Mental Health Bill [ Lords ] (Fourth sitting)

The Committee consisted of the following Members:

Chairs: Gill Furniss, Carolyn Harris, Sir Desmond Swayne, † Martin Vickers

† Bloore, Chris (Redditch) (Lab)

† Brandreth, Aphra (Chester South and Eddisbury) (Con)

† Burton-Sampson, David (Southend West and Leigh) (Lab)

† Chambers, Dr Danny (Winchester) (LD)

† Craft, Jen (Thurrock) (Lab)

† Dean, Josh (Hertford and Stortford) (Lab)

† Dixon, Anna (Shipley) (Lab)

† Evans, Dr Luke (Hinckley and Bosworth) (Con)

† Franklin, Zöe (Guildford) (LD)

† Irons, Natasha (Croydon East) (Lab)

† Joseph, Sojan (Ashford) (Lab)

† Kinnock, Stephen (Minister for Care)

† Morris, Joe (Hexham) (Lab)

† Owatemi, Taiwo (Lord Commissioner of His Majesty’s Treasury)

† Shastri-Hurst, Dr Neil (Solihull West and Shirley) (Con)

† Stafford, Gregory (Farnham and Bordon) (Con)

† Wrighting, Rosie (Kettering) (Lab)

Claire Cozens, Harriet Deane, Committee Clerks

† attended the Committee

Public Bill Committee

[Martin Vickers in the Chair]

Mental Health Bill [Lords]

Clause 6

Grounds for community treatment orders

Amendment proposed (this day): 11, in clause 6, page 13, line 6, at end insert—

“(c) after subsection (6) insert—

‘(6A) Any person subject to a community treatment order must be informed orally and in writing at the time of the making of the order of their right to an independent mental health advocate under section 130A of this Act.’”—(Zöe Franklin.)

14:00:00

Question again proposed, That the amendment be made.

I remind the Committee that with this we are discussing the following: Government amendment 30. Clause stand part.

I will resist the temptation to go back to the start of my speech; I am sure that the Committee’s memories of it will have lasted over our short lunch break. I was saying that although the Government’s reforms are, on the whole, positive, we must remain vigilant. The consideration of risks must be applied carefully and consistently to avoid unintended consequences such as deterring clinicians from using community treatment orders when they are genuinely needed or, conversely, enabling an overly cautious approach that restricts patients unnecessarily. We should also be mindful that some patients may find the process of extension and review stressful or confusing. Clear communication and patient involvement, as mandated, must be prioritised to uphold dignity and autonomy. Will the code of conduct aim to ensure a clear and definitive process for keeping patients and their advocates informed as to their rights in the process and what to expect? The Committee must also address a key reason why this part of the law is being amended and why there is so much concern about the current state of mental health legislation: racial disparities. This concern is well documented. There is disproportionate use of CTOs on black men. We have known for years that black people, particularly black men, are more likely to be detained, more likely to be diagnosed with a psychiatric disorder and more likely to be subject to coercive interventions under the Mental Health Act 1983. Those things are clear for all to see, but the reasons are not so clear. We should address the well-documented racial disparities in the use of CTOs. The 2018 independent review of the Act makes it clear that black African and black Caribbean people are disproportionately detained under the Act and subject to CTOs. Despite representing a small percentage of the population, black patients account for a disproportionately high number of CTOs: digital data from the NHS in 2019-20 shows that they make up 13% of CTOs, compared with just 3% of the population. That is supported by research published in BJPsych Open, which found that black patients are roughly two to three times more likely than white patients to be subject to a CTO. The Care Quality Commission has highlighted the disproportionate impact of CTOs on the black and minority ethnic community, raising serious concerns about trust and engagement with mental health services. What does not seem so clear is the reason why. Although we are observing clear disparities in outcome and treatment experiences among ethnic minorities in the UK health system, including in mental health care and beyond, the precise cause remains complex and not fully understood. The patterns that we are seeing, such as disproportionate detention rates, difference in access and poor outcomes, raise serious concerns about care in the UK. However, it is important to recognise that correlation is not causation. These disparities may arise from a range of factors, including biological or genetic factors, socio-economic inequalities, cultural differences, health status or presentation and geographical settings, and there is even the possibility of biases within the service. To develop effective solutions, we must invest in rigorous and independent research that moves beyond correlation to explore the underlying causes and mechanisms. Only then can we decide on interventions that truly address the roots of inequality, rather than just the symptoms. To that end, what steps is the Minister taking to better understand what is happening with CTOs in the field of serious mental health specifically? What concrete action will the Government take to collect better and more granular data on the disproportionality? It is not just about the numbers; it is about understanding the root cause. Will the Government commit to commissioning quantitative as well as qualitative research into the lived experience under CTOs of black patients in particular? Will they consult community organisations as part of that work? I worry that not fully understanding the cause of the problem will mean that, at best, we might slightly mitigate it and, at worst, we will compound it or create a new problem that is harder to treat. Clause 6 represents a thoughtful step towards balancing patient liberty with patient safety and clinical necessity. It will strengthen safeguards, clarify criteria and promote regular oversight, all of which are crucial for the ethical and effective use of CTOs. However, in using CTOs, we must better understand what is happening in the real world. We must not jump to a simplistic cause of systemic bias without truly understanding that cause, and not simply the correlation. I look forward to hearing from the Minister on that point. With that in mind, I turn to Government amendment 30, which will remove the review of CTOs. It was tabled in the other place by the Lib Dem Lords but received support from across the House. The amendment would remove subsection (3) from clause 6. Subsection (3) is designed to introduce statutory safeguards around the use and duration of community treatment orders. In the Lords and more widely, there is, rightly, much debate about CTOs and their place and use. When used appropriately, in a careful and considered context, they can provide a less restrictive alternative to hospital detention and enable patients to continue their recovery in the community. However, the key word is “appropriately”. That is why the Opposition have concerns about the removal of the subsection. It contains reasonable, proportionate safeguards that do not undermine the purpose of CTOs but strengthen their legitimacy, transparency and accountability. Under the Government’s proposal, those safeguards—such as a 12-month maximum duration, regular six-month reviews, and the requirement to consult independent psychiatrists before extending a CTO—would no longer be set out in statute. Instead, we are told that clinicians will be guided by a code of practice and existing professional standards. However, why rely on guidance when we can legislate for clarity and protection? Will the Minister explain why the Government prefer a non-binding code of practice over statutory time limits and reviews, particularly as CTOs involve a significant curtailment of liberty? Does he believe that that is congruent with the principles now enshrined in the Bill? The stakes may be too high to depend on discretion alone. CTOs are one of the few mechanisms in the health system through which someone can be compelled to comply with treatment in the community and can potentially be recalled to hospital, even if they are not in crisis. That makes clear oversight essential. The Government assert that tribunals will serve as a safeguard, with more frequent referrals. However, as many colleagues have pointed out, tribunals often defer to the clinical judgment presented to them, which risks creating a loop. Forgive me, but will the Minister tell the House how many tribunals overturn or terminate CTOs at those reviews? Does he believe that they are robust enough to act as an effective check? Are they simply a procedural step? To that end, what steps is the Minister taking to better understand what is happening specifically in the field of serious mental health? What concrete action can we expect in order to better collect the data? When the Government proposed the amendment that would remove subsection (3), they introduced important safeguards about the duration, review and oversight of community treatment orders. I acknowledge the Government’s position, and Ministers have been clear that they are responding to the concerns raised by stake-holders—including clinicians who support patients with eating disorders, and clinicians in forensic settings—that a rigid time limit on CTOs might remove necessary support from those who are still benefiting from them. That position was reflected in the letter circulated on 11 December 2024 by Baroness Merron, following the debate in the other place. It says that a “strict time limit risks removing support for those patients who were benefiting from Community Treatment Orders.” It continues: “This wouldn’t feel in keeping with the principle of treating the person as an individual.” I understand that concern. We all want a mental health system that recognises nuanced personal need and clinical judgment. However, the Government amendment goes well beyond preserving flexibility. By removing subsection (3), it strips away a carefully balanced set of protections—not just time limits but essential oversight that will prevent CTOs from drifting on indefinitely, without structured review or patient involvement. Removing subsection (3) is a backward step. As things stand, CTOs can be renewed, year after year, with limited scrutiny. The evidence from the 2018 independent review of the Mental Health Act suggests that CTOs do not demonstrate reduced readmission rates. Yet many patients, especially those from racialised communities, remain under CTOs for far longer than may be clinically justified. Subsection (3) did not ban long-term CTOs. It simply said that if a clinician wanted to go beyond 12 months, they must consult the patient, their nominated person and other professions involved, review whether the order was still working, and get a second opinion from a GMC-registered psychiatrist. That is not inflexible; it is good clinical governance. The code of practice is not enough. The Government say that they will address concerns in the code of practice. In the same ministerial letter, we are told: “We will set out the expectation that Community Treatment Orders should end after two years...whilst highlighting that this should take into account clinical discretion.” We all know that an expectation is not a guarantee. The code is important, but it is not binding. There is no requirement to follow it—only to “have regard” to it—and there are no consequences for ignoring it. Where is the accountability? The amendment deletes a provision that would have created a real legal framework for oversight and replaces it with possibly just a promise and a footnote. Tribunal oversight is not a substitute. The Government’s letter also highlights a plan to increase automatic tribunal referrals. That is welcome, but tribunals are not a substitute for proactive clinical reviews. Patients often lack the means or confidence to engage in hearings, and tribunals can only act on the evidence presented to them. Subsection (3) was about making sure reviews happened automatically, in a transparent and collaborative way—not at the point of breakdown or challenge, but as routine best practice. If a code of practice expectation is ignored, what recourse does a patient have? Why is it acceptable for a CTO to continue indefinitely without any formal review of its effectiveness? Why is a second clinical opinion seen as burdensome in mental health, when it can often be standard practice in many other areas of medicine? Given the maths of the Committee, we are unlikely to keep the subsection, but if the Government are determined to remove it, I urge them seriously to consider alternatives. For example, that could be a statutory requirement for annual review, especially after the first 12 months, mandatory consultation with the patient and key professionals before extension, or a duty to record and publish anonymised data on CTO use, disaggregated by duration, diagnosis, and ethnicity. If we are to “keep CTOs under review”, as the Government promised in their letter, why not put that commitment into legislation, with timelines, transparency, and lived experience input? Returning to the issue of the disproportionate use of CTOs on black men, we have known for years that they are more likely to be detained. I gently ask the Minister what concrete actions the Government will take to collect better, more granular data on that disproportionality, not just in terms of numbers, but the root cause. As my noble Friend Lord Kamall rightly asked, what do we know, what do we not know and what do we need to find out? Those are vital questions, but research alone will not solve the problem unless we embed fairness and accountability into the system now. The safeguards in subsection (3) are not bureaucratic red tape. They are vital protections to ensure that CTOs are used only when necessary, and that they are time-limited, reviewed regularly and subject to independent scrutiny. If a CTO is working and genuinely benefiting the patient, then what harm is there in requiring a transparent, collaborative review process to justify its continuation beyond 12 months? Those safeguards would also ensure that patients and their advocates, including their nominated person, are part of the decision making. That is entirely in line with the broader ethos of the Bill: respect, dignity, and least-restrictive care. The Bill is about modernising mental health law. CTOs sit at a crossroads of care and coercion. That is precisely why they demand more scrutiny, not less. The clause, as originally drafted, struck a sensible, balanced compromise. To strip it away is not clinical freedom; it is a loss of legal safeguards for some of the most vulnerable people in our care. I urge the Committee to retain these statutory provisions. They strike the right balance between preserving the appropriate use of CTOs and protecting patient rights and promoting accountability. We owe it to those who are subject to the powers, who are often some of the most vulnerable, to ensure that their care is just, proportionate and based on evidence.

14:15:00

It is a pleasure to serve under your chairship, Mr Vickers. I will speak in support of the clause and Government amendment 30, and I may touch on the amendment moved by the Liberal Democrats. As we all know, community treatment orders were introduced in 2007 under previous legislation, with good intent at the time. There was too often a problem with revolving doors into in-patient settings, in particular for patients with psychosis and schizophrenia. The intent behind the introduction of CTOs was to allow patients to be discharged into the community as long as they followed certain conditions, to provide ongoing contact with mental health services, and to provide support and help to prevent relapse. Under certain conditions, patients subject to CTOs could be recalled to a hospital under the Act. The provisions in the Bill are still in line with those underlying principles about the restrictions and the person as an individual. The clause will amend the previous legislation, in particular to align the new risk criteria for detention, which we discussed in some detail under clause 5. It is important that there is consistency in the criteria for detention under a community treatment order, or indeed under detention in an in-patient setting. Again, that supports the need to use the orders only where serious harm may be caused to the health and safety of the patients or the person—the negative likelihood of harm, as we discussed with regard to similar amendments to a previous clause. There is wide support for the use of the criteria for detention as an in-patient as well as under the CTOs. One of the concerns, as the hon. Member for Hinckley and Bosworth has discussed, is possible overuse and, in particular, disproportionate use in relation to race and ethnicity. Black people are seven times more likely to be placed on a community treatment order compared with white people. The Committee has received extensive evidence highlighting those racial disparities and the injustice not only in the application of CTOs, as the hon. Member pointed out—we will come to racial disparities in due course—but in the disproportionate use of CTOs to provide supervision in the community. The evidence from the Centre for Mental Health concerned the interprofessional variation among psychiatrists. Practice can vary even within the same area, so it is not just inter-area variation. That suggests a potential lack of a standardised application of the use of CTOs in some cases, which is perhaps slightly more subjective. The use of the clear criteria, therefore, along with the code of practice, will, I hope, certainly help to address the racial disparity as well as the unwarranted interprofessional variation in the use of CTOs that we see in practice. It is important that we consider the fact that people may be on a CTO longer than necessary, from the point of view of therapeutic benefit or, indeed, of the risk criteria. I commend the intent behind the amendment that was made in the other place, but there is a clear challenge in putting statutory limitations on the use of CTOs. We should allow clinical best practice, treat the person as an individual and apply the updated criteria in the Bill, recognising those individual cases.

The hon. Lady is making an excellent speech and an excellent observation, and she clearly understands the rationale for the amendment. I just wonder, given that the use of a CTO is currently a clinical decision, why we find ourselves facing this problem in the first place. Ensuring a review and putting it on a statutory footing would hopefully stop that, because despite clinicians’ best intentions, more of these have been rolled on. This provision is simply a mechanism to try to stop that. What are her thoughts about how to make sure that that is the case?

There is a big difference, because when we address clinical variation we usually do so through clinical guidelines, clinical best practice, training and many other non-statutory levers, which are much more effective at driving out unwarranted variation. They also include feeding back data; the hon. Gentleman talked about data and encouraging NHS trusts and organisations to ensure transparency about which psychiatrists are overusing CTOs. That feeding back of data can be much more effective at driving out unwarranted variation, although that is not to say that we accept that there are people who are potentially on long CTOs that go through renewal. The other point is that there are other mechanisms, as the hon. Gentleman acknowledged, such as the tribunals. Those review points need to be as effective as possible at ensuring that people are not unnecessarily being kept under community supervision when that is no longer necessary. I will be seeking assurances from the Minister about what will be in the code of practice to ensure that any statutory time limit is really just a backstop that maximises the ability of clinicians to have some discretion, while using these other methods to ensure good practice, consistency in decision making and reductions, certainly in racial disparities, and as an urgent matter, but also in some of the intra-professional variation that is not necessarily connected with racial discrimination. In that sense, I will support Government amendment 30 as long as the Minister gives a reassurance that we do not accept either the racial disparities in use or some of the lengthy uses, and that he is confident that the provisions in the code of practice will start moving us away from the current situation with the use of CTOs. The hon. Member for Hinckley and Bosworth made some interesting points about research and evaluation. Having been the chief analyst in the Department of Health and Social Care, I am well versed in this. Obviously we have a generous settlement for all the research and innovation. The National Institute for Health and Care Research is world-renowned for the research that it commissions. There is clearly quite a disparity in the views that this Committee has heard, with the likes of Mind perhaps at one end in saying that the only solution is to get rid of CTOs. I think the majority of us here see a role for them, but only if used in the right way. In addition to the ongoing data collection and feedback to clinicians, which it was suggested the Minister might want to take away and consider with the NHS, the Department and NHS England—while perhaps also talking to NIHR about the research and evaluation in this area, as well as the research gaps that could inform future implementation of CTOs and help to underpin best practice—we might consider looking into such matters as what is driving the racial inequalities and interprofessional variation, so that we can ensure that future policymakers and legislators like ourselves are better informed and can make more evidence-based policy decisions. I am close to concluding, but I would like to touch briefly on Liberal Democrat amendment 11. Mental health advocacy is clearly critical, particularly for those who lack capacity as well as those who are compulsorily detained in an in-patient setting. I hope and expect that with the use of CTOs as a method of discharge, the relationship with advocacy they may have accessed in the in-patient setting would continue in the community. I acknowledge the spirit behind the amendment and hope to hear the Minister respond on how we will ensure that all those with complex mental health issues—particularly those who lack capacity and are detained in an in-patient setting—will have access to appropriate advocacy.

I rise briefly to dilate on clause 6, on Liberal Democrat amendment 11 and on Government amendment 30. Those of us on the Health and Social Care Committee recently had a fascinating panel about the disparities for black and minority ethnic groups in maternity, and it does not end there, as we can see from the evidence raised by my hon. Friend the Member for Hinckley and Bosworth and by the hon. Member for Shipley. When CTOs were introduced—for good reasons—the elements of controversy that hon. Members have raised were not predicted. The overuse of CTOs, especially among black and minority ethnic patients, should give us all concern, although I have to say that there is some limited evidence of effectiveness in reducing relapse or readmission. Will the Minister give us the Government’s view on that and how they might seek improvement going forward? What we are trying to achieve in the clause is to bring legislation in line with the 2018 independent review of the Mental Health Act, which recommended tightening the use of CTOs, or indeed abolishing them altogether for some groups. I support the clause because it brings in stronger safeguards, a clearer commitment and time limits to reduce the risk of indefinite or inappropriate use. It also improves patient involvement, because it requires a consultation and review, promoting shared decision-making, and increases accountability because it aligns with the code of practice and introduces external oversight. It focuses on the reality, ensuring that CTOs are used only where truly needed. I am slightly concerned about Government amendment 30, which will remove the detailed provision that would have introduced new statutory limits and review procedures for community treatment orders, specifically under subsection (3), and inserted new subsections (8) to (11) into section 17B of the Mental Health Act. The implication of removing subsection (3) is that essentially we will maintain the current legal framework, which does not impose a fixed maximum duration or the same level of structured review currently written into the clause. I am afraid that that would not bring in the safeguards and oversight mechanisms that would, at least to some degree, start to tackle the problems that hon. Members on both sides of the Committee have been talking about. It may be seen as taking a step back from what campaigners and professionals who are advocating for stronger patient rights and accountability on the use of CTOs would like to see. I ask the Minister for the same reassurances that the hon. Member for Shipley asked for in this area. If the Government are to move Government amendment 30 successfully, we will need to see how they intend to deal with these issues going forward. Liberal Democrat amendment 11 would ensure that people subject to a CTO receive information about their right to advocacy. That is an entirely laudable aim, but I ask Liberal Democrat Members to answer a few questions. First, how do they see the administrative burden on clinicians to ensure that both oral and written communications are documented? Secondly, what additional training do they think those professionals might need to ensure that the information is both consistent and correct? Thirdly, might there be delays in issuing a CTO if, for some reason, advocacy information is not immediately available?

14:30:00

It is a pleasure to serve under your chairship, Mr Vickers. I turn to amendment 11, tabled by the hon. Member for Winchester. Under the Bill, English qualifying patients subject to the Mental Health Act 1983, including those on a community treatment order, will be covered by a new opt-out approach to advocacy. That means that the relevant hospital manager must provide the advocacy provider with information about the patient so that they can arrange for an advocate to interview them to determine whether they wish to use advocacy services. Requiring oral and written information about their right to an advocate would therefore be unnecessary. I hope that that is satisfactory, and I encourage the hon. Member for Guildford to withdraw the amendment. Government amendment 30 would remove clause 6(3) from the Bill on the basis that it is unnecessary. The requirement in section 118(2D) of the Mental Health Act for decision makers to have regard to the code of practice already ensures that they must take it into account when making decisions in relation to community treatment orders. Imposing a maximum duration of 12 months on community treatment orders, with the option to renew them after a review every six months, is also unnecessary. That is because the Bill already requires community treatment orders to be reviewed before renewal after the initial six months, again after the next six months and then yearly. The responsible clinician can renew the CTO only if there is a risk of serious harm without it and a reasonable prospect of it having therapeutic benefit for the patient. The Bill increases professional oversight by requiring the community clinician to be involved in all decision making relating to CTOs. That aligns with Lord Scriven’s amendment, but, rather than that person being a General Medical Council-registered psychiatrist, it is more appropriate that they be an approved clinician, meaning that they have specific training regarding the Mental Health Act and approval to make decisions under the Act. We have also increased the frequency of tribunal reviews so that they will happen automatically at renewal periods following the initial six-month period, after a further six months and after any subsequent 12-month periods. We are already providing a new power for the tribunal to recommend that the responsible clinician reconsider whether a CTO condition is necessary. Clause 6(3) would duplicate that.

I am grateful to the Minister for outlining so clearly what safeguards will be in place to ensure that there are no unnecessary extensions to CTOs beyond the period during which the patient is benefiting therapeutically or meets the detention criteria, which are being updated by the Bill. The answers that the Minister has given assure me that there will be significant review points. Does he, like me, think that these provisions will, in time, reduce some of the unwarranted variation and some of the excessive lengths? As the Bill is implemented in practice, we will see changes in the pattern of use of CTOs.

I pay tribute to my hon. Friend for her expertise and am pleased to hear that she feels reassured by my remarks. It is absolutely the Government’s ambition to bring more consistency and clarity to this area. A number of hon. Members have raised issues around racial disparities; I plan to come on to that. That is a specific focus, I know, for her and other colleagues. More broadly, this is about ensuring that the CTO system is proportionate, well regulated and managed on the basis of a patient-centric system. We therefore wish to remove clause 6(3), as we do not think that it is necessary. It duplicates some provisions in the Bill or, in the case of the review periods, conflicts with existing renewal periods, and under the current drafting it is not clear how the two would interact. Where there are differences, the current provisions are more appropriate, for example in requiring a community clinician to be involved in all decision making. Let me move on to clause 6 in its entirety. CTOs allow individuals detained under the Mental Health Act to be discharged into the community, under specific conditions, to ensure continued treatment. CTOs aim to maintain contact with mental health services to provide support and prevent relapse. Patients on CTOs can be recalled to hospital under that Act in certain circumstances. The main purpose of introducing CTOs was to improve care for higher-risk patients and to enhance public safety. We believe that community treatment orders remain necessary in a small number of cases to ensure continued treatment and to protect both patients and the public. However, the independent review rightly noted that considerably more people than expected were being put on a community treatment order—about 5,500 people a year—and that there were racial disparities in the use of CTOs. Clause 6 therefore amends the community treatment order risk criteria in line with the new detention criteria set out in clause 5. It is now the case that, to be put on a community treatment order, the patient must be at risk of serious harm and there must be a reasonable prospect of therapeutic benefit for the patient.

We have touched already on the stark racial disparities in the use of CTOs and the Mental Health Act more generally, so I welcome these reforms. I appreciate that we will come to this point later in the Committee, but can the Minister set out what interaction the advance choice documents will have in reducing the number of CTOs, particularly for those groups that have seen them used disproport-ionately?

My hon. Friend raises a very valid point that, as he says, we will come on to in greater detail. Right across our health service, in every aspect, early intervention is always better than trying to pick up the pieces after a crisis. That is the same for both physical and mental health. We believe that the advance choice documents will be a helpful tool in building an earlier understanding of the challenges that a particular individual faces and, on the basis of that earlier understanding, enabling earlier intervention. Giving the opportunity to patients, while they are in a position to do so, to set out what their advance choices are will enhance their autonomy and enhance trust in the interaction between the patient and the system. That trust piece is so important to the entire picture.

It is a pleasure to serve under your chairship, Mr Vickers. I was interested to hear what the Minister has just said, but I think it goes much further. Can he give me assurances that we will take time to look at what is driving so many young black men in particular into these mental health crisis situations? We need to look much further back, at the start of the process, where something is pushing young black men into mental health crisis and they are ending up in a position where they have to be placed in a facility and go through a whole period of attempting to recover. Can the Minister give me his thoughts on what the Government are doing to prevent that from happening in the first place, particularly with this group of men?

My hon. Friend is absolutely right, and we could go into the question he has just raised in a profound way, because the social determinants of ill health are such an important part of the picture. Many people in our communities are dealing with all sorts of incredibly challenging and traumatic issues in their lives, often driven by a whole range of social determinants. We have to recognise that there is a need to build capacity in the system as well. I am pleased that the Government reconfirmed in the spending review yesterday the 8,500 additional mental health specialists in the system, a mental health trained specialist in every school, 24/7 mental health hubs being opened around the country and £26 million being put into opening mental health crisis centres around the country. The fundamental drive of the Government is to move from sickness to prevention. We want to build a preventive state, and the mental health part of that is vital, for the reason my hon. Friend has just elucidated.

The Minister makes an excellent point about the services that are required, but key to all this is the underlying research. Has research already been commissioned into this? If not, would he look at commissioning in the space of ethnic minorities, the impacts of CTOs and mental health? That might shine a light on what further services will be needed, the reasons, and preventive measures, which the Government rightly put at the front of the agenda.

We have piloted culturally appropriate advocacy models, which ran up to March 2025. An evaluation of the pilot will be published in the summer, and that will feed into the evidence base for the impact and deliverability of culturally appropriate advocacy at local level. We will use the learnings from our culturally appropriate advocacy pilots to inform our understanding of how to increase uptake of advocacy for community treatment order patients from black communities, who are disproportionately likely to be put on a CTO. A lot of that evaluation and investigation work is happening, and I am sure that hon. Members across this Committee will read the findings in the summer with great interest. The change in the criteria for a CTO is intended to reduce the number of inappropriate community treatment orders being given, reducing restrictions on patients and helping to protect against the disproportionate use of coercion among racialised communities. Only those for whom there is a risk of serious harm and who will benefit therapeutically should be subject to a community treatment order, and it should be removed when it no longer provides benefit. I want to touch on some of the questions that have been asked. The Opposition spokesman asked about the number of CTOs being overturned at tribunal. According to Care Quality Commission data from 2023-24, 129 discharges by tribunal took place following 4,438 applications against CTOs. I emphasise that people are often discharged without going to tribunal, so those numbers are not a full picture. On evaluation, we are developing a monitoring and evaluation strategy for the Mental Health Act, as the Bill will become once—one hopes—it gets Royal Assent. It will be important to monitor new processes such as discharges and changes to CTOs to assess whether reforms are being delivered as intended and to monitor uptake among patients. There was also a question about racial equalities, but I think I have answered that. With those remarks, I hope that the Committee will support Government amendment 30 and that the hon. Member for Guildford will withdraw amendment 11.

I thank the Minister for his comments on our amendment 11 and the clarification regarding the fact that the Bill covers a lot of the issues we raised in that amendment. I am therefore willing to withdraw our amendment. On Government amendment 30, I am grateful to the hon. Members for Hinckley and Bosworth and for Farnham and Bordon for their comments on the Government’s request to remove subsection (3). It is good to have consensus on these Benches on the important issues included in it. While I do appreciate the comments from the Minister about how he believes that the Bill covers these issues, I do feel that the subsection needs to remain and I would therefore like to vote on the Government amendment. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.

14:45:00

Amendment proposed: 30, in clause 6, page 13, line 7, leave out subsection (3)—(Stephen Kinnock.)

Question put, That the amendment be made.

The Ayes were 10 and the Noes were five, so the Ayes have it.

On a point of order, Mr Vickers. Just to be clear, I counted six Noes, and I think you announced five. Can we just check on that?

You are right—my apologies. The record will be amended.

Further to that point of order, Mr Vickers. I should say it was the Liberal Democrats who pointed it out to me; I do not want to take the credit from them.

8|0|10|6|divided:|Question accordingly agreed to.||0|0

Clause 7

Grounds for discharge by tribunal

Question proposed, That the clause stand part of the Bill.

Clause 7 will amend the grounds for discharge by the tribunal to align with the revised grounds for detention set out in clause 5. The tribunal must consider whether the patient continues to meet the criteria when deciding whether to discharge a patient. These changes will provide decision-makers with a clear and consistent set of considerations when assessing whether a patient continues to meet the detention criteria, and therefore whether detention or a community treatment order continues to be justified. The tribunal must consider all elements of the detention criteria, including whether there is a reasonable prospect that the patient is receiving therapeutic benefit from treatment and whether there is a risk of serious harm. The detention criteria ensure public and patient protection, while also protecting patients from lengthy and unnecessary detentions when they no longer pose a risk to themselves or others. I therefore commend clause 7 to the Committee.

I rise to speak on an essential aspect of our mental health system: the role of mental health tribunals, and the proposed changes to the grounds upon which they can discharge individuals detained under the Mental Health Act 1983. Each year in England and Wales, about 20,000 people come before a mental health tribunal. These individuals are not criminals, but patients—often vulnerable, often voiceless—detained in hospital or living under community treatment orders, sometimes against their will. The function of the tribunals is clear: to act as an independent safeguard, to scrutinise the legality of detention, to test whether the continued deprivation of liberty is justified, and to ensure that care is being given within the bounds of both clinical necessity and human rights. Each tribunal consists of a legal judge, a psychiatrist, and a specialist lay member. Together, they form a check on the powers granted by the state to detain and treat people on mental health grounds. Therefore, tribunals are independent bodies that review whether a person should remain detained under the Mental Health Act. Historically, while an imperative, there have been concerns that modernisation is needed. The criteria they used were broad and inconsistent with modern principles of least restriction and patient rights. The 2018 independent review of the Act recommended aligning tribunal powers with clear risk-based criteria to ensure the detention is only maintained when absolutely necessary. The clause seeks to change the criteria that these tribunals apply when making decisions about discharge. Specifically, it would align the discharge tests used by tribunals with the statutory conditions for detentions—those found in section 2(2) in the 1983 Act for assessment, section 20(4) for treatment and section 17A(5) for community treatment. On one level, this is pragmatic reform. It simplifies the legal framework and avoids confusion caused by duplicative or overlapping tests. It creates consistency between the reasons someone can be detained and the reasons their tribunal must use to determine whether they should remain so. I would, however, caution the Committee not to treat simplification as neutral. While the administrative clarity is welcome, legal clarity can also narrow discretion. In tightening the grounds for discharge to mirror the detention criteria exactly, the clause may reduce the tribunal’s ability to consider the broader context, including, for example, the patient’s progress, their lived experience or the factors not strictly enumerated in statute. There is a risk that tribunals become passive reviewers of statutory boxes, rather than active assessors of individual liberty and clinical justification. Tribunals may ask whether the criteria are still met, rather than whether continued detention is truly necessary or proportionate. Moreover, I believe—although the Minister may have to correct me—that the clause applies retrospectively, including to individuals detained under forensic sections or already living under CTOs. We must ask whether it is right to shift the legal test midway through someone’s treatment or tribunal process, potentially raising the bar for their discharge. I welcome the intent behind the clause to create coherence to improve the legal precision of our mental health law, but will the Minister reflect on its practical effects? Will it make discharges harder? Will it reduce the tribunal’s role to tick-boxing? Will it truly serve the interests of the patient? Mental health tribunals are not merely administrative bodies; they are guardians of liberty for people who are often too unwell to speak for themselves. Any change that touches their powers must be approached with care, compassion and rigorous scrutiny. I ask the Minister to clarify how the clause will affect discharge rates in practice. Will tribunal members retain discretion to consider the individual circumstances of the patient beyond the bare statutory criteria? How will that be monitored? Has an impact assessment been carried out on the proposed change? Finally, in the Minister’s speech on clause 6, he said that he expects more people to be automatically referred. How many more does he expect the Government to see? I believe in his answer he said that 129 out of 4,000 were overturned. Is there any work to be done to see how many more automatic referrals would come in, how many more would be challenged, and what the impact of that would be? We must be mindful that mental health law is about not only treatment, but trust, autonomy and justice, so let us ensure that these reforms reflect that.

It is a pleasure to serve under your chairmanship, Mr Vickers. I rise to speak briefly to clause 7, which in many ways is a tidying up of the other changes in the Bill to ensure alignment. In that sense, it is a necessary part of this legislation. For too long, mental health tribunals, which have an important function, have been operating under criteria that are too broad. As my hon. Friend the Member for Hinckley and Bosworth pointed out, that can lead to inconsistencies with modern clinical practice. It is therefore right that we move to clearer, more risk-based criteria to ensure that detention is maintained only where absolutely necessary. There are obvious reasons behind that, such as to ensure greater consistency in tribunal decision making and strong safeguards to ensure that patients are only detained or kept under community treatment orders when absolutely necessary. I want to pick up some of the arguments my hon. Friend the Member for Hinckley and Bosworth was developing around the demands on the tribunal service. The Minister will be well aware of the challenges facing the court and tribunal system in this country. If, as anticipated, this will lead to an increase in the number of hearings—both in first instance and potentially in appeal—what assessment has been made as to the number of not only judges, but wing members that will be required to facilitate this process? What has been determined regarding the capacity of the resources of His Majesty’s Courts and Tribunals Service—in terms of not only physical hard standing, but the vital role that clerks and tribunal staff play in ensuring that hearings are done in a timely manner and the paperwork is completed consistently? Thirdly, what is the expectation of the sustainability of that workload as the Bill comes into fruition? I pick up on that in particular, because, given the transition arrangements that appear to be within the legislation, this will be a retrospective as well as a prospective change. I would be grateful if the Minister in summing up could address those issues.

It is a little bit dangerous for us to get into a numbers game, because I do not think it is particularly useful or productive to say, “As a result of the changes that we are making, we think it will decrease by x number or increase by y number”, because, by definition, we do not have a crystal ball and we cannot be sure. However, the impact assessment for the Bill— I do not have a copy of that with me right now—includes a range of scenarios and some predictions of the impact and associated costs that go with that. Those are important considerations that led us to the conclusion that we need a 10-year implementation period. It is not just about capacity in the communities and the community mental health services; it is also about capacity in the court system, the number of judges and the whole additional capacity and workload required for that, which is an important part of those considerations.

If the Minister will forgive me, I was not being facetious when asking for numbers; I was simply using it as an example. I am grateful to his officials for providing the numbers so quickly when I asked for them during the debate on clause 6. When he has the chance, could he write to Opposition Members setting out how that interaction works with the Ministry of Justice and what the numbers might look like? Forgive me if I have missed it, but I could not see it in the impact assessment. There is an implication not only for health, but for the justice side, which, as my hon. Friend the Member for Solihull West and Shirley said, makes a difference. My question was more to make sure that we are pragmatic in our approach, rather than getting into hardcore numbers at this stage.

The numbers that I gave the hon. Gentleman earlier were things that had happened, rather than gazing into the future and reading the tea leaves, but I will do as he asks, and I will ask officials to take him up on the point about the capacity of the legal and judicial system, in particular the tribunals. On the questions the shadow Minister asked about retrospective application, we are supporting the tribunal to make decisions about whether a person should continue to be detained or subject to a community treatment order by providing clear and consistent criteria that focuses on the need for there to be a risk of serious harm and a reasonable prospect that the patient is benefiting from their detention in order justify continued detention for treatment under part 3 of the Mental Health Act 1983. As has been said, that will apply to everybody who is currently detained. The key point is the balance of two things: harm to the patient him or herself and harm to others, and therapeutic benefit. Those will be the guiding lights of this entire process. I hope that I have managed to respond; I did not have a huge amount of time to take note of all the points, because there were not very many speakers on this clause. If there is anything I have not addressed, we can of course do so in writing. Question put and agreed to. Clause 7 accordingly ordered to stand part of the Bill. Clause 8 Appropriate medical treatment: therapeutic benefit

15:00:00

I beg to move amendment 12, in clause 8, page 15, line 11, after “treatment” insert “including the setting in which treatment takes place,”. This amendment ensures that the definition of appropriate medical treatment includes the setting in which treatment takes place.

With this it will be convenient to discuss the following: Amendment 44, in clause 8, page 15, line 17, at end insert— “(iii) seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma;”. Amendment 45, in clause 8, page 15, line 22, after “manifestations” insert “and seeks to minimise the patient’s distress and promote their psychological wellbeing and recovery from any childhood trauma.” This amendment, along with Amendment 44, seeks to promote a therapeutic environment and culture which recognises a patient’s trauma. Clause stand part. Clause 9 stand part.

It is a pleasure to serve under your chairmanship, Mr Vickers. Amendment 12 attempts to ensure that the needs of patients in terms of setting and the design of their wards are considered in their treatment. We are particularly concerned that many people are being treated, as Lord Darzi’s report highlighted, in Victorian-era former asylums, which cannot be conducive to effective treatment. Multiple sites have been designated as not functionally suitable. The independent review of the Mental Health Act and the Care Quality Commission also found that many mental health wards are unsafe for staff and patients, and provide poor-quality care in unsuitable buildings. One CQC inspection report found that the seclusion rooms had low ceilings that contained electrical wires overhead, creating a safety hazard, and staff could not see people clearly through the window panels because they were cloudy. Is the Minister confident that the mental health estate is adequate to fulfil the objectives of the Act? In particular, is he satisfied that the mental health estate is sufficiently safe in structural terms and designed appropriately for those using it, such as being free of ligature points and with sufficient in-patient capacity for children and young people?

I will speak to clause 8 first, then work my way through the other provisions in the group. The clause will introduce a statutory requirement that medical treatment under the Act must have a reasonable prospect of therapeutic benefit for the individual. This is a significant and, I believe, welcome development, bringing the law into closer alignment with modern principles of person-centred care and clinical justification. Again, the intention is clear: to ensure that no one is detained or treated under compulsion unless there is a realistic chance that they will benefit from the treatment. That is another laudable aim, and as a doctor myself, I fully support it. Significant concerns have been raised that individuals, especially those with complex or treatment-resistant conditions, have been subject to interventions where the purpose was therapeutic but the likelihood of benefit was minimal or uncertain. By introducing a consistent legal definition of appropriate medical treatment early in the Mental Health Act, and ensuring its application across both civil and forensic pathways, the clause marks a step forward in rights protection and clinical accountability. I welcome the shift away from vague references to appropriateness towards a test that is both objective and patient specific; however, several important questions remain, and I hope the Minister will address them. The first is on defining a reasonable prospect in practice. While the term “reasonable prospect” is a flexible one, that flexibility cuts both ways. The explanatory notes clarify that clinicians do not need to conclude that the benefit is more likely than not, only that it is reasonably possible, but what guidance will clinicians receive to ensure that this threshold is applied consistently and fairly across the country? Will the updated codes of practice provide clear examples or scenarios, and will the guidance be subject to consultation with patients, carers and professionals? When it comes to forensic patients, and equity and safeguards, I welcome the fact that the clause applies equally to part III patients, who are involved in the criminal justice system. Historically, this group has sometimes been subject to more coercive and less scrutinised care pathways. Will the Minister confirm that the same therapeutic benefit test will apply at every decision point—initial detention, transfer, conditional discharge and recall—so that forensic patients are not denied the safeguards enjoyed by civil patients? When it comes to legal remedies and review, what mechanisms will be available to patients who believe that the reasonable prospect test has not been met? Will this be a justifiable cause in tribunals or courts? Will mental health tribunals be empowered to scrutinise the clinical judgments behind this test, and if so, what training will be provided to tribunal members? While I welcome the statutory clarity that clause 8 brings, we must be mindful that legislative change is only the first step: implementation will be critical. I would hope the Government will publish a clear timetable for updating the codes of practice, as well as plans for training, auditing and evaluation. Without that, there is a risk that the reasonable prospect test becomes, again, a box-ticking exercise rather than a meaningful safeguard. Finally, I want to focus particularly on how the measure will apply to people who have long-term, complex or non-degenerative mental conditions where there may be limited, if any, prospect of clinical improvement through medical intervention. These include, but are not limited to, some forms of autism, learning disabilities and personality disorders, particularly those for which trauma-informed approaches may be more appropriate than medical ones. What about acquired brain injuries, or individuals with treatment-resistant psychosis or chronic conditions for which medication has been ineffective? Under the Mental Health Act, such individuals can be and are detained for prolonged periods, sometimes years, even when no clear therapeutic progress is being made. Families, advocates and patients themselves frequently describe a sense of clinical limbo—being held under compulsion with little hope of change, because the system has no better option. Of course, that is one of the big reasons for the Bill in the first place, and it brings with it an entirely new set of problematic scenarios that need careful consideration. In short, the prize of clause 8 is that that limbo should no longer happen: detention and compulsory treatment should occur only when there is a reasonable prospect of actual benefit. How will clinicians be expected to assess the prospect of benefit in cases in which a condition is not considered medically treatable in the conventional sense? For example, if a person with autism is detained during a crisis, but their underlying condition is not one that responds to medication, will the presence of social support or behavioural interventions be considered sufficient to meet the threshold of therapeutic benefit? Will the Government clarify that detention is not justified when the primary issue is risk management, rather than therapeutic progress? There is a long-standing concern that individuals are being detained primarily because of perceived risk, even when there is no viable treatment plan likely to improve their condition. Clause 8 provides an opportunity to set a clear boundary: that risk alone is not enough; there needs to be a reasonable prospect of improving the person’s mental health through treatment. How will the new test interact with decisions around discharge and the renewal of detention? If a person has been detained and the anticipated benefit of treatment has not materialised, will the failure to have achieved a benefit trigger a presumption of discharge, or at least a fresh review of the justification for ongoing detention? Will there be specific guidance in the revised code that addresses how the new tests apply to conditions such as brain injuries? After a recent question, I know that the Government are continuing with the brain injury strategy, but has there been any work on how that can be incorporated? Those are not mere technical questions; they speak to the ethical foundations of the Mental Health Act, which confers extraordinary powers to detain and treat without consent and to deprive someone of their liberty.

We are trying to future-proof the Bill as much as possible. Does my hon. Friend think that the clause has enough future-proofing to deal with mental health issues that we are currently unaware of, or issues whose nature or treatment we do not fully understand?

My hon. Friend is a shrewd surveyor of legislation, and even foresees the amendments that I have tabled, which may well expose and shine a little light on something that might make a difference. In essence, he is right: trying to future-proof the Bill, while ensuring that it is robust and applicable, was at the heart of the first day’s debate and seems to be at the heart of today’s debate. As I said, the Mental Health Act confers extraordinary powers to detain and treat without consent and to deprive someone of their liberty, but in exchange there needs to be a clear, evidence-based justification for doing so. The clause goes some way to strengthening that justification, but only if the principle of therapeutic benefit is applied rigorously and not just diluted. Let me turn to amendments 44 and 45, tabled in my name on behalf of His Majesty’s Opposition, which speak to what my hon. Friend the Member for Farnham and Bordon just said. They seek to embed trauma- informed principles into the definition of “appropriate medical treatment” under the Mental Health Act. These amendments aim to ensure that medical treatment for mental disorder not only addresses symptoms but actively minimises patient distress, promotes psychological wellbeing and supports recovery from childhood trauma. There is robust and compelling evidence demonstrating that childhood trauma is a causal factor in the development of a wide range of mental health conditions. The “Adverse Childhood Experiences Study”, by Felitti et al. in 1988, demonstrated a strong dose response relationship between the number of traumatic experiences in childhood and the likelihood of developing of mental health disorders later in life, including depression, anxiety, psychosis and substance misuse. Neuroscientific studies such as Teicher et al. in 2016 have revealed how early maltreatment alters brain structures and functions critical to emotional regulation and stress response. A review of trauma and psychosis by Read et al. in 2005 identified childhood trauma as a significant risk factor for several mental illnesses, including psychiatric disorders. Furthermore, clinical guidance such as NICE’s 2018 recommendations emphasises the importance of assessing trauma history and incorporating trauma-focused interventions into care. These findings are reflected in UK health policy, with the Department of Health recognising trauma-informed care as essential for effective mental health services. We also know from clinical studies that trauma history influences treatment outcomes, with trauma-uninformed care risking re-traumatisation and poor recovery. It is vital to stress that recognising trauma as a causal factor is not about excusing behaviour but about understanding behaviour. Such understanding enables clinicians and services to respond more compassionately and effectively, supporting genuine recovery and healing, rather than merely managing symptoms or controlling behaviour. Embedding trauma-informed care in law is a progressive step that aligns with modern mental health best practice and respects the lived experience of many retained under the Act, the majority of whom have experienced significant trauma in their lives. If the Government do not accept these amendments, can the Minister clarify what steps they will take to ensure that trauma-informed approaches are embedded in mental health services? Will there be guidance, training or oversight in the mechanisms to ensure that patient distress is minimised and psychological wellbeing promoted?

On a point of clarification, I note that the amendments tabled by the shadow Minister specifically say “recovery from any childhood trauma”. Why has he opted for the word “childhood”, rather than general trauma-informed care? A number of female in-patients in mental health units are recovering from past sexual trauma or domestic violence—I know such abuse is not committed exclusively against women, but it tends to be more prevalent in that group—and the mental health unit can potentially exacerbate that traumatic experience. I seek clarification on why childhood trauma has been made so prominent, as opposed to general trauma.

It is an excellent and eagle-eyed point. I would point to the evidence base that I cited, starting from 1988 onwards. That is three and half decades’ worth of evidence that points to a causal factor. In my clinical background, I have seen patients that I think it relates to. Perhaps I will stand corrected, but I am not sure that domestic violence has been shown as a causal factor of mental health conditions. We know that in the developmental stages that children go through, when their brains are developing and growing, as the 2016 study showed, there are intrinsic changes. That is why the Opposition chose to put that wording in. I agree that the definition could be wider, and we discussed that on the first day of debate with the Liberal Democrat definitions. I see the hon. Lady’s intent, but the main point is the evidence base. Maybe in the future that would be something, if we have evidence, that the Minister could consider taking forward. At this point in time, I think it is undeniable that childhood trauma makes a difference, and that is why the amendments specifically say “childhood trauma”, not anything wider.

15:15:00

Liberal Democrat amendment 12 seeks to ensure that the definition of appropriate medical treatment under the Mental Health Act explicitly includes consideration of the setting in which that treatment takes place. Let me begin by welcoming the intention behind the amendment. It reflects a view shared widely across the House and the mental health community that where treatment takes place is often as important as what treatment is offered. We know that the therapeutic environment, whether calm or chaotic, respectful or coercive, can have a significant impact on whether treatment is effective, trusted and ultimately beneficial to the patient.

It appears that there is commonality in what the Lib Dems and Conservative Members are trying to achieve; we are simply addressing it in slightly different manners. The Mental Health Act review emphasised the importance of therapeutic environments forcefully, particularly in relation to racialised communities, neurodivergent people and those with lived experience of restrictive environments. I commend the signatories to the amendment for keeping the principle front and centre; however, while I support the spirit and direction of the amendment, I have concerns about whether it is the right way or the right place to achieve the desired outcome.

First, the clause already requires clinicians and decision makers to take into account “all other circumstances” when determining whether treatment is appropriate. Arguably, that language already captures the setting in which treatment is offered, alongside other contextual factors such as the availability of support, proximity to family or cultural setting. Hon. Members might rightly intervene to say, “Hang on—surely that defeats the point of your own two amendments, given that there is a catch-all?” But when it comes to priorities and placing things in legislation, legislation not only sets the law, it also sets the tone, direction and principle, as the Minister has said.

We have decided that there are four key principles, and have sought to place them in the Bill above all else. I hope that I spelt out earlier that, given the weight of evidence for the cause of severe mental illness, childhood trauma is pivotal. I therefore argue that it deserves the merit of attention above all else; yet the legislation should be open enough to cover more of the issues that the earlier amendment tried to deal with: those of homelessness, alcohol, bereavement and so on when it comes to mental health services.

Secondly, there is the question of legal clarity. By providing for the evaluation of treatment settings statutorily, in primary legislation, we risk creating uncertainty or grounds for challenge where services are constrained by reality. As we all know, the ideal treatment setting is not always available. Mental health services are stretched, and we must be cautious about creating legal duties that the clinician cannot fulfil, not for lack of care or competence but for lack of capacity or funding.

That leads me to my third concern: enforceability. Including the setting in statute creates a duty, but not a guarantee. Without parallel duties on commissioners or providers to ensure the availability of appropriate environments, we risk raising expectations that may not be deliverable, or at least not consistently across the country. That said, I do not believe that we should reject the underlying idea. Instead, we should find a route that is more workable and equally meaningful. I suggest that the Government, and indeed the drafters of the revised code of practice, make it explicit that appropriateness of treatment must be included in the therapeutic sustainability of the environment in which it is delivered.

The Opposition would be open to support the consideration of a reporting requirement on the Secretary of State to monitor and publish annual data on the availability of appropriate treatment settings, whether in hospital or community. That would provide transparency and enable Parliament to scrutinise progress, and allow for targeted improvements.

Finally, clause 9, “Remission or release of prisoners etc from hospital: treatment condition”, will replace the word “effective” with “appropriate medical treatment” in several key provisions of the Mental Health Act concerning prisoners and detained persons transferred to hospital. At first glance, that appears a sensible and necessary alignment with the wider reforms in clause 8, ensuring that the treatment condition tied to release or remission meets the more rigorous test of “therapeutic benefit”, rather than a more vague notion of effectiveness.

By insisting that the treatment be “appropriate medical treatment”—that is, a treatment with

“a reasonable prospect of alleviating, or preventing the worsening of, the disorder”—

the Bill seeks to prevent premature release or continued detention based on treatments that are not clearly beneficial or properly tailored to the individual need. That is particularly important given the complex needs and vulnerabilities of this population: prisoners detained on remand and those subject to immigration detention, who already face significant barriers in accessing high-quality mental health care.

However, clause 9 raises several questions that I hope the Minister can address. First, how will this change affect decision-making processes in practice? Will clinicians, tribunals and responsible authorities receive clear guidance on assessing appropriate medical treatment specifically in the context of release conditions for detained persons? That group often present with complex comorbidities and social challenges that complicate clinical judgments. Secondly, is there a risk that stricter tests could delay releases or remission unnecessarily? Although raising the threshold for treatment appropriateness is generally positive, we must be cautious to ensure that it does not inadvertently prolong detentions of individuals when no treatment is truly effective or appropriate but risks remain a concern. What safeguards will be in place to ensure that treatment decisions for those individuals are subject to robust reviews and independent scrutiny? Given that we are restricting the liberty of this population, transparent and accountable processes are vital to ensure that treatment conditions linked to release are both justified and in the patient’s best interests.

In summary, the amendments would strengthen the Bill’s commitment to ensuring that detention and treatment are clinically justified and therapeutic in purpose. That would align with the Bill’s overall goal of promoting patient-centred, evidence-based mental health care.

I rise to speak in support of clause 8, and I will briefly speak to the Liberal Democrats’ amendment 12. I have already flagged my concerns with the Opposition’s amendments 44 and 45. Clause 8 introduces and puts front and centre the notion of therapeutic care for those detained under the Mental Health Act 1983. I strongly welcome clause 8, as drafted. For far too long, for people who have been deprived of their liberty and detained in a secure mental health setting, the main focus has been risk management and harm minimisation rather than therapeutic care.

The Lampard inquiry, which relates to my area of Essex, is ongoing. It highlights the issue of people being detained without any clear therapeutic plan or clinical justification. Does my hon. Friend agree that the clause will start to address some of the concerns raised by the inquiry?

I thank my hon. Friend for highlighting the Lampard inquiry, and highlighting the impact of the treatment that the inquiry is looking at on the lives of the patients who were subject to it. I do not wish to get ahead of the inquiry because it is still under way, but I have met with some of the families involved, and there is a feeling that there has been a complete breakdown of trust in the care of patients in our part of the world. That trust is difficult to rebuild, particularly for people in a locked mental health setting, who have no choice but to trust that the providers of their care are acting in their best interests. The lack of trust is almost harmful to their continued recovery. I thank my hon. Friend for raising that particular point. As I was saying, for too long the focus in a locked setting has been on management of risk and harm reduction, rather than actually treating the condition that the patient may have. Clause 8 looks almost to reverse that. It advances the idea that therapeutic care is the aim of detention under the Mental Health Act and that it is fundamentally important, when someone is deprived of their liberty, that there is a therapeutic benefit to the patient, and it places that aim in a prominent position at the start of the Act, so that it is not buried further down. Although I understand that the Minister will probably state that the clause advances the principle of “therapeutic benefit”, I believe it also touches on two of the other key principles developed by the independent review: the principles of seeing “the person as an individual”, and of “least restriction”. We can all appreciate that if someone is in a setting for their own therapeutic benefit, rather than just being contained because of the risk that they might pose to themselves or others, then they are being less restricted, in a way that is real and important to them, and will have the benefit of being seen as an individual. For some individuals who have spent a significant amount of time in a locked unit, the prospect of them receiving therapeutic care is very low, and the prospect of them receiving therapeutic care that leads to them recovering sufficiently to leave those units is about nil. The talking therapies taskforce highlights that some of the most severely complex patients with personality disorder—the most severe 1.5%—make up nearly one third of the annual spend on in-patient treatment costs. That group of people have very little prospect of receiving appropriate therapeutic care in an in-patient setting. A system-wide change looking at community-based care, sometimes intensive community-based care, would be much more effective than what they currently receive. The cost was looked at in areas in the south-west—in Devon—and in London, and it was found that a third of spending from hospital trusts was going towards this very tiny group of people. That is not to say that we should always look at the cost of care, because that can seem reductive to someone as an individual, but clearly, these people are not getting effective treatment that is good value and makes sense for them. I would welcome the Minister’s thoughts on developing system-wide and community-based change for some of the most complex cases in an in-patient setting. How does he see the clause interacting with that? Does he believe that providing therapeutic benefit for all patients in a secure setting will have a positive impact on that complex 1.5% group of patients? I will speak briefly to amendment 12, tabled by the Liberal Democrats. I may have slightly misunderstood the intent of the amendment. It was my understanding that naming the setting where medical treatment takes place—putting it on an equal footing with the treatment—was aimed at looking at the impact on people with learning disabilities and autism. For that specific group, detention in a secure unit is often counter-productive to their recovery. A review undertaken by Baroness Hollins found that there was no therapeutic benefit for long-term segregation of patients with a learning disability, and that attempting to deliver a therapeutic benefit for some of those patients in a locked setting is all but impossible. Although I support looking at whether a specific setting is appropriate for certain groups of people, there needs to be heightened awareness of the impact that a locked setting can have on people with a learning disability or autism. I spoke about this on Second Reading. If someone is sensitive to over-stimulation and has an increased sensory need, need for routine and need for familiarity, taking them away from a place that feels safe and putting them in a ward with strip lighting—autistic people talk about strip lighting as being particularly harmful—that is noisy, unfamiliar and completely out of their routine can feel extremely harmful. Therapeutic care in that setting may never be effective enough for that group of people to be released. Not to read this against the earlier clauses that take autism and learning disability away from the definition of a mental health condition, which I strongly welcome, I would welcome the Minister’s thoughts on capturing how, for this specific group of people, detention in a secure mental unit is probably more harmful to them than it is for the majority of the population. I cannot, however, support amendment 12, because of the catch-all nature of looking at the setting in which a treatment takes place. I speak as someone who has had lived experience of this issue and I have to say that quite often a secure unit is probably not conducive to anyone’s mental health; indeed, it is often a place of last resort, and I think that it poses a risk. If we have to take the accommodation into consideration, that might mean that it would never be an appropriate setting for someone to receive therapeutic care, even though we know that quite often it is the only setting where someone can be for a short period.

15:30:00

In conclusion, I very much welcome the idea of putting therapeutic care front and centre. I would welcome the Minister’s thoughts on how this idea applies to those with very serious and complex personality disorders, and those with learning disability and autism. However, this is a really important step change, not only in how we treat people with a severe mental illness in a locked setting but in how patients are viewed, and in the importance and value of their experience. I would like to express my own gratitude for it, reflecting the views of people with lived experience. It plays into the idea that if someone is in a secure mental unit, they are not just there because they are at risk to themselves or to other people; they are there because they are a person deserving of care, deserving of treatment, and deserving of improvement and recovery.

I will keep my remarks relatively brief. As my hon. Friend the Member for Hinckley and Bosworth has pointed out, Members on this side of the House entirely support clause 8, mainly because of the change towards a therapeutic focus, which ensures that all compulsory treatment must have a clear clinical benefit. The clause is much more patient-centred; it gives legal clarity and stronger safeguards than currently exist in the law. I will also touch briefly on amendments 44 and 45, which my hon. Friend the shadow Minister tabled. The key point about amendment 44 is the promotion of the therapeutic environment, which is absolutely key to this. It aligns with the best practice in mental health care and supports recovery-orientated approaches. The key point about amendment 45 is the reinforcement of the compassionate, person-centred care that we are all trying to achieve. It ensures that responses to symptoms or behaviours are not punitive but supportive, and complements amendment 44 by applying the same principle to clinical interpretation of patient behaviours, which ultimately will encourage understanding of trauma-related behaviours, reduce risks of re-traumatisation and promote the psychological safety in treatment settings. I entirely support the view expressed by the hon. Member for Thurrock, my colleague on the Health Committee, that a requirement to consider other trauma factors could be added to the Bill, either now or at a future point. I would be interested to hear the Minister’s thoughts on that subject. I will also touch briefly on amendment 12, which was tabled by the Liberal Democrats, on treatment centres. Like my hon. Friend the shadow Minister, I support the overall context of what the amendment tries to achieve, but I have some concerns about how clinical decisions might be complicated if disagreements arise over the suitability of a treatment environment; and again, additional resources might be required to ensure that appropriate settings are available and accessible. When the hon. Member for Winchester winds up for the Liberal Democrats on that amendment, I will be interested to see whether he can assuage my concerns in that regard. Finally, we support clause 9. It brings the consistency that we want. The alignment, between the treatment standard for prisoners that would be used for non-prisoner patients, adds clarity. Again, it is rights-based, and I think it will reduce the possibility of misuse, thereby helping to prevent inappropriate or unnecessary hospital transfers.

It is a pleasure to serve under your chairmanship, Mr Vickers. I rise to speak in support of amendments 44 and 45, which have been tabled by my hon. Friend the shadow Minister. These amendments seek to put patients at the centre of the Bill by promoting a safe therapeutic environment and recovery from any childhood trauma. Clause 8 provides for a new definition of “appropriate medical treatment”, which requires that treatment to have “a reasonable prospect of alleviating, or preventing the worsening of…a patient’s mental disorder.” Amendment 44 would introduce an additional criterion to the definition of “appropriate medical treatment” by establishing that an appropriate medical treatment should not only address the individual’s immediate health needs, but be designed with the intent to reduce psychological distress and actively support an individual’s recovery from the effects of childhood trauma. This recognises the long-term impact that early, adverse experience can have on mental and emotional wellbeing and ensures that treatment approaches are trauma-informed, compassionate and conducive to long-term improvement. People who present with serious mental health concerns need to know that they are receiving support and care in the right environment. They are at their most vulnerable, and having the confidence in their environment can make a world of difference. That is particularly pertinent for those who have suffered childhood trauma. It is important that we deal with the consequences of mental ill health, and adequately address the root causes. Among these, childhood trauma is one of the most serious and persistent factors contributing to long-term psychological conditions. By supporting this amendment, we would create a more resilient system that is equipped to respond to the reality and prevalence of childhood trauma in our society. I recently met with Alison, who heads up a fantastic organisation called WeMindTheGap. It is based in Wrexham, but it is now moving and expanding to cover parts of my constituency, Chester South and Eddisbury. It does a fantastic job supporting young people who have struggled in the conventional education system, are absent from school or have dropped out of the system. We discussed childhood trauma and the rise in the number of young people not currently in any kind of education. One of the points that Alison made that resonated with me is that absence from school is linked not just to deprivation, but many contributing factors, including difficult domestic situations, isolation and rural isolation. Many of these challenges are the most severe ones linked to childhood trauma, and although there are many wonderful organisations stepping in to support young people at an early stage, for some the impacts of childhood trauma continue to affect psychological wellbeing into adulthood. Sadly, childhood trauma is a societal issue that we face, and it is more common that we might imagine. Therefore, a step to embed trauma-informed care into the legal framework, specifically for childhood trauma, is a step in the right direction. Childhood trauma can lead to self-destructive behaviour in adults. There is, as my hon. Friend pointed out, evidence to show that it is a causal factor. We must recognise the long-term impact of adverse childhood experiences on mental health. This amendment, by adding a new criterion to the definition of “appropriate medical treatment” to require that treatment to aim to minimise distress and to support recovery from childhood trauma, would embed trauma-informed care into the legal framework. Amendment 45, by inserting the words “seeks to minimise the patient’s distress and promote their psychological wellbeing and recovery from any childhood trauma”, would reduce the risk of re-traumatisation. Responses to symptoms or behaviours must be supported; it is about helping people to move towards genuine recovery. Childhood trauma is unique, and it presents symptoms that are different from other mental health illnesses. Therefore, having a dedicated, compassionate and person-centred approach to care is incredibly important. Setting the right culture to support patients, recognising the trauma that they carry and ensuring that there is adequate support and provisions in the legislation and the legal framework, is the right approach. I am therefore pleased to support these amendments, which would strengthen clause 8.

I will start by commenting on amendment 12, which was tabled by the hon. Member for Winchester. We do not consider the amendment necessary, as section 13(2) of the Mental Health Act 1983 already requires an “approved mental health professional” to consider all the “circumstances of the case” before making an application for admission, which could include the appropriateness of the setting. Clause 8 embeds the principle of therapeutic benefit into the Bill by providing a new definition of “appropriate medical treatment”. That requires that there must be “a reasonable prospect” of therapeutic benefit to justify detention for treatment, and that medical must be “appropriate in a person’s case”. We would expect a setting in which someone is going to be detained to be considered as a part of those considerations. The code of practice already states that patients should be offered treatment and care in safe, supportive and therapeutic environments, so that also addresses that point. I turn to amendments 44 and 45. We recognise the significant impact that childhood trauma can have on a person’s psychological wellbeing throughout their life. Mental disorder is defined in the 1983 Act as “any disorder or disability of the mind”, and that is already broad enough to include the impact of childhood trauma. Clause 8 requires decision makers to take into account “the nature and degree of the disorder”, what is “appropriate” in the person’s case and “all other circumstances” when considering whether medical treatment has a reasonable prospect of therapeutic benefit. That could include consideration of childhood trauma. Although we recognise that childhood trauma may be a factor for many patients, it will not be a factor for all patients. It is critical that consideration of appropriate treatment is tailored to, and reflects, individual experiences and needs. All treatment interventions should include the aim of minimising distress and promoting psychological wellbeing. As well as legislative requirements, it is vital that all aspects of care in in-patient settings should be trauma-informed and that patients are always put at the heart of effective, compassionate care. That expectation is set out in NHS England’s “Culture of care standards for mental health inpatient services” and will be further emphasised in the revised Mental Health Act code of practice. I turn to clause 8 stand part. The clause strengthens the concept of therapeutic benefit in the Mental Health Act to ensure that patients are detained for treatment or placed on a community treatment order only when there is a reasonable prospect they will benefit from their treatment. The current criteria for detentions under section 3 of the 1983 Act is that “appropriate medical treatment is available”, and the definition of medical treatment focuses only on the purpose of the treatment. In practice, that means that clinicians may not consider whether the treatment under section 3 will be effective. If we are going to deprive people of their liberty, it is vital that detention is of therapeutic benefit to them, regardless of whether the patient is detained for treatment under part II or part III of the Act, so the new therapeutic benefit criteria apply to both. Under the Bill, for treatment to be considered appropriate, there will need to be a reasonable prospect that the patient will benefit from it. The therapeutic benefit criteria will apply at the point of detention and renewal to patients detained under section 3 in part II of the Act, patients on a community treatment order when they are first subject to the order and at the point of renewal, and all part III patients. The clause also retains the definition of the purpose of “medical treatment” in the 1983 Act: “to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.” A focus on therapeutic benefit will ensure that patients receive the care and treatment they need to support their recovery and enable discharge when it is safe for them to leave hospital.

There are a few questions to be answered. Given the nature of acquired brain injury—for example, the capacity of someone who has had a stroke can fluctuate—it is very hard from a clinical position to know where the benefit of treatment starts or finishes. We must future-proof the Bill. We have an ageing population, so we will see more people with dementia, strokes and acquired brain injuries for various reasons. There is a natural tension there, but it is only going to get worse over the next 20 or 30 years. How do the Government plan to address that? It is a concern.

I was intending to come to the questions that the hon. Gentleman and others asked, but as he has asked that now, I can tell him that the revised detention criteria and definition of appropriate medical treatment do not exclude patients with uncertain treatment outcomes, as long as they have a psychiatric disorder. Treatment must offer a reasonable prospect of benefit, considering both its purpose and likely outcome. The introduction of the principle of therapeutic benefit is aimed at ensuring that care and treatment provided under the Act will promote recovery and facilitate patients to get better so that they can be discharged as soon as possible. That applies right across the board on the basis of the psychiatric disorder. I will now turn to clause 9. Sections 50 to 53 of the 1983 Act provide for the remission of prisoners or other detainees with severe mental health needs back to their prison or other place of detention; or, where relevant, direct their release where no effective treatment for the mental disorder can be given. Those provisions differ slightly from the detention criteria in the Bill, because in practice this cohort of patients may refuse to engage with treatment or behave in a disruptive manner such that treatment cannot practically be given. Clause 9 standardises the type of treatment to “appropriate medical treatment” for consistency with the rest of the Act, which will allow the therapeutic benefit changes in clause 8 to flow through to transfer decisions. This change has no other practical or legal effect and is technical in nature.

15:45:00

The definition of a “reasonable prospect” has been raised. It is one where there is a reasonable possibility that a patient will derive some benefit from the treatment. This does not require the decision maker to conclude that it is more likely than not that the patient will benefit—it is about getting the balance right between legislation and trusting the professional judgment of experts on the ground.

On the question of what mechanism there is for patients who believe that the “reasonable prospect” test has not been met, that forms part of the detention criteria. Patients can challenge their detention via the tribunal or hospital manager hearing.

The Opposition spokesman asked whether the updated code will provide specific examples of how to interpret “reasonable prospect”. Yes—we intend to include case study examples in the code, and will be working with clinicians and mental health practitioners to identify and develop them.

I think I see where the Minister is coming from, but to take the example that he chose last time we spoke about this, there could be someone with a severe eating disorder. At the moment, there are in-patients with an eating disorder whose care is seen as palliative. Part of the problem lies in how we decide what is a reasonable prospect of benefit and where the boundary lies. What should be done if someone forcibly refuses food? Where do we draw the line on putting in nasogastric tubes? I mention that not to get a specific answer from the Minister but to point out the difficult nature of the balance that the Bill is trying to achieve—where is the therapeutic benefit, and who is making the decision on it? With the system being patient-centred, the patient may well challenge it and say, “That is not for me; I don’t want this treatment.” But as the Minister said two days ago, the Government take a slightly paternalistic view on overruling that when it comes to someone’s capacity. So here lies the rub, and I would be grateful if the Minister could write to me if he cannot answer now. In the case of that example, which is live now, how do we balance the prospect of reasonable benefit—that would be evident in the case of someone with an eating disorder having food—with the reality of a patient feeling that they are not deriving any benefit from it from their perspective? If they wanted to challenge that, who would they turn to? I would have thought that a clinician would take the same position as the Minister—that they should have some treatment—but their capacity gives them the right to say “No, I won’t”.

In many ways, that is a question for clinicians, because they always have to make judgments in individual cases. In tragic cases such as eating disorders, at times it gets to the point where a person cannot be saved. If a patient is refusing to eat, it is notoriously challenging for clinicians to try to get that position reversed through talking therapies or other forms of treatment. Is about how we put in place legislation and a code of practice that give the system the best possible steer while recognising that clinicians make decisions on a daily basis in reacting to the circumstances that they face. I will take the hon. Gentleman’s point away and think about it, but I wonder whether there is a definitive answer to his question because of that interplay between the macro system and the micro challenges within that system. My hon. Friend the Member for Thurrock raised several important points. She wisely said that the clause is about not just the principle of therapeutic benefit, but seeing the person as an individual and the principle of doing least harm. I thank her for those points, which are important for the Committee to take on board. My hon. Friend asked about the impact of the therapeutic benefit provisions on the 1.5% of people with particularly complex needs. That is an important question, and to some extent touches on the intervention by the hon. Member for Hinckley and Bosworth about what we do in those really challenging situations. Where hospital admission is needed, the fundamental principle is that we believe it must be therapeutic, the least restrictive option and for the shortest time possible. Section 131A of the Mental Health Act 1983 places a duty on hospital managers to ensure that the hospital environment suits the patient’s age and needs. Current efforts, including NHS England’s quality transformation programme, aim to address the root causes of poor in-patient care by working with patients, families and professionals. That is a roundabout way of answering the question, but fundamentally, the hospital manager has a duty to ensure that the environment suits the patient’s needs. Those needs will range from the most complex and challenging 1.5% of cases that my hon. Friend the Member for Thurrock mentioned through to the cases of others who may have milder disorders or challenges. Needs must be met across that landscape, and the duty is on the hospital manager to ensure that they are. My hon. Friend may also be interested to look at the quality transformation programme, which seeks to address some of the challenges that she mentioned. In the light of those comments, I hope that hon. Members will not press their amendments. I commend clauses 8 and 9 to the Committee.

I appreciate the Minister’s considered reply to the amendments. I just spoke in a debate in the main Chamber about NHS infrastructure and buildings. Although I understand that that is not specifically in scope of the Bill, it is another good example of how the Bill is only as good as the system that it works within. I will happily withdraw my amendment, but it is good to hear that the Minister understands the importance of hospital infrastructure. When substandard Victorian-era asylums are still being used for mental health care, not only is it inadequate for patients, but it affects the public perception of mental health and mental health treatment, which is an important aspect of the issue. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.

Does the shadow Minister wish to move amendment 44?

I appreciate the answer that the Minister gave, but we would like to probe the opinion of the Committee, given the principles that are enshrined in the Bill and childhood trauma is an example of something with a causal factor. Amendment proposed: 44, in clause 8, page 15, line 17, at end insert— “(iii) seeks to minimise the patient’s distress and promote psychological wellbeing and recovery from any childhood trauma;”.—(Dr Evans.) Question put, That the amendment be made.

9|0|4|11|The Committee divided:|Question accordingly negatived.||0|0

Clause 10

Nomination of the responsible clinician

Question proposed, That the clause stand part of the Bill.

Under clause 10, a responsible clinician is an “approved clinician”, which refers to a mental health professional, usually a consultant psychiatrist, who is approved by or on behalf of the Secretary of State for the purposes of the Mental Health Act and has statutory roles and responsibilities. The responsible clinician has overall responsibility for a patient’s care under the Act. Only they can make certain decisions, such as renewing a patient’s detention or placing them on supervised community treatment. The clause seeks simply to clarify the current position on how a responsible clinician is assigned overall responsibility for a patient’s care, and makes no practical change to the role of a responsible clinician or to how they are appointed. It is intended to make clear the distinction between the definition and role of the “responsible clinician” and the new definition of a “community clinician”, who will have an increased role in managing patients on community treatment orders. The responsible clinician would retain overall responsibility for the patient’s care, including in hospital, while the community clinician would be responsible for the patient in the community. The community clinician is involved in decision making around community treatment orders, which we will discuss in greater detail in relation to clause 22, alongside the responsible clinician. It is therefore important to explain how a responsible clinician is nominated. I commend clause 10 to the Committee.

I am grateful for the opportunity to speak to clause 10, which addresses the nomination of the responsible clinician under the Mental Health Act. As we have heard, the responsible clinician is a pivotal figure in the operation of the Act, holding substantial legal powers in relation to detention, treatment and discharge. The Government’s explanatory notes make it clear that the clause is intended as a clarification, rather than a reform, of how a responsible clinician is designated by formally acknowledging that they are nominated by managers of the relevant hospital. That may well reflect current practice, but in legislation as sensitive and consequential as this, particularly where it relates to rights and liberties of people with serious mental illnesses, even clarification warrants scrutiny. I would like to raise a few points of constructive concern and seek reassurances from the Minister. First, although the clause is presented as technical, it alters the statutory language around who is responsible for nominating the RC from an implied clinical judgment to an explicit managerial nomination. Even if that reflects what already happens, there is still a de facto risk of blurring the lines between clinical decision making and administrative oversight. Can the Minister confirm that this change will not give hospital managers discretion to override clinical suitability in selecting the responsible clinician? Secondly, the clause distinguishes the responsible clinician from the soon-to-be defined community clinician role, which the Minister touched on. Although that separation may be helpful, it might help to guard that from confusion. Will clear published guidance accompany this change to explain to professionals, patients and families how roles are differentiated and how nominations are made? Thirdly, on the matter of transparency and accountability, will patients be informed when a responsible clinician is nominated for their care? Will there be a mechanism for a patient to raise concerns if they believe that their nominated clinician is not appropriate for their needs and, if necessary, to change them? If so, what will that mechanism be? Finally, although I accept the Government’s assertion that the clause is primarily clarificatory, we should keep it in mind that the Mental Health Act should not be amended lightly. The responsible clinician is not merely an administrative figure; they are central to the person’s liberty, treatment and legal rights. Have the Government considered whether additional safeguards could be introduced, in either guidance or statute, to ensure that this clarification does not lead to unintended consequences or the dilution of clinical independence? The clause may be a small piece of a much wider reform, but, as ever with mental health legislation, the details matter. They shape people’s experience of care and of coercion.

16:00:00

I thank the Opposition spokesman. The role and nomination of the responsible clinician are well established and represent current practice, and the clause seeks merely to clarify the current position in legislation in order to avoid confusion regarding the roles of the existing responsible clinician and the community clinician, who will have new roles under the reforms to community treatment orders. I therefore think that the answer to his question—whether the clause will somehow change the clinical role of hospital managers, or whether hospital managers will be able to move the goalposts in how the nomination process happens—is no. The measure is simply a continuation of a well-established practice. I think that challenging the nominated clinician would be a role for the independent mental health advocate. If a patient wishes to challenge any aspect of his or her treatment, that would be the role of the IMHA, once they are in place. The issue of unintended consequences brings us back to the code of practice. I emphasise the two tiers—or three tiers, really—of consultation that will happen. First, there will be consultation with a wide range of stakeholders, including approved mental health practitioners, psychiatrists, clinicians and all the representative bodies. That will bring us a very well-developed draft of the code of practice. We will then go to public consultation, which will be open to input from anyone who has a view, and then to Parliament. That will give us a fairly high degree of assurance that the code of practice will address any area where there is a risk of unintended consequences. Question put and agreed to. Clause 10 accordingly ordered to stand part of the Bill. Clause 11 Making treatment decisions Question proposed, That the clause stand part of the Bill.

Clause 11 will introduce a new clinical checklist that the patient’s responsible clinician must follow when making decisions about a patient’s treatment. This seeks to put the patient at the heart of clinical decision making. Specifically, the checklist will require that the clinician supports the patient to engage in decision making concerning their treatment. That could include nursing, psychological interventions, specialist care and medication. They must also consult with those close to the patient to consider the patient’s wishes, feelings, beliefs and values, including those expressed in advance, and avoid making decisions based solely on factors such as the patient’s age or condition. Where the patient is too unwell and lacks the capacity or competence to make decisions concerning their treatment, the checklist will require the clinician to consider any wishes, feelings, views and beliefs that they think the patient might have had if they had had capacity. They might establish this by consulting with those close to the individual or looking at their advance choice document. The checklist represents best practice, but sadly it does not represent standard practice. The independent review identified multiple incidents of patients feeling disempowered and unsupported to share their wishes and feelings, and unfairly ignored when they did. That can undermine the patient’s sense of self-worth, their recovery and their trust in mental health services. We consider the checklist fundamental to delivering the guiding principle of patient choice and autonomy. We therefore consider it necessary to put the checklist on the face of the Bill. That was the approach taken with the best interests checklist under the Mental Capacity Act 2005, which in many ways is analogous. That checklist has come to be widely recognised and highly regarded by practitioners. I commend the clause to the Committee.

Clause 11 will introduce new section 56A into the Mental Health Act 1983. The clause represents an important reform to the framework for how treatment decisions are made to detain patients under part IV of the Act. The clause effectively establishes a statutory clinical checklist. It imposes a duty on the approved clinician in charge of treatment to consider a set of factors before giving medical treatment to the patient—whether or not the patient consents, lacks capacity or is refusing treatment. It applies to all treatments under part IV and to patients of all ages, including children. As the Government’s explanatory notes set out, that duty includes considering alternative treatment options, taking steps to assist and encourage the patient’s participation in decisions, giving proper weight to the patient’s past and present wishes, feelings, beliefs and values, including advance statements, avoiding the reliance on discriminatory assumptions such as those based on a patient’s age or behaviour, and consulting others involved in the patient’s life, such as families, carers, nominated persons or advocates. Importantly, where a patient lacks capacity, the clinician is still required to consider what the patient would want if they had capacity. We welcome the fact that it reflects a commitment to person-centred care, even in the most complex clinical situations. I recognise and welcome the intention behind the clause. The principle that patients should not be passive recipients of care but active participants in decisions about their treatment is well established in modern mental health practice. The clause gives that principle a stronger legal footing, aiming to embed it in everyday clinical decision making. The Government rightly acknowledge that many patients have felt, in the past, that their views and preferences have been overlooked. Proposed new section 56 is intended to prevent that and promote autonomy, dignity and respect, even where coercive treatment is being considered. I note that clause 11 amends the existing provision on second opinions and treatment certification, such as sections 57 and 58 of the Mental Health Act. It would appear that clinicians must now confirm in writing that they have complied with new section 56A checklists. Could the Minister confirm that that is correct? If so, that is a welcome move towards accountability and transparency. I want to raise a few areas where further clarification or strengthening might be needed. First, the clause still leaves substantial room for clinical discretion. Much of the checklist is qualified by what is “reasonably practicable” or “reasonably ascertainable”. That is understandable from a legal drafting perspective, but it raises questions about how robustly the duties will be applied in practice, particularly in under-resourced or overstretched services. Can the Minister confirm what support will be given to clinicians, such as the statutory guidance or training, to ensure that new section 56A is implemented meaningfully and consistently across the system? Secondly, although clinicians must now record that the checklist has been completed, the patient or their family currently have no direct route to challenge non-compliance. There does not seem to be an appeal mechanism, so I wonder what or who might fulfil that role. It would be helpful if the Minister could set out the process. Is there a formal role for advocates in contesting whether the process was followed properly? If found wanting, are there sanctions for failing to comply? Is it perceived to be part of the integrated care board commissioning role, for example? Could the Minister say more about what resources are available to patients or carers who believe their views were not properly considered? Would the Government consider a statutory right to request a review where the checklist appears to have been bypassed? Thirdly, I note that the clause applies only to patients treated under part IV of the Act. It does not apply to patients subject to community treatment orders, unless they are recalled to hospital, yet those patients may still face significant pressure to comply with treatment, often under the threat of recall. Forgive me if I am a little muddled, but I would welcome some clarification on the rationale for excluding CTO patients from these protections. Are the Government open to extending these duties to cover community settings, particularly as part of future of reform, especially as they did not accept the amendments tabled in the Lords? Fourthly, the checklist applies to all ages, including children and young people. That raises important questions about how capacity, consent and participation will be judged in younger patients, and how the duty to consult parents or carers will be balanced with the rights of the child. Will specific guidance be issued to support clinicians applying this clause in cases involving children and adolescents? Further still, while proposed new section 56A emphasises consultation and participation, the weight to be given to the views of others—whether an advocate, nominated person or family member—remains at the discretion of the clinician. That may be clinically appropriate, but it raises the question: how will clinicians be supported to navigate competing or conflicting views, and will they be required to provide reasons for how they have balanced those perspectives? I will not delve into it now, but when we come to nominated persons, there is a reason that this particular point is poignant. We need to understand how decisions are being made when there are challenges. While I welcome the clear emphasis in clause 11 on patient voice, autonomy and dignity in treatment decisions, I must raise a matter of considerable concern and spend a little bit of time on it: the absence of any explicit reference to public safety or risk to others within the proposed new section 56A. It could be argued that this is not a minor omission. As legislators, we have a duty not only to protect the rights of the individuals in clinical care but to safeguard the wider public. While risk to the public is rightly a key consideration in detention decisions under sections 2, 3 and 20A of the Mental Health Act, it is not reflected at all in the new duties governing treatment decisions, even when the treatment may directly affect behaviour inciting compliance. We sadly know that the stakes here are not hypothetical. When we were discussing clause 5, the Minister turned around and asked what the point was of over-embroidering the Bill, especially if such duties already exist in these cases. I will tread carefully here, because there are both legal and emotional sensitivities, but there are good examples of why this really matters. A deeply troubling case, and one that continues to resonate when we talk about risk, public safety and clinical decision making under the Mental Health Act, is that of Nicola Edgington and whether the Bill does enough to address it. In 2011, Nicola Edgington, a woman with a diagnosis of paranoid schizophrenia, walked into a police station and an A&E department in south-east London. She told the staff that she was relapsing and desperately begged to be detained, warning them that she posed a danger to others. Despite her history—she had previously killed her mother during an earlier episode—she was allowed to leave hospital. Within hours, she murdered a complete stranger, 58-year-old Sally Hodkin, and seriously injured another woman. Serious incident reviews concluded that the risk she posed to the public was severely underestimated. Professionals focused on her current presentation, not the pattern of risk, and key warnings were missed. She asked to be sectioned; she was not, and someone died. Since that case, there have been some important reforms, including stronger guidance on the risk assessment, improved information sharing between agencies, and enhanced care co-ordination through the care programme approach. Crucially, even today, there is still no statutory duty requiring clinicians to explicitly consider risk to the public when making treatment decisions under the Mental Health Act, including decisions about whether to detain or treat someone who is deteriorating. That brings me to clause 11 and proposed new section 56A. The Government rightly propose a clinical checklist for treatment decisions—one that includes a patient’s wishes and beliefs, as well as views from family or advocates. These are welcome steps, but the checklist is silent on public protection. It recognises autonomy, but not risk to others. It includes past preferences, but not past violence. Should we not at this moment consider an explicit legal duty to assess and document the risk that a patient may pose to others when treatment decisions are made, especially for those with a serious history of violence or relapse?

16:15:00

The Bill seeks to modernise mental health law and embed dignity, but dignity and safety must go hand in hand. The public and the victims’ families deserve the reassurance that treatment decisions under the Act will always factor in public protection as well as patient preference. Could this be the moment to enshrine that balance in law?

We can fast forward to find more recent cases, although again, I will tread carefully here, given that there are proceedings and given the nature of the case. There is the harrowing case of Valdo Calocane, who killed three people in Nottingham—two students and a caretaker— in 2023. He had a well-documented history of paranoid schizophrenia, previous violent incidents and non-compliance with treatment. Despite prior detentions and involvement with mental health services, it appears that opportunities to enforce and maintain treatment seem to have been missed. The case has rightly raised serious public concern about risk management, information sharing and follow-up within the system.

These are outlier cases, thank God, but they demonstrate the importance of maintaining a clear, structured consideration of risk, especially when treatment compliance is uncertain. I appreciate that the Government may argue that public protection is already baked in through other parts of the Act, especially the detention criteria in conditions for community treatment orders. But treatment itself, especially when administered under compulsion, is one of the key tools we have to manage risk. A framework that governs such a decision should acknowledge that reality.

I ask the Minister: why does proposed new section 56A not include a requirement to consider public safety or risk to others as part of a treatment decision-making process? Could we not include a simple provision, akin to that of section 20A(4)(b), requiring that treatment decisions take account of the protections of others alongside patient wishes and clinical need. Alternatively, could the Minister confirm whether guidance under the revised code of practice will explicitly require clinicians to document how risks to others are assessed and managed when deciding on treatment, particularly in cases involving violence, psychosis, history of non-compliance or a further patterning and escalation?

I believe it is possible, and indeed necessary, to balance the empowerment of the patient with a firm commitment to public safety. This is not about undermining autonomy. It is about recognising that in rare but high-impact cases, the decisions clinicians make about treatment can have real-world consequences beyond the individual. I believe the Minister already conceded that point on Tuesday when he rejected amendments 52 and 53 and new clause 24. He gave the example of eating disorders, and said:

“Patient choice is, of course, critical, and the changes that we are making recognise that when patients have a say in their treatment, they are more likely to engage. We also think that it is right that when those decisions put people at risk of serious harm, including risk to their own life, there is a duty to intervene.

We recognise that detaining and treating patients with capacity without their consent is a very serious step to take. However, we think that it is right that we intervene when someone is a risk to themselves, not just to other people.”––[Official Report, Mental Health Public Bill Committee, 10 June 2025; c. 96.]

The Minister seems to say that the Government do have a partially paternalistic role with an individual and, of course, the wider public. Perhaps he will therefore agree to look at this area and to bring some consideration of it to the Floor of the House on Report.

The clause is a welcome and important development, but I return to where I started: it reinforces the right of detained people to be heard, to be involved and to receive treatment that reflects who they are, not just what the clinical diagnosis says. It is vital, however, that the clause delivers not just on the appearance of autonomy, but on its reality. The Bill needs to put in place the training, the guidance, the oversight and the accountability mechanisms necessary to give the clause real full force for the patient and the public. I look forward to the Minister’s response.

I rise to speak in support of this important clause, which puts patient experience and individual choice at the heart of treatment. It is a brilliant focus on seeing the individual as a person, and ensuring that they have a strong role to play in deciding their treatment pathway going forward. I very much welcome the development of a clinical checklist that includes looking at a patient’s past and present wishes and feelings. That is important because, when someone is in a mental health crisis, they might not be in the best possible place at that moment to articulate what their wishes are. Looking at how they may have acted in the past, or may have opted for treatment when not at a crisis point—including, I note, through the introduction of advance choice documents, allowing people to choose how they would like to be treated if they have lost the ability to make those decisions for themselves about the best way forward and, indeed, if they have to be detained—and taking their wishes into account, as well as their beliefs and values, is important in developing an individual treatment plan that allows them to be seen as an individual deserving of care, in order to achieve the best possible outcome for them. Across the House, we have noted the important fact that, when patients are involved in developing their treatment plans, they are much more likely to engage and have significantly improved outcomes. I do not want to get ahead of the Minister, but I want to address a few points that the shadow Minister raised. I want to say this as someone with lived experience of severe mental illness; it is important to have someone on the Committee that can speak to that, so I probably should when I can. This clause speaks to the patient experience. There are other parts in the Bill that deal with potential risk to the public and risk of harm. In the first example the shadow Minister gave, he mentioned that the woman in question said that her wish was to be admitted to a secure unit. I would say that, under this clause, had they had regard for her wishes and how she wanted to be treated, that would have mitigated some of the risk. I know that there are times when people will act in a way that may be at odds with the risk that they pose to the public, but these matters are properly addressed elsewhere in the Bill. What the clause speaks to, and what we should try not to dilute, is the patient experience.

I appreciate the hon. Lady’s insight, both as a politician and as a patient. I guess the Opposition are concerned that there is no explicit duty here, which is why legislating for that is so important. There was a huge number of inquiries about the case from 2011. There have been sufficient changes, but in 2023, as we saw in Nottingham, there was yet another case. There are still ongoing proceedings, so I will not comment too much on that, but this is an opportunity that the Committee should seriously consider. This harks back to what I was talking about on Tuesday. It is another step—an escalation—in this concerning pattern of behaviour, and it is hard, from a clinician’s point of view, to work out whether something is going to happen. I see this as part of the checklist to make sure that consideration is there, or, if public safety is not there, that it does not fall into a statutory role as it would anywhere else. Those are my concerns. We have not put down an amendment, but I am interested in the hon. Lady’s thoughts on how that should be approached from both the politician and the patient side.

I welcome the hon. Member’s intervention. On Tuesday we discussed clauses on who can be detained and when, and earlier today we discussed the necessity of detention, and there was some debate about the amendment in the other place. Other bits of the Bill focus on when it is necessary to detain an individual for public safety and not just for their own treatment; I will not re-litigate who should be performing that function, but earlier clauses deal with that. The importance of this clause is the patient perspective. There is a significant stigma associated with severe mental illness. I have been reticent about my own conditions in the past because of that, and because of how I would be perceived. It has been particularly hard to be open about the fact that I might be subject to in-patient mental health treatment; I probably see that as a likelihood in my future at some point, although I hope it is not and I work very hard every single day to avoid that. However, it is important that there is a part of the Bill that speaks to me as an individual. I speak to the Committee today as an articulate individual—I do not want to say intelligent; I will not blow my own trumpet—who can say what treatment option I would like. It is incredibly important to recognise that people who are subject to detention under the Bill are individuals who have opinions on their treatment. I have lived with these conditions for the best part of two decades, and the biggest expert on them is me. If I was in a mental health crisis, I might not be in a place to articulate the best treatment for me, but right now I can say what works. I will not go into that, because it is private, but I know that the best course of care for me would involve someone taking advantage of my knowledge of my condition and working with me to allow me to get the care I need to get better. The point is that the clause’s stand-alone focus on the patient experience deals with some of that stigma. It puts the patient’s experience at the heart of treatment, it speaks to some of the issues mentioned about what happened in Essex, which is now the focus of the Lampard inquiry, and helps to deal with some of that. It sees us as individuals.

I commend my hon. Friend for her honest account of her personal experiences and thank her for bringing that experience into our discussion of the Bill. It is absolutely right that the welfare and wellbeing of individuals who are living their lives, at such distressing times as when they need mental health support, should be at the heart of the Bill. I want to acknowledge her contribution to the debate.

I thank my hon. Friend for her kind words. That concludes what I was trying to get at: the importance of a clause in the Bill that is focused on patient experience. Understanding and acknowledging the sheer importance of that person’s experiences, and the value that brings to their care plan, cannot be overestimated. I hope that members of the Committee will support the clause, because it represents quite a sea change in how people subject to treatment under the Mental Health Act are treated.

May I say what a pleasure it is to follow my hon. Friend the Member for Thurrock? I found her contribution incredibly insightful. She is a tremendous asset to the Committee and indeed to the parliamentary Labour party, we are fortunate to have her with us on the Committee. The Opposition spokesman mentioned a number of cases, including Nicola Edgington and Valdo Calocane, so I will take the opportunity to express my condolences to those who were so terribly affected by those tragic events. We are in ongoing engagement with the families of Barnaby Webber, Grace O’Malley-Kumar and Ian Coates, and it is appropriate that we take a moment as a Committee to reflect on the terrible tragedy they have gone through and to express our condolences to them. The Opposition spokesman’s question was, broadly speaking, about risk and public safety. I will make a number of points on that. First, the clinical checklist does not bind clinicians to following the wishes of patients; it requires that clinicians consider them when deciding on the patient’s treatment, but, by definition, a checklist is not binding. If a preferred treatment is not clinically appropriate or feasible, clinicians must explain why and, where possible, discuss alternatives with the patient or their loved ones. The purpose of the checklist is to ensure that the patient’s wishes play a more central role in clinical decision making, as we are aware that that is not always the case. However, the checklist does not bind the clinician to the patient’s wishes, nor does it prevent the use of compulsory treatment. We recognise that compulsory treatment is sometimes necessary to get a person well again, including by managing the potential risk that they might pose to themselves or others. My other point is that there is not a binary choice between consulting and engaging with the patient, and enhancing and consolidating public safety; very often, the two go together. One of the learning points from the tragic Nottingham incident is that there was not enough consultation with Mr Calocane’s family. If there had been, there might have been opportunities to note his episodic behaviour and the fact that he was not always taking his medication. Had the family been better consulted, it would have enhanced public protection and safety. It is important that we do not say that family consultation and engagement with the patient are opposed to public protection—in fact, they are two sides of the same coin.

The Minister makes an excellent point, and that is part of the reason why the Opposition did not want to spring this question on the Government in an amendment or a vote, but rather to have the conversation first, because this is an important clause to get right. The two sides can be worked on in parallel when considering public safety more widely. Regarding safeguarding issues, as a GP dealing with children it is very common to share information with social services to allow them to have that central point, so that things are not missed. The principle of the checklist is to ask whether we are thinking about the individual patient. We have heard from patient testimony that that has to be paramount— No. 1—and that is the prima facie reason for having these provisions in the Bill. But, as we are considering this clause, given some of the cases and some of the holes, should we not consider asking clinicians, in statute, to think specifically about the risk, and wider risk, and what could be involved in the treatment? As the Minister rightly pointed out, if it was considered that certain individuals were not conforming with their medication regimen, or that there was a risk of them not doing so, or that they had a violent tendency when they relapsed, and had not met a threshold because they had never actually gone to prison or been through a court, but were known to police services, that grey area might pick something up if it were simply added to the checklist. I cannot think of many things, bar the patient—who is No. 1—more important than public safety. I put that point to the Minister to consider further in the light of those cases. I do not want to go into specifics, because it is not right to do so and he will be much closer to details than I am, but there is a widening principle over what we can do in this space.

I can absolutely confirm that the Government’s understanding of the way in which the system must function is that, if any risk at all to public safety is perceived, that must be documented. The risk to others and self must be assessed and documented, and that then informs the care and treatment plan. It is a basic expectation of the professional management of a particular patient that any risk identified to public safety and protection must be in there. However, I take the hon. Gentleman’s point on whether or not it should be in the Bill. I will come back to him on that, because I would be rather surprised if it were not made very clear somewhere that that is a basic expectation; if it were not, that would obviously need to be looked at, but I am reasonably confident that it is. The hon. Gentleman asked whether the second opinion doctor would confirm that the checklist had been complied with by the approved clinician: yes, and that must be documented in the second opinion doctor’s certificate. He also asked whether we will support clinicians with statutory guidance. Yes, we will provide guidance on the delivery of the checklist in the code of practice. Question put and agreed to. Clause 11 accordingly ordered to stand part of the Bill.

I understand that the Government intend the Committee to sit until 7 o’clock. I therefore think that it would be appropriate to take a short break.

16:35:00

16:44:00

Clause 12

Appointment of doctors to provide second opinions

Question proposed, That the clause stand part of the Bill.

The clause will simply clarify existing legislation concerning the second opinion appointed doctor so that it more closely reflects current practice and terminology. It sets out the role of the regulatory authority in appointing a second opinion appointed doctor and the criteria that the second opinion appointed doctor must meet, and it updates terminology so that it is more in keeping with that used by practitioners. I therefore commend clause 12 to the Committee.

On a point of order, Mr Vickers. We did not actually cover clause 11. [Interruption.] Did we vote on clause 11?

Yes, it was agreed.

It happened—it was real!

It is a relief that we have not dropped clause 11, an important clause. Equally important is clause 12, on the appointment of a doctor to provide a second opinion. The clause will introduce the new framework for appointing second opinion appointed doctors under the Mental Health Act, which is indeed important. I begin by acknowledging the Government’s efforts to clarify and strengthen the role of these doctors, who play a vital part in safeguarding the rights and wellbeing of patients subject to compulsory treatment. The emphasis on the independence of the second opinion appointed doctor is a positive step. Ensuring that that doctor is not the patient’s responsible clinician or treating doctor reinforces impartiality. Furthermore, the clear responsibility for this doctor to assess therapeutic benefit and to verify that clinicians have followed the clinical checklist, considering patients’ wishes and preferences and treatment alternatives, reflects an encouraging commitment to embedding autonomy and choice in the clinical discussions. Having said that, I would like to raise some constructive points and seek clarifications on certain operational aspects that I believe are critical to the clause’s effective implementation. First, the Bill requires the regulatory authority, namely the Care Quality Commission in England and Care Inspectorate Wales, to appoint the second opinion doctor “as soon as reasonably practicable”. The absence of a specific maximum timeframe could raise concerns about potential delays. Given the importance of timely second opinions in safeguarding patient rights, will the Minister clarify what safeguards are in place to prevent undue waiting times? Forgive me: I could not find it, but has any clear data been recorded on timings for second opinion appointed doctors? Has any consideration been given to whether a timescale should be implemented in legislation in order to ensure that there is no slipping through the cracks? That may be appear to be overkill; I defer to experts in the Department, but given the acute needs of some patients who will encounter the legislation, it is worth considering. Secondly, the role of the regulatory authority is pivotal in the process. In England, that role falls to the Care Quality Commission, so it is worth spending a few moments reflecting on the CQC’s role not in general terms, but specifically in relation to mental health settings. Strangely, I speak today from a position of both continuity and change. Having been a Government Member during a period when there was reform of the CQC and it was under active discussion, I now speak for the Opposition, but with an equally strong commitment to ensuring that reforms are delivered and that people with mental health needs receive care that is not only safe, but dignified and therapeutic. It is no secret that mental health services, particularly in-patient units, have faced significant challenges in recent years. Some high-profile failures in care, including abuse and neglect in mental health hospitals, have understandably shaken public confidence. As a regulator, the CQC has struggled at times to respond quickly or decisively enough. In some cases, failings persisted despite earlier inspections raising concerns. We need to be honest about the fact that the pace of regulatory response has not always matched the urgency of the risk, particularly for detained patients, who are among the most vulnerable people in our society and our care system. Two recent independent reports—the Dash review, which began in May 2024 just before the election, and the follow-up work by Sir Mike Richards on its findings—have offered a candid but constructive diagnosis of what went wrong inside the CQC. They have identified serious weaknesses: a sharp reduction in inspection activity; delays in publishing reports; an overcentralised system that dilutes expertise in specialist areas such as mental health; and a lack of transparency that sometimes makes it difficult for families and professionals alike to understand how services are monitored. Both reports were also forward-looking, however. They have informed a programme of reform, which began under the previous Government and is, I hope, continuing under this Government. What has changed? The CQC has started to take action. It now has a renewed commitment to sector-specific expertise, which should help mental health, with dedicated inspection teams for mental health returning. The backlog of unpublished reports has been significantly reduced and the CQC’s digital systems are starting to be overhauled. Perhaps most importantly, the regulator is beginning to work on increasing transparency in order to engage better with service users and staff in mental health settings. These changes are welcome, but fragile. Reform takes time and momentum can easily be lost. Context matters when we are considering giving an organisation more work in primary legislation, which is why I have raised the issue and given a potted history. The Bill gives us the opportunity to ensure that the rights and safety of people subject to detention or treatment under the Mental Health Act are properly safeguarded, but legislation alone will not guarantee good care. The role of the CQC as a proactive and trusted regulator is essential. That means ensuring that inspections are sufficiently frequent, especially in settings in which patients are detained and find it hard to raise concerns; ensuring that de-escalation, restraint and seclusion practices are being scrutinised not just in policy, but in practice; ensuring that the voices of patients and families are actively heard in regulatory processes; and ensuring that any concerns that are raised, whether by whistleblowers, staff or external professionals, are acted upon promptly. I do not say all this to assign blame. Indeed, many of the problems that the CQC has faced have been years in the making, and I accept that some of them arose while I was on the Government Benches. However, I am saying this now because I believe that there is cross-party agreement that regulatory failure is not an option for mental health services. As we look ahead to implementing this legislation, I hope that the Committee will keep it in mind that a reformed Mental Health Act must be matched by a reformed regulatory framework that is resourced, responsive and rooted in the lived experience of those it is designed to protect. We know that the CQC has undergone significant changes and is under new leadership after the concerns, complaints and issues. Do the Government have faith in the CQC? I ask the Minister to provide assurances that both the CQC and—

Order. I think the shadow Minister is straying somewhat from the clause.

Forgive me, Mr Vickers; I will get to the point a little more briefly, but the whole point is that the person has to be appointed through the CQC. The CQC will make that decision, because by definition it is the body that makes such decisions. If it is not resourced properly or if it has problems, regulatory or otherwise, we will find ourselves in a very difficult position, which is why I am raising the issue. I am happy to curtail my speech.

I would be grateful if you curtailed it and stuck to clause 12.

You have actually caught me at a perfect point, Mr Vickers. The concept of therapeutic benefit is central to the second opinion doctor’s assessment. However, in clinical practice, interpretations of therapeutic benefit can vary considerably. How do the Government propose to ensure consistency and fairness in such assessments? Will there be clear and standardised guidance for the training of doctors giving a second opinion, to avoid subjective discrepancies? The introduction of the clinical checklist is a welcome enhancement, especially the requirement to consider patients’ past and present wishes and available treatment alternatives. However, it is essential that the checklist is not just a mere bureaucratic box-ticking exercise, as we have discussed. What mechanisms will be in place to monitor compliance with the checklist? What recourse will patients have through the assigned second doctor? Finally, I note that the clauses following clause 12 move towards tailoring safeguards around patients’ capacity or competence. That seems more humane and targeted than a one-size-fits-all approach, but this added complexity may increase administrative burdens on second opinion doctors and treating teams. Have the Government considered the potential impact on workload? Are there plans for adequate training and support to manage the transition effectively? In conclusion, clause 12 represents an important evolution in protecting the rights of patients undergoing compulsory treatment. The Opposition recognise that progress has been made. However, the effectiveness of the reforms hinges on clear operational frameworks, adequate resources and a robust regulator. I look forward to the Minister’s response to my questions and hope that the Government will take them on board to strengthen the Bill.

On the Opposition spokesman’s question about a specific timeframe, the wording of the clause— “as soon as reasonably practicable”— is a sufficient and fairly strong steer to the system that avoids the need to tie our hands with a specific timeframe. Consistency, training and monitoring are going to be important elements of the code of practice. We need to ensure that those questions are answered and that those are put in place. On the hon. Gentleman’s question about the CQC, we are grateful to Dr Penny Dash and Professor Mike Richards for their recommendations, which the CQC has accepted in full. We are greatly encouraged by the reforms it has made so far, and we particularly welcome the appointment of Dr Arun Chopra as the CQC’s first chief inspector of mental health, which will improve the voice of mental health patients and help to better uphold their rights. We are confident that those changes will ensure that the CQC is better placed to regulate mental services. Question put and agreed to. Clause 12 accordingly ordered to stand part of the Bill. Clause 13 Medicine etc: treatment conflicting with a decision by or on behalf of a patient Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss clause 14 stand part.

The power to give compulsory treatment is sometimes necessary to get a person well again, but unfortunately some clinicians can too easily resort to this course of action without considering alternatives. Compulsory, and sometimes forced, treatment can cause distress and trauma to the patient, and some say that this has caused them to lose trust in mental health services. One individual told us that she was forcibly treated with a medication, despite its having caused serious side effects in the past. Sadly, her appeal to staff to offer her an alternative that had previously proven effective was ignored, and she was forcibly treated without any explanation as to why. That situation might have been avoidable if staff had only stopped to listen to the individual and consider other options. Clause 13 seeks to shift the culture around administering compulsory medication to patients under the Mental Health Act, while maintaining the power to do so. Under the clause, a “compelling reason” will be required to overrule a patient’s refusal of a medication, whether that refusal is made with capacity at the time, in advance or by a representative, for example through a lasting power of attorney. A clinician will be able to overrule a decision to refuse medication only if they cannot identify a clinically viable alternative or one that is acceptable to the patient. The aim is to encourage clinicians to take the time to consider alternative medications, for example by speaking with the patient or those close to them, or consulting their advance choice document. That will potentially avoid the need for non-consensual medication. Many clinicians already care for patients in this way, but others do not. Where the clinician thinks that there is a compelling reason to treat compulsorily, a second opinion doctor, appointed by the regulator, must confirm this, as well as other matters, before treatment can go ahead. This marks a significant shift away from the current system, in which compulsory treatment can last three months before a review by a second opinion doctor is required. We believe that the measure will help to cement the desired cultural change that we all aim to achieve. The clause is critical to making the patient’s voice more central to their treatment. Clause 14 will ensure that where a person does not or cannot agree to their treatment under the Mental Health Act, they receive the safeguard of a second opinion doctor appointed by the regulator. Currently, if a patient lacks capacity or competence to consent, a second opinion appointed doctor is to assess whether their treatment is appropriate, three months after the treatment course began. Although that is an important safeguard, it happens too late in a patient’s treatment course. Clause 14 will shorten the timeframe for that safeguard so that it occurs after two months, rather than three. The timeframe within which the patient’s responsible clinician must review and provide a certificate indicating that the patient is consenting to medication is also being shifted from three months to two months. By introducing scrutiny at an earlier point in the process, we will better protect those patient groups who may be very unwell and highly vulnerable. That is particularly true for patients who lack capacity to consent. For those reasons, I commend clauses 13 and 14 to the Committee.

17:00:00

I am grateful for the opportunity to scrutinise clauses 13 and 14. Clause 13 will make significant amendments to how medical treatment is administered under the Mental Health Act 1983 in circumstances in which a patient refuses, or is deemed to have refused, that treatment. The clause points us to significant questions about autonomy, capacity and compulsion. I hope that we can explore those issues in a way that does justice to the patients affected and to the clinicians working under the framework. Under current law, in particular section 63 of the Mental Health Act, a patient detained under the Act can be given medical treatment for their mental disorder without their consent, even if they have capacity to refuse. That includes in situations where the patient has made a valid and applicable advance decision, or where a donee under a lasting power of attorney, a court-appointed deputy or indeed the Court of Protection itself has indicated that the treatment should not be given. That power is curtailed only for certain treatments, such as electroconvulsive therapy, which falls under section 58A, and some surgical procedures under section 57, where either consent or a second opinion is already required. We will be debating those separately. Moreover, in the case of psychotropic medication under section 58, treatment can typically be given for up to three months without any second opinion, even if the patient objects. The clause will introduce a proposed new section 57A, significantly shifting the landscape. It will extend safeguards to cases in which a patient has capacity but refuses treatment, a valid and applicable advance decision refuses treatment, or a refusal is issued by a donee, a deputy or the Court of Protection. In such cases, treatment could be given only if a second opinion appointed doctor certifies that the treatment is clinically appropriate; there is a “compelling reason” to give it, such as no acceptable alternative; and the process has followed a newly required clinical checklist. This is a clear move to give greater legal weight to patient choice and prior decision making, echoing the long-standing principles of the Mental Capacity Act 2005. It would also mark a significant tightening of powers under section 63, making it harder to override refusals of treatment, and in effect it would end the practice of giving compulsory medication in the first three months without external oversight, at least where a refusal or conflicting decision exists. It is worth touching on the interaction between the Bill and the Mental Capacity Act. We have talked about that framework before, but it allows for advance decisions to refuse treatment and recognises the authority of donees under a lasting power of attorney, court-appointed deputies and the Court of Protection to look at best interests. Historically, however, the Mental Health Act 1983 has operated in parallel, and at times in conflict, by allowing compulsory treatment for mental disorder, even in cases where patients have capacity. By inserting proposed new section 57A, the clause attempts to bridge that gap by preventing certain treatments from being administered where they would conflict with an advance refusal or decision. That represents a welcome shift, but there are some concerns to which we need to turn our attention. For example, the “compelling reason” threshold is undefined in statute and could allow significant variation in interpretation. There is a reference to the checklist in section 56A, but—forgive me—I do not believe that that quite covers the definition. There is also a risk that, in practice, time pressures or institutional cultures may erode the intended safeguards, in particular if urgent treatment provisions under section 62 are overused, so I will discuss those a little further in detail. I recognise that the intent behind clause 13 is to place the principle of autonomy and choice at the heart of mental health care—that is a welcome and overdue shift—but given that it introduces the concept of compelling reason to override a refusal of treatment, will the Minister clarify how “compelling” will be interpreted in practice? Will statutory guidance define the term to ensure consistency, or will it be left to the discretion of individual clinicians and the second opinion appointed doctor? Secondly, the clause strengthens the role of the SOAD, requiring not just clinical oversight but legal and ethical judgment, including engagement with advance decisions and decisions of legal proxies. What training and support will be provided to SOADs to equip them for the expanded roles? How will the Government ensure that the system is properly resourced to avoid delays? Thirdly, will there be a clear right of appeal or review for patients or their legal representatives when an SOAD certifies treatment in the face of an objection? I am conscious that there are real-world examples. For instance, let us take the case of a patient with bipolar disorder who is detained under the Mental Health Act. When they are in a stable state, they might clearly and calmly refuse a particular medication because they have experienced harmful side effects from it in the past—the Minister even used that as an example. At that point, they have capacity and their decision is valid. However, during a later episode of acute illness, they might temporarily lose capacity, and in that window the clinician would potentially override their earlier decision, even if it was made with full understanding. This amendment aims to protect such refusals, but unless the law is clear about how to treat prior capacitous decisions during periods of incapacity, there is a risk that well-considered patient choice could still be sidestepped. This problem will get only more common, given the number of people with dementia and acquired brain injuries. Fourthly, the clause enhances safeguards, which is crucial, but it could result in unintended harms. What assessment has been made of the risk that necessary treatment may be delayed or denied in complex cases, especially where SOAD access is limited or where there is disagreement about whether an advance decision is valid or applicable? Although I support greater emphasis on patient autonomy, we must consider those at the greatest risk of harm. Do the Government believe that clause 13 strikes the right balance between protecting liberty and ensuring prompt, effective care for the most acutely unwell? Have they any concerns about what that could mean for public safety? Has an impact assessment been carried out on what that could mean in the real world and the implications, given the recent high-profile cases that we just talked about? Clause 14 shortens the period before a second opinion is required for certain types of treatment from three to two months. That is a positive step in principle, and ensures that patients who either lack capacity or have not consented are not left too long without independent oversight. It also allows, where clause 13 applies, for a single certificate to be issued by the second opinion appointed doctor, which covers both standard review under section 58 of the Mental Health Act and the more complex safeguards in proposed new section 57A. That may help to reduce duplication and administrative burdens. The table on page 25 of the explanatory notes gives an overview of how that might work, but I would welcome reassurance on a few points. How will the distinct legal tests, such as assessing a patient’s capacity, rather than determining a compelling reason for overriding an advance decision, be kept clear and robust in one single combined certificate? What safeguards will be in place to ensure that streamlining does not weaken the new protections in clause 13? Let us imagine that a patient has made an advance decision to refuse a particular antipsychotic medication—let us call it medication A. They are detained under the Mental Health Act, and the clinical team wants to give them medication A anyway. Because the patient lacks capacity and the proposed treatment goes against a valid advance decision, the special safeguards under proposed new section 57A apply, yet at the same time it has been nearly two months since the patient started treatment, so a second opinion under section 58 is also needed to check whether any medication is appropriate more generally. Clause 13 allows for those two approvals—one for the general treatment under section 58 and one for treatment despite the patient’s known refusal under proposed new section 57A—to be combined into one certificate. The concern is that, in streamlining, the different legal and ethical issues might be collapsed into a broader decision, making it harder to see whether the patient’s advance refusal was properly considered and whether the decision to override has met the compelling reasons test. Can the Minister specify how that might work, given that there will now be one certificate? Clinicians and reviewers might unintentionally treat the refusal as just another case of lack of capacity, rather than the serious, rights-based objections that require extra scrutiny. On the issue of practicality, with the review period being brought forward by a month, are the Government confident that a second opinion system is resourced to meet the demands without compromising quality? I could go on, but for the sake of the Committee, I will not.

I rise to speak in support of clauses 13 and 14. I have talked briefly today about the ongoing Lampard inquiry. There are two examples that are now public. Patient A was detained under the Mental Health Act for more than five years without a clear therapeutic plan and was subjected to prolonged seclusion and chemical restraint. The inquiry found that, despite the family raising concerns, there was a lack of clinical oversight and a failure to review detention and treatment status regularly. Patient B, a young man detained for over two years, experienced frequent use of rapid tranquillisation and segregation. The patient’s condition deteriorated, and that was documented, but there was no change to his care approach and no treatment review at all. I welcome the clauses, but I put to the Minister how vital it is that we ensure that these reviews happen. There is a three-month review process at the moment, but in those two cases it did not happen. I also welcome shortening the time to two months. It is vital that the three-pronged approach that is outlined in the Bill happens. We have heard that no one size fits all—individual care is so important. Establishing the capacity and competency of an individual is vital. Every patient is different and they should be treated appropriately. It is important to have appropriate review mechanisms in mental health care. Shortening the review process to two months for patients ensures that the therapeutic and clinical treatment remains appropriate. Hopefully, it also helps to lead to the desired quicker recovery period for the patient, but if not, it helps to adapt the treatment if a stronger or different type of treatment is required. The key is looking at ways to get people out of care as quickly as possible. Reviewing care regularly is really important. I welcome clauses 13 and 14.

I rise to talk briefly about clauses 13 and 14, which I generally and genuinely support. Clause 13 addresses a long-standing ethical and legal tension: how to balance the need for treatment with a patient’s right to refuse it, especially when they may have made advance decisions or have legal representatives. Let me expand the point that my hon. Friend the Member for Hinckley and Bosworth made about the level of potential appeal around the compelling reasons test. If the patient he was talking about continued to have an episode where it was believed that they did not have the capacity to act and they did not have a legal representative or family members who could advocate on their behalf, has the Minister given any thought to there being an external or independent person who could advocate on behalf of that patient during that period of incapacity and who is not a medical professional? In the current drafting of the clause, that seems to be a potential loophole. When someone regains capacity, they could potentially instruct legal counsel, but that may be too late if the treatment they have received has had an adverse impact on their life. I would like to hear more on that element, if possible.

17:15:00

Clause 14, on treatment in other circumstances, makes three key changes to section 58 of the Mental Health Act, as my hon. Friend mentioned. Again, I have some questions about the shortening of the period from three months to two months. Clearly, a reduced period for assessment is to be welcomed, and we do welcome it. However, we need to understand what would happen if, for some reason, the second opinion appointed doctors are unavailable and therefore the treatment is delayed. What might be the legal consequences for a patient who did not receive an assessment within two months? As the hon. Member for Southend West and Leigh mentioned, people are currently not being assessed within three months. What would happen if the assessment was not received in two months and what legal recourse would be open to them, either through the Bill or through any civil court interaction?

Defining “compelling” will be an important part of the code of practice. We will include case studies and examples to help to put flesh on the bones of that and to illustrate it. But it is important to emphasise that a clinician would only be able to overrule a decision to refuse medication if they cannot identify a clinically viable alternative or one that is acceptable to the patient. On training and the capacity in the system, it is important to note that we plan to switch on the new safeguards impacting the second opinion appointed doctor service only when we are confident that there is sufficient capacity in the system to deliver those safeguards. On the point that my hon. Friend the Member for Southend West and Leigh made, we absolutely must ensure that the reviews are happening. That will be a really important part of the enforcement process. The hon. Member for Farnham and Bordon asked about legal recourse. The independent mental health advocate will be an important part of having recourse—for want of a better phrase, they will be somebody to really give back-up to the patient. There is then the legal process, if there is a tribunal or court. Ultimately, someone can go through the court system if there is a dispute about a particular issue. However, one would want to ensure that there had been an objective assessment, through routes such as the independent mental health advocate or through professionals in the system really looking at the issue. Of course, the second opinion appointed doctor plays a crucial role in that.

I would be grateful if the Minister could comment on the certificates being combined. There is a concern, if we go from two certificates to one, that the reason why two certificates were chosen in the first place could be lost, especially if the certificates are competing. There could be an incumbent preponderance towards one decision, when there were actually two conflicting decisions in the first place. I understand that this is about trying to reduce the administrative burden and having all the information in one place. Equally, however, it does make clinicians think twice, especially when they are supposed to be independent, about what is happening and why.

The content of the Bill, in this context, has been produced on the basis of engagement with the second opinion appointed doctor service and clinical experts. That was partly around the decision to shorten the period to two months, as that allows time for medication to take effect, so that the appropriateness of the medication for the individual can be properly assessed. Is that what the hon. Member is talking about—that there might be confusion about whether or not medication should continue to be administered?

I am frantically trying to find the exact point in the explanatory notes—I think it is in either paragraph 114 or paragraph 115—about where the second opinion comes together. There is a reference to having a combined certificate. That seems to be a practical solution, but I worry about the crossover relating to who may or may not be affected. If the Minister wrote to me on that point, it might be easier to move the Committee on.

I will do that. Question put and agreed to. Clause 13 accordingly ordered to stand part of the Bill. Clause 14 ordered to stand part of the Bill. Clause 15 Electro-convulsive therapy etc Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss the following: Clause 17 stand part. Amendment 13, in clause 18, page 27, line 22, at end insert— “(1A) Regulations under subsection (1) may only be made to provide for circumstances where— (a) the treatment is immediately necessary to save the patient’s life, (b) 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 (c) the treatment is reversible.” The amendment limits the power to dispense with a second medical opinion for urgent electro-convulsive therapy to exceptional, life-threatening cases, introduces periodic reviews of its use, and ensures transparency by prohibiting retrospective application. Clause 18 stand part.

I will discuss a number of issues concerning the topic of urgent electroconvulsive treatment. Clause 15 makes a small practical change to the current protocol around administering electroconvulsive therapy. Currently, where the responsible clinician wishes to administer electroconvulsive therapy and the patient lacks capacity or competence to consent, the second opinion appointed doctor must certify, among other things, that it does not conflict with an advance refusal or the decision of an attorney or deputy. We have heard from stakeholders that it would make much more practical sense and save the second opinion appointed doctor time if that was established before they were invited to assess the patient. Therefore, the clause makes it the role of the responsible clinician to ascertain if treatment is in conflict with an advance refusal or the decision of an attorney or deputy before they secure the second opinion appointed doctor. I commend the clause to the Committee. It improves the patient’s right to self-determination by minimising the circumstances under which urgent treatment can be given compulsorily under section 62 of the 1983 Act. I turn to clause 17. Currently, section 62 of the 1983 Act sets out four main scenarios under which the normal treatment safeguards do not apply, allowing urgent compulsory treatment to be given without such safeguards. The clause removes from section 62 the power to give medication compulsorily where its purpose is to alleviate the patient’s serious suffering. The act of forcibly treating an individual can be a highly traumatising and distressing experience. The clause recognises that, where someone is well enough to make a capacitous or competent refusal to treatment, they are also well enough to decide the level of suffering that they are willing to undergo. The clause is critical to improving the patient’s autonomy over their care and treatment. It does not affect the clinician’s ability to administer compulsory treatment where it is immediately necessary to prevent the patient from behaving violently or being a danger to themselves or others, to prevent their serious deterioration or to save their life. I am grateful to the hon. Member for Winchester for tabling amendment 13. Its intention is largely already met by the Bill—that is, a second opinion doctor’s certificate can be dispensed with only in the following limited circumstances: first, the regulator determines that there will be a delay in appointing a second opinion doctor due to exceptional circumstances; and secondly, urgent electroconvulsive therapy is immediately necessary to save the patient’s life. The Bill also requires that those exceptional cases are monitored and reported on by the regulator. This process prevents the treating hospital retrospectively requesting a second opinion doctor after treatment has commenced. Although those policies are not achieved by the amendment, they appear to meet objectives outlined in the explanatory notes. This process was included in the Bill following a recommendation made by the Delegated Powers and Regulatory Reform Committee, and an amendment was tabled in the other place. For those reasons, I ask the hon. Member for Winchester not to press the amendment. I turn to clause 18. Currently, a patient’s approved clinician can overrule a refusal of electroconvulsive therapy and administer it compulsorily, so long as that is considered urgent under the 1983 Act. The clause introduces the need for a second opinion doctor, appointed by the regulator, to certify electroconvulsive therapy before it can go ahead. The second opinion doctor must examine the patient to establish whether the circumstances are truly urgent. If feasible, they must also consult a nurse and the patient’s nominated person, drawing on the valuable perspectives that each brings. It is important that this new protocol occurs within a tight timeframe, to ensure the patient’s safety and to prevent unnecessary suffering. That is why there is the power to impose, by way of regulations, duties on specific bodies and professionals to ensure that treatment is certified by the second opinion doctor within a particular period. Where exceptional circumstances result in a delay in appointing the second opinion doctor, the clause permits the patient’s approved clinician to certify the use of life-sustaining electroconvulsive therapy. The hospital must inform the regulator each time that happens, and efforts should continue to appoint a second opinion doctor as soon as possible. In recognition of the seriousness of the situation, the clause requires that those exceptional cases be monitored and reported on by the regulator. This clause is another important shift towards increasing the power of the patient over their care and treatment, within parameters that still enable the use of compulsory treatment where that is absolutely necessary.

I rise to speak to clauses 15, 17 and 18 and Liberal Democrat amendment 13. Clause 15 will amend section 58A of the Mental Health Act 1983 in regard to ECT. It is worth understanding the law as it stands. At present, if a patient lacks capacity to consent to ECT, treatment may be administered only if a second opinion appointed doctor certifies that the treatment does not conflict with any valid advance decision, or a decision made by an attorney, a deputy or the Court of Protection. That acts as an important safeguard, ensuring independent scrutiny of patients’ prior wishes or of proxy decisions before such an invasive treatment can proceed. This clause will shift the responsibility. Under the Bill, the initial determination about whether ECT would conflict with any advance decision or proxy decision is moved from the second opinion appointed doctor to the patient’s approved clinician. Only if the clinician finds no conflict would the SOAD then be involved to certify that the patient lacks capacity, that the treatment is appropriate and that the clinician’s decision aligns with proposed new section 56A safeguards. The Government’s explanatory notes clarify that that reflects the unique nature of ECT: if a valid refusal exists, treatment must be prevented outright. The clinician therefore acts as a gatekeeper before SOAD involvement. Clause 15 marks a significant shift in the role of the SOAD with respect to ECT. The whole point is to transfer the responsibility to ensure that treatment does not conflict with advance decisions or refusals. That contrasts with the approach under proposed new section 57A, under which the SOAD must certify the presence of a valid decision before compulsory treatment. The rationale, as explained in the Government’s notes, is that for ECT, the mere presence of an advance refusal should prevent treatment, whereas in the case of other compulsory treatments, the content of the advance decision is integral to deciding whether treatment can proceed. I recognise the rationale for the change and the introduction of a clinical checklist—I assume that we are talking about new section 56A—but I have some questions for the Minister. Does shifting the initial responsibility to the approved clinician risk reducing the independent oversight currently provided by the SOAD, especially given the invasive nature of ECT? How can we be confident that clinicians will rigorously check for and respect valid advance refusals or proxy decisions? What practical safeguards will be in place to ensure that clinicians have full and timely access to any relevant advance decisions or proxy appointments? Will there be a standard process for verifying those, especially where records may be fragmented? The SOAD’s role is now more focused on assessing appropriateness of treatment and capacity but, it appears, without responsibility for confirming the absence of conflicts with advance refusals. Will the SOAD therefore be empowered with sufficient information to make the judgment confidently? How will the clinical checklist be implemented and monitored across services to ensure consistent application? Can we be assured that it will effectively embed the principles of therapeutic benefit and least restrictive option, especially when dealing with ECT? What mechanisms will be available to family members or advocates who believe that a patient’s prior wishes, or proxy decisions, are being overlooked? Will there be accessible avenues by which to raise concerns or seek timely review?

17:30:00

Clauses 17 and 18 build on the framework by tightening safeguards around urgent treatment and urgent ECT specifically. Clause 17 removes the power to administer urgent treatment on the basis of alleviating serious suffering for patients with capacity, thereby strengthening patient autonomy. Clause 18 introduces proposed new section 62ZA of the Mental Health Act, which ensures that, where urgent ECT is proposed against a capacitated patient’s refusal—or conflicts with advance decisions—an SOAD must certify the treatment, providing an additional layer of external scrutiny. Together, these clauses represent a progression towards respecting patient choice.

However, the exceptional provision allowing an approved clinician to certify urgent ECT in the absence of an immediately available SOAD, as set out in proposed new section 62ZB, poses a potential tension. While necessary in rare circumstances, it risks undermining the independent safeguard that clause 18 seeks to establish. I think the Minister was hinting towards this, but it would be helpful to clarify it: what precise criteria will define the exceptional circumstances? Do they already exist? What mechanisms will ensure that this backstop power is strictly limited?

The Minister spoke about the transparency of reporting, which is welcome. Are there any further changes there, or will that simply continue as is already in practice? Finally, how will the Government ensure that ECT patients are adequately supported with information, advocacy and mental health resources to truly understand the information they receive and the choices they need to make, given the nature of ECT?

Amendment 13 to clause 18 seeks to circumscribe tightly the circumstances in which regulations can be made to allow urgent ECT without a second opinion. The amendment limits that to cases where

“the treatment is immediately necessary to save the patient’s life,”

where

“obtaining a second opinion would cause a delay that places the patient at a significant and imminent risk,”

and where “the treatment is reversible”. It also calls for periodic reviews of such treatments and prohibits retrospective application of any such regulations.

I commend the spirit behind the amendment, which rightly aims to strengthen patient safeguards by ensuring that the exceptional backstop power—where an approved clinician may act in the absence of a second opinion appointed doctor—is only used in the most urgent, life-threatening situations. However, while the amendment’s intent is commendable, I would like to raise some points for further consideration.

First, the criterion of

“significant and imminent risk of death or serious physical harm”

may prove challenging to interpret in clinical circumstances. Perhaps the Lib Dem spokesperson could give a clinical example or case study to illustrate how it might work? Mental health crises and the urgency surrounding ECT can be complex and multifaceted. Would overly rigid definitions risk delaying treatment in situations where prompt intervention could prevent severe deterioration? How does the hon. Member propose to ensure clarity for clinicians while allowing necessary clinical discretion?

To supplement this amendment, I wonder if the Government have considered: clear statutory guidance on what constitutes exceptional circumstances, or whether they already exist; a mandated rapid-response protocol to expedite second opinion appointments in urgent cases, reducing the need to rely on the power; or even a requirement for an independent audit of all the backstop powers? The Minister seemed to suggest that this is all in place, so I am happy to stand corrected if that is the case.

I am by no means an expert, but I understand the spirit and nature of what is intended with the amendment. I look forward to the Liberal Democrat spokesperson addressing some of those questions.

It is a pleasure to serve under your chairmanship, Mr Vickers. I start by recognising the extremely difficult circumstances that the provisions deal with. I will speak to clauses 15, 17 and 18 and the Liberal Democrat amendment. I welcome the additional safeguards set out in these provisions by the Government, particularly clause 15 and the role it plays in ensuring that the approved clinician can decide whether a referral for a second opinion appointed doctor is required. I note that there is a slight contrast, as the Opposition spokesperson touched on, with 57A, but I believe that recognises the unique circumstances of ECT, and that is important. Clause 17 is important because of the way in which it—like these clauses generally—respects patient choice, embedding the central principles of choice and autonomy into this form of treatment and building on the framework set out earlier. I also note that clause 18 inserts a particular safeguard on certification that is really key to ensure that ECT therapy is administered according to strict safeguards. That is key in the context of the type of therapy that we are talking about. I commend the spirit of amendment 13 and the intention behind it, and I really welcome the positive cross-Bench engagement on this issue. It is one of the most challenging circumstances and types of therapy that a patient will experience, but I echo the Minister’s points that such provisions have been covered elsewhere, particularly the changes in some of these clauses. To make a brief point about invasive treatment generally, I note that we are talking specifically about ECT, but I would be very grateful if the Minister could set out what consideration the Government have given to additional safeguards on nasogastric tube feeding, for example, which is another type of extremely invasive treatment. While I would not seek to draw an equivalence between the two, I would be grateful if the Minister could touch upon that in his response.

I rise to speak to clauses 15, 17 and 18 and Liberal Democrat amendment 13 to clause 18. I note the hon. Member for Winchester is not here; I do not know whether he intends to push amendment 13 to a vote but, just in case he does, I shall speak to it. As colleagues across the Committee have said, ECT is a very controversial treatment, particularly when administered without consent. Under current law, it can be given to patients who lack capacity, but concerns have been raised about insufficient safeguards, especially where the treatment may conflict with prior decisions or a legal representative’s view. Clause 15 responds to recommendations from the 2018 independent review of the Mental Health Act and aims to ensure that ECT is used only when absolutely necessary, with independent oversight and respect for patient autonomy—something that everyone in this House can agree with. I have a couple of questions for the Minister on clause 15. Clearly, the Opposition support the intention of the clause, but I would like to ask him about the challenges in interpretation. For example, determining whether a decision conflicts with an advance directive may be complex, so has he or his Department given any thought to how we might deal with some of those potentially complex, conflicting points of view? Likewise, clause 17 updates section 62 of the Mental Health Act, allowing for urgent treatment without consent in specific circumstances. Once again, I welcome this provision because it gives some new legal clarity, supports clinical judgment, safeguards capacity and, most importantly, protects life and health. However, without strict oversight, there is a risk that the urgent treatment exception could be overused. What discussions has the Minister had with both his Department and, more importantly, campaign groups and mental health professionals to ensure that the urgent treatment exemption is understood and put forward in a way that satisfies both those undertaking the treatment and those receiving it? Clause 18 also changes section 62 of the Act, which I again support; I mention this clause only because I wish to talk briefly about Liberal Democrat amendment 13. Like other Members, I believe that this amendment is extraordinarily well intentioned, but I have some questions about its wording. Specifically, subsection (c) says “the treatment is reversible”, but I do not necessarily know what the legal or medical definition would be of a reversible treatment. I cannot think how ECT could in any way be reversible, so paragraph (c) of the amendment would potentially mean that nobody could receive ECT. I do not fully understand how it could ever possibly be reversible. I think I have made that point as strongly as I possibly can but, if the Liberal Democrats are going to move the amendment, I ask for some understanding of what definition—either legal or medical—is being used for paragraph (c).

On the point about situations in which just the approved clinician provides certification, because of potential delays in appointment of the SOAD, such certification by the approved clinician can only occur in a very narrow set of circumstances, when the regulator has determined “that there will be a delay in appointing a second opinion doctor,” and the treating clinician considers urgent and compulsory electroconvulsive therapy to be life-sustaining. Our intention is that certification will be documented in a statutory form, to be set out in regulations, to ensure that there is an administrative record of the decision. Each time ECT is administered under an approved clinician’s certificate, it must be reported to the regulator so that such instances can be closely monitored and reported on publicly. While an approved clinician can approve treatment in those limited circumstances, there is still a duty on the regulator to appoint a second opinion doctor. Once that occurs, the approved clinician certificate ceases to apply. My hon. Friend the Member for Hertford and Stortford made an important point about how these provisions highlight choice and autonomy, and I thank him for putting that front and centre. On additional safeguards, with particular reference to nasogastric interventions, there are already regulation-making powers in the Mental Health Act to subject treatments such as the one he mentions to new safeguards. We have always intended to engage with stakeholders to determine which treatments should be subject to which safeguards. That is an ongoing and important piece of work. The hon. Member for Farnham and Bordon asked what happens when a decision conflicts with advance choice. There will be an important process of arbitration around that. The advance choice, as articulated by the patient, is vital and should in principle take primacy, but there are certain circumstances in which a compulsory treatment is necessary. Nothing in the Bill removes the ability to carry out those compulsory treatments, albeit subject to the safeguards that we have debated. Ensuring that the urgent treatment exemption is understood by everyone will be an important part of drafting the code of practice, as will ensuring that the code of practice addresses that important point about maximising and universalising awareness and understanding of the urgent treatment exemption. Question put and agreed to. Clause 15 accordingly ordered to stand part of the Bill. Clause 16 Review of treatment Question proposed, That the clause stand part of the Bill.

The purpose of clause 16 is twofold. First, it seeks to maintain the status quo around when the responsible clinician must report to the regulatory authority on the patient’s treatment and their condition. Currently, the Mental Health Act requires that the responsible clinician give a treatment report to the regulatory authority when they renew the patient’s detention. However, changes to clause 28 that increase the frequency at which the clinician must renew a patient’s detention would have unintentionally increased the frequency of treatment reports for patients under certain sections. Clause 16 will prevent that, thereby avoiding unnecessarily placing additional burden on clinicians or the regulator. Secondly, the clause will give the regulatory authority the power to request a report on a patient’s treatment and their condition, where they are consenting to treatment. That will expand an important safeguard to individuals who are potentially vulnerable and may benefit from additional oversight. I therefore commend the clause to the Committee.

17:45:00

The clause will amend section 61 of the Mental Health Act 1983 on the review and treatment of detained patients. The 1983 Act requires approved clinicians to provide reports on the treatment and condition of detained patients, particularly where patients do not consent to treatment. Those reports are integral to the scrutiny and safeguarding of the patients’ rights. The Act sets out timing requirements for such reports, which generally coincide with detention renewals, helping regulatory authorities such as the CQC in England and the Healthcare Inspectorate Wales to oversee treatment appropriately. I imagine that you are expecting me to continue my speech on the CQC, Mr Vickers, but I will spare you; you are august in your understanding of the health inspectorates, so I will not put the Committee through that. The clause updates the timing and scope of the reporting requirements, and we welcome the fact that it will introduce a more structured reporting schedule. It will require reports to be provided after six months, then every six months and then every 12 months, as well as for the reports to be provided within two months of those periods. The clause also explicitly includes part III patients—those under forensic orders—especially those transferred from guardianship or those whose community treatment orders have been revoked. Importantly, the clause grants regulatory authorities the power to require reports not only from non-consenting patients but where patients are found to be consenting under certain treatment sections. That enhances the regulator’s oversight role, allowing it to request additional information should concerns arise. We acknowledge that the intent behind these changes—to align reporting practices across different patient groups and to strengthen regulatory oversight—could improve consistency in monitoring, ensure that concerns about treatment are promptly addressed and, ultimately, enhance patient safety and rights. However, several questions arise. How will the increased power for regulatory authorities to require reports, including from consenting patients, be balanced to avoid placing excessive administrative burdens on clinicians? Will the changes to the timings of reports, particularly the delay of the first report to three months for certain cohorts, risk any gaps in early detection of treatment issues? What safeguards or limits will exist to prevent potential overuse of the power to request additional reports? Could that put further strain on mental health services and regulatory bodies that are already stretched? How clear and workable are the definitions distinguishing different patient groups, such as part III patients transferred from guardianship or those with revoked community treatment orders? Might that complexity lead to inconsistent application? The clause distinguishes those groups because it assigns them different reporting schedules and rules. For example, part III patients transferred from guardianship and CTO-revoked patients after 6 months have a specific reporting timetable—every 6 months, then 12 months. In contrast, CTO-revoked patients within six months of their hospital order and other part III patients retain their existing, presumably different, reporting periods. That layering risks creating complexity. The Bill uses technical terms, and references to a patient being transferred from guardianship under section 19 or to a community treatment order being revoked are not immediately clear and may not be uniformly interpreted by all clinicians and regulatory staff. Why is that a potential problem? If these terms or categories are not clearly defined and communicated, or if the practical implications are not straightforward, there is a risk that clinicians might misclassify a patient’s status, leading to incorrect timings or absence; regulatory authorities might struggle to apply the rules consistently; and patients might inadvertently fall through gaps in reporting. For example, let us imagine a patient who was initially under guardianship, which means that someone was legally responsible for their care, but who was then transferred to a hospital order under part III of the 1983 Act. If the clinician or regulator is unclear whether the patient fits into the “transferred from guardianship” category for the revised six-month reporting cycle, they might apply the wrong schedule, and thereby delay important reviews or misunderstanding opportunities for intervention. Concern about definitions is really about ensuring clarity and practicality and making sure that everyone involved in patient care and oversight understands precisely which patients fall under which reporting categories, so that the intended protections and reviews happen without there being confusing gaps.

The classification of which part III patients the clause applies to is at the heart of the shadow Minister’s question about ensuring that everything is co-ordinated and we do not have conflicting reports and timeframes. I think that that classification is clear, but to recap, the changes will apply to the following patients detained under part III of the Act: patients who have been transferred from guardianship to hospital, and patients whose community treatment order has been revoked and more than six months has passed since their original hospital order was made. That classification is important. It is also important to bear in mind that the clause is all about maintaining the current frequency. We are not really injecting a new reporting rhythm; it is about maintaining the current frequency, but having that clarity around the classification of patients, as I outlined. Question put and agreed to. Clause 16 accordingly ordered to stand part of the Bill. Clauses 17 and 18 ordered to stand part of the Bill. Clause 19 Remote assessment for treatment Question proposed, That the clause stand part of the Bill.

I will discuss the clause and review of treatment. Under the Act, the regulator, the CQC, is responsible for appointing individuals to provide independent second opinions on the administration of certain treatments. As part of that, the appointed person may visit, interview or examine the patient to make their determination of whether treatment is appropriate. The clause permits the use of remote interview and examination for the purpose of any second opinion functions, which relate to treatment under part IV or 4A of the Mental Health Act. Allowing interviews or examinations to occur in person or remotely is expected to result in more timely involvement of second opinion appointed doctors, an important safeguard. In turn, patients will have access to a greater diversity of second opinion doctors, as opposed to only those in the local area. We understand that remote interview or examination may not always be appropriate, compared with the in- person option. That is why the clause only permits the use of remote where it is considered appropriate by the second opinion appointed doctor, taking into account the patient’s preferences and other factors. We will provide specific guidance on the circumstances under which remote may be appropriate, and where we discourage its use, in the Mental Health Act code of practice. I commend the clause to the Committee.

I welcome the Government’s recognition that modern technology can play a valuable role in improving care in the mental health system. The move to allow remote interviews and examinations for second opinion appointed doctors, through live audio or video links, reflects the realities of healthcare today and the potential for greater flexibility and efficiency. In particular, the so-called hybrid model, as set out in the explanatory note, could help speed up access to important second opinions and reduce delays in treatment decisions. That is especially welcome given the well documented pressures on mental health services and the vital role of second opinions in safeguarding patient rights. While the intention is laudable, however, I have a number of concerns to go through, because I believe that the House must consider them carefully. First, the clause leaves the clinician significant discretion to decide whether a remote assessment is appropriate, but it does not set out clear criteria or safeguards for how that decision should be made. Given the serious nature of second opinion assessments, which often authorise treatment without consent, we must ensure that the discretion does not lead to inconsistent or inappropriate use of remote methods. Secondly, mental health patients are a diverse group, and many face particular communication challenges. For example, a patient who has experienced a stroke may have speech impediments or difficulty understanding complex questions. Others may have conditions such as autism or dementia that make remote communication difficult or distressing. This was a really big topic in the other place, particularly as there are several esteemed colleagues who are part of the speech and language therapy fraternity, so it warrants a bit of attention. For example, we need to look at access to speech and language therapists. We also think about how these important communications needs will be assessed and accommodated. Will there be a statutory requirement for a clinician to consider patients’ communications abilities and preferences before opting for a remote interview? I am concerned that, without such safeguards, patients may be subjected to assessments that do not fully capture their conditions or views, undermining the quality and fairness of the process. The Minister—I think—hinted that this may be covered in the code of practice. I hope it is. Thirdly, the clause does not specify the role of patient consent or objection to remote access. Should patients have the right to request an in-person interview if they find remote contact unsuitable? This is not simply a matter of convenience; it is a question of whether we ensure the dignity, respect and meaningful participation in decisions about their own care. There is much debate in primary care about the role of video calls versus seeing a person face to face, and I would be interested to understand where the Government sit on that point. The Bill lacks any specific provision for regulatory oversight or standards to govern the use of remote assessments. How will the regulator—presumably the CQC, but I would be grateful for clarification on that point—monitor whether remote assessments are being used appropriately, given the vulnerability of these types of patients? What mechanisms will patients or their advocates have to raise concerns or complaints if they feel remote assessment was not adequate or, even worse, harmful? Finally, while technology can bring great benefits, it should never become a default substitute for face-to-face contact in mental health treatment decisions, especially where the stakes are so high. I assume the Minister appreciates that. Will this be set out clearly in the code of practice? Whose job is it to enforce that? Will there be a right to request an in-person interview, should the patient choose to? Has an equality impact assessment been undertaken to ensure that remote access does not disproportionately disadvantage those who suffer with communications difficulties or other vulnerabilities, or is that something that the Minister will implement in the code of practice? I would be grateful for some clarifications on those points, because it is really important to get it right when it comes to difficulties in communication, especially in this patient cohort.

I rise to address three broad points on clause 19. I entirely understand where this is coming from—it is to improve accessibility, efficiency and flexibility in delivering assessments. It reflects the broader observations from the independent review and aligns with the NHS digital transformation goals. However, I have three specific concerns. My first concern is about the risks around the assessment quality. I suspect we have all experienced virtual meetings or consultations with clinicians. Subtle cues can often be missed in a virtual hearing, particularly when it is on the sensitive issues we are dealing with in the Bill. I am concerned that we will miss those subtle signs that doctors would pick up on in a face-to-face assessment; they can easily be lost through the medium of a virtual assessment. My second concern is about the consistency in clinical judgment of when to use these virtual assessments. I suspect we all have experience through constituency or personal work of general practitioners who, since the covid-19 pandemic, have moved to more online and virtual assessments. Some patients enjoy that and like the flexibility; others would rather see a clinician face to face, but are not always offered that option. We must ensure a consistent approach to these assessments across the country. My third concern is about digital exclusion. The assumption is that individuals will be able to access this readily and be comfortable with the technology. Many will be able to, but a significant number will struggle with it. We must ensure that those individuals are not forced down a route of having a virtual appointment or assessment, when that would not allow them the satisfaction of the consultation they sought. It is important that patients are put at the front and centre, and that any change to the assessment process is made with them in mind.

18:00:00

I want to pick up on a few points made by my gallant and learned hon. Friend the Member for Solihull West and Shirley. He talked about people who, like many of us, have seen the benefits of assessments online. There could well be benefits from clause 19 for that. He also talked about how some people did not find that an appropriate way to have their assessment. My understanding is that if someone has a physical ailment, they might be pushed strongly down a route to have an online assessment for whatever reason, whether that be at a primary care setting or at a secondary care or acute setting, but that if they wanted to see a doctor—for example, a GP—physically to talk about their ailment, although it might take them a little bit of time, they had the right to do so. My concern about the clause is the suggestion that in certain circumstances, some patients would not have the right to a face-to-face assessment. The Minister talked about where things will be taken into account, where it is appropriate and where “it would be discouraged”. “Discouraged” is not the same as “it will not happen”. We need clarification, either within the Bill or very strongly in the code of conduct, so that a patient has the right to a face-to-face consultation. I would be very keen to hear the Minister’s thoughts on that.

We are very much on the same page in looking to harness the power of technology wherever we possibly can to shift from analogue to digital, but recognising the importance of putting the patient’s needs and disposition first. Telemental health is welcomed by many service users and has become an established part of delivering mental health care in a range of settings and scenarios. We expect the use of a hybrid approach involving both in-person and remote interview and examination to improve the efficiency of the second opinion appointed doctor service, and therefore to be of benefit to all patients. We understand that remote interview or examination may not always be appropriate compared with in-person options. That is why the clause permits the use of remote only where it is considered appropriate by the second opinion appointed doctor. We will provide specific guidance on the circumstances under which remote may be appropriate, and where we discourage its use. All of that will be in the Mental Health Act code of practice. Many of the answers to the questions asked by the shadow Minister and by the hon. Members for Solihull West and Shirley and for Farnham and Bordon asked are contained in that. We are going to develop detailed guidance in the Mental Health Act code of practice, which will clarify and specify very clearly where this should be implemented and where we would discourage it. Question put and agreed to. Clause 19 accordingly ordered to stand part of the Bill. Clause 20 Capacity to consent to treatment  Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss new clause 5—Report: statutory competency test for under-16s— “Within 12 months of day on which this Act is passed, the Secretary of State must undertake a review of whether a statutory competency test for under-16s in determining their ability to make a relevant decision would be expedient for the purposes of this Act or the Mental Health Act 1983.” This new clause requires the Secretary of State to undertake a review of whether a statutory competency test for under-16s would be expedient for the purposes of this Bill and the Mental Health Act 1983.

Clause 20 will make changes to wording under the Mental Health Act regarding the patient’s capacity and competence to consent to treatment so that it reflects the terminology used as standard by clinicians. While this amendment is not expected to create a practical change, it ensures consistency with other sections of the Mental Health Act and the Mental Capacity Act 2005. As for new clause 5, it is our assessment that, were we to bring about legislative change which sought to introduce a statutory test of conscience for people under 16 in a single setting—that is, under the Mental Health Act—this could have unintended consequences for how competence is assessed, both in mental health settings and other linked areas of decision making. This could create additional confusion for clinicians and impact the ability of children to exercise choice and autonomy over their care and treatment in mental health and other settings, and cannot be justified. We therefore do not consider a statutory test under the Mental Health Act, or a review of that issue, to be necessary. We will consult on the guidance for assessing competence for under-16s in mental health settings in the revised code of practice, with the intention of providing further clarity to decision makers. For those reasons, I commend clause 20 to the Committee and ask the hon. Members for Winchester and for Guildford not to press new clause 5.

Clause 20 addresses a central principle in healthcare, ethics and law: the right of individuals to make informed decisions about their treatment, and the conditions under which that right can be overridden. Let me begin by recognising the objective of clause 20 as both important and welcome. It replaces the outdated and potentially ambiguous language in the Mental Health Act 1983—language that speaks of whether a patient is “capable of understanding the nature, purpose and likely effects” of treatment—with a clearer legal standard based on whether a patient has capacity to consent, in accordance with the Mental Capacity Act 2005. This reform aligns the Mental Health Act with how capacity is already understood and applied across health and social care, and it harmonises part IV of the Act with part 4A, which already uses that language in the context of community patients. So far, so sensible. However, as the Opposition, our role is not only to acknowledge the intention, but to ensure that the implementation matches the ambition, and that patients’ rights are not merely affirmed in law but upheld in practice. What do these changes actually do? Under clause 20, we see a wholesale substitution of terminology. For example, in sections 57 and 58 of the Act, which deal with certain serious treatments such as neurosurgery and ECT, the language shifts from “capable of understanding” to having or lacking capacity to consent as defined in the Mental Health Act. It also explicitly incorporates advance decisions to refuse treatment under section 25 of the MCA, the role of a donee of lasting power of attorney, and the authority of a deputy appointed by the Court of Protection. This is a welcome acknowledgement of patients’ rights to plan ahead and to have their wishes respected, even when they later lose capacity. While the Government’s explanatory notes suggest that this is not expected to create practical change, I think we should pause and ask: what if it does? We are told that clinicians interpret “capable of understanding” as meaning “having capacity” under the Mental Capacity Act. But the MCA test is precise: it requires the person to understand the information relevant to the decision, retain that information, use or weigh it as part of the decision-making process, and communicate their decision. So are clinicians routinely applying this test fully, or are they relying on informed judgment? Can the Minister confirm, for example, whether NHS trusts have audited how consistently the MCA test is being applied in mental health settings? I was a clinician and am now an MP, so I understand the intent behind it, but the legal clarity—now with my MP hat on—is really important to ensure that we truly are interpreting the legislation we pass in this House for this country in the correct way when we are acting as clinicians. When it comes to advance decisions in acute settings, clause 20 provides that an advance decision to refuse treatment must be both valid and applicable, as per section 25 of the Mental Capacity Act, but in the real world of psychiatric in-patient care, clinicians may encounter such decisions during a crisis, when patients are at serious risk of self-harm or suicide. How will the Government support clinicians in determining validity and application quickly, safely and lawfully? I assume— I think the Minister hinted at this—that that will be part of the code of practice. On the power to override consent, perhaps most crucially the Mental Health Act allows for treatment without consent, even when the person has capacity, if they are detained under the Act. Again, we touched on this in relation to amendments discussed on the first day. That is a profound legal power. Does the clause change it in any way, or does it simply confirm that capacity is assessed, but not necessarily respected, under compulsion? If the Government intend the law to remain as it is—that patients with capacity can still be treated without their agreement—they may well need to specify and set that out. I urge Ministers to consider how we communicate that reality to patients, whose sense of agency and trust in the system may otherwise be undermined. I turn to the matter of Gillick competence for children under 16. The clause clarifies that the standard for under-16s is Gillick competence, not capacity under the Mental Capacity Act. This reflects the long-standing legal test established in the 1986 case of Gillick v. West Norfolk and Wisbech Area Health Authority. Under Gillick, a child can consent to their own medical treatment if they have sufficient understanding and intelligence to comprehend what is proposed. The Gillick test has advantages. It allows for a case-by-case assessment, not a rigid age threshold, and respects the emerging autonomy of young people. However, there are also risks: it can lead to inconsistency between clinicians and does not offer the same structured framework as the MCA. What safeguards will be put in place to ensure consistency and rigour in applying the Gillick test? Will the Government commit to updating the code of practice with guidance on assessing Gillick competence specifically in mental health contexts? I turn to deputies, attorneys and verifying authority. The clause references lasting powers of attorney and deputies—that is right and proper—but we need to ask how a clinician will verify that a donee is acting within the scope of their authority. Will the Government consider a national standard protocol to support clinicians in checking LPAs and court orders, particularly in urgent situations? For example, could this be part of the checklist, which we have already discussed, or is it implied that it will be part of that in the first place? Many of those concerns were shared in the other place. They were partly addressed in the letter for Baroness Merron, which is worth reviewing. It sought to clarify a number of concerns raised on Second Reading in the other place. I welcome the tone of the letter and the Minister’s stated willingness to listen. In particular, I acknowledge the recognition of the “challenges…to decision makers” that may be presented by “the complex interface between the Mental Health Bill and the Mental Capacity Act”, and I welcome the Government’s commitment to engage with clinicians and stakeholders during the revision of the code of practice. That is important. However, the letter also raises some further issues that deserve scrutiny. First, the Minister says: “Both Acts provide appropriate procedural safeguards to ensure that the individual’s Article 5 human right to liberty and security is protected during their detention. The nature of the safeguards provided under the two Acts are different”. That is undeniably true, but therein lies the concern: where the safeguards differ, so too may the thresholds, the review mechanisms and the practical experience of those subject to detention. In cases in which a person might meet criteria under both Acts, what clear guidance will clinicians be given on how to decide which legal framework to apply and how to ensure that the individual receives the most appropriate and proportionate protection? In the same letter, the Minister addresses the potential unintended consequences of reforms to section 3 of the Mental Health Act, namely that “people with a learning disability and autistic people, who lack capacity, could, in certain circumstances, be detained under the Mental Capacity Act rather than the Mental Health Act”. The Government’s stated intention is to prevent that outcome by strengthening community-based services. The letter states that “the proposed changes to Part 2, section 3…will only be commenced when we are assured that there are strong community services in place.” In the absence of clear statutory criteria, that could be seen as moving the target, so will the Government publish a set of benchmarks or a public readiness test? The Minister has said that the implementation will take place over 10 years, but a readiness test with criteria setting out how that will apply would help us to deal with a lot of the issues that we have talked about during the passage of the Bill.

18:15:00

Clause 20 is definitely a step forward in legal clarity, and the Opposition support the principles behind it. We want to ensure that capacity is not only assessed but assessed properly, that advance decisions are not only recognised but respected, that children’s rights are not only preserved but protected, and that patients’ voices are not only heard but heeded wherever possible.

Liberal Democrat new clause 5 calls for a review into whether statutory competence tests for under-16s should be introduced for the purposes of the Bill and the Mental Health Act 1983. I acknowledge the principle of where it is trying to go: it reflects a deeply important issue. How we assess and support the ability of children and young people to participate in decisions about their mental health care, particularly when that care involves complex, sometimes coercive interventions, is of paramount importance, and I know it will come up later in the Bill.

At present, as I have outlined, we rely on the long-established principle of Gillick competence, which allows children under the age of 16 to consent to treatment if they are judged to have sufficient understanding and intelligence to comprehend the proposed intervention. This principle is embedded in case law and has been repeatedly reaffirmed in medical ethics and judicial practice. It provides a degree of flexibility that many clinicians value, especially when dealing with young children, whose maturity and understanding often varies case by case. That said, I understand the case that the hon. Member for Guildford is making in the new clause. There are legitimate questions about whether the current reliance on Gillick competence is always applied consistently across services, particularly in mental health contexts, where decisions may involve not just consent to treatment but the implications of detention or long-term care.

We have touched on some of those issues, but I could go further. Are clinicians across the country being supported with adequate tools and training to assess the context appropriately? Do families and young people understand the rights and protections that they have under the system as it is, and therefore would changing it make things even more complex? Are there safeguards or protocols that we ought to consider in mental health contexts that may differ from those relating to general physical health?

I urge caution before introducing a statutory competency test, given that even introducing a formal review may unintentionally suggest moving towards rigid, one- size-fits-all thresholds that could undermine the current child-centred, flexible approach. There is also a risk that such a framework could raise the bar for children to participate in their own care decisions, rather than empowering them, particularly for those on the cusp of adolescence, who already navigate stigma and disempower-ment within the mental health system.

Although I am not opposed to reviewing the current practice, I suggest that we could take a different route—one that builds on existing legal and clinical principles without undermining them. Instead of a statutory review, I propose including the issue in the examination when we come to the code of practice. That would allow for a review of current clinical practice around Gillick competence, an assessment of the training tools and support available for professionals, and consideration of whether guidance or illustrative frameworks can be included in the code to help decision making for under-16s in the mental health context. Again, I think the Minister seemed to suggest that that is coming, but it is worth stating in this House on the record that we want that to happen.

I welcome the thinking behind the new clause, and I share the concern that young people need strong and clear safeguards, but I gently suggest that the best way forward would be to enhance guidance, clinical standards and meaningful consultation, rather than to introduce a new statutory requirement. I hope that my comments to the Liberal Democrats are clear, and that I have adequately set out my concerns about clause 20 to the Government. We will not divide the Committee.

It is an honour to serve under your chairmanship, Mr Vickers. I will speak briefly in support of clause 20 and comment on some of the issues surrounding new clause 5. Clause 20 aims to update wording in the Mental Health Act 1983 in regard to a patient’s capacity and competence to consent to treatment. That is in line with terms that clinicians use in practice across the piece. It provides consistency with the Mental Capacity Act 2005. Although the clause is not expected to create practical change in clinical care, it does something vital that I would like to draw out. These changes bring forward the recognised and well-established ways that we give people the power to inform their future care and treatment if they get ill in the future. As my hon. Friend the Member for Thurrock so eloquently put it earlier, the ability to plan ahead for one’s care speaks to the heart of what we are trying to do with the Bill, namely to put people at the centre of it, but allow dignity in treatment and authority over one’s own healthcare. That is an important point to draw out in this clause. Let me turn to new clause 5. The shadow Minister teased out a lot of detail around the Gillick competence test, which is used not just in one setting, but across multiple settings. I completely understand the need to ensure that our young people are empowered to make decisions, but the new clause may have the unintended consequence of making it harder for young people to be involved in their own treatment and have control over what they want to do with their health. We are not quite in the place where we need that statutory test. It would be helpful to tease out from the Minister a little more about the plans to review the code of practice, which he mentioned in his opening remarks. What does he hope to see when we consult with clinicians on this? How can we be confident that clinicians will feel empowered to allow young people to take some control in their healthcare?

I rise to speak in favour of new clause 5, which would require the Secretary of State to undertake a review into whether the statutory competency test for under-16s would be expedited under the Mental Health Act. It has been great to hear so many contributions from colleagues on the Committee about the challenges that young people face when discussing their mental health and wellbeing and being involved in decision making around their health. As my colleague Baroness Tyler noted in the Lords, and as the hon. Member for Hinckley and Bosworth noted in his early comments, the consistency with which Gillick competency is interpreted in the case of young people is a bit of a grey area. That is the key reason why we have tabled this new clause. We want young people to be empowered to be involved with decisions around their mental health. It is not hard to imagine how traumatic it must be for an under-16 to refuse treatment when they fully understand and object to it, yet be overridden because no one is quite sure how to assess their competency robustly. We believe that, at the very least, we owe it to young people to ensure that our legal framework is coherent, fair and protective of their rights. The new clause would allow the Government to lead that conversation in a measured and consultative way. A statutory review would bring much-needed evidence and direction to a complex but critical issue. I am disappointed that the Minister will not consider the new clause, but I will withdraw it for expediency. However, it has been good to hear the commitment from the Minister to consulting on and reviewing this issue. The Liberal Democrats look forward to hearing more detail on it in the future and to being part of that conversation.

One theme raised by hon. Members on both sides of the Committee is the need for clarity and safeguards so that clinicians are clear on how best to assess competence. The Mental Health Act code of practice already provides guidance on establishing competence in under-16s. We will consult on the guidance for assessing competence in mental health settings in the revised code of practice, with the intention of providing further clarity to decision makers. That will include engagement with key stakeholders and clinical decision makers with experience of assessing competence in children. We think it is better to focus on improving the practical application of Gillick and assessment of competency rather than reinventing the wheel, with the risk that that might cause confusion. The Department will work with NHS England, Social Work England and other partners to develop appropriate training for staff on the reforms. Once the code of practice has been updated, professionals working under the Act will be required to undergo training to maintain their competence and awareness of the Act.

I cannot resist the opportunity to probe the Minister on something so important. He said that NHS England will predominantly look at this, but changes are happening there. Will he ensure that Gillick competence and the assessment of capacity will be at the heart of this? It is unclear now, given that it will take two years for NHS England to be abolished, who will take that on. Will he ensure that that is given due attention, as we have with physical health?

Absolutely. We must ensure that we act rapidly as soon as the Bill gets Royal Assent by launching the consultation process on the code of practice. It will be vital that the question of the practical application of Gillick and the need for clarity is universalised right across the system. The shadow Minister asked about the interface between the Bill and the Mental Capacity Act. We recognise the complex nature of that interface, which presents challenges for decision makers. We will continue to consider this interface as we implement our reforms, and we will engage with stakeholders to understand what support and guidance could help to improve application of the interface when we consult on the new code of practice. My hon. Friend the Member for Croydon East made some powerful and important points about the risk of unintended consequences if we try to reinvent the wheel on this. She is absolutely right. She asked what we want to see in the consultation on the code of practice. For me, the two key areas would be clarity and ensuring practical application of Gillick, by understanding the case law and the complexity of the interface between the pieces of legislation. It is about ensuring that we get that clarity. We cannot do that in an ivory tower. We have to do it with Social Work England and a range of partners with practical, hands-on experience to ensure that the code of practice is the bible for addressing these important issues. Question put and agreed to. Clause 20 accordingly ordered to stand part of the Bill. Clause 21 Care and treatment plans

I beg to move amendment 48, in clause 21, page 30, line 28, at end insert— “(ab) containing steps to alleviate social and financial stressors contributing to the patient’s risk of requiring detention in future; and”. This amendment would require social and financial stressors be addressed in care and treatment plans.

With this it will be convenient to discuss the following: Amendment 14, in clause 21, page 30, line 39, at end insert— “(iii) the discussion of the person’s finances and financial situation.” This amendment ensures that the care and treatment plan includes matters relating to the patient’s financial circumstances. Amendment 15, in clause 21, page 30, line 41, at end insert— “(4A) The information authorised or required to be included in, or attached to, a care and treatment plan by virtue of regulations under subsection (3) must include provision to protect the patient’s housing and accommodation during and immediately after they are subject to a care and treatment plan.” This amendment ensures that protection of housing and accommodation are considered as part of care and treatment plans. Amendment 23, in clause 21, page 30, line 41, at end insert— “(4A) Where a patient has autism or a learning disability, the care and treatment plan must— (a) identify specific crisis prevention strategies appropriate to the patient's individual needs; (b) identify suitable crisis accommodation options in the event that the patient's current placement becomes unable to meet their needs; (c) specify how the patient's sensory needs will be met; (d) specify communication approaches appropriate to the patient's needs; and (e) record the views of the patient’s family members or carers, where appropriate and with the patient’s consent.” This amendment would ensure that care and treatment plans for patients with autism or learning disabilities include specific components addressing their particular needs, including crisis prevention strategies and identification of suitable crisis accommodation options. Amendment 50, in clause 21, page 30, line 41, at end insert— “(4A) For the purposes of preparing a plan under this section, a discharge planning meeting must be held. (4B) A meeting under subsection (4A) must include— (a) the patient; (b) the patient’s nominated person; (c) any independent mental health advocate acting for the patient; (d) a representative of the integrated care board; (e) a local housing officer; (f) a local authority social worker; (g) a representative from the Department for Work and Pensions; and (h) any other person or agency involved in the patient’s care or likely to support recovery in the community. (4C) A care and treatment plan under this section must include— (a) actions agreed by relevant agencies to support the patient’s recovery; (b) provisions to address clinical, financial, housing, and social needs; (c) steps to reduce the likelihood of readmission or further detention under this Act; and (d) a record of any points of disagreement and how they are to be resolved. (4D) Where an agency listed under subsection (4B) fails to attend a discharge planning meeting, the responsible clinician must take reasonable steps to obtain their input in writing and record it in the plan. (4E) For the purposes of subsection (4A) to (4D), the Secretary of State must issue guidance on best practice for discharge planning meetings and multi-agency collaboration.’” This amendment would require the clinician preparing a care and treatment plan to hold a multi-agency planning meeting to inform it, and specifies what must be included within the plan. Amendment 16, in clause 21, page 31, line 26, at end insert— “(g) following the patient turning 18 years of age during the course of a care and treatment plan.” This amendment ensures that individuals turning 18 during a care and treatment plan have their plans reviewed to maintain continuity of care while transitioning from child to adult services. Amendment 17, in clause 21, page 31, line 29, leave out from “so” and insert— “(a) consult the persons mentioned in subsection (5)(f), (b) ask whether there are children in the family and take actions to respond if the children need help or protection from harm.” This amendment seeks to deliver earlier identification of children who might be in need of information, support, or protection from potential harm. Clause stand part.

I hope the Committee will forgive me if I take some time to address the various amendments in this group. Amendment 48 would ensure that care and treatment plans do not stop at clinical intervention and address the underlying social and financial stressors that contribute to the cycle of poor mental health, and crucially, to avoidable future detention under the Mental Health Act. We know that treatment is not just medication and monitoring. For many, the tipping point for crisis is social and financial stressors. The relationship between debt and mental health has been well documented. Nearly half of those behind on their bills experience mental health problems. Those experiencing mental ill health are three times more likely to be behind on at least one key payment—such as rent, energy bills or credit cards—compared with those without mental health problems. Social stressors are likely to be even more severe for people from racially diverse communities and the LGBT community, and disabled people. Including these stressors in care plans will help to address disproportionate detention rates and support more equitable care.

18:30:00

Just as the reason behind a crisis is multifaceted, treatment must also be multifaceted. We cannot ever seek to address anyone’s poor mental health without considering the variety of stressors that may be contributing to it. For treatment to be effective, it must offer support for stressors, be they social or financial, which can be a real driving factor behind many mental health crises. I hear from my casework about the delays and frustrations for those trying to liaise with the Department for Work and Pensions—if it wants to give someone the best chance at recovery, we have to look at such issues. As I said, these stressors are often magnified for people from racially diverse communities.

Amendment 14 seeks to ensure that economic stressors, which are often overlooked, yet are central to mental health and recovery, are explicitly addressed. Financial problems are a major contributor for people experiencing a mental health crisis and can make it much harder to recover from one. Last year, nearly 21,000 people in England alone were struggling with problem debt while in hospital for their mental health, and, sadly, an estimated 100,000 people in problem debt attempt suicide every year.

Tools exist to help support people when they are in a mental health crisis. Those include care and treatment plans, the documents health professions use to map out a patient’s support need when they have been detained under the 1983 Act; and advance choice documents, a preventive tool through which people can set preferences for care in the event that they experience a mental health crisis. But those tools are underused and currently do not consider someone’s financial circumstances by default. Ensuring that people’s finances are taken into consideration when they are in a mental health crisis will help to prevent further illness, reduce waiting lists and help people return to daily life, including work, more smoothly.

We were pleased that Baroness Merron agreed that care and treatment plans would include

“interventions aimed at minimising financial harm”.—[Official Report, House of Lords, 22 January 2025; Vol. 842, c. 1783.]

Can the Minister confirm that commitment? Will he let us know when the Department plan to bring forward necessary regulation; whether requiring that financial difficulty be identified will be included in the regulation; and any more detail about the specifics of what interventions are being planned?

Amendment 15 is similar to our amendments 1, 51 and 4, which we tabled previously, and is designed to ensure that everyone—not just those with learning disabilities or autism—has the protection of housing and accommodation during and immediately after they are subject to a care and treatment plan. We discussed earlier in Committee that appropriate housing is absolutely crucial for people’s wellbeing and cannot be viewed as separate from effective and safe care. I will not delve further into that because I know we are pressed for time.

Amendment 23, in the name of my hon. Friend the Member for St Neots and Mid Cambridgeshire (Ian Sollom), would ensure that care and treatment plans for patients with autism or learning disabilities include specific components addressing their particular needs, including crisis prevention strategies and identification of suitable crisis accommodation options.

The Care Quality Commission tells us that over half of delayed discharges stem from housing shortages; that crisis for autistic and learning-disabled patients continues due to no sensory or communication planning; and that staff often go untrained. This amendment directly tackles that, demanding plans that proactively prevent a crisis, secure appropriate accommodation and adapt to each person’s neurological needs. It reflects the real-world failings in current practice, particularly around crisis escalation, communication breakdowns, inappropriate detention and long-term hospitalisation. I would be interested to know whether the Minister accepts that the amendment directly responds to recommendations from multiple inquiries, including the CQC’s reports, which found that failure to adapt care to neurodivergent patients’ needs was a key safeguarding issue.

Amendment 50 directly addresses one of the biggest ongoing failures in the mental health system: poor or non-existent discharge planning. It formalises what should already be happening—joined-up, multi-agency, patient-centred discharge planning—and sets a clear statutory framework to hold services accountable. Social and financial struggles can play a major role in someone’s mental ill health and block their recovery. Patients should be viewed not just as a collection of symptoms, but in their whole context. Addressing someone’s housing insecurity, their debt or family breakdown should not be viewed as separate considerations, but as a core part of supporting someone to live happily, healthily and independently. For example, we know that if a child is being discharged into a home where they are left entirely unsupported as a young carer, or a young woman faces harassment from an abusive ex, or a man who has lost his job is placed back into a life dominated by bailiffs, creditors and the threat of eviction, their mental health will continue to be put in jeopardy.

Convening all the different agencies that are relevant to someone’s social and financial needs—whether that is their benefits, the support they receive for a disability, the respite care they desperately need, or so much else—is therefore crucial to ensuring that the support they receive under their care and treatment plan reflects the whole person and their needs. It would help to ensure that people are not left without support, due to different parts of the system refusing to accept responsibility. Crucially, it would help to address the underlying social and financial stressors that are central to driving many acute mental health crises.

Amendment 50 is not about creating new burdens; it is about making existing legal responsibilities work together. Right now, too many patients are stuck in hospital not because they are ill, but because no one has brought housing, benefits and community services to the table. The amendment makes that table mandatory. It ensures that patients have a voice, that agencies are present and that there is a written plan, not just verbal intentions. It is the kind of joined-up working that the Government say they support, so let us please put it in the Bill.

Amendment 16 ensures that individuals turning 18 during a care and treatment plan have their plans reviewed to maintain continuity of care while transitioning from child to adult services. This practical and essential amendment would strengthen continuity of care for young people transitioning to adulthood—a time when the risk of falling through the cracks between child and adult services is at its highest. Transition from child and adolescent mental health services—or CAMHS, as most of us will know it—to adult mental health services is one of the most fragile points in a young person’s care journey. National studies and inquiries consistently show that many young people experience a cliff edge in support at 18. There is often no overlap or co-ordination between CAMHS and adult services. The eligibility criteria for adult services differ, meaning that some young people are left without any support at all after CAMHS discharge, which leads to increased risk of relapse, disengagement, self-harm or crisis readmission.

Reports such as the Care Quality Commission’s “Growing up, Moving on” and the Health and Social Care Committee’s inquiry into children and young people’s mental health in 2018 have repeatedly called for structural reform to address that failing. The Children and Young People’s Mental Health Coalition told the Joint Committee on Human Rights that it

“is imperative that the Mental Health Bill strengthens safeguards against children and young people being placed in inappropriate settings.”

Amendment 16 would not require a new layer of bureaucracy or an overhaul of care planning. It simply creates a trigger: if a patient turns 18 during their care and treatment plan, the plan must be reviewed. This is not a burdensome amendment. Again, it is not about creating new processes; it is about using the existing care and treatment planning process to protect young people when they are most at risk of falling through the cracks. We have known for years that the CAMHS-to-adult mental health handover is failing way too many people. The amendment would create a statutory moment of review. It is a basic safeguard, long overdue, and vital if the Bill is to live up to its promise of putting patients at the heart of planning and care.

Finally, amendment 17 seeks to deliver earlier identification of children who might be in need of information, support or protection from potential harm. This small but important amendment is designed to help ensure that the children of patients detained under the Mental Health Act are identified and have access to support or safeguarding from any harm, if needed. Research suggests that up to 45% of psychiatric in-patients may be parents of dependent children, and it is estimated that more than one in 10 children are living with an adult with a severe mental illness. That is as many as three children in every class.

Living with an adult with a severe mental illness can have a huge impact on children if they do not receive proper support. Children with parents who experience mental ill health are themselves more likely to experience mental illness, including anxiety and depression, psychosis and borderline personality disorder. Research has also found greater risk of premature mortality. We are also seeing an increase in the number of children suffering serious harm or even dying where parental mental illness was a core factor. The last five annual reviews by the national child safeguarding practice review panel have all highlighted parental mental illness as a recurring theme in such cases. The Association of Directors of Children’s Services recently reported that parental mental illness has for the first time overtaken domestic abuse as the most common factor in children’s social care assessments. That is why it is so important that children are identified and supported at the earliest opportunity.

When it comes to mental health professionals identifying children of parents with a mental illness, we are way behind countries such as the Netherlands and Norway, both of which have introduced statutory requirements for mental health professionals to consider whether adults with mental health problems have children. I will conclude my remarks there, but—

Hear, hear!

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

It is an honour to speak again in the Committee’s debates on the Bill. I really welcome clause 21, in that it introduces care and treatment plans, as well as a statutory requirement that all those patients formerly detained under the Act should have such a plan, apart from those who were only on short detention. It also brings England in line with Wales. The clause fits with the fundamental purpose of the NHS. One of the founding principles in the NHS constitution is: “The patient will be at the heart of everything”. The constitution states: “NHS services must reflect, and should be co-ordinated around and tailored to, the needs and preferences of patients, their families and their carers.” It goes on to say: “Patients, with their families and carers, where appropriate, will be involved in and consulted on all decisions about their care and treatment.” Even though freedoms have, in a way, been taken from people through detention under the Act, it is so important that such detention should not remove all their choice, autonomy and ability to express preferences, whether that is simply over things in daily life, such as when they wake up, get up or go to bed. It is about making it really clear that patients can continue to express preferences and make choices over things that may give them a better quality of life, even while they are detained.

The hon. Lady makes an excellent point. This is especially relevant when capacity fluctuates in some patients, which we expect to see more often with the kind of dementia that will potentially come forward —for example, some of the new illicit drugs that are available can cause significant problems. Does she agree that having that flexibility is key? That is why the clause will help to ensure that the patient is empowered at all those different moments, and that there is a robust statutory framework to hold them to account. We do not want them to slip through the net, because if they do, by definition, not having these treatment plans up to date and in place may lead them to other parts of the Act, and we are trying to avoid that in the first place. That is the problem with having CTOs, or the concern that she mentioned in our sitting this morning, which has also been raised by charities. Does she agree?

I agree that it is really important to put it on a statutory footing. Obviously, other provisions such as subsection (5) of proposed new section 130ZA will ensure that it is regularly reviewed. There is no point in having such a plan if it is not regularly updated to ensure that it reflects trigger points, which the hon. Member for Guildford raised. When circumstances change for the patient, that is obviously an important point at which to reconsider their care and treatment. I want to go back to the Wessely review. The clause is such a fundamental part of realising all four of its principles. If I may, I will briefly read from the review: “We must improve choice and decision making, both prior to and within a setting of compulsion…We believe that improving patients’ and service users’ ability to make decisions about their own care and treatment is essential to upholding dignity.” The report recommended that where a patient has capacity, the care and treatment plan should record their wishes and preferences, whether expressed at the time or in an advance choice document.

18:45:00

Care and treatment plans are a central component of the Bill, and I hugely welcome their inclusion. The clause sets out in some detail who will work with the patient to put together the care and treatment plan. Importantly, it recognises the need to involve a wide range of people, in a spirit of co-production, which is so important for people who have complex mental health issues. The plans will also involve family members and carers—people many of us have been speaking to during this Carers Week—who often have key insights into the everyday needs and preferences of patients who do not have capacity, as well as of other patients who do.

The plans can also ensure that care is much more culturally competent and appropriate, perhaps by recognising people’s religious requirements. They can also ensure additional support with communication preferences, for example if English is not the patient’s first language, if the patient needs signing or if the patient needs other things to help with communication. I have done a lot of work over many years to look at how we support patients to express preferences and share decision making, and those are things that are in the best interests of patients and that ensure that they get higher-quality care.

The hon. Member for Guildford made points about the scope of the plans. The definition of relevant information is already quite broad. Indeed, the Bill suggests that, as well as things that may be particular to care and treatment, and discharge, there will be things about the patient’s life in the community, employment, accommodation and housing. I think it is expected that those things will be included, but perhaps the Minister can elaborate on Baroness Merron’s clarifications and respond to Liberal Democrat Members’ points about finances and housing.

Part of the clause relates to information sharing, which is vital. There are issues with the lack of join-up, particularly when people are drawing on health services as well as social care, community services and in-patient services. It is important that whatever is in the care and treatment plan can be shared with relevant professionals and other organisations, so that the patient and their family do not have to repeat things to different professionals in the multidisciplinary team. Those provisions are very important.

I welcome some of the sentiments and concerns behind the amendment moved by the hon. Member for Guildford, which seeks to ensure that those various facets are in scope of the plans. As I say, I think it is already recognised that there may be a variety of trigger events. Certainly from my own professional work, I know the challenges of the transition from children’s services to adult services. Obviously, education, health and care plans have a longer period of transition— up to 24—which mitigates some of the risks of a cliff-edge change in circumstances. I am sure that in this case mental health services will work closely together to ensure that they operate in the interests of the patient.

I have spoken to young carers who find themselves having to provide care to parents who may be suffering with mental health issues. The hon. Lady made the point well about the need to safeguard the dependants of people who may have fluctuating conditions or different abilities, depending on their mental health conditions, to safeguard their dependants. However, many of those things are already within the scope of the Bill, and I am sure that the Minister will say how they will be addressed. I support clause 21 and see the care and treatment plans as central to the Bill.

Clause 21 will introduce a statutory duty to provide care and treatment plans for most patients detained under the Mental Health Act in England. It is, in the Government’s own words, a cornerstone of the reform package, so it warrants thorough scrutiny. Under the current legal framework, there is no universal statutory requirement for a written care and treatment plan for detained patients. Although the care programme approach is widely used in England, and the Mental Health (Wales) Measure 2010 provides a statutory framework for care planning in Wales, provision in England is more variable. There is also the section 117 duty to provide aftercare for some patients, but there is no legal requirement to produce a personalised plan that spans care, treatment and discharge planning from the point of detention. Clause 21 attempts to fill that gap. We welcome its aim of ensuring that all eligible detained patients in England have comprehensive, personalised and reviewable care and treatment plans in place. We particularly support the requirement for the plans to address both clinical and social needs such as housing and employment. The aim to embed transparency and collaboration will ensure that patients and those close to them are meaningfully consulted when it is practicable. The ambition to create a consistent national framework, which will improve the quality and equity of care, is also commendable, as is the recognition that restrictive interventions, including compulsory treatment, should be clearly justified in the plans. Nevertheless, I have several important questions for the Minister. We have talked about the draft regulations; I assume that these plans will be encoded in them. Does the Minister have an idea of when the draft regulations are likely to be published? Given the interest in the plans, that is important. Much of the substance of what a plan must include, including how often it will be reviewed and how much information can be disclosed, is left to regulations. Without sight of it, how can Parliament be confident that the framework will be robust, enforceable and fit for purpose? I trust the Minister, but what if he is shuffled away and we get a different Minister? We may not know. I turn to timeliness. Will the Government consider setting a clear deadline in regulations, for example within seven or 14 days of detention, for the creation of a care and treatment plan? The benefit of personalised planning can be realised only if plans are produced promptly. That point leads me to enforcement and accountability. What happens if a care and treatment plan is not produced or is not updated appropriately? Will patients and their advocates have any legal recourse? What oversight mechanisms are being developed to ensure compliance? Proposed new section 130ZA(6) of the Mental Health Act requires consultation with the patient and with their family or advocate, but only where practicable and appropriate. Can the Minister explain how that will be interpreted in practice? Would the Government consider strengthening the consultation duty to require a recorded justification when a consultation does not occur? It seems to me that in most cases it should happen, so providing a justification when it does not would allow accountability and ensure that it is being put in place. How will the plans integrate within existing frameworks? Many detained patients already have a CPA plan, or a section 117 aftercare plan. How will the Government ensure that these new statutory plans complement existing requirements, rather than duplicating them? On forensic patients and privacy, the clause allows for the inclusion of information about victim and public protection arrangements in plans for patients detained under part III of the Act. I completely understand why that is, but it raises a question: how will the Government balance the patient’s right to privacy, rehabilitation and focus with safety? We support the principle that everyone detained under the Act deserves a clear, person-centred plan that outlines not only why they are detained, but how they will move forward, recover and return to life in the community. I turn briefly to the Liberal Democrat amendments. I assume that many of the points will be addressed in the regulations, so I will not go through all the individual applications, because I think that there is space there and the plan would be able to pick things up. However, I completely understand what the hon. Member for Guildford is trying to achieve. The thrust of all the amendments that the Liberal Democrats have tabled has been accountability and making sure that we consider all points. I just hope to make sure that the Bill is practicable, and I hope on behalf of His Majesty’s Opposition that we can strike a balance between accountability and practicability and ensure that we have both. The Minister clearly has support from both sides of the Committee for getting this right. I look forward to hearing his answers and hearing about how Members can work together to ensure that.

I thank hon. Members for this useful and insightful debate on care and treatment plans. I will begin by discussing amendments 14, 15 and 48. I reassure Members that the scope of the new statutory care and treatment plan has been made purposefully broad, so that wider matters relevant to a person’s mental health recovery, such as financial support and social care needs, are captured. We recognise that they can play a significant part in a person’s mental illness and can increase the risk of people with mental illness, learning disabilities and autistic people experiencing crisis leading to detention under the Act. Consideration of those issues can be critical to providing a comprehensive and effective programme of care and support. As was promised by Baroness Merron and referred to by the hon. Member for Guildford and my hon. Friend the Member for Shipley, the required contents of the care and treatment plan, which we publicly consulted on, will be set out in regulations. More information on what we intend to include in relation to financial matters, housing and accommodation needs, and other issues can be found in the relevant policy paper in the parliamentary Libraries. We will provide guidance in the revised code of practice that will set out that in-patients receiving acute mental health care should be offered financial support, among other interventions, aimed at meeting the person’s holistic needs. To ensure that a person’s wider needs are identified as early as possible by mental health professionals, we intend to encourage individuals to include this information in their advance choice document. I turn to housing and accommodation protection, which are referred to in amendment 15. Where a person is detained in hospital and is receiving housing benefit, or their housing is paid for via universal credit, there are provisions already in place that allow for them to be temporarily absent from their property for a limited duration. We will use the code of practice to set clear expectations on mental health staff around care planning, including consideration of accommodation and housing needs. We will also highlight existing provisions that protect a person’s living arrangements while they are in hospital. I turn to amendment 23, which was tabled by the hon. Member for St Neots and Mid Cambridgeshire. Under the Bill, all patients will receive a statutory care and treatment plan, excluding those under short-term sections. The patient’s statutory care and treatment should be created by the clinician in consultation with the patient and those who care for them, such as family members and carers. The clinician is expected to make reasonable adjustments to meet any communication needs, so that they can participate as fully as possible in making the plan to ensure that their wishes and feelings are reflected. It is already our intention for care and treatment plans to cover information relating to a patient’s communication or sensory needs, if it links to their mental health recovery. That includes their wishes and preferences, information pertaining to their family or carers, and arrangements relating to their safe and effective discharge, which may include crisis planning. We will of course provide detailed guidance in the code of practice to ensure effective care planning for people with learning disabilities and autistic people that takes into account their specific needs. I turn to amendment 50. Last year, the Government issued statutory guidance under the National Health Service Act 2006 on discharge from all mental health and learning disability and autism in-patient settings. That guidance underlines best practice on discharge planning and multi-agency collaboration between NHS bodies and local authorities, in line with statutory duties to co-operate under the 2006 Act. We intend to make the discharge plan a required part of the patient’s statutory care and treatment plan, and that will be made explicit in regulations. The scope of the care and treatment plan is broad, allowing for consideration of the patient’s holistic needs as part of their discharge plan. Under the Bill, the plan should be prepared and reviewed in consultation with the patient and others, such as their advocate, carer or family members, where appropriate and practically achievable. Statutory guidance on discharge planning sets out that it should start on admission of the person to hospital, if not before. All detained in-patients are supported by a multidisciplinary team responsible for their care and treatment. Discharge planning should involve input from other agencies and the community team responsible for the individual’s ongoing care and treatment once discharged. Where a person is eligible for section 117 aftercare, planning should involve commissioners and local authorities too—

19:00:00

I beg to move, That the debate be now adjourned.

Order. The Minister must finish his remarks first.

I did not know that, Mr Vickers. Thank you for clarifying that point. To promote a patient-centred approach to discharge planning, we would prefer to avoid mandating in law which professionals should be present at discharge planning meetings. To formalise best practice, the Bill requires that the responsible clinician consults with another professional who has been involved in the patient’s treatment before discharge can take place. I turn to amendment 16. We agree that a young person turning 18 is at an important transition point in their care and treatment, which usually involves the young person being transferred to adult services. Under the Bill, the responsible clinician is already required to review a person’s care and treatment plan following any change in their condition or circumstances that they consider significant. The transition to adult services clearly represents a significant change in circumstances, which rightly instigates a review of the patient’s plan by the responsible clinician. We intend to make that expectation explicit in the code of practice. In line with existing care standards and guidelines, we will also underline the importance of planning in advance of a patient’s transition to adult services and of collaboration between clinical teams, as well as other measures that seek to minimise disruption to the young person’s care and treatment journey. We support the intention of amendment 17. However, there are existing provisions, both within the Bill and across other legislation and guidance, that aim to safeguard children and young carers. For example, statutory guidance on working together to safeguard children already sets out the importance of health and social care professionals acting proactively and in collaboration with other agencies to identify and respond to children in need, including where a parent requires mental health support. There is also an existing statutory duty on local authorities to assess the support needs of young carers. The Children’s Wellbeing and Schools Bill contains provisions that will strengthen multi-agency working with children and families, helping to ensure that local authorities deliver on their child protection duties. We also plan to reflect key requirements in the revised code of practice to ensure that children and young carers are safeguarded. We understand that sometimes, when a person is detained, young carers are not appropriately identified. To address that, we plan to encourage individuals to use their advance choice document to ensure that the appropriate services are made aware. Under the Bill, carers should be consulted on the preparation and review of a patient’s care and treatment plan, where appropriate. We will include guidance in the code to ensure that young carers are appropriately involved and supported. We therefore believe that an additional duty would be unnecessary. Clause 21 will introduce statutory care and treatment plans for all patients detained under the Mental Health Act, including patients under community treatment orders and those who are subject to guardianship. Only those who are subject to extremely short detention periods, such as those lasting a matter of days, are excluded. The clause sets out in broad terms what the plans should cover, and provides the Secretary of State with the power to specify the contents in regulations. Setting out the requirements in primary legislation and further details in regulations will ensure that every patient’s care and treatment plan is comprehensive and that there is consistency across plans, which we know is not currently the case. Under the clause, the clinician must prepare and review the plan with the patient and their close contacts, such as family members, carers or their nominated person. That helps to ensure that the patient’s wishes, feelings, beliefs and values shape the plan, thereby increasing the likelihood of their engagement with it. To help to ensure that the plan is kept up to date, the clause specifies important trigger points at which the patient’s clinician should review the plan with a view to potentially revising it. Beyond providing a clear strategy for how the patient will be supported towards their recovery, it is envisaged that the plan will provide an important audit trail of key decisions made by the patient’s responsible clinician. To embed those new statutory requirements in practice, the clause will place requirements on the managers of a hospital, or the relevant authority, to monitor compliance with the duties. Sir Simon Wessely described statutory care and treatment plans as the cornerstone of the proposed reforms, delivering on each and every one of the guiding principles. For the reasons that I have outlined, I hope that hon. Members will not press their amendments and will support clause 21.

I thank the Minister for going in detail through the points raised in our amendments. It is good to hear how each of them is being addressed through the code of practice and in the Bill. I am reassured, so I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 21 ordered to stand part of the Bill. Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)

19:06:00

Written evidence reported to the House

MHB31 NHS Confederation

MHB32 British Psychological Society

MHB33 Professor Emma Wolverson

MHB34 Money and Mental Health Policy Institute

MHB35 Mind