My Lords, with the leave of the House, I will speak also to Amendments 2 to 21, including Amendments 19A and 19D. It is a pleasure to return this Bill to this House; I very much appreciate the support and engagement of noble Lords throughout its passage.
Let me turn first to the government amendments in the other place, other than the minor and technical amendments, which are there for clarification. We have clarified the duties on NHS bodies to make arrangements regarding advance choice documents, otherwise known as ACDs. NHS bodies must actively inform individuals about ACDs, rather than taking a minimal approach. The Bill requires that information and help are provided to people who wish to make an ACD through discussion with a suitably qualified person. NHS bodies should consider the advantages of making an ACD within 12 months after discharge and aim to provide support. Additional guidance on these duties will be in the revised code.
I thank my noble friend Lady Keeley and the noble Baroness, Lady Barker, for raising concerns about the unequal application of the Human Rights Act. The Government have now made it so that registered private providers delivering Section 117 aftercare or in-patient mental health services, funded by local authorities or the NHS, are treated as carrying out public functions under the Human Rights Act and act compatibly with the convention rights. This amendment will apply UK-wide.
I turn to the amendments made by this House on police powers. I thank the noble Baroness, Lady May, for her constructive engagement and for establishing the review of the Mental Health Act when she was Prime Minister, which has brought us to this place today. We have removed the amendments made to Clause 5 that would have added police and other authorised professionals to Sections 2, 3 and 5 of the Mental Health Act. Extending police and other authorised professionals to these sections would be inappropriate—a view that is shared by the police.
My Lords, I will speak to Amendment 19D in my name. I thank the Minister and her officials for the frequency of their engagement on the Bill. I put on record my apology for not spotting possible issues with the Government’s Motion, to which I have tabled the amendment, much earlier. I thank the Minister and her officials for meeting with the approved mental health professionals, the professional group dealing—often late at night or at a weekend—with our sickest children, who do not have the competency to appoint a nominated person for themselves.
I specifically recognise the inconvenience to the Bill team, but this matter relates to the protection of mentally ill children and has been flagged at every stage since the Wessely review in 2018, when a consultation was suggested. In recent meetings with the Minister, I understood that what was to be achieved was that the appointment of nominated persons would reflect existing court orders made by the family court on child protection grounds. The mischief that the approved mental health professionals want to solve is that they do not want to have any discretion to appoint as a nominated person anybody not in accordance with an existing court order. They want to see this achieved through the mandatory appointment of the special guardian in priority to anybody else, the rationale being that special guardianship is usually used to avoid care orders, adoption or long-term fostering.
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In relation to a care order, I am grateful that His Majesty’s Government amended the Bill to mandate that the appointment of the nominated person in those circumstances must be the local authority alone. In this Bill, I would say the same rationale applies to special guardians. Why? The Children Act is clear that parents, if a special guardianship order is made by the family court, have parental responsibility only for things such as leaving the jurisdiction for more than three months, or surname changes. Neutered parental responsibility is apparently now the term used when the authority of the court has limited the parents’ parental responsibility, sometimes due to illness or neglect, or, sadly, because they present a danger to the children themselves. It is of course open to a parent to apply for leave to the court to disapply the special guardianship and regain full parental responsibility if, for instance, they have recovered from an illness.
In His Majesty’s Government’s Motion, the people in proposed new paragraphs (a), (b) and (c) all have parental responsibility, so what do paragraphs (b) and (c) actually add to the Government’s Motion? I do not know the full significance of this, but there is no “or” at the end of those paragraphs. Is it that everybody gets appointed, and they must be appointed? It seems rather confusing. The Motion says if a person “is willing”, but there is then no priority within paragraphs (a), (b) and (c), so there is no order of precedence within the Motion.
I am afraid to correct the Minister, but I had understood that it is already mandated in law, in Section 28 of the Mental Health Act, that when there is a special guardianship order and a child arrangements order, living with, there is no discretion. It does not matter the surrounding circumstances, and it does not matter whether these people wish; it is mandated that they are appointed and deemed the nearest relative, to the exclusion of everyone else. There are no issues, that I have been made aware of, of people being unwilling to act as that nearest relative, or different circumstances. If the AMHP is presented with that situation, what is the solution? Is it to second-guess the court order or, within 24 hours, to go to the family court and get the special guardianship order or the child arrangements order—that is to live with—amended? I am assured by AMHPs that, unlike many of the other lists in the county court, you actually get heard within 24 hours or so, because of the urgency.
I emphasise that the AMHPs do not want to have any discretion, whether in code or in the Bill, to go behind an order of the court. In her letter, the noble Baroness mentioned someone being unwilling to act. She has now outlined that the child’s wishes are taken into account, but if there is no one with parental responsibility willing to act, what is the solution? It does not seem to be within the Bill, so I cannot quite understand the emphasis now being placed on it.
The reason, as I understand it, why His Majesty’s Government laid the Motion is that statutory guidance cannot mandate anything unless it is in the Bill. But the question then arises for us to consider: is the reverse true? Can statutory guidance undo what is in the Bill? Does this mean, in practice, that the malevolent parent—who is swinging the lead and telling the AMHPs, at 3 am, that the very sick daughter has been living with him for three years and that the special guardian is no longer involved—is now armed with the Mental Health Act to say, “You have a duty to appoint me”? His Majesty’s Government’s Motion mandates that, if this person is willing to act, they must be appointed. To what extent can the guidance undo that? This potentially gives them back a hugely significant role in the child’s life that the family court deemed they should not have. Inadvertently, are His Majesty’s Government, while seeking to amend and close a loophole, opening up such a possibility?
Sadly, at the moment the Bill is defective, hence my tabling the amendment to the Motion. I recognise that it is not appropriate to divide at this stage, but we have some time before the Bill goes back to the Commons to try to sort out what is, I am informed by AMHPs, still a confused situation. I regret that the experts on the Children Act and the Mental Health Act who supplied an amendment to the Minister’s department did not seem to receive a reply. I hope the Minister will be able to reassure me that statutory guidance can do more than I believe it can. We need to take these final moments with the Bill to protect the thankfully small number of children who are in these most vulnerable situations.
My Lords, first, I am very grateful to the Minister and her officials for the interaction and the many discussions we have had on the matters posed in the amendments I originally put down to the Bill on the powers of the police and the possible extension of some of those to authorised professionals, including healthcare professionals. I am also grateful to the Minister and the Government for agreeing to the review and consultation in relation to the exercise of powers, not simply those in Sections 135 and 136 but the general exercise of powers between police, healthcare professionals and other authorised professionals.
I have a number of questions about that review, but before I come to them, I hope I can crave the indulgence of the House just to cite a couple of examples of what is concerning me about the powers. Often, people go to the situation in which there is a real threat—a risk of violence or of danger to those exercising powers of restraint—but actually there are other issues. In moving the government Motion, the Minister referred to the fact that there are indeed some concerns among healthcare professionals, as well as among police, about the exercise of these powers. One situation might be if a patient presents to a GP in an evident mental health crisis, the clinician determines an urgent assessment is needed and the patient is advised to attend hospital voluntarily, but they are unwilling to do so and there is no other available alternative statutory pathway, so the police are contacted in order to exercise their powers under Section 136. It is not that the police are needed; it is just that they are the only people who have the power at the time. There is not necessarily a need to restrain somebody; they are just the only people who have that power.
The other circumstance might arise in an accident and emergency department, where a patient is identified as requiring hospital admission for mental health care, but the individual attempts to leave before an approved mental health professional or a second assessing clinician is available or a bed is found, the emergency department staff have no statutory authority to prevent the individual’s departure, and they ring the police for assistance. In the joint Home Office and DHSC review, which reported in 2014, there was evidence of this. Dr Beale said:
My Lords, I wish to put on record my thanks for the collaborative spirit of the Minister and her officials when discussing the issue of community treatment orders.
This issue came about during the passage of the Bill, in the context of the balance between mandatory community treatment and deprivation of people’s freedom in the community; people who seemed always to be in the revolving door and could not get off a community treatment order; and in particular racial disparity.
The Minister has moved forward, and it really is about that balance between the power of the individual patient and the clinician. Where the Government have got to in discussions is a “stop and check” for the clinician—having to think about why the extension of the community treatment order is required. If the tribunal says that certain conditions of a treatment order should not be established or be part of a patient’s treatment, the clinician has to stop and think and will be mandated through the code of practice to explain why that happens.
I very much welcome the offer to consult both myself and the noble Baroness, Lady Tyler, and involve us in redrawing the code of practice. It is important that within that code of practice, words such as “must” are used, rather than “may”, which would give the clinician the discretion to not write things down as much as is required when people’s freedom is being taken away.
Again, I thank the noble Baroness and her officials and look forward to getting that balance absolutely correct to stop the revolving door.
My Lords, I thank the Minister, officials and Members of the other House for Amendment 12, which will ensure the human rights of patients who are placed in the private sector under NHS contracts. Many of us were concerned about that, but the situation is completely resolved through Amendment 12.
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We have removed Clause 50 from the Bill, which would have extended emergency police powers under Sections 135 and 136 of the Act to other authorised persons. Health and care professionals lack the training, equipment and access to rapid back-up needed to use such powers safely, and stakeholders are concerned about staff having the authority to use reasonable force. A blanket extension of powers to multiple agencies would risk confusion and delay in emergencies due to a lack of clarity over who should respond.
There are strong views on either side of this issue, and there are situations where health professionals feel that they do not have the powers they need. That is why I am announcing longer-term plans to launch a consultation into emergency police powers of detention. We will consult on the powers available to different professionals in different situations and settings, in particular—but not limited to—the operation of the emergency powers in Sections 135 and 136. The consultation will seek views on powers and joint working approaches to ensure that health and social care professionals and police have the appropriate powers to act in order to prevent people harming themselves and others when in a mental health crisis. We firmly believe that this is the right approach to a complex issue that requires careful consideration and consultation.
I turn to community treatment orders. Clause 6(3) has been removed from the Bill, as CTOs already comply with the code and have an initial six-month period. The responsible clinician may renew a CTO if there is a risk of serious harm without it and a reasonable prospect of therapeutic benefit. Following positive engagement with the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, I can confirm that the Government will review the statutory forms that relate to CTOs, with the aim of strengthening them to ensure a clear audit trail of the reasons for applying a CTO and associated conditions.
Regulations will require that statutory care and treatment plans specify any CTO conditions and their justifications, which will also be clarified in the code. We will work with the Tribunals Service and the judiciary to ensure that the patient’s plan is considered alongside other evidence at tribunal hearings. We will clarify in the code that, where a tribunal recommends that the responsible clinician reconsider CTO conditions as it does not consider them necessary, the responsible clinician should review and, potentially, revise those conditions. The code will set out that the responsible clinician should inform the patient of their decision after considering the tribunal’s recommendation, which should be recorded in writing. We will engage on the code before publication and involve the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, in the process. As the tribunal is responsible for considering all relevant evidence, this may include recent recommendations made at past tribunal hearings regarding the conditions placed on the person, including the detail and rationale of any current conditions.
I can confirm that since September 2025 we have increased the quantity and frequency of reporting on racial disparities in key metrics, such as detention CTOs and length of stay by ethnicity. Much of this data was previously published annually but it is now published monthly, allowing for closer monitoring of progress. The data is publicly available on the Mental Health Act annual dashboard and, along with implementation of the patient and carer race equality framework, will be used by the Care Quality Commission as part of its inspection regime.
On the debriefing amendment, I thank the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, for their constructive engagement. We have removed Clause 35, which required independent mental health advocates to consult people about their in-patient experience after discharge. This removes policy duplication and additional strain on advocacy services, whose focus is on supporting detained patients’ rights. The code will clarify the processes of care planning. Supporting someone to make an advance choice document should include the opportunity to reflect on past experiences. The 10-year health plan commits to making patient feedback central to quality improvement.
The Government have tabled amendments in lieu regarding the appointment of a nominated person for a child under 16 who lacks competence, and I am most grateful to the noble Baroness, Lady Berridge, for her continued work on this. The Bill now states that an approved mental health professional, or AMHP, must appoint either
“a person who has parental responsibility … a person named in a child arrangements order as a person with whom the relevant patient is to live”
or
“a person who is a special guardian”.
If there is no suitable person willing to act, the AMHP must consider the child’s wishes and feelings when deciding who to appoint.
On the amendment tabled by the noble Baroness, Lady Berridge, to the Government’s Motion, I understand the intention to prevent a parent who has had parental responsibility limited from being appointed as a nominated person by an AMHP where a child lacks competence to make the appointment. The amendment tabled would mean that a special guardian or person named under a child arrangements order as someone with whom the child must live must be appointed. It is not appropriate for legislation to say that a particular individual must always be appointed nominated person. If they are not able, or even willing, to perform the role effectively, requiring them to take this role and ruling out other options risks harming the child’s interests.
As we know, legislation can be a blunt tool. It is far more appropriate to set out nuances such as this in the statutory code to ensure that the child’s individual needs are considered. That is why we previously agreed to set up an expert task force to consider these very complexities. Part of this role includes ensuring that clear guidance is given to AMHPs on who to appoint in a range of scenarios to avoid unintended consequences. At this late stage, in order to get this right, we should not be hurriedly working through these complexities as part of the legislation. We should develop detailed guidance, in consultation with professionals and patients, through drafting the code of practice. I therefore ask the noble Baroness not to move her amendment.
In conclusion, I hope that noble Lords will support our position and pass the legislation without amendment. I beg to move.
“A police officer has more power in that situation than I do. How can I excuse calling the police to my department to assist in mental health care? … We want to reduce the involvement of police in mental health care, not invite it”.
I am sure we are all agreed that we want to ensure the best possible pathway and experience for the person with mental health problems, we want to reduce the use of police resource, and we want to improve the policing of communities, because the police officer required to attend unnecessarily a mental health patient is a police officer taken off the policing of their local community.
So my questions are, will the review ensure that it also looks at the evidence given to the review that reported in 2014, which, among other things, showed that 93% of paramedics agreed with extending the Sections 135 and 136 powers to remove a person to a place of safety to other professionals, provided that they are trained and equipped? What is the timeline for the review and consultation? I would like it to be something like six months. Which department will be running the review or be responsible for it? I think it should, again, be a joint Home Office and DHSC review. What happens at the end? If it identifies a need to extend these powers or to add healthcare professionals to the list of authorised professionals, will the Government guarantee to undertake that, and what vehicle would they use to do so?
Once again, I am very grateful to the Minister for the discussions we have had, and I would just like to be clear on these points.