Baroness Barker:

Moved by Baroness Barker

43A: Clause 6, page 12, line 34, at end insert—“(c) after subsection (6) insert—“(6A) Any person subject to a community treatment order must be informed orally and in writing at the time of the making of the order of their right to an independent mental health advocate under section 130A of this Act.””Member’s explanatory statementThe Amendment would ensure that people who are to be subject to a CTO would receive information about their right to advocacy.

My Lords, I do not want to bore people who were not present 20 years ago when we were discussing the introduction of this measure, but the main focus of our discussion was that CTOs would be a means of enabling people with serious and enduring conditions, such as schizophrenia, to be compelled to take medication in the community. That was as a matter of public safety and protection for those people. Twenty years on, we are talking about people with eating disorders: it is completely different.

The noble Baroness, Lady Browning, is right: the evidence base behind the discussion is woefully lacking. What we do not know—we do not have the evidence for it—is what change has come about on the part of clinicians. It was sold to us that we were going to stop people being held inappropriately in acute services where they did not need to be and where there was not going to be any therapeutic benefit for them. We have never, to the best of my knowledge, seen that there has been change, nor, indeed, that there has been a flow of resources that has enabled those patients who have been on CTOs to leave acute hospitals and not go back. Unless and until we get that evidence base, frankly, we can all come up with our theories about what are the causal factors, but they are nothing more than our own prejudices and theories.

That said, my Amendment on CTOs comes from real-life, front-line experience. As the noble Lord, Lord Kamall, read out from the briefing, there are people whose experience of being on CTOs has been so bad that they want to see an end to them; they do not want to see other people being subjected to them, and I have a degree of sympathy with that. Having said that, I accept that there are some people for whom they work.

One of the things that is wrong with them is that CTOs are agreed by the clinicians in the acute hospitals. People then go out into the community, but the advocacy services are largely in the acute hospitals. Frankly, if you have been a patient in an acute hospital and you do not have to go back, why would you? Therefore, most people do not, and are not willing to, go back into the hospital to get advocacy services, but they are entitled to have them. The noble Baroness has already talked about the role of advocacy in the process of renewal.

This amendment is flagging up the fact that we have a treatment regime which is based in acute hospitals and the connection to community services is one that exists perhaps on paper rather than in reality. My amendment is an attempt to begin to patch this up to some extent, so that instead of becoming a one-off episode, which it often can be, it is part of an ongoing pathway of treatment. I beg to move.

I will speak to Amendment 100 in this group, and there are four or five consequential amendments which I have added. Noble Lords will therefore be pleased to know that the group is a lot smaller than it looks.

The purpose of this amendment is, on the face of it, to remove informal patients from qualifying for help from independent mental health advocates, on the basis that, given the resources required, to expand the services for detained patients to all in-patients is impractical, as in the impact assessment done by the Government. There will be some who assume from this amendment that I do not like IMHAs, but nothing could be further from the truth.

On the face of it, one cannot criticise what appears to be an extension of services and automatic referral to IMHA services, for both detained and informal patients. Local authorities, under direction from Schedule 3, will be obliged to provide the service and will need to extend it significantly. There are currently 50,000 new detained patients eligible for the service every year, but this would double to 100,000 people when informal patients are included. The impact assessment for cost to local authorities calculated that these new services will be an extra £571 million over a 20-year period—that is over half a billion pounds, or £81 million or so every year.

One might assume, therefore, that some serious evaluative research had demonstrated what a boon advocates are, as we all hope so, and that patients valued them and that they made a big difference to their outcomes. However, there is just one small UK study, by Karen Newbigging and her colleagues, which, on quality of services, suggested that where they were accessible— and they were not really very accessible in all the places studied—patients found the process was a positive experience, although they had no impact on outcomes of care and treatment. The advocates concentrated on explaining people’s rights but did not advocate more creatively to change decisions on care, which the authors rightly suggested could be an important role.

It is generally thought that, where IMHAs are from the same ethnic community as the patient, this is one step that could be taken to make the service more friendly for black and other ethnic-minority patients. There is better evidence in the States, where it has been demonstrated that independent advocates are central to the success of advance choice documents; patients do not create advance choice documents without a facilitator. A study in North Carolina showed that providing a facilitator in the form of an independent advocate increased the number of people making a psychiatric advance directive from 3% to 60%. Since we hope that these will be increasingly helpful to patients, I can understand why we think it is very important that detained patients should have them.

However, I would suggest that it is a bit of a leap to go for a massive expansion without much more evidence on how best to use these trained advocates and on who benefits the most. In September 2023, there were 28,600 vacancies—19% of the total workforce—in mental health services, including 1,700 medical and 13,300 nursing vacancies. In spite of training more staff, there is ample evidence that the current challenges posed by in-patient environments mean that many services rely on agency and bank staff simply to keep the ward open. The King’s Fund survey of approved mental health professionals found that, to meet the requirements of a 24-hour service, there would need to be a 30% increase in the number of full-time equivalent staff, in addition to accounting for the vacancy rates of over 11%.

Yet here we are proposing that the local authority should spend a huge amount of money on independent mental health advocates, when it does not have a satisfactory number of psychiatric social workers and cannot fulfil its obligations to provide decent social care for older people or protect vulnerable children from harm. If any noble Lords were reviewing their own local authority spending, do we seriously think that expanding IMHA services to informal patients would be high on the agenda? I think probably not, although I believe they will be helpful, especially for patients matched to someone of the same ethnic background. I would like to see more consistent evidence about how best to recruit and train them and develop their skills because it is crucial, if we do fund them, that we get the basics right, so that when they do get appointed, they are doing the right things for the right people. Otherwise, we should be extremely cautious in expanding these services.

My Lords, I rise to speak to Amendments 102, 105 and 106 in my name. These amendments all deal with extending the provision of advocacy services to informal patients below the age of 18. When I read the other amendments in this group, I thought, “Goodness me, this is going to be a bit tricky, isn’t it?”. It felt at one point as if we were diametrically opposed, and that is not a comfortable position to be in against someone with years of expertise who is as distinguished as the noble Baroness, Lady Murphy. However, I have listened carefully to what she has to say and the nub of it is her concern about resources. On that point, I fully get it, about the workforce generally and advocates in particular. I am going to press on with my amendments none the less, because I am trying to deal with the principle as opposed to the resources.

Both the Independent Review of the Mental Health Act and the Joint Committee on the draft Bill recommended that advocacy should be extended to informal patients. Currently, only those detained under the Mental Health Act 1983 have a legal right to advocacy services. The Mental Health Bill introduces a new opt-out scheme, meaning that all detained patients will get an automatic referral to advocacy services. The Bill also extends advocacy to informal patients, but they will not be captured by the new opt-out scheme, meaning that informal patients will still be required to ask for support via an advocate. This is at the very nub of the problem with which I am concerned.

It is crucial that children and young people aged under 18 admitted to mental health in-patient care informally should have an automatic referral to advocacy services, in line with those who are detained under the Act. There may not be very large numbers—that is relevant to the resource concerns—but it is worth remembering that a higher proportion of children and young people are admitted to mental health hospitals informally. Indeed, it is estimated that around 31% of under-18s are admitted to in-patient care this way—namely, on the basis of their own or parental consent. Having access to an advocate automatically will help young informal patients understand and exercise their rights and ensure they have a say in the decisions made about their care and treatment. This could also lead to improved outcomes and prevent young people being kept in hospital for any longer than they need to be—something I am sure we all agree on.

It is worth adding that the lack of access to advocacy for informal patients has been a long-standing concern. There is a real concern that children and young people admitted informally will continue to experience problems accessing an advocate under the new system proposed as part of the Bill. It has been noted that, often, young informal patients do not understand their rights and feel an underlying threat that, if they break the rules in some way, they will be sectioned. We have to take that into account. Despite the concerns about resources, which I fully understand, access to an advocate is crucial in helping children and young people who are informal patients navigate what is a very complex system.

My Lords, I will speak briefly to support the Amendment tabled by the noble Baroness, Lady Tyler. The extension of advocacy services to children and young people is important, because, as she outlined, there is a disproportionate number of children who are voluntary—I think there are just under 1,000 a year—in mental health institutions.

It is also important to recognise that there are other additional rights that children have when they are detained, or when they have agreed and consented to go into hospital. They need to continue their education while they are in there. It is important to advocate for what their entitlement is while they are in hospital—I think we are all used to walking past the hospital school that is within a normal physical illness hospital—thereby enabling them to continue their education and considering what their rights are in that regard. That is obviously so important for them and their recovery, so I support the amendment from the noble Baroness, Lady Tyler.

My Lords, I have a few brief comments on this group of amendments. In response to Amendment 43A, tabled by the noble Baroness, Lady Barker, given that anyone subject to a CTO already receives something in writing, it should not be too difficult for the Government to accept her amendment. Assuming that they have a right to access independent mental health advocates, it seems like a very reasonable amendment.

Like the noble Baroness, Lady Tyler, I must admit that, when I read the amendments tabled by the noble Baroness, Lady Murphy, I wondered—given that the amendments from the noble Baroness, Lady Tyler, and the noble Lord, Lord Scriven, seek to extend access to independent mental health advocates—why she would want to exclude informal patients from access to those advocates. However, as she explained, and as my noble friend Lady Berridge commented on day one in Committee, we have to deal with the world as it is, not the ideal world that does not exist. As the Minister has often reminded us, this will not all happen in one big bang; the Government’s plan is for it to take over 10 years, subject to spending reviews and resources.

In fact, the noble Baroness, Lady Murphy, made what appear to be two valid points. The first is that we need to be realistic about resourcing. As the impact assessment suggests that expanding access to independent mental health advocates to informal patients will cost £81 million every year, we have to ask: is that the best use of that money, if it were available, given all the other demands on it?

On the noble Baroness’s second observation, I thought that the research cited was interesting: that extending these independent mental health advocates from one environment or cohort of patients to another does not necessarily mean that it will work.

I just wonder where this £81 million per annum comes from. I think that there is a total cost of £99 million over the period, but I am not sure where the £81 million comes from.

It is taken directly from the Government’s impact assessment on the Bill to local authorities, with these particular resources for IMHAs.

I am reading the impact assessment, and the annual amount is between £6 million to £7 million, and not £81 million. Perhaps the Minister could clarify that when she responds, as the impact assessment that I am reading is different from the £81 million that the noble Baroness, Lady Murphy, and the noble Lord, Lord Kamall, are referring to.

I thank the noble Lord, Lord Scriven, for that, as I would not want to be using inaccurate information. Maybe the Minister can check with her officials, thanks to the wonderful use of technology, to ensure that we have an accurate figure by the time that she gets up to respond to our points. Whichever number is accurate for the cost of extension, it does have an impact on how noble Lords may feel if these amendments come back on Report.

The study that the noble Baroness, Lady Murphy, shared with us contained two statements which I picked up on, and which I hope the noble Baroness will correct if I am wrong. First, patients found the process was a positive experience. But, secondly, the study found no evidence that it had any impact on the outcomes of the care and treatment. That is an important point to make. Once again, what is effective, and what works? Sometimes, feeling better and being more positive is part of a treatment, and we should not dismiss that.

I do not want to sound too negative, as I thought that the North Carolina study was very positive, and the noble Baroness and I corresponded about this over the weekend. It was interesting that it found that black mental health patients benefited from having an independent mental health advocate, especially if the advocate was also black, as patients felt better supported, and more confident that they would be listened to by someone. The crucial point was that it appeared to reduce the rate of repeat detentions. This is one of the crucial issues throughout the Bill. This is one of the reasons why my noble friend Lady May asked for the Wessely review.

I do not wish to interrupt my noble friend’s flow, but this is one of the key things that is evidence-based, and that does reduce detention for those communities, so it is important.

I am grateful to my noble friend for that Intervention, because this is something that we could learn from here. Given the point that the noble Baroness, Lady Murphy, made at the beginning, would taking that lesson from the black community in North Carolina work with black communities up and down the country here? I hope it is something that the Government could look into, or respond to, as one of the ways, once we have the relevant data, to reduce the rate of detention and CTOs for people from the black community.

I end by asking the Minister that question: is she aware of whether her department has looked at—was it North Carolina or South Carolina?

North Carolina.

I would not want to upset any people from South Carolina. In fact, I did some work in Raleigh and Durham a few years, so I should get this right. Is the department aware of that study, and has there been any analysis of what could be learned from that study which could be relevant to the United Kingdom, especially given one of the main reasons we are here tonight is to reduce the disproportionate detention of people from black communities? I look forward to the Minister’s responses.

My Lords, I thank all noble Lords who have spoken to and tabled amendments for this important discussion, which, I am sure my Whip will tell me, will be the last one of the evening.

It will be.

I have had that confirmed.

I will first address Amendment 43A, tabled by the noble Baroness, Lady Barker. Patients on CTOs already have the right to independent mental health advocate services. Community treatment order patients will be informed of their right to an independent mental health advocate when they are under Section 3, as part of the opt-out approach for all detained patients, as a patient cannot be placed on a CTO without having been detained first in hospital. They will be aware of this right. In addition, the revised code of practice provides opportunities for further guidance on how to improve the uptake of services for CTO patients, and we will consult on this.

Amendment 102, in the name of the noble Baroness, Lady Tyler, was also spoken to by the noble Baroness, Lady Berridge. We appreciate that advocacy plays a vital role in supporting choice and the person as an individual, and that under-18s are a vulnerable group who would benefit from independent mental health advocate representation. I am pleased to say that the Bill already extends the right to an independent mental health advocate to informal patients, and this includes children and young people. It places a new duty on hospital managers to inform them of this right. As we seek to revise the code of practice, we plan to provide further clarity on how to meet the needs of children and young people, including through this increased access to advocacy, so the point is well made.

I thank the noble Baroness, Lady Murphy, for bringing Amendments 100, 103, 104, 108, 109, 110 and 111 before the Committee today, which were also spoken to by the noble Lord, Lord Kamall. Currently, independent mental health advocacy support is available only to detained patients. We want to extend this support to all in-patients, as we believe it is important for all patients to understand their rights and legal status, not just those who are detained under the Mental Health Act. This is in line with the approach already taken in Wales, where both detained and informal patients are eligible.

The noble Baroness, Lady Murphy, and the noble Lord, Lord Kamall, raised points about expanding advocacy and the use of resources. The figures suggested by the noble Baroness, Lady Murphy, overstate the costs that are set out in the impact assessment. Table 7 in the impact assessment shows that the estimated annual cost of informal advocacy would be between £6 million and £7 million a year. I hope that clarifies things for noble Lords.

I apologise. Obviously, I was looking at another figure from a different bit of the impact assessment.

I think the noble Baroness, Lady Murphy, added up all the years and got to the final cost, and then described it as an annual cost. I think it was a genuine mistake.

I am sure that what the noble Lord, Lord Scriven, said is absolutely right—and the noble Baroness has absolutely no need to apologise.

We intend to implement these reforms in phases, when funding and system capacity allow, prioritising an opt-out approach for detained patients. We will expand eligibility for independent mental health advocates to informal patients only when we are sure that doing so will not impact on the resource available to detained patients.

Turning to Amendments 105 and 106, tabled by noble Baroness, Lady Tyler, and supported by the noble Lord, Lord Scriven, as I mentioned, the extension in the Bill of the right to an independent mental health advocate to inform all patients does include children and young people. With regards to an opt-out approach to advocacy, we believe that detained patients have a particular need, given that they are subject to greater restrictions and are potentially more vulnerable compared with informal patients. The Mental Health Act, its code of practice and the regulations relating to the independent mental health advocate services set out that local authorities should ensure that independent mental health advocates understand equality issues and that there are enough independent advocates with a specialised understanding of the specific needs of particular groups—for example, children and young people. As we revise the code of practice, we plan to provide further clarity on how to meet the needs of children and young people, including through this increased access to advocacy. I hope that this reassurance will be welcome.

The noble Lord, Lord Kamall, asked whether the department was aware of the North Carolina or South Carolina study. As we have all agreed, it is in respect of the North Carolina study. We are running culturally appropriate advocacy pilots in Manchester and Birmingham which are testing the approaches to delivering improved culturally competent advocacy services that support specific preferences and needs of people from minority ethnic groups. We have also commissioned an independent evaluation of these pilots and will be looking at that alongside the international evidence that has been discussed this evening. I am most grateful to the noble Lord, Lord Kamall, for raising this.

For all those reasons, I hope that the noble Baroness will withdraw her Amendment.

My Lords, I thank the Minister very much. I will not delay the Committee for very long, particularly given the time of night and that people are screaming to go home. However, there are two or three important points that we need to make. First, on community treatment orders, let us remember that it is compulsory treatment in the community. It happens in people’s own homes or wherever they live, but it is compulsory treatment. We are in danger of forgetting that. Secondly, the Minister said that the intention was to ensure that all detained patients have access to an advocate. Advocacy services are in the acute hospitals. They are not out in the community, yet the treatment which is happening in the community is compulsory treatment.

Both of those two points flag up something that a lot of us mentioned at Second Reading. We have taken the 1983 Act and patched it up, and bolted things on and taken things off so many times that we are now at the point of squeezing stuff in and shoving it around, and we no longer have a basic legal framework which is fit for purpose. We are not talking about building seamless community and acute services which people pass through, get better and come out; we are now in Heath Robinson territory. That is why we are in danger of missing some tricks.

The organisations that came up with my Amendment are made up of the people who work, day in and day out, to try to build a proper service, as opposed to episodes of care. They are saying that people who are subject to compulsory treatment are not getting advocacy because of the way that the services are set up. I hope that the Minister might take that on board, but at this stage and time of night, I beg leave to withdraw my amendment.

Amendment 43A withdrawn.

Amendment 44 not moved.

Clause 6 agreed.

Clause 7 agreed.

Clause 8: Appropriate medical treatment: therapeutic benefit

Amendment 45 not moved.

House resumed.

House adjourned at 10 pm.