxic drugs in cancers, I believe the NHS does a lot to support people with their impact. Why is it that in this particular case, in mental health, when we know that these drugs cause a significant problem for a significant number of people, we do not recognise that there is a responsibility for the NHS to help people to come off them in the appropriate way?

If the Minister is minded to resist the amendment, can she tell the House how the Government propose to deal with these massive problems of withdrawal? I am very happy to receive a letter or to have a meeting to discuss this. I commend the amendment to the House.

I support Amendment 148 from the noble Lord, Lord Crisp. I have just arrived back from a three-day event with Professor Brian Cox in Northern Ireland, where we had been bringing together the NHS, schools, the business community and the public sector around a whole programme on innovation and how we think about the future with regard to these matters, taking the principles that we originally developed at the Bromley by Bow Centre in the East End of London, now nationally across the country. If I look like I am in recovery, it is because I am—I have literally just landed trying to get back here. I apologise that I could not take part in the Second Reading, because being a working Peer, sometimes it is not very easy to fit all this into the diary. One does one’s best. I am very aware of the questions that the noble Lord, Lord Crisp, is raising. Indeed, I tabled a number of Written Questions this week about this very matter. I support the amendments because we have a very serious problem out there. My GP colleagues are telling me, as the noble Lord, Lord Crisp, has said, that one in five adults in England is on antidepressants; it is one in four in Scotland. This is a really serious problem. As a country, we need to return to a discussion and a conversation, as the Health Secretary—I hope, in the spring—prepares to help us rethink the future of the NHS. We need to return to the question that we asked 40 years ago in the East End of London, the fundamental question: “What is health?” What we see happening here is serious for hundreds of thousands of people and is driving a culture. We also need to start to worry about what is happening within the machinery of the NHS and the state, as it drives these sorts of cultures. Finally, as I put down in one of my Written Questions, we need to be asking, practically, “How much is it costing the taxpayer to drive these kinds of cultures?” It is serious, but the problem is also an opportunity, if interest is raised in the work of those of us who have been doing stuff on the front line for many years with our GP colleagues. I see the noble Lord, Lord Clement-Jones, there: we have rebuilt a street together, with a £40 million school, a £60 million health centre, 600 homes and now a primary school, exploring this, in what when we began was a dysfunctional housing estate. There is a real opportunity out there, but we now need to get real about antidepressants.

My Lords, I have some points I would like to probe in this group. I especially welcome Amendment 95 and the proposed new clause: “Ascertaining and learning from patients’ experiences of hospital treatment”. The noble Earl, Lord Howe, made very powerful and moving points; we could really take those on board. I have some reservations, however: we live in a complaints culture. I am concerned that this important notion of learning from patients’ experiences does not become a way of stigmatising hospital staff and psychiatrists, with people queueing up to point the finger. There are many people I know who have experiences of hospital who will, at a particular time, tell you it was a terrible experience, and then, at another time, acknowledge that it saved their life. It depends on what phase they are in, in relation to their illness, in some ways—it is about their perspective. So I both welcome it and challenge it. I am very keen, as we all are, that treatments are taken seriously, whether administered in hospital or in the community. As the noble Lord, Lord Crisp, and the noble Baroness, Lady Hollins, note in Amendment 148—for me, the most important amendment in this group—we need to be alert to when, for example, the use of psychiatric medication as a treatment creates a problem of dependency. We all know that this is a growing problem. We must consider that. On the tenor of Amendments 50 and 51 from the noble Baronesses, Lady Tyler and Lady Bennett, on non-drug-based forms of medical treatment, I am less convinced by the emphasis here. I am worried about simply giving a wholly positive view of psychological and therapeutic treatments, because it perhaps misses some of the changes in today’s culture that lead to the overprescription of, for example, antidepressants. When I was working in community mental health many moons ago, the fashion among progressives in the therapeutic community was often anti-psychiatry, anti-hospital and most definitely anti-pharmacological interventions, with a huge hostility to the pharmaceutical industry. I did not always go along with it, but that was the kind of mood. Peculiarly, I would argue that, today, it is therapeutic experts, counsellors and psychological practitioners who, by becoming diagnostically trigger-happy in labelling people as ill, are creating a huge demand both for third-party interventions, as I have discussed in previous speeches, and for treatment. That often leads to a clamouring, especially among younger people, for pills to help them to cope with the travails of life, and it has been egged on in some ways by therapeutic practitioners. I had my attention drawn to this when, at the Academy of Ideas, I organised a debate on young people, mental health and those kinds of issues. The audience was largely young people, who said that the problem was that psychiatrists, GPs and doctors would not listen to them and would not believe that they were mentally ill. They demanded treatment and were quite aggressive. It was young people saying, “Where are my tablets?”, and I thought, “Oh, life’s changed slightly”. The psychiatrists in the room were trying to hold the line and gently suggest that maybe they were not ill, but that led to an even more hysterical reaction: “How dare you say I’m not ill?” They went on to explain how they had had a chat with their school counsellor, and they were sure they were ill, and they wanted the tablets. If we can take a popular example that I appreciate might get me into the heart of an argument that I do not want to be in regarding the slippage between autism and mental illness, I am going to talk about ADHD. ADHD is the fashionable disorder of the day. Huge numbers of students and school pupils are demanding that their neurodevelopmental disorder is recognised and catered for. In my view, it is often diagnosed promiscuously and that is leading to huge demands that are detrimental to education and likely to make councils go bankrupt and schools collapse—but that is for a different debate and a different Bill. ADHD is also leading to a demand for tablets. I go along with those who were warning about overdiagnosis. The Times reports that 278,000 people in England are on central nervous system stimulus to treat ADHD, and there was an 18% hike in prescriptions for ADHD drugs between April 2023 and March 2024. In the US, the figures are startling, and we should be wary of them, with 7 million American children who are said to have ADHD. As the New York Times has said, there is a danger that we are using stimulants to suppress “all spontaneous behaviour in normal children” by pumping them with Ritalin and other calming drugs and sedating normal children. In a broad sense, that is a worry. Talking of treatments, I think the noble Lord, Lord Crisp, made the point that a social problem is being created of people feeling that if they are ill, they cannot go to work and of over-giving them drugs. All sorts of problems go along with that. Is it not tragic that so many people want to have these drugs, either for themselves or for their children, in order to feel that they can cope, when they are really not that ill or not ill at all, but they have the label? I am wary of inappropriate treatments, but perhaps the problem needs to be looked at differently, as stemming from inflated and expansive diagnostic criteria often deployed from within the therapeutic community rather than psychiatry. We should not be naive in thinking that non-drug-based therapeutic interventions are virtuous per se. Counselling, for example, has extended its reach into British society so much that it is now a rare family that has no experience of the phenomenon. I am sure that we all know that going to a therapist or counsellor is, to say the least, a mixed bag when, ironically, they end up saying that you need to have third-party intervention or medical intervention. It is bad for the nation’s health.

17:15:00

My Lords, I will be brief, but in following the noble Baroness, Lady Fox of Buckley, I have to note that I do not believe that a complaints culture is a problem in the contexts covered by this Bill. There is, perhaps, a lack of listening to patients and those affected, and a lack of action rather than a problem with listening to complaints. In that context, I commend the noble Earl, Lord Howe, who cited extensive testimony from Blooming Change. One thing that struck me when looking back over the previous days of Committee was that it would have been good to hear, perhaps even more than we did, direct testimony and the voices of those who are experts by experience. The phrase “nothing about us without us” really stuck in my mind and it is important that we keep that in mind throughout Committee. Again in response to the noble Baroness, Lady Fox, I think it is important not to seek to downplay the mental health crisis that we are seeing across our society. There is a huge shortage of services meeting people’s very clear and acute needs, and acute needs are what we are largely covering in this Bill. I attached my name to Amendments 50 and 51 tabled by the noble Baroness, Lady Tyler of Enfield, which address non-drug-based interventions. In essence, I agree with everything the noble Baroness said; I just want to stress her points. When we talk about non-drug-based therapies, we are tempted to think we mean talking therapies and psychological therapies. Those are tremendously important, but this is where we also need to take the broader public health context. I mentioned on an earlier group digital treatments such as Avatar for those who hear voices. They are the kind of new, different ways of looking at things that people may not have been trained in, and it is important that they are considered. I also talked a fair bit about the gut-brain axis and dietary interventions such as green prescribing, in which we have seen great advances across the medical fields in recent years—exposure to green spaces and the chance to get exercise in green spaces. That makes me think that we need to think about facilities and how we make sure there is provision within them, which, in some ways, this amendment would help to cover. As a noble Lord said earlier, we are talking about making sure we are treating the whole person and not a condition with a drug. I thought the contribution from the noble Lord, Lord Crisp, was very important, as is his amendment. I am not sure whether it needs to be in the Bill, but it would be interesting to have the Minister’s comments on making sure that consideration of withdrawal symptoms is part of prescribing practice. That is absolutely key and central. I note a report from the universities of Berlin and Cologne out last year which showed that the second-most prescribed antidepressant in the UK, venlafaxine, also has the second-highest rate of problem withdrawal symptoms. We need to make sure that is carefully considered pre-stage—before we get to the withdrawal stage, are we going to create that problem? I do not know whether it could be incorporated in the amendment, but it is something to think about anyway. The other amendment—slightly oddly—in this group in my name is Amendment 154, which again, as on a previous group, I put down at the request of the Law Society. It is about mental health tribunal pilots for challenges against treatment decisions. To some degree, we have already discussed this in the earlier group, but I would be interested in whether the Minister has any comment on the amendment. I think that it is fairly self-explanatory, so I will not go through it further.

My Lords, I shall speak to Amendments 54A and 54B in my name, which are on a very narrow part of the treatment plan for individuals. Before I do that, let me say that I support the amendments in this group, particularly the general thrust of what been said; that is, that the automatic medical model must no longer be the default position and a much more social model must be added on to the medical model so that they complement each other. Having said that, I listened very carefully to the noble Baroness, Lady Fox, but found it very difficult to understand what was required. She argued against the use of medication but then argued against quite a lot of the non-medicated issues. Her intervention was a bit confusing in terms of understanding what the importance was. My amendments are predominantly about Clause 18, which is about the use of ECT. The clause allows for the emergency use of ECT based on a second medical opinion. The element I wish to speak to is the very wide Henry VIII power that the Government wish to give themselves in regulations to do away with the second medical opinion in an emergency. The Bill says: “The appropriate national authority may by regulations amend this Act to provide for circumstances in which functions of a second opinion appointed doctor in relation to treatment falling within section 62ZA(1) may or must be carried out instead by the approved clinician in charge of the treatment in question”. New Section 62ZB(3) then says: “Regulations under this section may make … (a) provision subject to specified exceptions; (b) different provision for different cases; (c) transitional, consequential, incidental or supplemental provision”. That is quite a wide Henry VIII power. To prove that I really am Billy No-Mates and do not get out often on a cold night, I read the wonderful 10th report of this Session from the Delegated Powers and Regulatory Reform Committee, which makes exactly the same points but in more eloquent language. This is a very wide Henry VIII power, and the committee does not really understand why the Government are seeking—even though it is through the affirmative procedure—such wide powers in such broad language. The committee said that it would expect the power to be drafted with significant limitations and a framework for when it could be used. My amendment seeks to do exactly that. It would not prevent the clinician in change from using ECT in an emergency case without referring to a second practitioner in certain circumstances, but the regulations would be within a framework laid out in Amendment 54B, that “the treatment is immediately necessary to save the patient’s life … obtaining a second opinion would cause a delay that places the patient at a significant and imminent risk of death or serious physical harm, and … the treatment is reversible”. The regulations would have to be written so that “Any amendment made under subsection (1) must specify the exceptional nature of the circumstances in which the second opinion may be dispensed with”. A report to Parliament on subsection (1) dispensations would also have to be made. I believe, from reading the wise words of the Delegated Powers and Regulatory Reform Committee in its report, that it is important that the regulations have a framework, so that the Minister still has flexibility but is constrained by what is in the Bill. That is why I have spoken to this amendment.

My Lords, I feel I must poke my nose in on these of amendments, even though I do not have an amendment. I support the noble Earl, Lord Howe, and his various amendments. I particularly like the amendment that would require children and their families to be asked the month after how it all went. We are hearing described the appalling nature of many mental health services. It is not just children’s services. Although they may be a very good example, as many of them are not fit for purpose, we would get the same complaints and the same appalling state of affairs if we went around other mental health services across the country. It is heartbreaking. I truly believe that services have deteriorated since I practised in hospitals. People, including my former colleagues who are still practising, say that services are completely disorganised and not fit for purpose. We have known for 50 years that the social model of care was an appropriate model, and that you need psychological and social psychotherapeutic interventions, as well as any drugs that might be helpful. They are not going on because there is no availability anywhere. We have known since at least the 1960s that patients with schizophrenia, for example, can benefit by being taught, one-to-one, about how to interact with people when they are recovering from an episode. That never happens, because we do not employ teachers in the NHS—we just do not do it. We do not employ the right sort of people and we do not have the right sort of facilities. When people are employed, there are so few of them that it is simply impossible to do what is necessary. I am not defending this, because there are some very good units—I am sure that there are some very good children’s and young people’s units—but they are not the norm anymore, and that is a very sad state of affairs. Sadly, legislation through mental health Bills will not, unfortunately, solve the problem. What we are talking about is not only a fundamental change of culture and getting on with all the things that we know should be done; there needs to be investment and a totally different approach to mental health. All the things that we know should be done cannot be delivered by mental health legislation alone. I say that because we are trying to shove too much into the Bill and hoping for the best, but I do not think that it will work. Later in the debate on these amendments, noble Lords moved away from talking about people who were very unwell and who need in-patient care to talking about this vast mass of people who are diagnosed with conditions where they cannot work. That is a whole new ball game. I agree with almost every word that the noble Baroness, Lady Fox, said, because there is no doubt that there is a massive overdiagnosis of things that are called “mental disorder”, when they are in fact distress and need a different sort of approach. A young friend of mine—a gentleman who is now in his final years training as a maxillofacial surgeon—had a period of great distress because of family circumstances. He sat down on his own one evening and went to a website, “Diagnose yourself”. He rang me and said, “I’ve been diagnosed as having ADHD”. I cannot imagine anybody who is less likely to have ADHD than this young man, who is the most socially competent young man I know. This morning, my husband and I had a go on the website together—he did one test and I did another—and we both came up with the same result: “You probably have ADHD”. Well, maybe I am, folks, but I am not going to go on the Ritalin yet. There are a lot of websites that are utter rubbish and encourage people to pay money to see psychotherapists and other counsellors to see what the matter is with them, so that other people can put money in their pockets for doing not much. That is the different end of the spectrum. When we are thinking about these things, we have to think about what the patient has. Is it something that can be diagnosed—heaven knows that colleagues here were very keen that we should have a diagnosis—or something at the other end of the spectrum? With the Mental Health Bill, we are talking about when you can detain people, take away their rights and say, “We are detaining you”, to treat them, and protect them from wrong treatment, bad doctoring and bad staff. That is what the Mental Health Act is for. But I am afraid that it is not to do with any of this other stuff. We have to think through what really has to be in the Bill to protect the patients and the staff and what cannot go in there because it is not relevant to these issues.

17:30:00

I want to ask the noble Baroness a question. I agree that this Mental Health Bill should be confined to and is about the people who are very poorly and could be in danger of being detained—I understand that. However, all the time when we have these discussions, we are talking about a problem with a lack of resources. In the noble Baroness’s experience, is the broader mental health crisis taking away resources and focus, not in this Bill but in society, from giving that acute mental health care the resources that it needs—because it is being spread far too thinly across ever greater numbers?

Yes, I would say that indeed it was. That year when they gave an extra £400,000 to spreading psychotherapy around was the same time when we were having incredible crises in acute hospital services, and I thought that it was not justified. But the mental health crisis that we have in this country is the same one that they were complaining about in 1860, 1870 and 1880; every generation believes that it is worse off than the generation before, but there is not much evidence that it is.

My Lords, having just heard the noble Baroness, Lady Murphy, I shall be extremely cautious about what I look at on the internet. I want to say just two or three words. I have experience from my own family and from my friends of two sets of drugs—anti-depressants and Ritalin—and they really should be used a great deal more cautiously.

My Lords, now is not the time to have the extensive debate that the noble Baroness, Lady Murphy, has opened up. I said right at the outset that we are talking about legislation that comes into play when a person is going to be detained because they are very ill and at risk of harming themselves or somebody else. But I would say to the noble Baroness that the Wessely review looked at this issue at considerable length, and I was among the Peers who listened to Sir Simon Wessely when he came to present his findings. One thing that has stuck with me is the person who gave evidence to his review who said: “I was very ill. I had to have treatment. Why did it have to feel so awful?”—I am using parliamentary language there. Does the noble Baroness accept that mental health legislation debates such as this might be limited, but they do an important thing in sometimes challenging the prevailing orthodoxy among the professions, and they are an occasion where the experience of patients, which have built up over many years, gets a chance to change practice? That is why we should look at all the amendments in this group, and in particular those of the noble Earl, Lord Howe.

I agree with everything that the noble Baroness, Lady Barker, has said. She is absolutely right that professions should be challenged, and that is partly what legislation can do, particularly in debates such as this. But we are losing the very important amendments from the noble Earl, Lord Howe, about young people and what we can do to improve circumstances through the Bill, and I want not to lose them, because they are very important.

Very briefly on the question that the noble Baroness, Lady Fox, raised, the notion of supply-induced demand is a well-known phenomenon across health services. However, I have to say to her that I think that we are a long way off that being the problem that is principally confronting children and young people’s mental health services. We have a massive gap between the need for effective therapies for children and young people and their availability. When the process of trying to expand children and young people’s mental health services kicked off several years ago, the goal was that we would get to a situation where one in three children and young people with a diagnosable mental health condition would get some form of specialist mental health support. That number has now been exceeded. I was just looking at the stats published last week and, although I do not see the most up-to-date number for it, I would be surprised if more than one in two are currently getting specialist mental health support for a diagnosable mental health disorder, not just distress. So, we are a long way off confronting this problem of supply-induced demand, whatever broader cultural or therapeutic labelling questions that she rightly points to may be in the ether. Fundamentally, we are going to need more services to benefit the children and young people who need them, not pretend that this is somehow all vapourware, imaginary or a cultural deformity, unlike our predecessors in the Victorian era.

I thank noble Lords for their contributions on this important set of amendments. I say at the outset that I note the various observations that are outside the Bill, as the noble Baroness, Lady Barker, pointed out, but I have noted them and I am sure we will discuss them on a number of occasions. First, I turn to Amendments 46 and 47, tabled by the noble Lord, Lord Kamall, and the noble Earl, Lord Howe. I have heard how many noble Lords are in support not just of those two amendments but all the amendments in the group. I am sure noble Lords will not be surprised to know that I understand where people are coming from and I will be pleased to go through the response to them. The noble Earl, Lord Howe, spoke about “troubling and sensitive matters” and about being inspired by testimonies that came through the charity Blooming Change—I express my thanks to that organisation for the work it does. Officials in the department have met the group and it made a very helpful contribution. Hearing from those with lived experience is crucial to making sure that this is the best Bill, and I know that many noble Lords have done that, so I thank the noble Earl for bringing that into these amendments. Amendments 46 and 47 would change the definition of appropriate medical treatment to include treatment which “seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma”. Childhood trauma can of course have a devastating impact on psychological well-being. Effective and compassionate in-patient care must be informed, as I have said, in co-production with people with lived experience and be trauma informed. NHS England’s Culture of Care Standards for Mental Health Inpatient Services certainly underlines this. The noble Earl, Lord Howe, and other noble Lords raised concerns around in-patient settings and how appropriate they are, which I understand. I hope it will be helpful to say in answer that the new definition of “appropriate medical treatment” introduces the requirement that treatment has to have a reasonable prospect of benefiting the patient. We would expect the setting in which someone is going to be detained to be considered as part of this. Of course, I am more than aware—without wanting to go into the generics in this group or any other group—that the place in which we start, in terms of the suitability and availability of the right settings, is not where I am sure any of us would want to be. We also know that the sensory environments in settings can cause difficulties for people with sensory sensitivities. To support NHS services to address sensory aspects of the environment, which the noble Baroness, Lady Bennett, referred to, NHS England has published a sensory-friendly resource pack, which outlines 10 principles to improve the sensory environment and signposts other resources. The clause in the Bill that defines “appropriate medical treatment” already requires decision-makers to take into account the nature and degree of the disorder and all other circumstances, which could include childhood trauma, when considering whether medical treatment has a reasonable prospect of therapeutic benefit. The definition of medical treatment is unchanged and is indeed broad, including nursing care, psychological therapy and medication. All these interventions could include an overall aim to minimise distress and promote psychological well-being. Amendments 50 and 51, tabled by the noble Baronesses, Lady Tyler and Lady Bennett, aim to ensure that the clinician considers non-drug-based interventions as part of the new “clinical checklist”. The checklist requires clinicians to identify and evaluate alternative forms of medical treatment when deciding whether to give a particular medical treatment to a patient. As I have already mentioned, the definition of medical treatment under the Act is broad. As well as non-drug-based interventions, it includes specialist mental health rehabilitation and care. On the point raised by the noble Baroness, Lady Bennett, which is an important one, it does include the therapeutic environment or setting. This requirement, as outlined, would apply to all patients falling under Part IV of the Act. It includes patients with a learning disability and autistic patients who are detained for assessment under Section 2 and patients detained for treatment under Part III. With specific regard to those with a learning disability and autistic people, I recognise the concern that they are more likely to be prescribed an antipsychotic than the general population. I emphasise that psychotropic medication should only be given for the right reasons, in the lowest dose, for the shortest time. NHS England has a national programme of work to stop overmedication and the inappropriate prescribing of these medications, which is aimed in particular at people with a learning disability and autistic people. Noble Lords will be aware of the STOMP programme. Alongside it is a national supporting treatment and appropriate medication in paediatrics programme called STAMP—the two are not to be confused. These programmes work particularly closely with those with lived experience, families and carers organisations, and a wide range of health and social care professional bodies. Amendment 53, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, would require the approved clinician to offer a patient any treatment that is appropriate, having applied the new clinical checklist. The reference to medical treatment in that checklist should already be read in accordance with Clause 8, which inserts a new definition of appropriate medical treatment to enact the principle of therapeutic benefit. The clinician must also support the patient to participate in decision-making to make sure that they do not simply offer their preferred treatment to the patient, with no discussion or consideration of alternatives. The Bill also requires clinicians and, where relevant, the second opinion appointed doctor to provide a written record that the treatment being administered meets the definition of appropriate medical treatment. Therefore, it is felt that the Bill already meets the intention of this amendment. Furthermore, if the intention is to ensure that a range of treatments is being considered by the responsible clinician, I can reassure noble Lords that this is already the case, because, as I have said, the definition of medical treatment is broad.

17:45:00

Amendment 54, tabled by the noble Lord, Lord Kamall, and the noble Earl, Lord Howe, seeks to ensure that, where a patient has autism or a learning disability, the approved clinician, having applied the clinical checklist, must secure the agreement of two professional clinicians before any treatment could be given which departs from the patient’s preference, as expressed by either the patient’s nominated person or the patient’s advance choice document. While we recognise that this amendment may help ensure that preferences are more central to clinical decision-making, we do not feel that this additional safeguard is necessary on top of the protections already introduced by the Bill. For example, the clinical checklist and the new rules that limit the use of compulsory treatment and require the earlier involvement of a second opinion appointed doctor achieve a similar objective. Furthermore, sometimes a patient’s preferences, or those of their nominated person, may not be clinically appropriate or practically achievable. In that situation, the amendment would create a new burden on staff, with little benefit in return. Therefore, we feel it would be better to rely on the discretion of the treating clinician in this circumstance.

The noble Earl, Lord Howe, made an important point about the need for transparency and empowerment. We certainly agree with that aim and there are a number of measures in the Bill to make improvements: for example, the clinical checklist, the compelling reason criteria and the increased oversight by the second opinion appointed doctor. I hope that this will deal with the point about transparency and empowerment.

Amendments 54A and 54B, tabled by the noble Lord, Lord Scriven, relate to the Secretary of State’s power under Clause 18 to set out in regulations the circumstances under which the requirement for a second opinion appointed doctor’s certification of urgent and compulsory electroconvulsive therapy may be dispensed with and seek to limit those circumstances. We have received a recommendation from the Delegated Powers and Regulatory Reform Committee to limit the extent of the delegated power. I can assure the noble Lord that we are considering this recommendation carefully and will reflect closely on the views that he has brought before the Committee today. I aim to clarify the Government’s position on Report.

Amendment 95, in the name of the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, would require an independent mental health advocate to consult with people on their experience of in-patient hospital treatment after discharge and report this to the hospital managers, who must then publish a report each year on lessons learned and actions taken.

We feel that there are already mechanisms in legislation that serve a similar purpose, which I well understand. For example, under the CQC’s statutory duty to monitor the Mental Health Act, the CQC visits and interviews detained patients. Insights from these interviews inform the findings of the CQC’s annual monitoring of the Mental Health Act. The findings from this monitoring may also result in the CQC requiring action statements from providers on what they will do to improve services. Where providers do not take the necessary action, they may ultimately be subject to sanctions under the regulatory powers of the CQC.

The noble Earl, Lord Howe, raised concerns about the debriefing process after discharge from hospital. The code of practice provides guidance on the provision of information about the complaints process. The Bill will put this requirement on a statutory footing and place a duty on hospital managers to supply complaints information to detained patients, community patients and conditionally discharged patients, as well as their nominated person.

We have been clear that improvements are needed to make healthcare regulation and oversight more effective, and the CQC is already making improvements following independent reviews. Beyond legislation, it is the responsibility of trust boards to ensure that feedback is gathered to improve services. The patient and carer race equality framework, now part of the standard NHS contract, requires that visible and effective ways for patients and carers to feed back are established, as well as clear processes to act and report on that feedback.

Lastly on this amendment, while we are committed to expanding access to independent mental health advocacy, we are also mindful of not overburdening the workforce. This amendment is likely to be resource intensive, as well as resulting in a significant deviation from the IMHA’s current role: to support people to understand and access their rights when detained.

The Minister has reeled off a very good list of what is already in place. Have the Government done an assessment to see exactly how that learning is ingrained and how effective it has been in changing mental health provision and mental health services? If not, could she please go back to her department to try to find that, and write to Members of the Committee so we can see that in writing?

I would be very pleased to look into it further, but, as I have described, this is a rolling programme. I emphasise that the CQC has that duty both to monitor but also to make the relevant bodies subject to sanctions if needed—in other words, more immediately. So I am concerned that through this amendment we could be creating a structure which is actually less flexible and responsive than the one we have now. Amendment 148, tabled by the noble Lord, Lord Crisp, and the noble Baroness, Lady Hollins, would impose on integrated care boards—ICBs—a legally binding duty to provide local, in-person, specialist withdrawal treatments for patients on psychiatric medication prescribed during the course of their treatment by services under the Mental Health Act. In addition, there would be a duty on each ICB to send to the Secretary of State an annual report on the availability, uptake and outcomes of this support. Under this amendment, the Secretary of State would be obliged to lay these reports before Parliament. ICBs would also be subject to a requirement to provide a 24-hour helpline and online platform to support patients to receive withdrawal treatment. Let me say at the outset that I recognise the difficulties that withdrawal can pose. I recall that the noble Lord, Lord Crisp, spoke on this very point in the Chamber last month and was also good enough to speak directly to me. It is, I agree, an issue that will not go away and, per the noble Lord’s request, I would be happy to arrange a meeting. I feel there is a whole area here to which we today, considering amendments, cannot do justice, so I would be pleased to do that. To the noble Lord, Lord Mawson, who has tabled Written Questions, I say that I look forward to answering them, and I hope that he will look forward to reading my Answers. Where relevant, we would expect the patient’s statutory care and treatment plan to include a tapering plan and put in place whatever additional support is needed to enable a patient’s recovery and effective discharge. On the requirement to provide support in the community and report on availability, this is the responsibility of local health commissioners. In 2023, NHSE published a framework for ICBs and primary care boards on how to optimise personalised care for patients prescribed medicines associated with dependence or withdrawal symptoms. With regard to the requirement in the amendment for a 24-hour helpline, this would not seem proportionate, given the relatively low numbers of people who might need this service, who should already have a support plan in place, including access to relevant local support services. Finally, Amendment 154, tabled by the noble Baroness, Lady Bennett, would allow the Secretary of State to make regulations giving people detained in hospital and those subject to community treatment or guardianship orders the ability to have certain care and treatment matters considered by a mental health tribunal. This is a very complex area, as I am sure the noble Baroness is aware. The amendment seems to draw on the recommendation made by the independent review to give patients a new right of appeal to a single judge of the mental health tribunal regarding compulsory treatment. I recall that the previous Government publicly consulted on this new right, and the majority of respondents raised major concerns in this regard. The consultation was followed by further long and careful consideration with stakeholders, which led the then Government to the conclusion that this safeguard is just not viable. A solution could not be found that provided an efficient and effective route of appeal for patients while avoiding the risks of the tribunal intervening in clinical decision-making, alongside significant resource burdens. Many of these concerns were reflected in the report of the pre-legislative scrutiny committee, which also acknowledged the complexity of the issue. We believe that the other provisions in the Bill will better achieve the same objectives of providing patient choice and autonomy, so while we do not support introducing a new role for the tribunal, I assure your Lordships that the emphasis on therapeutic benefit within the detention criteria will mean that whether care and treatment are proving effective will play a role in the tribunal’s consideration of whether or not detention should continue to be upheld. With these explanations, I hope that the noble Earl feels able to withdraw his amendment.

My Lords, I am very grateful to all noble Lords who have contributed to this debate in such compelling ways, and I think we can see that when it comes to the experiences of children and young people in mental health units, we are dealing with a story that is a lot more substantial than mere anecdote. From briefing I have received, I am afraid I have been left in no doubt that the therapeutic environment in a number of mental health hospitals around the country—not all, of course—is, to put it mildly, a lot less than optimal. Clearly, it is unacceptable for any patient, of whatever age, to be detained compulsorily without being offered treatment. It is unacceptable that drugs or restraint should be used as punishments. Challenging behaviour can be difficult to deal with, but staff should be trained to deal with it in a way that demonstrates that they understand the root causes of the behaviour. Those causes can be extremely complex. To pick up another strand of the debate, I am in no doubt that medication has a place in mental health therapy. It can often be the treatment of choice. It is one tool in the toolbox. However, I very much agree with what the noble Lord, Lord Crisp, and the noble Baroness, Lady Tyler, had to say about social prescribing. It can not only be clinically effective but save costs if it is delivered, for example, by local charities that work in the fields of music, drama or art. Incidentally, it can help budding musicians, actors and artists in their downtime to train as music, art or drama therapists, which is an added bonus.

18:00:00

I am very grateful to the Minister for her response, which is helpful on a number of fronts. I am glad that she and her officials have met with representatives of Blooming Change to listen to their important perspective. I hope that some good has come out of that in so far as policy-making is concerned. Between now and Report I shall reflect on whether the issues that I and other noble Lords have raised merit further debate. From the contributions around the Committee, I think that they almost certainly do, but for now I beg leave to withdraw my amendment.

Amendment 46 withdrawn.

Amendments 47 and 48 not moved.

Clause 8 agreed.

Clause 9 agreed.

Clause 10: Nomination of the responsible clinician

Amendment 49 not moved.

Clause 10 agreed.

Amendment 49A not moved.

Clause 11: Making treatment decisions

Amendments 50 to 54 not moved.

Clause 11 agreed.

Clauses 12 to 17 agreed.

Clause 18: Urgent electro-convulsive therapy etc

Amendments 54A and 54B not moved.

Clause 18 agreed.

Clause 19: Capacity to consent to treatment

Amendment 55

Moved by

55: Clause 19, page 28, line 27, at end insert— “(7) In section 24 of the Mental Capacity Act 2005 (Advance decisions to refuse treatment: general), after subsection (5), insert—“(6) For an “Advance decision” in relation to a treatment for a mental disorder under the provisions of the Mental Health Act 1983, a person may make a decision once they have reached 16.””Member’s explanatory statement This amendment extends advance decisions to those who are 16 and over.

My Lords, in moving Amendment 55 I will speak to Amendment 136; both are in my name. This is another very important group, about children and young people’s competence and decision-making. Amendment 55 is about extending advanced decisions to those who are aged 16 and over. I recognise that there is also an important amendment from the noble Earl, Lord Howe, about advanced decisions—a similar issue, but perhaps taking a different approach. The Bill will give legal weight to advance decisions within the Mental Health Act, which I very much welcome. Adults will be able to record their advance refusal of a particular treatment if they lose capacity. An advance decision will have the same effect as a refusal of treatment made with capacity and will ensure that the individual can access enhanced safeguards before the treatment can be given. Although advance choice documents, where advance decisions will be recorded, will be available to adults of all ages, the Bill as drafted does not permit under-18s to make advance decisions. As such, someone aged under 18 could say in an advance choice document that they refuse a particular treatment if they would not want it, but that would have limited weight. Specifically, it would mean that, if the child or young person lacked capacity or competence to consent to treatment when it was offered, their advance refusal would not give them access to the enhanced treatment safeguards that are available to adults, including tribunal appeal. This means that, rather than being on an equal footing, children and young people would be disadvantaged compared with adults. Therefore, I see this very much as part of parity of treatment between children and adults. I am strongly of the view that the safeguards that flow from advance refusals of treatment should also be made available to young people. This is what my Amendment 55 is designed to do. I add one more general point. We still have work to do in Committee to strengthen safeguards and protections for children and young people in mental health in-patient care. There should be a general principle of parity of treatment between children and young people and adults. Of course I recognise that some distinctions have to be made due to the legal status of under-18s, but I said at Second Reading, and it remains my view, that this Bill was never really designed with children and young people in mind, yet it can affect them greatly. In responding, can the Minister set out how much input DfE Ministers and officials have had on the drafting of the Bill? It will probably help if I explain that Amendment 136 is closely related to Amendment 147, tabled by the noble Lord, Lord Meston, whom I have had the opportunity of corresponding with. I do not want, in speaking first, to pre-empt what the noble Lord will say, but I need to reference his amendment to explain mine. I share the concern that the Bill does not include a test to determine the ability of children under the age of 16 to make decisions—in other words, whether they are competent. Without such a test, this age group will not be able to benefit fully from the rights and safeguards included in the Bill; the question is how we best get there. Under-16s are currently at a disadvantage. Whereas all those aged 16 and over are presumed to have capacity to make decisions for themselves unless evidence shows otherwise—in which case the Mental Capacity Act kicks in—under-16s are presumed to be unable to make decisions for themselves unless they demonstrate that they are competent to do so. There is also no clear and consistent approach for determining whether a child is competent. Although the concept of competence is generally understood, how to assess a child’s competence is not. That is why I have a lot of sympathy with the amendment tabled by the noble Lord, Lord Meston, which would insert a test for determining the ability of someone aged under 16 to make decisions under this legislation. His amendment explicitly limits this test to decisions made under the mental health legislation and is explicitly focused on the criteria with which to determine whether a child is competent. No doubt he will explain his amendment far more eloquently than I could ever do. My amendment would require the Secretary of State to review whether a statutory test for under-16s would be expedient for the purpose of this Act and for mental health legislation more generally. It is very much a stepping stone towards that position and, I hope, supports change in this area. Such a review is important because it could address some of the concerns that have been expressed in this area. It could include whether such a test should be in the Bill or in a code, how best to make it clear that a test will be specific to the scope of legislation rather than having wider application, and how such a test would help with the successful implementation of the Bill. It could help to establish that the test is specific to whether a particular child can make a particular decision at a particular time, and set out what information is required. I am aware that, in some of our broader discussions, concerns have been raised about the possible unintended consequences of such a test in relation both to parental responsibility and to a child being seen as Gillick competent—that is, they have the ability to understand the decision. I feel that a review would be helpful in looking at these issues and addressing those concerns head-on. In that way, we would make important steps in ensuring that the whole of the mental health reforms work properly and fairly for all children and young people. I beg to move.

My Lords, as the noble Baroness has just said, my Amendment 147, which deals with competence and decision-making, would provide what I suggest is a necessary statutory test to determine the decision-making competence of children under 16 years of age in all matters under this legislation for which such a determination is required. The Joint Committee on the draft Bill pointed out, echoing what was said in the independent review of the 1983 Act, that attempts both to protect and to empower children have produced a complex mixture of statute and case law with no single method of assessment and no consistent criteria to establish either capacity or competence. This is a particular disadvantage for children and young people, who do not have the benefit of any statutory presumption of competence such as that which applies to adults. Importantly, the amendment, although offering a test, does not create any presumption of capacity in a child. Moreover, the reason for the child’s inability to decide is irrelevant. It would, however, require that those determining whether a child is competent must give reasonable grounds for reaching that conclusion. It is important to emphasise that this amendment is concerned only with how to assess whether a child is competent and not with the consequences of any determination that a child is competent. This Bill has been produced with numerous references to capacity and/or competence in various contexts, including consent to CETR meetings, “disclosure of information”, “consent to treatment”, making advance choice decisions, “terminating the appointment of a nominated person” and involving “mental health advocates”. However, the Bill is currently silent on what is meant by “competence” and how it should be determined. The existing statutory test in the Mental Capacity Act does not apply to those under 16. The separate concept of Gillick competence—it is derived from the pivotal case of that name, decided in 1986—requires inherently subjective assessments of the child’s understanding and maturity. I speak with some experience of having to decide whether or not a child is competent to participate independently in court proceedings concerning them. That exercise sometimes feels rather paternalistic and is, as has been pointed out, really subjective, with the test in Gillick offering no guidance on the extent to which adjustment should be made for factors such as peer pressure, drug and substance abuse, family stress, emotional disturbance or illness. More recent case law shows that the Mental Capacity Act can be used to inform an assessment of child competence, but it is not mandatory to do so. The factors set out in this amendment to indicate a child’s ability to decide are the features carefully identified by Mr Justice Cobb, as he then was, in a case decided in 2017 concerning the difficult question of whether or not a girl under 16 had the capacity to consent to her child being adopted. I therefore suggest that there is now a need for clearer and more rigorous guidelines—structured guidelines that are not just mechanistic checklists—for mental health and legal professionals to work with. The assessments that have to be made of a child’s ability to understand and weigh relevant information need to be decision-specific, child-specific and time-specific, and they have to recognise that competence can fluctuate as well as evolve. These are not straightforward assessments and are certainly not a mere formality. A statutory test would be welcomed by practitioners and the courts. This is too important to be left to the code of practice; such codes are intended to reflect and supplement the law, not to create law. A clear test in the statute would only be of assistance to practitioners and would allow children to benefit from the safeguards within the Bill.

18:15:00

I respectfully suggest that Amendment 136, spoken to by the noble Baroness, Lady Tyler, is too cautious. It calls for a review to be undertaken in 12 months to consider the expedience of a statutory test. Surely the pros and cons, and scope, of a statutory test have already been well canvassed. It is not clear to me what would be gained by further delay and review. I was tempted to suggest that a review, if not kicking the topic into the long grass, would at least kick it into touch. If we have learned anything about the Bill, it is that much of it will not be implemented with anything near the speed of light. Surely this is one topic that can now be confidently grasped and not deferred.

With the wealth of his experience in dealing with children, could the noble Lord give the House a feel for whether, when assessing the competence particularly of children from a younger age group, there are cases where they understand the situation that is explained to them but, when a decision is subsequently required, there is less clarity on how to make it themselves? I ask that because I know that, often, certain adults on the autism spectrum in a similar situation can fully comprehend a situation that is explained, if necessary, and have capacity, but making the decision between one, two or more choices is much more problematic.

My Lords, I understand the dilemma. The point I emphasise is that, in deciding this, one has to be clear that the child has a proper explanation of the ultimate decision that has to be made. It is to that end that the competence has to be assessed.

For those of us who are not anywhere near as legally expert as the noble Lord whose wise deliberations we have just heard, could he clarify the amendment that talks specifically about ring-fencing this new test for the Mental Health Bill? To what extent would that be consistent or not with, for example, the ruling of the Court of Appeal in Bell v Tavistock—the NHS trust—in the case of puberty blockers, which concerned the interpretation that the High Court had given to the Gillick test?

I am tempted to say that I really do not know. That was a faster ball than I expected to receive. I think the answer is that the case law would be consistently applied, even as it stands now, but would undoubtedly be aided by a statutory test. Whether it would apply in cases such as that which the noble Lord just mentioned, I do not know. The purpose of the amendment is to provide a test for decisions that have to be made consequential upon this legislation, not other situations.

My Lords, I entirely agree with what the noble Lord, Lord Meston, just said. The two interjections were very interesting but they do not really affect the guidance. That is crucial. The question asked by the noble Baroness, Lady Browning, as to whether you can understand it but cannot make a decision, may well affect how the person applying the guidance does so. That would be one of the issues for whoever has the uncomfortable task of making the decision. I think the noble Baroness, Lady Tyler, is too cautious. If we go back to the Mental Capacity Act 2005, there is clear explanation and guidance in primary legislation as to how anyone who has to judge capacity is to do it. What we are talking about here—incompetence—is quite simply capacity. For some reason, which I find quite difficult, we seem to think that children under 16 have competence or do not, but over-16s have capacity or do not. It would have been far more sensible to use the same word for every person who will, in fact, be judged on whether they do or do not have capacity to make a decision of great importance, as it would be, in relation to mental health issues. I find it very odd. However, and equally importantly, if it is in primary legislation for over-16s, why on earth would it be in guidance for under-16s? If it is good enough for over-16s, why is it not good enough for under-16s? The way the noble Lord, Lord Meston, has set this out seems admirable. It is very close to the Mental Capacity Act. I take and entirely agree with the point made by the noble Baroness, Lady Tyler, but the Government seem to have ignored children to a very large extent, although children are a very important part of this Bill. I do not blame the Minister, because she did not draft it, but she has to bring it to us. I tabled a lot of amendments about parents and people with parental responsibility because they are largely ignored; I will speak about that later. But where we are dealing with children aged under 16, it is essential that they are treated in the same way as everybody else and that has to be in the Bill—in primary legislation. Young people have had to deal with these issues ever since Lord Denning was presiding in the Court of Appeal in Gillick, but he did not help us at that stage as to how actually to deal with it. Like the noble Lord, Lord Meston, I have also had to make decisions as to whether under-16s were giving me advice that I thought was really worthy of listening to. Children of five can give extraordinarily good explanations, though I do not expect them to give them on mental health issues. I urge the Minister: it is crucial that everyone whose capacity is a matter at issue has it treated in exactly the same way. Therefore, to put it into guidance really will not do. I will also speak on Amendments 55 and 56. I am very concerned about children. Bear in mind, however much we treat children aged over 16 with respect and as having the capacity to make decisions, and however much we listen to them, as we should listen to all children, there are stroppy teenagers—we all know about them—who, for one reason or another, will not do what adults tell or advise them. I am very concerned, and I am not quite sure about this because I am no expert on mental health legislation, that if a 16 year-old has the right to make advance decisions and they just say, “I do not want any injections, I do not want any pills, I absolutely refuse to have any treatment”, then unless there is an ability to override them they will have capacity and cannot be ignored. One has to view advance decisions for 16 to 18 year-olds with some degree of care. I am not saying that they should not happen, but I am not happy about them being universal and without some ability for them to be overridden.

My Lords, I have put my name to Amendment 147. I find myself in agreement with much that has been said. It has been a consistent recommendation to His Majesty’s Government since the independent review that there should be a statutory test of competence or capacity for those aged under 16. Of course, that means it should be in the Bill. This has been supported by the Children’s Commissioner of late and by the Children and Young People’s Mental Health Alliance. Therefore, I was disappointed to see the code of practice solution outlined in the Minister’s policy paper that we received yesterday. As the noble and learned Baroness, Lady Butler-Sloss, outlined, in the Mental Capacity Act, which applies to over-16s, there is a functional capacity test followed by the secondary mental impairment test. I also agree with the noble Baroness, Lady Tyler, that under-16s are presumed to lack capacity, so you start from the opposite premise of the Mental Capacity Act for over-16s, who are presumed to have capacity. That puts them at an advantage: it has to be taken from them, rather than being given to under-16s. I agree with the comments of the noble Lord, Lord Meston. Great work is being done by clinicians up and down the country to apply Gillick competence tests, but throughout my time on the Joint Committee we did not seem to know whether there was any review or assessment as to how and when it is applied in hospitals and healthcare settings up and down the country. I fail to understand the Government’s reluctance to put this test in the Bill. How is such a reluctance compatible with one of the four guiding principles—to treat the person as an individual? Perhaps the Minister could outline the reasoning for this omission. I also want to point to the problem of relying on the code of practice made under Section 118 of the Mental Health Act. On page 13 of the code of practice, there is a very clear description of the code and its legislative function: “Whilst the whole of the Code should be followed, please note that where ‘must’ is used, it reflects legal obligations in legislation, (including other legislation such as the Human Rights Act 1998) or case law, and must be followed. Where the Code uses the term ‘should’ then departures should be documented and recorded”. It then refers to explanatory paragraphs and continues: “Where the Code gives guidance using the terms ‘may’, ‘can’ or ‘could’ then the guidance in the Code is to be followed wherever possible”. In the Minister’s policy statements, there is often the use of “will”, which, as far as I understand, is a “must”. Bearing in mind what I just read, unless something is in the Bill then even putting this test into the Bill will mean that it is only, at the very best, a “should” and can be departed from. Obviously, that applies across all of the places in which the Minister relies on the defence of, “We’re going to put it in a code”. I note that it is a code that we have not seen and will be consulted on only after the passing of the legislation. Dealing again with the amendment, it is important to determine capacity and, as Mind has said in its excellent briefing, the question of whether a person has capacity or competence to make the relevant decision is fundamental to the operation of key rights and safeguards. To build on the point from the noble Lord, Lord Meston, as I understand it the Bill contains 13 references to competence. It deals with such important matters as the appointment of their nominated person and, if you are under the age of 16, your freedom to choose someone other than the person with parental responsibility depends on your having competence. There is also the ability to refuse medication. To deal with the point made, I think, by the noble Lord, Lord Stevens, who was concerned about leakage across, this is a very particular piece of legislation with such coercive power, as I am sure he is aware, that the case for putting the test in the Bill to open up those safeguards for young people is very important. The Government’s response to the consultation stated: “We are committed to ensuring that children and young people benefit from the reforms we plan to introduce”. Will the Minister therefore explain again how the lack of a statutory test is consistent with maximising that choice and autonomy?

My Lords, I rise briefly having attached my name to Amendment 147, to which the noble Baroness, Lady Berridge, was just speaking so powerfully. I will not repeat anything that people far more expert legally than me have already said, but will just make a couple of small points.

18:30:00

I start by agreeing with the noble and learned Baroness, Lady Butler-Sloss. I have met many 10 year-olds who have a very clear-eyed vision of the world and their place in it, and they should certainly be given a voice. This is something that I have spoken about in other Bills. I think particularly of the Domestic Abuse Bill, now an Act, where there was a strongly minded debate around alleged parental alienation and the way in which children’s voices have sometimes not been listened to and they have been forced to do things strongly against their will and desires.

It is important to say that it is not just morally right that children who have the ability to do so should have a say about what is happening to them and a say in all the other ways that the noble Baroness just outlined. That moral rightness is powerfully and importantly attested to in the fourth part of this amendment, which refers to the UN Convention on the Rights of the Child. It is important that we keep referring to such conventions, but it is also important for people’s health and well-being to have a sense of agency and a sense that this is their life in which they are able to live and make choices. We heard in the earlier group from the noble Earl, Lord Howe, about Blooming Change and how people experience life being done to them and treatment being done to them, rather than it being something in which they actually have a say.

Stressing that I am not a legal expert, I was really attracted by the way in which this amendment is drafted, particularly subsection (3), which rightly puts an onus on professionals to make sure that they explain this in ways that are accessible to the child. We all know that medical and legal terminology may not be accessible to adults, let alone children, but the suggestion of simple language, visual aids or other means is a real direction to professionals to say that they have to facilitate, by any practical means possible, the chance for that child to have agency. That should be at the core of the Bill, particularly for the children who were drawn to our attention on the other group, who are some of the most vulnerable people in our society and who face potentially being locked up against their will. We have to give them as much voice as possible, which is what this amendment would do.

My Lords, I make two specific points in response to what the noble and learned Baroness, Lady Butler-Sloss, said. The amendments refer to Section 24 of the Mental Capacity Act, but if one goes on to Section 25 of that Act, there are a number of conditions that have to be fulfilled in order for a record of an advanced decision to be deemed valid. I think it is worth pointing out subsection (5) to noble Lords, which states: “An advance decision is not applicable to life-sustaining treatment unless … (a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and (b) the decision and statement comply with subsection (6). Subsection (6) states that it must be, “in writing … it is signed by P or by another person in P's presence and by P's direction … the signature is made or acknowledged by P in the presence of a witness, and … the witness signs it, or acknowledges” it to be true. I am trying to convey to the noble and learned Baroness that these are very formal procedures. They are not taken lightly. That applies to somebody who is 18 and one day, and I think it should be applied to somebody who is younger than that with as much seriousness. Noble Lords and others have referred to these decisions as advance decisions to refuse treatment. Advance decisions can also be for treatment. People can say in an advance decision, “I know that when I am in an episode of illness, I may be saying that I do not want medication. At this moment in time, when I have capacity, I wish it to be put down in writing that if I do that, you are to ignore it”. I would like us to have a fuller appreciation of what it is we are talking about, although I do not detract from any of the considerations that people want to bring in about young people.

My Lords, I venture to say that all the amendments in this group approach similar issues in not dissimilar ways. The most compelling point that perhaps should be underlined in relation to them all is that implied by the amendments in the name of the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston: that there is no earthly reason why the law should prohibit a young person with sufficient decision-making competence recording a valid expression of their wishes and preferences around their own mental health care, and the logical consequence of that is the need for a competence test, or a capacity test for child patients. My Amendment 56 seeks to address an issue allied to those addressed by the noble Baroness, Lady Tyler, and the noble Lord, Lord Meston. As it stands, the Bill does not permit a 16 or 17 year-old to make a valid advance decision about their mental health care. An advance decision has the same effect in practice as a capacity decision to refuse a particular treatment. It is important to understand that under the Mental Health Act, making an advance decision does not give someone an unfettered right to refuse that treatment. Treatment can still be administered notwithstanding the advance decision, albeit only if certain strict conditions are met. Nevertheless, an advance decision made by an adult patient carries a huge amount of weight, and placed within or alongside an advance choice document, which enables a patient to outline their treatment preferences, it does a great deal to ensure that the patient is placed genuinely in the driving seat when it comes to their mental health care and treatment. Under the terms of the Bill, young persons aged 16 and 17 will be able to execute an advance choice document, but what they cannot do is to make an advance decision to sit alongside it. That means that an advance choice document that purports to include an advance decision made by an under 18 year-old is likely to carry a good deal less weight than such a document executed by an adult. My amendment invites the Government to put this right. An associated but distinct issue arises in relation to children under the age of 16. I will not repeat the excellent arguments for a competency test put forward by the noble Lord, Lord Meston, and the noble Baroness, Lady Tyler, but I agree entirely with what they have said. The point that resonates most with me in the context of a Bill that places great emphasis on patient empowerment is that in the absence of a statutory competence test to determine a child’s decision-making ability, it will, in practice, be impossible for someone under 16 to execute an advance choice document and then expect professionals to take due notice of it. Amendment 147, tabled by the noble Lord, Lord Meston, seems to me to be as good as it gets in articulating the key requirements necessary to establish decision-making competence in a child. My only hesitation about his amendment is that it invites us to place the terms of a competency test in the Bill without further ado. For a measure of this significance, I tend to feel that any final formula for a competence test merits a prior consultation exercise, and then encapsulation in regulations approved by Parliament. I fully agree with my noble friend Lady Berridge that relying on a code of practice in this context would be wholly unsatisfactory. For what it is worth, I suspect that a consultation would be likely to throw up some further considerations that would need to be factored in to the formula. That aside, I very much hope that the Minister will be receptive to the arguments she has heard. If we can deliver this added empowerment to children and, as regards advance decisions, to 16 and 17 year-olds, the prize will be very great, and I hope she agrees that the challenge is one we must address.

My Lords, if the noble Earl is suggesting that the provisions in the amendment of the noble Lord, Lord Meston, should go either to consultation or to further consideration, will we not end up in a situation where this Bill becomes law and nothing is done to advise anyone, on the face of the legislation, how to deal with those under 16, although it is there for those over 16? Why should, in this particular instance, those under 16 basically be discriminated against? Whether or not they have capacity is the point of the amendment.

I am grateful to the noble and learned Baroness. I hope it was implicit in what I said that I would look to this Bill to include an order-making power that would enable regulations to be laid in due course that would cover not only 16 or 17 year-olds but also those under 16, and Parliament would then approve them. No doubt this is a matter that we can discuss further after this, but I hope that the point of principle is clear, which I fully support, that this issue needs to be sorted through this Bill.

I have listened to the noble Earl’s argument carefully, and in principle I support what he is trying to do. The only problem with leaving the matter to a statutory instrument, rather than putting it on the face of the Bill, is that it is far easier for the Secretary of State to change that, even despite the will of Parliament, based on the way that Parliament works. Why could it not be on the face of the Bill, to give absolute certainty, rather than in a statutory instrument, which normally gives flexibility and powers to a Minister?

There are two answers to that. First, it is generally unthinkable for a Government to lay regulations without first having consulted the relevant parties. Secondly, if we are honest, putting something on the face of a Bill is not the whole story; there would need to be proper clinical guidance published alongside that for practical purposes for hospitals and elsewhere.

My Lords, I thank all noble Lords for examining the important issues that have been raised in this group of amendments. Amendment 55, in the name of the noble Baroness, Lady Tyler, supported by the noble Lord, Lord Scriven, seeks to change the Mental Capacity Act to allow young people aged 16 or 17 the ability to make a binding advance decision to refuse medical treatment for mental disorder. I shall set out some concerns about the amendment that may be helpful. First, the amendment would mean that a young person who is not detained under the Mental Health Act could refuse a mental health treatment, even if it was life-sustaining. While the Mental Health Act and the Bill currently provide safeguards that enable a person’s advance decision to be overruled, detention under the Act may not always be appropriate. For example, if a 16 year-old is left very unwell following an attempted suicide, then currently they may be given treatment on the basis of what is in their best interests, under the Mental Capacity Act, if they lack capacity to consent at the time. However, under the amendment, if the 16 year-old had made an advance decision to refuse treatment necessary for their recovery or to sustain their life, then they might need to be detained under the Mental Health Act simply so that their advance decision could be overruled. This is important in terms of timely access to treatment and to avoid loss of life, of course.

18:45:00

Secondly, to take forward this amendment would be to deviate from a long-standing legal principle established by common law in the courts. With this in mind, there is a risk that a young person’s advance decision would be challenged by the parent and overturned by the courts, making this new right potentially meaningless or at least somewhat unclear.

Thirdly, the amendment could result in an asymmetry with physical health treatment—which I know the noble Baroness would not wish to see, and I completely understand that—regarding whether treatment could be refused in advance. This is likely to create some confusion among health practitioners, especially where it is not clear whether the purpose of the treatment is to address a physical illness or a mental illness or both. An example would be the use of nasogastric tube feeding under the Mental Health Act to treat a young person’s eating disorder. This confusion could potentially result in legal challenge and a delay in treatment, which would of course potentially risk a young person’s health and safety, although I know that is not the intention.

What the Minister has just said is complex, but it strikes me, listening to that situation, that this might be a matter of hard cases making bad law. Could we be denying lots of people the chance to have a say because of the risk in a small number of cases? How would she respond to that?

The overall concern is as I have identified. Yes, indeed, as always, it is a complex area that we need to unpick, but our main concern has to be for the welfare of the young person. The concern about the amendment is that, inadvertently, it would work in the opposite direction. To finish on Amendment 55—this might also be helpful to the noble Baroness, Lady Bennett—we are of the view that the Bill strikes the right balance between self-determination and responding to the needs and vulnerabilities of children and young people. For example, in the clinical checklist, many of the new treatment safeguards and provisions around care and treatment planning apply equally regardless of age and aim to ensure that treatment is more patient-led. Amendment 56, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, is somewhat similar to Amendment 55 in seeking to change the Mental Capacity Act to provide a mechanism by which children and young people can make an advance decision to refuse medical treatment for mental disorder. However, under Amendment 56, the child or young person’s advance decision would have legal weight only if they were detained under the Mental Health Act. As I have already discussed, while we recognise the principled position to extend the rights of adults to children, giving under-18s the right to make an advance decision to refuse treatment would conflict with a long- standing legal principle established by common law in the courts and codified in the Mental Capacity Act and would, therefore, mean that the amendment would not achieve its desired effect. This principle recognises that, in some serious cases, the courts, parents or those with parental responsibility may overrule the refusal of a child or young person, especially in cases where the child’s life is at risk. I reassure noble Lords that we are nevertheless committed to giving children and young people a voice as far as possible when it comes to decisions about their care and treatment. I refer again to the example of the clinical checklist, which requires consideration of a patient’s wishes and feelings, including those expressed in advance.

What legal status does the checklist that the Minister keeps referring to actually have?

I will come back to the noble Lord on that, and I thank him for asking the question. I was about to refer to the noble Baroness, Lady Tyler. I may not be doing so in quite the right place, so I hope she will forgive me, but I do not want to lose this point. She asked what engagement we have had with the Department for Education. Our officials have engaged with DfE officials on the development of the Bill, including on the interaction between the Bill and the Children Act, which I know is of quite a lot of interest to noble Lords. We have also discussed questions around the statutory test with both the DfE and the Ministry of Justice, given that competency tests apply in wider children’s settings than mental health. I hope that is helpful. Amendment 136, tabled by the noble Baroness, Lady Tyler, would require the Government to hold a review of whether a statutory test of competence should be introduced into the Mental Health Act for under-16s within a year of the Bill being passed. While we recognise that there are competing views about Gillick competency, it is nevertheless the established framework for determining competency for children. To introduce a statutory test for under-16s only under the Mental Health Act is likely to risk undermining Gillick, which remains the accepted competence test for under-16s across all settings, including reproductive health and children’s social care, and the wider legislative framework on matters related to children.

The trouble with Gillick is that it does not provide, for those who have to make the decision, how to do it.

I appreciate the point that the noble and learned Baroness has made. As I said, I know there are competing views about its application. I reiterate the observation that it is the current established framework, but I hear what she is saying about what she believes are the implications of that.

The Minister’s own policy document says that this test should be in the code of practice. How does that not also contribute to the undermining of Gillick that the Minister refers to?

Actually, my feeling about the code of practice is something that I wanted to bring up, because it has come up quite a lot. The code of practice is statutory and aimed at practitioners, and it allows nuance and so on, but Gillick is in case law and it guides us throughout. The point I am trying to make is that if it is changed in respect of this Mental Health Bill then that has implications across the wider question of competency for younger people, and that is of great concern.

I apologise for interrupting the noble Baroness again, but the fact is—I speak as a former lawyer and judge who applied Gillick—it does not actually give guidance. All it says, as I understand it, is that under-16s have to be listened to. That is great, and I totally agree. What it does not do—but the amendment of the noble Lord, Lord Meston, would—is set out the guidance that those who make the decisions need to have.

Obviously, I am listening closely to the noble and learned Baroness’s experience and feeling on the matter, and I will certainly be pleased to reflect on the points that she and the noble Baroness, Lady Berridge, have made. If I continue, that may be of some assistance—we will see. It is of concern to me that the possible creation of two different tests will potentially cause further confusion and uncertainty on the ground. We are therefore not in a position to welcome a statutory test of competence in the Mental Health Act. Before I continue to Amendment 147, I will come back to the good question raised by the noble Lord, Lord Scriven, about the legal status of clinical checklists. Because they are in the Bill, they are a statutory requirement for clinicians, to be followed in respect of all patients. I hope that will be useful.

It is useful, but it is therefore contradictory to what the Minister has just said. If the checklist is statutory and it is legally binding that it has to be followed, how would a young person in that checklist having a view about their care be different from an advance directive? That is the issue. The Minister said the other alternative is that a person under 18 or 16 can make a decision in relation to the medical checklist, and she has just said that the decisions are legally binding. Alternatively, is it that carrying out the process is legally statutorily binding but the views of somebody who is 16 on that list are not?

I was referring more to situations, of which I know the noble Lord is aware, where there is a need for intervention. I think I used the word “overruling”, and I used some examples where there was a risk to life. So it is about application in that regard. I will look at that question in greater detail when I reflect on this area of debate and, if there is more that I can add to assist the noble Lord, I will be pleased to do so. Amendment 147 is in the name of the noble Lord, Lord Meston, supported by the noble Baroness, Lady Berridge, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Bennett. It would create a statutory test of competency for children in respect of decisions under the Mental Health Act. Under that test, competence for under-16s would be defined by reference to the functional test of capacity established in the Mental Capacity Act but without the diagnostic test, and by having due regard to the UN Convention on the Rights of the Child. The courts have already made clear that the approach of the functional test is not suitable for children. We do not think that the functional test is appropriate or compatible with the UN Convention on the Rights of the Child, which the amendment itself makes reference to. The amendment, as drafted, is therefore not considered to be in line with established case law. The noble Baroness, Lady Berridge, asked about the justification for not including a test in the Bill. As I have mentioned, Gillick is established in case law, not statute, and the code explains how the Gillick decision is to be applied. But this does not mean that the House of Lords decision is not mandatory. There is a duty to follow case law. It is not discretionary, as I know noble Lords are aware.

19:00:00

The introduction of a statutory test under the Mental Health Act would not necessarily override the application of Gillick competence in these settings. As I mentioned earlier, the possible creation of two different tests is likely to cause further confusion and uncertainty, which I know noble Lords would not want to see. Any legislative change which sought to replace Gillick in one setting could also lead to challenge of its application in other areas, including other health settings.

I can assure noble Lords that we will keep an eye on this but we do not, in all honesty, intend to open this issue in the immediate term, given the broad application in a range of settings, and the wider sensitivity around matters relating to the ability of children to make decisions in relation to healthcare, care and education. We will consult on the guidance for assessing competence in mental health settings in the revised code of practice. With this, I hope noble Lords will feel able not to press their amendments.

My Lords, I thank the noble Baroness for that response. One thing we can all agree on from this discussion is that these are complex issues and people sometimes have rather different understandings of what certain things might say or mean. Having said that, I would just like to say where I think we are on the two issues. First, on advanced decisions, I have a strong view that children and young people aged 16 and 17 should have choices that are made available to adults extended to them. As I think the noble Baroness, Lady Bennett, said, it is about having a sense of agency and autonomy and feeling that their wishes and feelings are being respected. It may be that I did not draft it very well, but I was not suggesting that everyone was going to be forced to do it. It is there as an option, and that is a really important point that possibly did not come out sufficiently in the debate. The fault for that is mine. It may be that the approach that the noble Earl, Lord Howe, was suggesting is a better way forward. I do not know; I do not mind. I just feel that, because to me this is so fundamental and a question of human rights, we will need to return to this on Report. I turn with some trepidation now to the statutory competence test for under-16s. I have been accused of being too cautious. That is fine. I understand where noble Lords were coming from. I did not say it when I introduced it, because I thought it would be a bit to odd to say it, but I was seeing my amendment as a bit of a backstop. In other words, if the Government are not minded to accept that recommendation, at least something would happen and at least there would be some sort of progress. As I said, I was very sympathetic to the test and the way that the noble Lord, Lord Meston, set it out. It had a fair amount of support, of course, across the Chamber, but the debate also showed that there are still some quite tricky issues that need to be teased out. I do not think it was quite as clear-cut as perhaps was being suggested, not least about issues around the consistency or otherwise of the application of Gillick. It may be that, again, I did not get the wording right when I talked about a “review”. I accept that. Reviews can be kicked into the long grass and you never see anything again. But I thought the idea of a consultation was very important and, in fact, I think it would be quite difficult, having listened to this debate carefully, to move straight to having something in the Bill without having some sort of consultation first. It might be that you would want to take some sort of powers that would enable such a thing to be put in place after that consultation had happened, but to me it just felt that some issues still needed to be teased out. Perhaps my initial amendment was not completely ludicrous, but it has been a really good and interesting debate—

Probing.

Probing, absolutely. Thank you. And again, on this issue I sense that we will be returning on Report. But, having said those things, I thank all noble Lords who participated in this debate and thank the Minister for her responses. I beg leave to withdraw the amendment.

My Lords, I do not want to prolong this, but I have to say that, although I am disappointed and a little surprised by the response from the Government, the intention is to align the Mental Capacity Act and Gillick. It is frankly not correct, if I understand the situation, to say that it is not based on case law. I referred to a specific case in which the judge formulated, essentially, the test that appears in my amendment. As I say, I do not want to prolong this but, if necessary, I can refer the Government to that case.

Perhaps I can just say to the noble Lord that, when I reflect on the discussions on this group, as well as all the others, it may be helpful to discuss this further.

Amendment 55 withdrawn.

Amendment 56 not moved.

Clause 19 agreed.

Clause 20: Care and treatment plans

Amendment 57

Moved by

57: Clause 20, page 29, line 2, at end insert— “(ba) is a patient who has been informally admitted to a mental health unit in accordance with section 131, or”Member’s explanatory statement This amendment would ensure that patients who are admitted informally to a mental health unit will also benefit from a care and treatment plan.

My Lords, Amendment 57 stands in my name and that of my noble friend Lord Howe. The amendment is an attempt to ensure that patients who are admitted informally to hospital for a mental health disorder are also able to benefit from a care and treatment plan. As noble Lords will be aware, the Bill introduces statutory care and treatment plans but, as drafted, extends that right only to a select group of patients. As per the new Section 130ZA(2) of the Mental Health Act, patients who will be eligible for these plans are those who are formally detained under that Act, those who are subject to guardianship under the Act and those who are under a CTO. I do not think there is any disagreement that these patients rightly deserve access to a care and treatment plan. But what about informal patients who voluntarily admit themselves for treatment? The Explanatory Notes explain that the purpose of putting these plans on a statutory footing is “to ensure that all relevant patients have a clear and personalised strategy in place describing what is needed to progress them towards recovery”. They also detail some of the possible inclusions in that care and treatment plan. I note, however, that the exact inclusions in the care and treatment plan are to be made by the Secretary of State by regulations at a later date, possibly due to consultation. So, although we may have some idea of what might be included, it would be helpful if the Minister could confirm to your Lordships what the Government envisage will be included or could be included. I am not wanting to put the noble Baroness too much on the spot here. As many noble Lords might well know, care and treatment plans have been part of the package of mental health treatment in Wales since June 2012 under Section 18 of the Mental Health (Wales) Measure 2010. Those regulations specify that the areas that must be included in the patient’s care and treatment plan include “finance and money … accommodation … personal care and physical well-being … education and training … work and occupation … parenting or caring relationships … social, cultural or spiritual … medical and other forms of treatment including psychological interventions”. Can the Minister confirm whether the care and treatment plans in England will follow the same format or possibly be inspired by the same format? Will there be differences? Are there England-specific issues? I hope the Minister will understand that I have a few more questions. How will the Secretary of State decide what to prescribe in these plans? What level of consultation will there be? Indeed, what level of consultation has there been to date to inform this, particularly with the clinicians who will be responsible for drawing up the care and treatment plans? One of the things that many noble Lords have discussed during this debate is the fact that we want to see evidence-led practices. We know that, particularly in mental health but also in physical health, these can help to inform care and treatment plans that have a positive impact on clinical outcomes and therapeutic benefit, because they are based on treatments unique to the patient’s needs. A meta study in 2023 in the United States found that evidence-based practices “improve patient outcomes and yield a positive return on investment for hospitals and healthcare systems”. I note the Minister has referred a number of times to the Government making and implementing these changes when resources allow. The Social Care Institute for Excellence has also highlighted the importance of person-centred care, writing: “Research on mental health and wellbeing demonstrates that involvement leads to improved service outcomes and enhances mental wellbeing”. The institute argues forcefully that care plans for mental health patients should include active involvement from the patient. It is therefore vital that care and treatment plans are not developed in a silo; they should be developed in conjunction with the patient. Given the benefits that access to care and treatment plans should bring patients with a mental disorder, it would be more than appropriate for informal patients to be included as well. If anyone actually listened to what I said in the debate on our second day in Committee, they may be aware that I had some sympathy with the point made by the noble Baroness, Lady Murphy, who is not in her place. She argued that she did not want to extend the independent mental health advocates to informal patients, possibly because of resource constraints but also because of limited evidence on their therapeutic benefit. I could be accused of being inconsistent, but I would say that, for care and treatment plans, the issue is rather different. The clinicians will draw up these plans. The Bill states that it is the “appropriate practitioner” who will already be treating that patient, so it may not be the same issue of resources. Perhaps it will take extra time, and I understand that time adds up the more you require of a clinician. But, given that the informally admitted patient will already be being treated by a clinician, we would not necessarily be adding much resource or burden on to the clinician, in the same way as if we had extended the IMHAs, as in the argument made the other night. Therefore, I hope this amendment will extend provisions that will benefit informally admitted patients, as they will benefit the patients already decided upon in the Bill. I beg to move.

My Lords, I have added my name to this amendment. I will not detain the Committee long, but I support the amendment and I want to flag the point my noble friend made about Wales and England. To my certain knowledge, when people living further north around the Shropshire border, for example, are admitted, they will almost certainly be offered placements in north Wales. It is important that there is some harmony in these regions; otherwise, it will cause additional problems. I hope my noble friend will press his amendment in due course to make sure that that harmony exists.

My Lords, I will speak to Amendment 61. I recognise that the purpose of the Bill is to give children and those under 16 greater rights and opportunities to be heard. I entirely agree with that; it is absolutely sensible. But there is a danger of ignoring the fact that parents are basically not considered anywhere in the Bill. They are not in the contents of the Bill or any of the schedules. Most parents are suitable; some parents are not. It may be that my amendment should perhaps be put in slightly different way, as the noble Baroness, Lady Berridge, has done. I recognise that there is a small percentage of parents who may not have total parental responsibility or, if they do have it, they are in the situation of one parent having what used to be called custody and the other having what used to be called access. For most parents, they care about their children. As far as I can see, they are completely ignored, but they do have something to contribute. I am not suggesting for a moment that parents should make the decisions. What I am asking the Minister to do is to give them the chance to be heard; that is all I ask. They really should, throughout the Bill, be consulted where that is appropriate, but they are not put in for consultation, as far as I can see, in any part of the Bill. This is one place where that really will not do. Speaking as a parent and grandparent, I would be extremely upset if my child was about to be detained and everybody was discussing what should happen to my child, but nobody asked me. At the moment, as far as I understand, the Government do not seem to think that parents, special guardians or anybody else who happens to have parental responsibility need to be consulted.

19:15:00

My Lords, my amendment is very closely aligned to the amendment just moved by the noble Lord, Lord Kamall, but it is in relation to children. This is an issue that I raised at Second Reading. A number of children and young people are admitted to mental health settings informally on the basis of their own consent or parental consent—notwithstanding what was just said by the noble and learned Baroness, Lady Butler-Sloss. Research from the Children’s Commissioner for England suggests that around one-third of in-patients aged under 18 are informal. However, NHS Digital does not publish data on the number of young people admitted informally so it is impossible to accurately track the total number of young people in hospital or to identify trends. Concerns have previously been raised, particularly by the Children and Young People’s Mental Health Coalition, that young people who are informal patients are often under exactly the same conditions as those who are detained but without access to the safeguards that children formally detained have. Many children and young people who are informal patients are also often unaware of their rights and, as has already been acknowledged, do not feel that their voices are listened to. The coalition believes that it is crucial that informal patients aged under 18 have the same safeguards as those detained under the Act. There are two key provisions in the Mental Health Bill that can be strengthened to improve care for children and young people admitted informally. The most important, the coalition argues, is extending care and treatment plans to informal patients aged under 18, which is what my amendment is designed to do. The reason for that is, if you manage to get somebody who is under 18 to accept informal care, they have no mental health formal record for their future. Most of us who have worked with young people under 18 bust a gut to get them to accept an in-patient admission if it is really necessary—I am talking about families as well as professionals—in order to ensure that they get treatment. If that treatment is not guaranteed on discharge through a care and treatment plan, in the way that it would be for a detained patient, can your Lordships not see that families would be put in such difficult positions? They would ask, “Would it be better if my child is sectioned and detained in order for them to get long-term care?” This brings me back to my continued, impassioned plea that we need to think about proper standards of elective care for people with mental health problems, most importantly for those under 18.

My Lords, I remind the Committee of my entry in the register of interests that I am on the advisory board of the Money and Mental Health Policy Institute. I mention this particularly because the three amendments in my name, dealing with the financial implications for people who struggle with their mental health, have been based on the work of the institute. As I have reminded the House on many occasions, these amendments speak to the undeniable but all too often overlooked fact that our mental health and money are closely linked. When someone is hospitalised for a mental health crisis, bills still need to be paid and debts can mount up, resulting in financial difficulties that greatly damage people’s prospects of recovery. It is worth focusing on the numbers. In 2022-23, almost 90,000 adults were admitted to hospital for a mental health problem. The Adult Psychiatric Morbidity Survey indicated that around one-quarter of people experiencing a mental health problem are also in problem debt. The rate of problem debt is undoubtedly higher among people experiencing a mental health problem, which leads to hospitalisation. An earlier study from 2008 found that one-third of all people with probable psychosis are in problem debt. The three amendments dealing with the link between finance and mental health deal with different aspects of the problem, and they are, quite rightly, being considered in turn in relation to the relevant parts of the Bill. Today, we start with my Amendment 59, and I thank the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger, for their support for it. Like the other amendments in this group, it deals with care and treatment plans. Later, we will come to the implications of advance choice documents, which is currently in group nine, and then provision for mental health crisis breathing space, which is currently in group 17. The Mental Health Bill provides an important opportunity to tackle the vicious cycle of poor mental health often leading to financial problems, and financial problems often leading to poor mental health. We must break that cycle and ensure that people’s financial needs are addressed as part of a supported recovery from a mental health crisis. That focus is missing from the Bill in its current form, and my amendments seek to address that gap. As I have already indicated, these amendments are informed and supported by the independent charity, the Money and Mental Health Policy Institute, which has done considerable and excellent work in this area. They are small changes designed to improve the Bill and the outcomes for those it aims to help, by ensuring that a person’s financial situation is routinely considered and acted on as part of their treatment and recovery from a mental health crisis. Addressing a person’s finances is one of the many factors that mental health practitioners must consider in their assessment and care planning. However, services cannot rely on patients to tell them when they are facing financial difficulties. The experience is that people rarely take the initiative to tell mental health professionals about money problems, often because they are too unwell or because the stigma around both mental health and financial problems acts as a barrier to disclosure. Adding an explicit prompt about people’s financial situation in care and treatment plans will ensure that this is routinely and consistently considered by healthcare professionals and will open up more opportunities to safeguard patients from financial harm. There is a precedent for this. In Wales, “finance and money” is already included as a section in the care and treatment plan template. That does not mean that busy healthcare professionals are required to support people with their money in a way that they are not trained or intended to do. Rather, this is a case of empowering them to identify those in need and refer them to the relevant welfare adviser in their service, so that healthcare professionals can focus on medical care. Ultimately, that could free up time for health professionals, as well as improving outcomes for patients. I will illustrate the need for this proactive inquiry with testimony from someone with lived experience of money and mental health problems, as they do it so much more powerfully than I can. A participant in Money and Mental Health Policy Institute research shared: “I didn’t realise how much my mental health affected my finances and vice versa. I lived for years in shame and horrific anxiety about money which caused my mental health to spiral. I thought there was no help out there for me and I didn’t want to be alive, as I couldn’t see a way out of my money troubles”. Legislating to include a consideration of people’s finances, when they are in a mental health crisis and throughout their recovery, will help prevent further illness, support recovery and reduce waiting lists, and will help people return to daily life, including work, more smoothly. I can imagine what my noble friend the Minister’s response will be, because she has already written to the institute. She said in her letter: “We intend to set out in secondary legislation the required contents of the statutory CTP. However, we plan to further consult stakeholders to make sure that the CTP covers all the information that is critical to an individual’s recovery and timely and effective discharge from the Act”. I hope that she does not mind me taking the opportunity to stress the importance of this issue. Does she agree with that, including the importance of its place in treatment plans?

My Lords, I will speak to Amendment 59, in the name of the noble Lord, Lord Davies of Brixton, to which I have added my name. I must declare rather a lot of interests. I am chair of the University College London Hospitals NHS Foundation Trust and of the Whittington Health NHS Trust, which provides child and adolescent mental health services. I was also one of the vice-chairs of the independent review of the Mental Health Act in 2018, which feels like a long time ago. I am keeping my comments in Committee fairly short and sparse, because I feel that I have had quite a lot of say already, having been involved in that review. However, I want to speak about the issue of financial difficulties and mental health problems, because we should have looked at it in greater detail when we were conducting the review. It was an omission on our part, as we did not focus on it in any detail. The noble Baroness, Lady Barker, cited one of the people who spoke incredibly movingly to our review and who talked about how awful it is to be an in-patient. She said that she recovered and was given the care she needed, but she asked why it had to be such an awful experience. One of the things that is becoming clearer—the noble Lord, Lord Davies, alluded to it—is that when you have had a mental health crisis and your finances are in an absolute mess, because you did not get it together to do anything about them, why does your recovery have to be so awful because nobody helped you and gave you the advice you needed at the time? That is why this is so serious. If you are in hospital, you may not even get access to your computer, you may not be using your mobile phone all the time, you may be in something of a mess and your cognition may be severely affected. If that is the case, you will not be paying your bills, claiming your benefits or paying your rent. When you recover, it will take you ages to get into a situation where you can live a normal life again and not be hugely in debt. I was going to cite some of the experts by experience—the quotations have been given to me by the amazing Money and Mental Health Policy Institute, to which I am extremely grateful. However, since I do not want to take much more of your Lordships’ time, I shall just say that, although NICE stipulates that assessments in care and crisis plans at present should consider patients’ holistic social and living circumstances, which would include things such as housing and finance, mostly, in normal circumstances, the issues are too great. Often, the mental health needs are at crisis point and it just does not happen, and the same will happen with care and treatment plans unless we put this in the Bill. I ask the Minister—I have already heard what the noble Lord, Lord Davies, has said—whether she will think quite hard as to whether this could be in the Bill, along with parental involvement. I agree with all the amendments in this group. There are some things that need to be in the Bill that would make sure that, when we see treatment in place—and I see a lot of it in what I do in the other part of my life—those things are taken into account. If it is in secondary legislation, it is much harder and much less likely.

House resumed. Committee to begin again not before 8.10 pm.