Mental Health Bill [HL]

Report (1st Day)

1: After Clause 3, insert the following new Clause— “Application of the Mental Capacity Act 2005: autism and learning disability (1) In Schedule 1A to the Mental Capacity Act 2005, paragraph 2, after the last line of the table, insert—

“Case F

P has autism or a learning disability and is not subject to any of the mental health regimes

See paragraph 5A”

(2) In Schedule 1A to the Mental Capacity Act 2005, paragraph 5, at end insert— “5A (1) This paragraph applies in Case F in the table in paragraph 2. (2) P is ineligible if the following conditions are met. (3) The first condition is that P objects to being— (a) admitted for treatment as a mental health patient, or (b) given some or all of the mental health treatment. (4) The second condition is that a donee or deputy has not made a valid decision to consent to each matter to which P objects. (5) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following— (a) P’s behaviour, (b) P’s wishes and feelings, and (c) P’s views, beliefs and values. (6) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them. (7) For the avoidance of doubt, Case F and this paragraph do not apply to determine P’s ineligibility in respect of admission for assessment of mental disorder.”” Member’s explanatory statement This amendment to the Mental Capacity Act 2005 would prevent the Deprivation of Liberty Safeguards scheme being used to replace detention under section 3 of the Mental Health Act for people with learning difficulties or autism who do not have a mental health condition.

My Lords, I will speak to Amendment 1, which is in my name, and then to Amendment 4, in the same group, to which I have added my name.

Amendment 1 is exactly the same amendment that I tabled in Committee. I have brought it forward yet again because I felt it was so important and I did not feel that we went into as much detail as we should have to recognise the real challenge that the Mental Capacity Act could have to the Mental Health Act, as amended by the Bill we are debating. I am enormously grateful to the Minister; she has not only had a one-to-one meeting with me specifically about this clause but has sent me a letter. I hope it will be appropriate for me to quote some of it.

I am concerned, as are others, including many charities—I refer to the charities I am registered to in the record—such as the National Autistic Society, Mencap and of course the Law Society, which I am grateful to for drafting this particular amendment. There is a difficulty with the Mental Capacity Act. Under the Bill, we wish to prevent people with autism and learning disabilities who have no additional identified mental health condition being deprived of their liberty—they should not be. The worry is that the existing Mental Capacity Act will be used instead to take away their liberty and admit them to a mental health hospital. We know the history in this area, which we have debated many times in this House.

In my discussion with the Minister, I raised with her the fact that the NHSE service model for commissioners sets this out very clearly. At 4.3, it says:

“Alternative short term accommodation (available for a few weeks)”—

we are talking about just a few weeks—

“should be available to people, as and when it is needed, to be used in times of crisis or potential crisis as a place where they can go for a short period, preventing an avoidable admission into a hospital setting. It might also provide a setting for assessment from teams providing intensive multi-disciplinary health and care support (see principle 7) where that assessment cannot be carried out in the individual’s home”.

It is at this point that I take a deep breath, because the Minister will know that she has already indicated in Committee that many of the facilities that are needed and are expected as a result of this legislation need to be in place before this legislation is enacted. Already, at the time that we are debating it, we are expecting that this is not one of those Bills that will get Royal Assent and then be enacted pretty quickly; there are going to be delays while services and facilities are put in place. That is a very good thing—but in terms of the alternative facilities to what I would describe as incarceration, we need to be quite sure that there will be the resources, and this is something that will not be enacted for many years. I am not expecting it this year and I would be surprised if it was next year—but, after that, I would be getting worried if that facility was not available. When the Minister replies, I hope that she will be able to give some more tangible examples of how these facilities will go ahead and who will be responsible for them.

I am very grateful to the Minister, who has taken great care and gone into a great deal of detail on both these counts—on the data and the collection—to make sure that people are not caught in the Mental Capacity Act trap. She has also made it very clear that she is expecting, as a result of this legislation, facilities to be available to deal with this in a competent and humane way.

I move on to say a few words about Amendment 4 in the name of my noble friend Lady Hollins. I have added my name to that amendment, which also looks at the sorts of services and facilities that will be available to autistic people and people with learning disabilities. At this point, I wish to say something to the Minister—and I hope that, if she has not investigated it, she will agree to investigate it.

At the time when we are debating this, there is a Select Committee upstairs looking into the Autism Act 2009. Some of us are on that committee but unable to attend this afternoon because we are here in the Chamber. In 2009, I served in the Commons on the Autism Bill, a Private Member’s Bill from the late Dame Cheryl Gillan MP, and we put on the statute book the Act—the only Act of Parliament, other than the Mental Health Act itself, that is particular to a specific condition. We had a lot of compromise in getting the 2009 Act on to the statute book, but one of the good things that we got was a bit of a guarantee from a Minister about the duties to provide services for people with autism. I would like to put that on the record. It is a very short piece of legislation—I am holding the whole Act of Parliament in my hand at the moment and I shall quote Section 3(2), with the heading “Local authorities and NHS bodies: duty to act under guidance”, which says:

“Guidance or revised guidance is to be treated as if it were general guidance of the Secretary of State under section 7 of the Local Authority Social Services Act 1970 (c. 42) (local authorities to exercise social services functions under guidance of Secretary of State)”.

Underneath it, it says, for the purpose of that revised guidance, that it applies also to NHS bodies.

Therefore, both health and social services, unusually, come within the remit of this guidance, which has been on the statute book for a long time. Basically, it says that if services for people with autism are not provided or do not come up to scratch, the Secretary of State—under the local authority Act—has the power to call in the local authorities or health to question them as to why those services have not been provided.

I have to tell the House that in the years since the Act went on the statute book, I have periodically put down Written Questions to ask Ministers how many times the Secretary of State has called in someone from health or from a local authority because their services to the autistic community have been wanting. I can categorically say that, shockingly, no Secretary of State has ever exercised the power in the Autism Act. The Minister will get the point immediately, but I am worried that commitments in the Bill we are talking about today will somehow fall down the same black hole that this has gone down. This is one of the main reasons why I was particularly anxious that this House should post-legislatively review the Autism Act 2009.

I hope that when the Minister responds to these amendments, even if she has not read the Autism Act or is not familiar with this particular part of it, she will give some commitment that Secretaries of State will not ignore the promises made about services in this Bill and that we can be sure that those services will be in place before the Bill is enacted. I beg to move.

My Lords, I will speak to a number of amendments in my name. I thank noble Lords who have added their support. I also support the amendment in the name of the noble Baroness, Lady Browning. I thank the Minister for the very helpful meetings and correspondence about the outstanding issues my amendments seek to rectify. I apologise for the slightly lengthy explanation that follows.

I declare my interests: I have the benefit of expertise from a psychiatrist attached to the Royal College of Psychiatrists parliamentary scholar programme and research support from a PhD student from King’s College London. Until November 2024, I was chair of the independent oversight panel to review the use of seclusion and segregation for adults with learning disabilities and autistic people. I am grateful to panel members for advice on my amendments relating to long-term segregation. The key message of the report published by the panel, My Heart Breaks, was that long-term segregation has no therapeutic benefits and that it can retraumatise already traumatised people.

When the Mental Health Act was introduced in the early 1980s, our understanding of learning disability and autism was limited, and therapeutic interventions were inadequately developed or trialled. The impact of trauma on the development of people’s behaviour—the behavioural responses to their trauma—and mental illness was very poorly understood. Regrettably, during the 2007 review, the appalling conditions experienced by patients subject to long-term segregation had yet to gain public awareness, so this group of people was once again overlooked and harmful restrictive practices persisted unchecked.

We now possess a much clearer understanding about the nature of learning disability and autism. We therefore know that they cannot be cured my medication or short-term therapies, and we understand the harmful impact of restrictive practices.

More than 2,000 people were still in in-patient units in February. Progress has been slow and key targets to get people out of hospital have been missed. With only a 29% decrease in the number of in-patients over the past 10 years and a wide variation in progress across the country, provisions in this Bill could make a real difference, ending the inappropriate detention of people with a learning disability and autistic people. However, campaigners and people with lived experience have serious concerns—I share them—that, without a plan to develop sufficient services, the pessimist’s fears will be proved correct. The key point here is that people with a learning disability and autistic people will be treated the same way as any other citizens under the future Act; they will no longer be detained for treatment under Section 3 of the Mental Health Act when they do not also have a coexisting mental illness. That is right, is it not? However, this equalisation switches on only when His Majesty’s Government judge that sufficient community support is in place.

I am not alone in being concerned that, without a comprehensive and fully resourced plan to build capacity in the community, this vital change will be delayed indefinitely and not implemented. That is the worry. I do not think that this amendment restricts the ability of His Majesty’s Government to make progress in any way; all it is asking for is a plan. If the amendment is not considered necessary, what plans is the Minister putting in place to consult on and publish a robust replacement for the Building the Right Support action plan, which is now out of date and has failed to achieve the promised transformation?