Mental Health Bill [HL]

Committee (2nd Day)

Clause 4: People with autism or learning disability

Amendment 23

23: Clause 4, page 9, leave out lines 9 to 13 Member’s explanatory statement This 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.

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.