Earl Howe:

Moved by Earl Howe

23: Clause 4, page 9, leave out lines 9 to 13Member’s explanatory statementThis probing amendment seeks to clarify the Government’s intended definition of “specified risk factors for detention” under Part 2 of the 1983 Act.

My Lords, in moving Amendment 23 I shall speak also to the other amendments in this group, Amendments 139 and 141. These amendments, although they may not look it, are all of a piece, because they bear upon the fulcrum for any decision to detain a patient under the Mental Health Act, which is the concept of “serious harm” and what we mean by it. My noble friend Lord Kamall’s Amendment 141 offers such a definition, but we have tabled the amendment more as an Aunt Sally than anything else, because what matters is how we want the phrase to be interpreted in real-life situations by clinicians and others on the ground.

The concept of serious harm as a determining factor for detention is introduced by Clause 5. Clause 5(2)(b) replaces Section 2(2)(b) of the Act, which refers instead to detention in the interests of a person’s own health or safety, or with a view to the protection of other persons. The new wording is undoubtedly tighter than the old wording and, on that account, it is to be welcomed. However, it is not, as far as I can see, fleshed out by any definition. That could, of course, be deliberate, because, in the end, a decision to detain someone will always be a matter of clinical judgment. Such judgments, though, ought surely to rest on established understandings. Serious harm, as applied to the health or safety of the patient themselves, may be a relatively straightforward clinical judgment to make in many, if not most, circumstances. But what about serious harm as applied to the health or safety of another individual? Do we mean just physical harm or are we talking also about psychological harm? If so, of what kind and to what degree? Detaining someone on the grounds that serious psychological harm may be caused to another person raises all sorts of issues that fall outside a standard clinical judgment about the health and/or safety of a prospective in-patient.

The threshold of serious harm being caused, or at risk of being caused, is of huge significance for different types of patients. One of the really good things that this Bill seeks to do is to keep individuals with autism or a learning disability out of a mental health unit, unless they present with other behavioural symptoms that are treatable. That is because we recognise that not only is there no point in detaining such individuals when they display no treatable symptoms, it is also positively harmful to them to do so. In the same way, I think it is accepted that to detain a child or a young person forcibly in a mental health unit is a very big decision indeed, because what is meant to constitute a therapeutic environment is all too often no such thing. On the contrary, a mental health ward or even an A&E department can often seem both alien and frightening to a young patient, in a way that can exacerbate their acute disturbance of mind.

Nobody wants to see people detained forcibly in a mental health unit unless it is essential and right, but so often the choice is a binary one: to detain in hospital or not to detain in hospital. How much better it would be if, in particularly sensitive cases, there were another option, a place of safety and comfort close by in the community.

That is why I tabled Amendment 139. We know that community-based services can be a significantly positive alternative to treatment in mental health hospitals and secure units. We need to look at affordable ways of creating more, especially for those with autism and learning disabilities and for children where the alternative may indeed be forcible detention under the Mental Health Act.

The King’s Fund reported in July 2024 that

“community health services have about 200,000 patient contacts” every day. Anxious Minds argues that community-based mental health services provide three key benefits:

“Geographical convenience of mental health facilities”, the relative affordability of such services and, importantly, culturally sensitive approaches to care

“that appeal to diverse populations”.

It is good news that the Government have already signalled their intent to support greater access to community-based services. The 2024 Labour Party manifesto was explicit in that regard, as was the noble Lord, Lord Darzi, in his review of the NHS, which called for a shift in focal points for care. So I hope that the Minister will be supportive of Amendment 139, at least in principle. I will be glad to hear her comments on widening access to community mental health services and how the Government propose to ensure that the necessary numbers of trained staff are available to deliver those services.

I described the concept of serious harm as the “fulcrum” for decisions to detain a person under the Act. However, it is of course only a part of that fulcrum because, as we will see from the amendments tabled by the noble Baroness, Lady Murphy, in the third group we will be debating today, the other element integral to such decisions is a judgment around risk. I will not pre-empt the debate we will have when we get to the third group, but I will make a couple of points about my Amendment 23, which addresses a slightly different aspect of the risk issue.

In Clause 4, new Section 125D would mandate each integrated care board to maintain a register designed to record details of individuals with autism or a learning disability, and regulations will be laid about the information that the register must contain. There is a two-pronged criterion for someone’s inclusion in the register. The first is that they must be someone whom the ICB considers to have autism or a learning disability, and the second is that the person has

“specified risk factors for detention under Part 2 of this Act”.

Those specified risk factors will be set out in regulations. It would be very helpful to hear from the Minister what the nature of those specified risk factors will be. I say that not just to hark back to the point I made earlier about the acute sensitivity of any decision to detain someone in a secure facility when they have autism or a learning disability; there is a broader concern that I think is material. We are talking here not about a clinical judgment made on the ground by a clinician that someone may pose a risk of serious harm, but rather about an a priori categorisation by the ICB of specific named individuals in accordance with regulations made by the Secretary of State.

The Explanatory Notes for the Bill state that the specified risk factors are

“factors which the Secretary of State considers increase the probability of a person being detained under the Part 2 of the Act”.

What might those factors be? What are the things that the Secretary of State can take it upon themselves to determine as regards the risk that X or Y might pose without pre-empting the judgment of a clinician or a police officer in a particular set of circumstances?

In asking the Minister that broad question, I want to home in on a narrower one. The Care Quality Commission has argued that there have been changes to the risk factors for detention under the Mental Health Act, and that these are among the reasons for the rising rate of detentions. In its 2018 report, Mental Health Act: The Rise in the Use of the MHA to Detain People in England, it notes that among these factors are the rising rates of the number of people admitted to hospital with mental health problems due to drug and alcohol misuse. It says:

“The number of hospital admissions with a primary or secondary diagnosis of drug-related mental health and behavioural disorders doubled between 2004/5 and 2014/15”.

Clinicians interviewed for the report stated that not only were the numbers increasing but that drug use, specifically of synthetic cannabinoids such as Spice, has increased the severity of mental health conditions.

The CQC links that to rising detentions under the Act, because they can lead to a “greater likelihood” of people displaying behaviours that meet the threshold for detention under the Act. That is despite the fact that they may not have any form of mental disorder. Can the Minister say whether mental illness arising from drug misuse is likely to play any part in the decisions that the Secretary of State will make around what might constitute a specified risk factor that increases the risk of detention under Part II? I beg to move.

My Lords, as the noble Earl, Lord Howe, has mentioned, we will be talking about risk factors in the next group but one, and I will not go into the statistics and predictions at this point.

As has been pointed out, Clause 4 implies that specific risk factors for detention under Part II are readily identifiable and assessed, but as we will see, predicting episodes of violent behaviour or self-harm is peculiarly difficult to do. The clause suggests that it is not clinicians who will be doing these risk assessments but that the Secretary of State will somehow have some expertise from ICBs in how to do this. Apart from the rather obvious wisdom that the best predictor of future behaviour is past behaviour, I am not sure how these regulations can be drawn up.

I am anxious about the common prejudices around, for example, black patients of African Caribbean descent living in London, who have a higher risk of being detained under Part II than white patients, or Asians of an Indian subcontinent background. Who will draw up this list to say which of these items is going to lead to the risk of detention under Part II?

There have always been opportunities for the Secretary of State to intervene in the detention of patients under Part III of the Act, and some Secretaries of State have been more risk averse than others. I suspect that under this clause we will find some Secretaries of State taking a more hard-line view about who should and should not be detained. That gives cause for enormous anxiety, so I would like to know how the Government intend to devise these regulations to document specific risk factors.

My Lords, this is an important set of amendments, and, as the noble Earl, Lord Howe, said, they are central to decisions about whether to detain people under the Act.

I agree that the definition of “serious harm” is important, and it would be helpful to hear from the Minister what the Government are thinking there, how it will be applied, and how any thresholds will be established.

I endorse what the noble Earl had to say about children and young people, what a huge decision it is to detain someone under 18 in hospital against their will, and how hard we need to work to avoid that, whenever that is safe for themselves and other people.

Finally, and very much linked to that, I strongly support Amendment 139 on the availability of community-based services, which we have already talked about and which we will turn to in subsequent groupings. It is a very good amendment, particularly the provision which states:

“The Secretary of State must publish a report to assess whether there should be more community-based services for community patients in order to prevent”—

I see this as a key preventive measure—

“detention under the Mental Health Act 1983”.

My one point is that the amendment talks about publishing that within two years of the day on which this Act is passed. I personally think that in an ideal world we might see a report a bit earlier than that. However, as I say, Amendment 139 certainly has my full support.

I am sorry that I did not jump up in time before my Front Bench spoke.

I just wanted to add my voice to support Amendment 139 in the name of the noble Earl, Lord Howe, and the report on community-based services. It is really timely and we need it. The case was made very carefully and well by others, so I will not expand much other than to say that an extensive report was done in November by the leading charity, Beat, which looked at the case for more intensive community care and daycare for people with eating disorders in order to avoid—the very point that the noble Earl, Lord Howe, made—ending up getting to such a point of severity that they need to go into mental health facilities and be detained, which indeed happened to my daughter, as I made clear at Second Reading.

The case has been well made that a report should be made. I agree with my noble friend Lady Tyler that two years seems quite a long time off, particularly as recent work has been done, particularly in the field of eating disorders, to show that you can both reduce the number of patients and reduce the cost if you make the investment up front in community services.

My Lords, as an ex-community mental health nurse, I wish in particular to support Amendment 139. I am convinced that we need appropriate ratios of such staff to deliver preventive services in the community as well as ongoing support. We need to remember that the NHS rests in the future on preventing rather than treating, and this is an important amendment that acknowledges that.

My Lords, I want to add to what the noble Baroness just said. Amendment 139 goes to the heart of the Bill in terms of changing the culture and the way that we treat people. The Bill will become a piece of law that is practical only if we can honestly put hand on heart and say that we will substantially increase community-based services. Without that, it will not deliver that which we all believe will be the minimum to improve people’s lives.

My Lords, on the amendment outlining the definition of “serious harm”, two situations were raised with us on the Joint Committee. One was that the change in the criteria is the main tool that will help with racial inequalities; I would be grateful if the Minister could outline how she envisages that will work in practice. The second point was about the period during which such serious harm has to be exhibited. We heard numerous times about people with psychosis, many of whom—I think it was over 70%—do not realise that they are getting ill when they are presenting. How poorly do they have to get? Sometimes the intervention might need to be sooner than in the definition we understood of “serious harm”, which was slightly different from that which the independent review had, which I think was of “significant harm”. If the Minister could address those two points, that would be very helpful.

My Lords, I thank noble Lords for their contributions to this important debate in which a number of key issues have been raised.

Amendment 23, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, relates to new Section 125D, regarding registers of people with a learning disability and autistic people who are at risk of detention. The amendment would remove new Section 125D(5), which defines

“specified risk factors for detention”.

I heard the noble Earl, Lord Howe, refer to this as an Aunt Sally amendment—I politely have “a probing amendment” here but I hope that we are in the same area—that is intended to clarify the definition of

“specified risk factors for detention under Part 2 of this Act”.

To address one of the noble Earl’s points, it is important that the Bill makes provision for the risk factors to be specified, as the purpose of this clause is to identify and collate information about people who have such risk factors due to their potential need for additional support to prevent a future detention under the Act. As an illustration of the type of information that is envisioned, current NHS England guidance on dynamic support registers describes risk factors such as a previous mental health hospital admission or the person presenting in crisis at an A&E department. However, work to establish and agree a comprehensive list of the risk factors for inclusion will be commenced in due course. I make this point also to the noble Baroness, Lady Murphy, and other noble Lords who raised what the risk factors may be.

The noble Earl also questioned whether alcohol and drug addictions would play a role in specified risk factors for detention under Part II. Guidance has been published by NHS England. It includes a list of some known risk factors. Drug and alcohol addiction are currently listed in that guidance. We will be considering that very seriously as we develop the regulations. I hope that my comments about the kind of guidance in dynamic support registers will also be helpful. Going back to that point about NHS England guidance on dynamic support registers, I hope it is helpful to point out that there is a fuller list in the appendix of that document, which the noble Earl might find helpful. It includes drug and alcohol addiction.

Regarding the risk factors for detention under Part II, these will be updated regularly in line with evolving clinical practice and policy. Setting this out in regulations will allow sufficient flexibility for risk factors to be updated and to ensure that the law can be kept up to date.

Amendment 139, tabled by the noble Lord, Lord Kamall, and supported by the noble Earl, Lord Howe, places a duty on the Secretary of State to publish a report within two years of Royal Assent to assess whether there are sufficient community-based services. I heard the comments from other noble Lords, including the noble Baronesses, Lady Parminter, Lady Tyler and Lady Buscombe, particularly the reference by the noble Baroness, Lady Parminter, to the important matter of eating disorders. As with community support for people with a learning disability, and autistic people, which we are also discussing today, we are committed, as noble Lords have heard me say, to working with stakeholders to develop implementation plans. I understand the sentiment, but we are reluctant to commit to a single report at a specified time. I hope noble Lords understand that the implementation plans need to fit in with other developments, including spending reviews and the 10-year health plan.

Clearly, reducing detentions depends on services in the community. I certainly can share the noble Earl’s positive reflections on the value of good-quality and appropriate community services, and I am glad that he welcomes this Government’s shift towards community-based provision—that is something which I hope we can all continue to work on together.

Clearly, an assessment of detention considers a number of factors—I believe this is something the noble Baroness, Lady Buscombe, also raised. These factors are personal attributes, knowledge of the individual, what potential risks may occur—that is something I will turn to shortly—and whether a suitable alternative to detention is available; for example, through community provision which can safely, I emphasise safely, support the patient.

Expansion and transformation of NHS mental health services is very necessary. In your Lordships’ House we know the reality is that much more must be done, as many people are not getting the care that they need. The NHS is piloting 24/7 mental health centres in six areas, and that is based on international evidence about how care can shift from hospitals to the community, with easier access to help for people who need it. I am sure I am not alone in being extremely interested to see how these pilots work; it is exactly the kind of thing that noble Lords have rightly called for.

Amendment 141, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall, seeks to define what is meant by references to “serious harm” in the detention criteria, which the noble Baroness, Lady Tyler, also referred to. Perhaps I could say, more generally, before I come to that third amendment in the group, that a number of important contributions have been made today, and certainly we will return to them in later days in Committee, which I think will be helpful.

The noble Baroness, Lady Berridge, asked why the word was “serious” rather than “significant”. The reason is that “serious” has an established legal basis and interpretation. I assure the noble Baroness that we explored this area from the review and looked at the proposals to explore where we should go, but that is the reason that we came to that place.

We agree, in respect of the amendment specifically, that the circumstances set out may amount to “serious harm”. However, we do not want to be too prescriptive in primary legislation, and I know that noble Lords will have heard this on other occasions. The reason is, as noble Lords will understand, that clinicians must be able to use their clinical judgment. The code of practice clarifies examples of harms, including psychological and physical harm, which the noble Earl, Lord Howe, spoke about. We will consult stakeholders to update the code of practice with further guidance on what constitutes “serious harm”, including case studies and illustrative examples.

The noble Baroness, Lady Berridge, asked whether the change of criteria will be the main tool to reduce inequalities, and how that will work in practice. We will be working very carefully with the wider mental health system to support the effective implementation of the provisions of the Bill in order to reduce racial disparities in decision-making, because, after all, that is one of the key reasons for bringing forward the Bill. Certainly, updating the code of practice will help and will make a major contribution towards that. We want to make sure the code is absolutely clear on the actions that can be taken to avoid and address racial disparities in the application of what we hope will become the Act.

We very much appreciate the desire for accountability and scrutiny, and I want to give that assurance to Parliament as we progress these reforms. I say that as a general point, because I understand that noble Lords will have heard my responses to a number of the amendments. For those reasons, I hope that the noble Earl feels able to withdraw his amendment.

My Lords, I thank all noble Lords who have taken part in the debate on this group of amendments. As I trust was clear from my opening speech, all three are intended as probing amendments designed to tease out some key definitions. It was actually Amendment 141, regarding the definition, that I described as an Aunt Sally.

I was particularly grateful for noble Lords’ support for Amendment 139 and for the Minister’s helpful comments. There is very little doubt that, as I think is generally accepted, community services delivered in partnership by local charities and civil society both reduce the cost to the state and carry the benefits I articulated earlier. Without implying any criticism of the NHS, those sorts of organisations will of course know their own communities better than an NHS hospital will.

I am grateful to the Minister for what she was able to say about the definition of “serious harm”. The Explanatory Notes state that a test of serious harm has been introduced

“to provide greater clarity as to the level of risk of harm that a person must present in order to be detained”.

They then state that further guidance on what constitutes serious harm will be set out in the code of practice. So far, so good, and it is welcome that that will be clarified in the code of practice, but one of the issues here is that that will come later. Serious harm is included as one of the two key tests for detention in Clause 5, so what is meant by serious harm will impact on all future decisions made within the scope of the legislation. Therefore, we need maximum clarity from the Government as we debate the Bill.

As regards the “specified risk factors”, I am again grateful to the Minister. I slightly worry that a person’s past history of admission to hospital could constitute a specific a priori risk factor for detention. There is a danger that that may turn into a directly determining factor for detention, rather than a factor to be taken into account in assessing an individual set of circumstances.

As regards drug and alcohol misuse, we need to be careful not to encourage a circumvention of the Mental Health Act, which explicitly excludes drug and alcohol addiction as grounds for detention.

I am once again grateful for the support that noble Lords were able to give to my amendments. I beg leave to withdraw Amendment 23.

Amendment 23 withdrawn.

Amendments 24 to 32 not moved.