Mental Health Bill [HL]

Report (2nd Day)

Amendment 47

47: After Clause 51, insert the following new Clause— “Mental Health CommissionerAfter section 142C of the Mental Health Act 1983, insert—“Mental Health Commissioner 142D Independent Mental Health Commissioner: establishment(1) There is to be an office known as the Office of the Mental Health Commissioner.(2) The Office in subsection (1) must be established by the Secretary of State three months after the day on which the Mental Health Act 2025 is passed.(3) The Office of the Mental Health Commissioner will be led by an individual appointed by the Secretary of State titled the “Independent Mental Health Commissioner”.(4) The role in subsection (3) is referred to as the “Mental Health Commissioner”.(5) The Mental Health Commissioner may appoint staff to the Office of the Mental Health Commissioner they consider necessary for assisting in the exercise of their functions in section 142E. 142E Functions of the Commissioner(1) The Mental Health Commissioner is responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under the provisions of this Act, the Mental Health Act 1983, and the Mental Capacity Act 2025 particularly regarding the provision of treatment, care, and detention of people with a mental disorder.(2) The Mental Health Commissioner must publish an annual report on the use of functions discharged under this Act, which must assess—(a) the quality of mental health care treatment provided by relevant services;(b) the accessibility of mental health care treatment services;(c) the relationship between mental health and the criminal justice system;(d) inequalities of mental health care provision regarding protected characteristics under the Equality Act 2010;(e) the use and effectiveness of detention measures under this Act, including but not limited to Community Treatment Orders, for the purposes of therapeutic benefit outlined in section 1(2B);(f) challenges surrounding stigma of mental health conditions;(g) the accessibility of advice and support to mental health service users, their families and carers on their legal rights;(h) other issues deemed appropriate by the Mental Health Commissioner.(3) In fulfilling their duties under subsection (1), the Mental Health Commissioner may review, and monitor the operation of, arrangements falling within subsection (1), (2) and (3) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the principles in section 118(2B) of this Act.(4) Subject to any directions from the Secretary of State, the Commissioner may take action necessary or expedient in connection for the purposes of their functions.(5) This may include—(a) collaborating with health services, public authorities, charitable organisations, and other relevant entities, including NHS bodies, the Care Quality Commission, and the Parliamentary and Health Service Ombudsman;(b) ensuring enforcement authorities and public bodies under the Mental Health Act 1983 have the necessary capacity and resources to adequately discharge duties under the Mental Health Act 1983 and this Act.142F Appointment, Tenure, and Remuneration of the Mental Health Commissioner(1) The Secretary of State may by regulation make provision for the appointment, tenure, removal, and general terms of appointment of the Mental Health Commissioner.(2) The Secretary of State may also by regulation determine the Commissioner’s remuneration, allowances, and pension entitlements.142G Examination of cases(1) The Secretary of State may, by regulations, make provision for the examination by the Mental Health Commissioner of the cases of those who are detained under this Act receiving treatment by authorised mental health care providers.(2) The Secretary of State may, by regulations, provide for the Office of the Mental Health Commissioner to access and examine relevant data on mental health treatment provision held by NHS England and any other authorities the Secretary of State considers appropriate.142H Regulations(1) Regulations under sections 142F and 142G are to be made by statutory instrument.””Member’s explanatory statement This amendment establishes the office of the Mental Health Commissioner and makes provisions for relevant duties and responsibilities.

My Lords, Amendment 47 would establish a mental health commissioner for England. The role would fill a major gap in the operation of the Mental Health Act and the rights of people with mental health difficulties. I believe this role is essential in ensuring oversight and advocacy for people affected by the Mental Health Act.

Unlike existing bodies, the commissioner would have a strategic, cross-government focus working to promote mental health, tackle inequalities and be a powerful advocate for the rights and well-being of those living with mental health problems, who would finally have a voice at the top table. The commissioner would also play a vital role in the public sphere, tackling stigma and discrimination and championing policies that support good mental health across society. The commissioner would have the independence to comment on the implementation of the reformed Mental Health Act and any subsequent changes or issues that arise. International evidence highlights the impact such a role can play in improving outcomes.

I know concerns were raised in Committee that the commissioner would duplicate the CQC’s Mental Health Act responsibilities. I simply do not believe this is so. The CQC is an arm’s-length body that has a statutory responsibility to inspect and regulate health and care services and intervene in cases of abuse of people’s rights, and it has powers to tackle poor practice in providers. Its work is essential, but its ability to oversee implementation is limited and it absolutely does not have a policy advisory function. I welcome the announcement of a new chief inspector for mental health at the CQC, who will lead the inspection of mental health providers. It is long overdue. However, like the CQC, the new chief inspector will have no role to work across government to take a view on public health policies or their implementation and to speak publicly on them, so the roles of the new chief inspector and the commissioner in my amendment are separate and distinct.

My Lords, I will speak briefly to Amendment 47, so eloquently moved by the noble Baroness, Lady Tyler. As the House will know, the establishment of a mental health commissioner was a recommendation of the joint scrutiny committee on the Bill, of which I was a member, but, disappointingly, it was not included in the Bill. As I have said on a number of occasions, I believe that a commissioner could be a voice at a national level, promoting the interests of those who are detained or are likely to be detained under the Mental Health Act, together with the interests of their families and carers.

There will be a need for rigorous, robust and consistent oversight of the implementation of the Act, wider mental health policy issues and service development, particularly workforce capacity, over the next decade and beyond. The establishment of a mental health commissioner could ensure public confidence, transparency and accountability during that period.

However, since Committee, the landscape has shifted somewhat. First, throughout the passage of the Bill, as we have heard, the Minister has made the case that the CQC, as the regulator, already has responsibility for the range of activities proposed for a mental health commissioner. This view was recognised by the Official Opposition. I still have considerable doubts about it but, as we have heard, the CQC has now created the role of Chief Inspector of Mental Health, because it at last recognises the crucial importance of mental health services in supporting people to lead fuller, healthier lives, and the need for specialist expertise in regulating those services. The eminent doctor, Arun Chopra, has been appointed. I hope to meet him as soon as possible, to be clear about his role and the range of activities that he sees it as his role as regulator to undertake. I hope that may go some way towards allaying my concerns.

Secondly, and importantly, the Secretary of State, Wes Streeting, has stated that, in future, he is determined to be directly accountable to Parliament for the performance of the health service—obviously, including mental health. To achieve that, he wishes to reduce arm’s-length bodies. As we all know, he has already announced the abolition of NHS England. Clearly, that will lead to significant uncertainty during the reform process, and the establishment of a mental health commissioner at this time would be unlikely to land favourably. It is clear to me that primary legislation might be required, yet again, to implement the NHS reforms that the Secretary of State is advocating, so Parliament may have a further opportunity to consider the new architecture of the NHS and then determine whether to bring forward plans for, among other things, enhanced advocacy and oversight of the implementation of the Act, and to support the policy development that a mental health commissioner, as we have heard, could bring to the table.

My Lords, I support the introduction of a commissioner. There seem to be three basic arguments that suggest it would be a good measure to take at this stage.

The first is the proven value and quality of work done by other independent commissioners, particularly the Children’s Commissioner, the Domestic Abuse Commissioner and the Victims’ Commissioner, as already mentioned. The second is the need for a commissioner to oversee the prolonged implementation of this Bill when it is enacted and the wide-ranging scope of work to be covered by the new legislation. Thirdly, a commissioner will enable standards of good practice to be maintained and raised. The existence of a dedicated commissioner should in fact remove, or at least reduce, the need for periodic statutory reviews of specific areas of work and functions in the field of mental health.

My Lords, I have attached my name to Amendment 47, in the name of the noble Baroness, Lady Tyler, and I raised this issue at Second Reading.

A powerful case has already been made for a mental health commissioner, so I am just going to make one comparison here. At the same time as this Bill has been going forward, in the other Chamber I have been dealing with the Armed Forces Commissioner Bill. An Armed Forces ombudsman was created, which in some ways has parallels with the Chief Inspector of Mental Health and the CQC. It was found that that was not effective or strong enough, and now the Government themselves are going for the Armed Forces commissioner model.

There is another parallel. One of the reasons why it is felt so strongly that there needs to be an Armed Forces commissioner model is that members of our Armed Forces do not have the same rights. They have certain responsibilities laid on them and are treated differently from other members of society, which is why they need a special advocate. The parallel with people who are potentially subject to the Mental Health Bill is obvious.

In the health space, I have been heavily involved over the years with the Patient Safety Commissioner, which was initially resisted by the Conservative Government of the time. Eventually the fight was won, and it is now seen to be a huge success. This is a model that we can see working and that is seen to be necessary.

The Government have expressed a desire to get rid of arm’s-length bodies and make decisions themselves. The Government devolve decision-making to those so-called quangos—the arm’s-length bodies—but that is not the case with the Patient Safety Commissioner; there is no parallel here. They are a person who is there as an advocate and to have oversight; they are not making decisions. I do not think the Government can shelter under that umbrella.

My Lords, I thank the noble Baroness, Lady Tyler, for, as others have said, the eloquent way in which she introduced her amendment.

I know this is a topic that noble Lords across the House feel strongly about, and I appreciate the arguments in favour of the creation of a commissioner. Indeed, as other noble Lords have said, it was a recommendation of the pre-legislative Joint Committee.

Having listened keenly to what the noble Baroness has said, and having discussed this issue with her and her noble friends, I have to say that I agree with the noble Lord, Lord Bradley, when he says that the landscape has changed. We are now at a time when the Government are looking to reduce duplication and arm’s-length bodies—something that I believe a responsible Opposition should support. We believe it should not be necessary to have a new, separate, independent mental health commissioner.

We were going to group this amendment with the ideas about strengthening the CQC, but that has been ungrouped and we will talk more to it in the next group. When I had some conversations with those who supported the independent mental health commissioner, they said I should look to Children’s Commissioner as an example. I looked at the Children’s Commissioner; it does a great job, but it has a staff of 25, a temporary staff of 31, and expenditure of £3 million. That may not sound a lot of money but I wonder whether that amount of money could be better invested in strengthening the CQC. One of the things about any bureaucracy is that they grow and have more non-essential roles as other bits of legislation bring them in. I worry about the cost and duplication of functions.

I completely understand the argument from those who say that the CQC has not been doing its job and those who have criticised it for being ill-equipped. That is why we tabled our amendment, which will be discussed in the next group, about strengthening CQC functions. However, rather than saying all that now and repeat it in the next group, I do not wish to detain the House any longer. I believe there should be a comprehensive review of the CQC and proper accountability, and I hope we can achieve that without an independent commissioner.

My Lords, I thank all noble Lords for their contributions on this fiercely and keenly debated proposal. Amendment 47, in the name of the noble Baroness, Lady Tyler, leads me to say that we continue to be of the strong view that the functions of the proposed commissioner, as set out in the amendment, would clearly overlap with the existing responsibilities of other organisations, most notably the CQC. I must respectfully disagree with the noble Baroness: the CQC has a statutory role in monitoring the Mental Health Act. It publishes an annual report that serves to drive policy improvements in this area.

It remains our position that inserting yet another body into an already cluttered and fragmented patient quality and oversight landscape is seriously unlikely to provide the clear and strategic leadership or the effective voice for mental health patients that the noble Baroness and all of us seek.

As my noble friend Lord Bradley, supported by the noble Lord, Lord Kamall, referred to, in the six weeks since we last debated this issue in Committee, there have indeed been key shifts to the wider context in which we are working. First, as has been acknowledged, there has been the appointment of the first Chief Inspector of Mental Health, Dr Chopra. I am very glad to hear the welcome in the Chamber for the establishment of a new post and the appointment. This is a very significant milestone that will improve the voice of mental health in-patients and help to see that their rights are better upheld.

Supporting implementation of the Mental Health Act reforms will be a key priority of the chief inspector and I am confident that this and the wider reforms that the CQC is making progress with under the new leadership will significantly improve its effectiveness as a regulator of mental health services. Like the noble Lord, Lord Kamall, I will speak more to this point when we consider the amendment in his name in the next group.

Can I just ask the noble Baroness a very quick question? Will the newly appointed person have a statutory right to call for papers and witnesses from other departments to deal with mental health issues, as a commissioner would?

I cannot draw a comparison with a commissioner but I will be very pleased to answer the noble Lord definitively in writing.

Secondly, as announced by the Secretary of State, we are abolishing NHS England as part of the radical reforms we are making to the national health system to rid it of duplication, inefficiency and waste, so that vital resources can be redirected to the front line. On this, we very much look forward to the much-anticipated report from Dr Penny Dash on the wider patient safety and oversight landscape. Of course, as noble Lords will be aware, the 10-year plan for the NHS is being co-developed with staff, patients and the public. I believe these changes only confirm that creating a new mental health commissioner would be not only duplicative but completely at odds with the important and very live reforms that the Government and the CQC are making.

During the course of the Bill, including today, I have heard noble Lords speak passionately about introducing a mental health commissioner role akin to that of the Children’s Commissioner. I very much value the work of the Children’s Commissioner and, as I have said before, I do not accept that it is a valid comparison. More pressingly, following a constructive meeting last week with the Children’s Commissioner, which the noble Baroness, Lady Tyler, referred to, I can report that she is concerned about the establishment of a mental health commissioner. In her view, covering all aspects of children and childhood is a critical part of her role. This is because children see their mental health as indistinguishable from their wider health and experience of childhood. We discussed this at some length. The Children’s Commissioner’s view is that the proposed establishment of a mental health commissioner risks taking a siloed approach to the barriers and challenges that children face, and I feel it is incumbent on us to listen to that view.

My Lords, I thank the Minister for her response and particularly thank other noble Lords who have contributed. I apologise to the noble Baroness, Lady Bennett, for forgetting to thank her for adding her name.

The short answer is that we disagree quite fundamentally on this. I do not accept the argument that the Minister has just put forward that the comparisons that I and the noble Baroness, Lady Bennett, have drawn are not good; I think they are very good. Of course, I understand that the landscape has changed. I understand that arm’s-length bodies, particularly large ones, have gone out of fashion and I understand the reason for that. I am talking about a very small body that acts as an advocate. I think that is different. I do not think it is something that the CQC can or will do.

I am pondering on what the Children’s Commissioner has said. I understand the point about children and their mental health being part of their wider experience, but we have to remember that a lot of the work of the mental health commissioner would be about adults who are being detained and whatever. We are not going to agree, so I suspect the best thing to do is to test the opinion of the House.