Independent investigation of deaths

Mental Health Units (Use of Force) Bill – in a Public Bill Committee am 9:45 am ar 25 Ebrill 2018.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Steve Reed Steve Reed Shadow Minister (Digital, Culture, Media and Sport) (Civil Society) 9:45, 25 Ebrill 2018

I beg to move amendment 1, in clause 12, page 6, line 34, end insert—

“(1A) A person appointed under this section must be independent of the NHS and of private providers of mental health services.”

This amendment would ensure that the person appointed to investigate deaths is independent of the NHS and of private providers of mental health services.

Photo of James Gray James Gray Ceidwadwyr, North Wiltshire

With this it will be convenient to discuss the following:

Clause stand part.

New clause 1—Independent investigation of deaths: legal aid—

“(1) Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services) is amended as follows.

(2) After paragraph 41 (inquests) insert—

‘41A Investigation of deaths resulting from use of force in mental health units

(1) Civil legal services provided to an individual in relation to an investigation under section 12 of the Mental Health Units (Use of Force) Act 2018 (independent investigation of deaths) into the death of a member of the individual’s family.

(2) For the purposes of this paragraph an individual is a member of another individual’s family if—

(a) they are relatives (whether of the full blood or half blood or by marriage or civil partnership),

(b) they are cohabitants (as defined in Part 4 of the Family Law Act 1996), or

(c) one has parental responsibility for the other.’”

This new clause would ensure that legal aid was available to family members in relation to an investigation under Clause 12, which would be launched in the event of a death as described in Clause 11.

New clause 6—Investigation of deaths or serious injuries.—

“When a patient dies or suffers a serious injury in a mental health unit, the responsible person for the mental health unit must have regard to any guidance relating to the investigation of deaths or serious injuries that is published by—

(a) the Care Quality Commission (see Part 1 of the Health and Social Care Act 2008);

(b) Monitor (see section 61 of the Health and Social Care Act 2012);

(c) the National Health Service Commissioning Board (see section 1H of the National Health Service Act 2006);

(d) the National Health Service Trust Development Authority (which is a Special Health Authority established under section 28 of the National Health Service Act 2006);

(e) a person prescribed by regulations made by the Secretary of State.”

This new clause imposes a duty for responsible persons to have regard to guidance that relates to the investigation of deaths or serious injuries when those occur in a mental health unit.

Photo of Steve Reed Steve Reed Shadow Minister (Digital, Culture, Media and Sport) (Civil Society)

Mr Gray, perhaps with your indulgence, this is an appropriate moment to acknowledge the presence of Seni Lewis’s parents, Aji and Conrad Lewis, who are extremely welcome here this morning.

The principles in the clause are fundamental to the Bill and to correcting injustices that have affected not just the Lewis family but far too many other families. After Seni Lewis’s death in such tragic and avoidable circumstances in 2010, his parents faced a seven-year battle to get an inquest opened, simply so that they could find out what had really happened to their child. The mental health services would also have had the opportunity to learn from those mistakes, to ensure that they were not repeated.

No grieving parent—indeed, no one—should ever have to face the ordeal of fighting for justice for so many years after the loss of a deeply loved relative. There is currently a glaring disparity between the way that deaths are investigated in mental health settings and in other forms of state detention. If a person dies in police custody, there is an automatic external investigation by an independent national body. If a person dies in a mental health setting, the trust or private provider investigates itself or appoints another trust or individual to do so. That means that reports end up being delayed or kept secret, or are not sufficiently robust. That is a denial of justice and a failure to learn the appropriate lessons as swiftly as necessary.

The system does not learn from mistakes, and it has lost public confidence, particularly among the BAME community. That means we end up with a series of isolated tragic incidents that keep happening time and again. We need a truly independent investigation system for non-natural deaths in mental health settings, just as we have in other forms of state custody.

I pay tribute at this point to the extraordinary work carried out by the campaigning charity INQUEST, which has exposed many failings, such as that that affected the Lewis family, shone a light on them and helped bring us to the position we are in today, making these recommendations in the Bill.

Amendment 1 would require that any person appointed to investigate deaths is completely independent of the NHS or of any private mental health service provider. It is an opportunity to ensure that there is fully independent scrutiny before any inquest begins. Crucially, that means that no family will have to fight for years for justice, in the way that the Lewis family had to.

I now turn to the serious incident framework, which is now in place but was not at the time of Seni’s death. I agree that it is an improvement, but I still have concerns about certain aspects of the guidance and the investigations themselves. We have already discussed the need for the full independence of investigations, but we must also consider the independence of those who commission a level 3 investigation under the new framework.

My concern is that under the framework as it is drawn up, it is still possible for the NHS to avoid such an investigation because it regards it, perhaps wrongly, as an unnecessary burden. As a result, lessons will not be learned, the system will not be held to account and more patients will suffer injury or even death.

I respectfully invite the Minister, therefore, to comment on who takes the decision to commission a level 3 investigation under the new framework and whether it is possible for the NHS to avoid commissioning the right level of investigation so that the appropriate lessons are not learned and the system not held to account. Moreover, does the framework guarantee that a level 3 investigation will take place following the death of a patient from the use of force?

That is key, because it is the loophole through which the Lewis family fell following the death of their son. That failing led to them being denied justice and to the trauma of not only losing their child in such horrific circumstances but having to fight the state for seven years just to secure justice and to find out what had gone wrong to leave an otherwise healthy 23-year-old losing his life.

I hope that the Minister will be able to give a full assurance that families will not have to experience the same long delays under the new framework. For example, how soon following a death should it start, and how long should it take to be completed?

Finally, I am concerned about the quality of the investigations under the framework. The charity INQUEST and others have been absolutely clear for many years that too many investigations are inadequate because they are not fully independent of the organisation that is being investigated. We simply cannot allow that to continue. If the Minister will not support my amendments, I would very much appreciate hearing from her how she intends to address those very important concerns, which I know from conversations and previous debates she shares with me.

I now move on to new clause 1. Another barrier to justice for families is the lack of funding for legal advice and representation. Dame Elish Angiolini’s report concluded last year that

“families face an intrusive and complex and mechanism for securing funding”,

because there

“is no legal aid for inquests other than in exceptional circumstances”.

The Angiolini report recommended that legal aid should be awarded to families in the case of deaths in police custody. The Government have accepted that there is a need to look at that in the Lord Chancellor’s ongoing review of the provision of legal aid. To me and many others, it makes little sense not to extend that to situations in a mental health unit. Restraint in police custody is not different from restraint in a mental health unit, which is the whole point of the Bill.

We need—and I believe that this is also the Government’s intention—consistency in the way in which people with mental ill health are treated across the whole system. We cannot have differences between one form of state custody and another. We have already seen that lead to too many deaths, disproportionately of young black men. Here is an opportunity to correct that unfairness, to make the system more equal for everyone, regardless of their background.

New clause 1 will ensure that legal aid is available to family members in relation to an investigation of an unnatural death in a mental health unit, as described in clause 11. It is very important that we level the playing field. There is a serious imbalance when the state has access to high-quality legal advice but a family in highly traumatised circumstances does not. That is an injustice which my proposal will correct, although I look forward to hearing from the Minister whether there is an alternative means of achieving the same objectives, which I believe that she shares.

Photo of Luciana Berger Luciana Berger Labour/Co-operative, Liverpool, Wavertree

I rise briefly to support my hon. Friend’s amendments, which are critical because, outside this place, organisations and families affected by the loss of a loved one in a mental health setting are looking to us to address this injustice. He said that there is an automatic independent investigation in some settings. If someone loses their life in prison, for example, the prisons and probation ombudsman carries out an independent investigation. It is absolutely critical that that happens if people are taking their lives or losing their lives in prison.

People in a mental health setting are at their most vulnerable, and I believe that one person taking their life is one person too many. Unfortunately, too many people in mental health settings in our country take their lives. We have a responsibility to them, their loved ones and their families to ensure that proper investigations take place so that real learning can occur. There are too many examples. We have heard about the suffering of the Lewis family—we are here today because of what they went through—who had to wait a long time to get justice and an understanding of what happened to their son.

There is also the experience of the family of Connor Sparrowhawk. Sara Ryan has been an incredible campaigner since her son’s death in 2013. Despite her indomitable campaigning, strength and courage, it took five years for that family to get justice and to understand what happened to their son, who died in a bath in a mental health setting. Those are just two families; there are many others who do not have that strength. I totally understand why they might not: in the wake of the loss of a loved one, they might not have the wherewithal to pursue the relevant organisations, particularly if the family cannot match the legal and financial might at the organisations’ disposal. We see time and time again that they can prolong proceedings, send lengthy letters and keep batting things away.

I anticipate that colleagues on both sides of the Committee will reflect on their experiences from their constituencies. Our constituents come to us because they face that wall and are unable to challenge the system. We have a responsibility if we are serious about adequately contending with this issue. I welcome the Government’s support in helping us to get to where we have got so far. I see this measure as part of a bigger picture. Without it, we will be failing people. We must be serious about equality of mental health and parity of esteem in this country. In my view, this is a social justice issue: disproportionately, it is black men in mental health settings who are affected in this way.

People should automatically get an independent investigation. They should not have to fight for one or go through an incredibly drawn-out legal process. Some people manage to get investigations at the moment, but it should be automatic. That is why my hon. Friend’s amendments are critical. Many organisations are concerned about this issue, including INQUEST, a charity that fights on behalf of many people in our country to ensure they get access to justice and an understanding of what happened. Often, it is about the unknown. People were not there at the time, and they really want to understand how their loved one came to take their life.

Without real movement on this issue, we will be doing an injustice to people up and down the country. I support my hon. Friend’s amendments, and I hope the Government give them due consideration to ensure we adequately deliver for people in our country.

Photo of Jackie Doyle-Price Jackie Doyle-Price The Parliamentary Under-Secretary for Health and Social Care

This clause and group of amendments go to the heart of the approach taken by the hon. Member for Croydon North to this Bill. Justice delayed is justice denied, and the incredible length of time that some investigations have taken is totally unacceptable. I welcome the fact that this Bill will build on measures the Government have already taken to address those unacceptable delays. We should challenge head-on the fact that that makes the whole system discriminatory.

The hon. Member for Liverpool, Wavertree alluded to black men, and the Prime Minister is particularly concerned about that. The hon. Lady also mentioned Connor Sparrowhawk. I think people with learning disabilities are massively discriminated against in our system. By ensuring more transparency, we are trying to improve the rights of everyone in the system and strengthen social justice.

Let me reassure all hon. Members that the Government are acutely aware of the importance of the independence of investigations into serious incidents. We have strengthened the powers of the Care Quality Commission and the NHS, precisely because of those concerns. That is why we propose in the Bill to place the NHS serious incident framework on a statutory footing through our new clause to replace clause 12. We need to give the CQC more teeth, and I can advise the Committee that the CQC is taking its responsibilities in this regard extremely seriously.

Currently under the serious incident framework, an independent investigation must be commissioned and conducted independently of the parts of the system that are under investigation, including any directly involved commissioners. Given the complex nature of these incidents, it is important that the team carrying out the investigation has the right skills and experience. It is probable that those skills and experience will be held by people who have worked, or are still working, in the NHS. So, to tackle the point about the independence of the NHS, these people will have the expertise; the key point is that the governance ensures that they are entirely independent.

Photo of Steve Reed Steve Reed Shadow Minister (Digital, Culture, Media and Sport) (Civil Society) 10:00, 25 Ebrill 2018

If the investigations are being carried out by people in another part of the NHS who have sufficient understanding of the service they are investigating, is there not a risk, given the relatively small number of professionals working in the sector, that the investigation could be compromised by pre-existing relationships between the people being investigated and those charged with carrying out the investigation? Would that risk rendering the findings insufficiently robust?

Photo of Jackie Doyle-Price Jackie Doyle-Price The Parliamentary Under-Secretary for Health and Social Care

Clearly, that is the risk that the hon. Gentleman is determined to settle here. We do take it very seriously, but I am satisfied that, through governance and external scrutiny by the CQC, we can ensure that that is not the case. It is important to have investigators who have that specialist knowledge to be able to undertake a full investigation.

I am confident that the governance of the serious incident framework will provide the right guidance to ensure that all individuals carrying out the investigations are suitably qualified and sufficiently independent. I hope that assures the hon. Gentleman. We will continue to address the matter with full external scrutiny so that we can genuinely ensure their independence.

Let me be completely clear: this is not just a process—not just a rubber-stamping exercise. We need proper independent investigation to ensure that there is accountability in the system and that, in future, families such as that of Seni Lewis, do not feel frustrated and lost and that the system is not responding to them—that is absolutely not the case. We must use this opportunity to ensure that that independent investigation is thorough and rigorous.

I turn now to the amendment on legal aid for investigations. Clearly, any family in this situation does need some independent support and advocacy. It is very difficult when there is no one person to whom a family can turn to get independent support at such a time. The Bill is not the place to resolve any issues around legal aid, but let me assure the hon. Gentleman about wider discussions that are taking place within Government.

The hon. Gentleman will be aware that the Ministry of Justice is committed to the ministerial board on deaths in custody, and I am one of the rotating co-chairs of that board. We are looking at an urgent review of the provision of legal aid for inquests, and the position is due to be published later this year as part of the Government’s response to Dame Elish Angiolini’s review of deaths and serious incidents in police custody. We will take up this matter as part of that. As the hon. Gentleman says, it is important that we consider deaths in mental health detention on the same basis as those in other methods of detention, such as prisons. That review will ensure consistency of support for families.

Photo of Steve Reed Steve Reed Shadow Minister (Digital, Culture, Media and Sport) (Civil Society)

Is the Minister saying that the Lord Chancellor’s review will be expanded to encompass deaths in mental health custody in the same way that it is covering deaths in other forms of state custody?

Photo of Jackie Doyle-Price Jackie Doyle-Price The Parliamentary Under-Secretary for Health and Social Care

Yes. It is very much being taken forward by that ministerial board, of which I am co-chair alongside Ministers from the Home Office and the Ministry of Justice, to achieve exactly that consistency. I hope that reassures the hon. Gentleman on that point. I will also be happy to support him if he wishes to make representations to the Ministry of Justice, which owns that work, although I am very much part of it.

Photo of Luciana Berger Luciana Berger Labour/Co-operative, Liverpool, Wavertree

Forgive me if I missed it, but would the Minister share the timelines with us? When do we anticipate that process from the Ministry of Justice concluding?

Photo of Jackie Doyle-Price Jackie Doyle-Price The Parliamentary Under-Secretary for Health and Social Care

I will write to hon. Members about that to set it out clearly. I could give a flippant answer, but it might not be accurate, and I do not wish to mislead the Committee. I would say that the ministerial board is actively meeting and consulting with external stakeholders at this very moment. It is not going to be a long-grass project, but we will give hon. Members more clarity in due course.

On that basis, I ask the hon. Gentleman to withdraw the amendment. The Government propose that clause 12 be replaced by new clause 6, which sets out the method of investigating cause of death. New clause 6 requires that, when a patient dies or suffers a serious injury in a mental health unit, the responsible person would have regard to certain guidance that relates to the investigation of deaths or serious injuries, including the NHS serious incident framework and any relevant guidance from the CQC, NHS Improvement and NHS England. The new clause moves the process more consistently into the body of the health service and the framework for investigation.

I know the hon. Gentleman’s objective is to prevent a recurrence of the experiences of the Lewis family, whose investigation got stuck for many years. We have drawn up the new clause on that basis. We want to avoid any confusion that introducing a completely new system might lead to. We want to avoid duplication, but establish independence, which we have already started to move forward on with the Healthcare Safety Investigation Branch.

The coroner already has a responsibility to investigate deaths of those detained under the Mental Health Act 1983 and any death that is unexpected or unnatural, which would include deaths that occurred during, or as a result of, the use of force. The NHS serious investigation framework sets out robust procedures for investigating and learning from an unexpected patient death, including an independent investigation when criteria are met.

To reassure the hon. Gentleman on timing, which I know is a big issue here, we would expect any investigation into a serious incident to be concluded within a year and certainly to commence within three to six months. There might sometimes be issues that elongate that investigation, but we will avoid any case just being stuck and left. Investigations will always be undertaken as soon as practicable.

I ask the hon. Gentleman to withdraw the amendment and not to press new clause 1. I ask the Committee to disagree to clause 12.

Photo of Steve Reed Steve Reed Shadow Minister (Digital, Culture, Media and Sport) (Civil Society)

I am grateful to the Minister for her comments and in particular for the new information and assurances that she has given. I am sure that will be widely welcomed. It is clear that we have the same objectives, but there are perhaps some small remaining disagreements over the best way to achieve those objectives.

I hope that the bottom line for both of us is that investigations of deaths need to be triggered automatically, they need to be fully independent, and families of the deceased need access to legal aid so that they are operating on a level playing field with the people who are being investigated for having caused the death. I understand that the Minister seeks to achieve that by a different route; it is important to give her the space she will need to be able to demonstrate to not just me but the many stakeholders and families outside this place that she has robust means of doing that.

While reserving the right to reintroduce amendments into the Bill at a later stage if necessary, at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of James Gray James Gray Ceidwadwyr, North Wiltshire

The question is that clause 12 stand part of the Bill.


Photo of James Gray James Gray Ceidwadwyr, North Wiltshire

That is not quite correct. Perhaps I can clarify. The situation is that the Government have proposed new clause 6, which will be voted on later, to replace clause 12. I think I am right in saying that the Member promoting the Bill agrees with that. Therefore, if we wish clause 12 to be removed from the Bill, and replaced by new clause 6 eventually, the correct answer will be no, rather than aye.

Clause 12 disagreed to.

Clause 13