Mental Health Bill [ Lords ] (First sitting)

The extent of the Mental Health Act is England and Wales, and there are separate codes of practice for England and Wales. Both codes of practice currently include a statement of principles, although the principles themselves vary slightly. Clause 2 will place a statutory requirement on Welsh Ministers to include the wording of the four principles identified by the independent review in the statement of principles when preparing the Mental Health Act code of practice for Wales.

As in clause 1, we are putting these principles explicitly in the Act so that they govern the content of the code of practice and so that they cannot be changed except by Parliament, or by the Senedd in respect of Wales. The Welsh code is already required to undergo scrutiny by Senedd Cymru, but clause 2 will also update the position in relation to the Senedd Cymru scrutiny procedure for the Welsh code. I commend clauses 1 and 2 to the Committee.

Why do we need these changes? For too long, the Mental Health Act has been criticised as outdated and insufficiently centred on patient autonomy and dignity. Concerns raised by successive independent reviews, clinicians and, crucially, by people with lived experience have pointed to inconsistencies in how decisions are made, which can often result in over-restriction, lack of patient involvement and insufficient therapeutic focus.

The independent review of the Mental Health Act, which was published in 2018, made a landmark contribution by recommending the adoption of the four core principles in front of us today: choice and autonomy, least restriction, therapeutic benefit and recognition of the person as an individual. These principles are designed to shift the culture and practice towards one that respects autonomy while safeguarding wellbeing and public safety.

The historical context is that the Mental Health Act has undergone several amendments since its introduction—notably, in 2007, updates were made to some of the detention criteria and safeguards—but it was clear that the Act remained predominantly paternalistic. The 2018 independent review was a comprehensive, evidence-based re-examination of the entire Act, informed by extensive consultation, including with patients, families and clinicians. It concluded that embedding the principles formally into the law and code of practice was essential to modernise and humanise mental health law.

The four key principles—choice and autonomy, least restriction, therapeutic benefit and the person as an individual to be treated with dignity—are not abstract ideals. They are the foundations of compassionate, lawful and effective care. They echo the spirit of the UN convention on the rights of persons with disabilities and signal a move away from paternalism and towards genuine co-production of care plans. Involvement ensures that decisions are not made about patients without them. The principle of choice and autonomy reminds us that the mental illness must not be a justification for blanket restrictions. The principle of least restriction challenges us to find community-based alternatives before defaulting to detention. Therapeutic benefit ensures that care is not custodial, but meaningful healing. These principles are what most of us would hope to see for our own family.

To that end, I wish to raise several important questions for the Government and the Committee to consider. The first is about enforcement and accountability. How will the Government ensure that decision makers truly have regard to the principles in practice, and is there a robust mechanism for monitoring compliance and addressing breaches?

The second question is about balancing conflicts. In some cases, principles may conflict: for example, the imperative to respect patient autonomy may clash with the need to impose restrictions for safety. How does the code intend to guide practitioners to navigate these difficult trade-offs?

The third question is about care and interested parties. Although the clause highlights patient involvement, what explicit protections and roles will be afforded to carers and other interested parties, and how will their sometimes divergent perspectives be balanced?

The fourth question is about training and resources. Embedding the principles requires more than words on paper. What investments are planned to equip practitioners with the skills and understanding necessary to apply these principles sensitively and consistently?

The fifth question is about the timeline and consultation. The explanatory notes mention that the code must be consulted on and presented for scrutiny. What is the proposed timeline for that process, and how will people with lived experience continue to be involved?

As the hon. Member for Shipley pointed out, that is part of the problem. As new criteria come up, there is a delay in the uptake of definitions. From my experience in clinical practice, keeping up to date with definitions can sometimes be a challenge. It is part of the personal development plan to make sure there is that understanding, but there is always a drip through as change in practice comes through, along with clinicians being comfortable and happy to use the new definitions. With any new medication, it is important to understand the side effects and the pros and cons of what it is trying to achieve, and to be able to explain that fully so that a patient can consent when taking that medication. The same applies when trying to explain a condition to patients. If there is a change and a new aspect to the way in which a definition is being applied, it is important that we have some flexibility.

The affirmative procedure preserves Parliament’s role, offering safeguards against unchecked ministerial power. However, there are some important considerations and potential drawbacks. Definitions of mental health conditions have profound legal and social implications. Delegating this power, even with parliamentary approval, risks politicisation or inconsistent application if regulations are used too frequently or without adequate consultation.

Secondary legislation typically receives less parliamentary debate and public scrutiny than primary legislation, even with the affirmative procedure, which may not suffice for such significant changes. There is also a risk that the changes could be made in a reactive or piecemeal way rather than with a coherent legislative framework, potentially leading to legal uncertainty or unintended consequences.

Given those points, I have several questions for the Minister. How do the Government propose to keep the legislation updated, given that we are only updating the Mental Health Act now, 40 years on? Do they have a mechanism in mind to ensure that any updates to the definitions are accompanied by robust clinical and expert consultation, while reacting to advances in medical understanding? Would the Government consider a formal review mechanism such as a mandated periodic independent review of the definitions? That could solve the problem of legislation becoming outdated, and put the safeguards in place. If there is a difference in the scientific community, we need to make sure that any changes are broadly in agreement with the direction of travel of scientific knowledge.

Furthermore, in considering the need for balanced, flexible and democratic accountability, the Government could introduce a sunset clause on any regulations, so that any changes would be revisited and renewed by primary legislation within a set period, unless Parliament agrees otherwise.

Crucially, to my knowledge, there are no standing statutory bodies or panels tasked with reviewing or advising the Government on the legal definitions of mental health conditions. There is an argument that without a dedicated expert body to guide the Secretary of State, we cannot be sure that any changes are robustly evidence-based and clinically sound. Currently, we have the National Institute for Health and Care Excellence, the royal colleges, the Department of Health and Social Care and the intermittent mental health review bodies, but have the Government considered establishing a formal advisory mechanism to address problems in the future? The Opposition can see the argument both ways, but to govern is to choose, and it would be useful to understand the Minister’s thoughts on this area.

The Bill introduces the new term, “psychiatric disorder”, meaning any mental disorder excluding autism or a learning disability. That distinction matters because detention under section 3 of the Act—compulsory admission for treatment—will no longer be permitted solely on the basis of someone being autistic or having a learning disability. From now on, a person may be detained only if they have a co-occurring psychiatric disorder or their learning disability is associated with “serious behavioural consequences”, such as

“abnormally aggressive or seriously irresponsible conduct”.

That reflects a fundamental shift in the philosophy of the Act from using hospitalisation as a containment tool to ensuring that any detention has a clear clinical and therapeutic purpose.

This reform is rooted in the recommendations of the 2018 review of the Mental Health Act, which was led by Professor Simon Wessely, and has been championed by groups such as the National Autistic Society. It represents a more modern understanding, as we currently see things, so there are many positives—it protects people’s rights, preventing detention simply for being different, it promotes community-based care rather than institutionalisation, it modernises the law in line with current clinical understanding and it seeks to end the harm caused by prolonged non-therapeutic hospital stays, which often involving over-medication and restraint.

However, I also sound a note of caution: the clause alone will not be enough. There is rightly concern about the provision for robust community services. We risk creating legal protections that are admirable on paper but ineffective in practice. I know that the Minister appreciates this dilemma. If people cannot get the right support in the community, they will still end up in crisis, and possibly still be detained—just under a different part of the law.

There are also concerns about ambiguity. The phrase “serious behavioural consequences” may be open to a wide interpretation. Without clear guidance and training, we risk inconsistencies and even potential loopholes that could undermine the intent of this reform. I commend the Government’s intention to protect autistic people and people with learning disabilities from potentially inappropriate detentions, and to ensure that compulsory treatment is targeted to those with mental disorders warranting hospital care.

The emphasis on therapeutic benefit and the principle of least restriction aligns well with the human rights standard and the UN convention on the rights of persons with disabilities. However, I have several questions that I hope the Government will be able to address. How will clinicians reliably distinguish between behaviours arising from autism and learning disabilities and behaviours arising from co-occurring psychiatric disorders, given the complexity of presentations in this population? Is there, or will there be, clear guidance and training to support those assessments? For individuals with severe autism or learning disabilities who display challenging behaviours but do not have a diagnoseable psychiatric disorder, what alternative pathways and supports are envisaged to ensure their safety and wellbeing without resorting to detention?

On the issue of patients under part 3 of the Bill, I know the Government’s rationale for maintaining broader detention definition criteria, but will there be additional safeguards or oversight to ensure those patients are not subject to unnecessarily prolonged or restrictive detention? The removal of “social functioning” from the definition of learning disability is intended to create a clearer distinction from autism, but could the changes create any unintended legal or clinical ambiguities in practice?

The changes could introduce some unintended consequences. Previously, impairments in social function were considered part of the learning disability definition, which helped capture individuals whose social difficulties accompanied intellectual impairments. Without that, there may be legal and clinical uncertainty for people with borderline or overlapping conditions. For example, someone with moderate intellectual impairment and significant social difficulties might no longer clearly fit the learning disability definition. Similarly, autistic individuals with mild intellectual disability who experience social challenges could find their diagnosis and legal status less certain. Those ambiguities risk inconsistent assessments and potential gaps in access to appropriate care unless the Government provide clear guidance to clinicians and tribunals on how to navigate complex presentations. What plans are in place to monitor and evaluate the impact of the changes on detention rates, patient outcomes and the availability of community-based alternatives?

In closing, this is an important clause that moves us closer to a system that respects autonomy, delivers appropriate care and upholds the rights of neurodivergent people. But we must be mindful that passing this legislation must not be seen as the end of the job. As the Minister understands, it is the beginning. If we are to drive reform, the Government will need to set out the funding and workforce pathway for the services that will deliver it. We must train professionals, empower families and support voices of lived experience at every level. Only then will clause 3 deliver on its promise not just to change law, but to change lives.

I turn to schedule 1. Schedules are an important and yet often overlooked part of the legislative process. It is worth reminding the Committee that a schedule is a part of a Bill’s function, like a detailed appendix. It contains the granular, often technical amendments that give practical and legal effect to the broad principles set out in main clauses. In other words, the clause tells us what Parliament intends to do and schedules show us how it will be done: amending existing statutes, updating definitions and ensuring consistency across legal frameworks.

In this Bill, schedule 1 is particularly consequential. It does the heavy lifting of applying the reforms in clause 3 to the existing Mental Health Act 1983, especially with regard to how we treat autism and learning disabilities within the scope of mental health law. Let us be clear that the schedule is not simply technical. It is transformational in what it attempts to do. Where the 1983 Act spoke broadly of mental disorder, schedule 1 now creates a more precise legal category—“relevant disorder”—defined to include psychiatric disorder, autism and learning disability with serious behavioural consequences. That matters enormously. In fact, it is one of the key reasons for the review of this entire piece of legislation. Individuals with autism or learning disabilities have been subject to compulsory powers, including detention, as we have heard, in the absence of any co-occurring mental illness. That is a practice with which the Committee should rightly be uncomfortable.

Schedule 1 amends not only the criteria for compulsory admission under section 3, but those for guardianship, community treatment orders, tribunal discharge and even the treatment provisions in part 4 of the Act. This breadth shows that clause 3 is not merely a rhetorical shift; it is being operationalised throughout the entire Act. With such significant implications, the schedule raises serious and legitimate questions that I am sure will form the backbone of the ongoing discussions in Committee over the next few weeks.

First, what is the threshold for serious behavioural consequences? Will that be clearly defined? Without precision, we risk substituting one vague standard for another. Secondly, do the transitory provisions offer enough clarity for frontline practitioners, in particular approved mental health professionals and tribunal panels who will be making decisions in grey areas between new and old law? Again, what about the cross-border issue between Wales and England? Thirdly, given the change from mental disorder to psychiatric disorders in some sections but not others, what is the Government’s rationale for that linguistic differentiation? Is there a risk of confusion among legal and clinical practitioners? To clarify—I am happy to share this with the Minister—I went through it and there appear to be a few occasions where the definition was changed, but some areas where it was not. Now, that may be my naïve understanding as a mere shadow Minister, but I would welcome the clarification and I am happy to pass them on to the Clerks to ensure that, if we are going to update the Bill, all parts are updated. Finally, and critically, do we have the workforce, training and services in place to support this cultural and clinical shift away from paternalism towards community-based and rights-respecting alternatives?

Schedule 1 shows us that reform is not just about good intentions, but getting the detail right. It is about ensuring the law reflects modern clinical understanding and human dignity. I support the direction of travel, but I gently remind the Minister to ensure that the operational mechanisms of the schedule are tested, clarified and, where necessary, strengthened. We owe that to the individuals and the families for whom we are producing this legislation to improve their lives.

Perhaps a more balanced approach would be to strengthen the duty to respond with clear timelines and a requirement for transparency about decisions, while investing in cross-sector co-ordination mechanisms and adequately resourcing local authorities and housing providers. We could provide statutory guidance to clarify roles and responsibilities, and enhanced oversight to monitor outcomes, rather than simply prescribing an inflexible duty to implement.

In essence, a duty to respond means that the responsible body, whether an integrated care body or the local authority, must formally consider and reply to the recommendations arising from the care and treatment review. It does not legally compel it to carry out every single recommendation, but it requires the body to explain what it will and will not implement, and why it cannot implement a recommendation. That promotes transparency and accountability without creating unrealistic legal obligations. For example, an ICB might say, “We will implement recommendations 1, 3 and 5 within six months, but recommendation 2 is not feasible due to current resource constraint.” That kind of structured response is both practical and responsible.