Baroness Tyler of Enfield:

Moved by Baroness Tyler of Enfield

48: After Clause 51, insert the following new Clause—“Review and reporting on inequalities in Mental Health Act Measures(1) As soon as reasonably practicable after the end of each calendar year, the Secretary of State or appropriate national authority must conduct a review, in consultation with relevant bodies with commissioning functions, on the use of treatment and detention provisions contained in the Mental Health Act 1983, broken down by race and other demographic information.(2) Having conducted a review under subsection (1), the Secretary of State or appropriate national authority must publish a report on the progress made in reducing inequalities in treatment outcomes and the use of detention under the Mental Health Act 1983 on people who have protected characteristics under the Equality Act 2010.(3) In this section “the appropriate national authority” means—(a) in relation to services or unit whose area is in England, the Secretary of State;(b) in relation to units or services whose area is in Wales, the Welsh Ministers.”Member’s explanatory statementThis amendment requires the Secretary of State or Welsh Ministers to review and report annually on the use of treatment and detention measures under the Mental Health Act 1983, analysing data by race and other demographics to assess progress in reducing inequalities for those with protected characteristics under the Equality Act 2010.

My Lords, Amendments 48 and 49 are in my name. I thank the noble Baroness, Lady Bennett, for adding her name to Amendment 49.

As debated throughout the passage of the Bill, a primary driver of the review into the Mental Health Act was the shocking racial injustices in the use of that Act. The figures are well known to us: black people are disproportionately more likely to be detained and put on a CTO, and experiences and outcomes for people from racialised communities are, on average, worse. One of the main policy objectives set out in the Bill’s impact assessment is to

“reduce racial disparities under the MHA and promote equality”.

That is great but, given that, I have found it surprising from the outset that race and racial disparity were not mentioned anywhere in the Bill or the Explanatory Notes.

Instead, there has been an expectation that non-legislative programmes—in particular, the patient and carer race equality framework, which is a contractual arrangement—and some of the Bill’s broader reforms will reduce racial disparities without specific legislative requirements. I was grateful to the Minister for organising a helpful recent round table on reducing racial disparities. I learned a lot about the operation of the PCREF, if I might call it that; I will return to it shortly.

I believe there is currently insufficient collection and reporting of data on the experiences and outcomes of people from racialised communities under the Act. That in turn hinders the ability to scrutinise progress being made in reducing racial disparities. I know from our deliberations on Monday that further thought is being given to this and that new research is being commissioned. I very much welcome that, so what would my amendments do?

In brief, my Amendment 48 would require the Secretary of State and Welsh Ministers

“to review and report annually on the use of treatment and detention measures”,

broken down by detected characteristics. This would enable us to understand whether these reforms are fulfilling their intended purpose of bringing down inequalities and to identify any further action needed. However, I firmly believe that this needs to be accompanied by Amendment 49, which would introduce a new responsible person role at hospital level in mental health units to tackle and report on racial and other inequalities, as recommended by the Joint Committee.

The Minister has expressed concerns that a responsible person role may duplicate existing roles and duties, such as those under the Equality Act. I do not believe that will be the case. Where there are people performing similar roles, they can take this on but, in many places, local PCREF leads do not exist. Where they do, they can take on the responsible persons role and that is absolutely fine. I think this role would actively assist providers in complying with PCREF and their Equality Act duties. It would also help to drive implementation of other measures in the Bill, such as advance choice documents and opt-out advocacy. These important measures are much more likely to succeed if someone is clearly tasked with ensuring that the mental health unit implements them, everyone knows who is in charge and who is accountable.

There is a model for the use of a responsible person at unit level, in the Mental Health Units (Use of Force) Act 2018. Under that legislation, the role is accountable for ensuring that the requirements of the Act are carried out. It is a senior role which may be carried out by an existing member of staff, such as a medical director or director of nursing. That would be a good model to follow. Giving an existing senior clinician with the necessary clout the responsibility to make things happen and creating clear accountability would really help to bring down disparities at local level.

The scope of the PCREF, which is NHS England’s anti-racism framework, is rightly much broader than the Mental Health Act. The responsible person in my amendment would be accountable for ensuring that the voices and interests of detained patients and their carers are properly reflected in the PCREF.

Finally, I was very grateful to the Minister for our recent correspondence following the helpful round table I referred to. I was very struck by the acknowledgement at that event of the big difference that a responsible person could make in enabling the patient and carer race equality framework to reduce both racism and racial inequalities in the way the legislation operates. As the Minister knows, I have made the—hopefully—helpful suggestion that some form of pilot of the responsible person role could considered at an appropriate time when the PCREF has bedded down and with some idea of how effective, or otherwise, it might be. Any assurances the Minister could provide would be much appreciated. I beg to move.

My Lords, it is a pleasure to follow the noble Baroness, Lady Tyler. I have attached my name to the noble Baroness’s Amendment 49. As the noble Baroness said, like Amendment 48 it addresses one of the primary reasons for reviewing the Mental Health Act in the first place. Black people are over 3.5 times more likely to be detained under the Mental Health Act than white people, and over seven times more likely to be placed on a community treatment order. Their experiences and outcomes are worse. All of those are facts. As the noble Baroness, Lady Tyler, said, the Bill somehow does not seem to be addressing that. We are taking an overall systemic view but not addressing the issues of a particular population. The reason I chose to sign Amendment 49—we are going to come shortly to the amendment in the name of the noble Lord, Lord Stevens, looking at the resources being put into the Mental Health Act—is that this is another way of putting resources into what everyone agrees is a crucial issue. This is a different way of allocating resources.

The noble Baroness, Lady Tyler, has made the case that PCREF is not the same thing. The Care Quality Commission does not have the same kind of situation. We are talking about people at a local trust level here; that is where the responsible person would be. As the noble Baroness said, if there is already someone, because of local arrangements, fulfilling this role, they can simply adopt this along the way. It does not have to be any kind of duplication. I note that the campaign group Mind very strongly backs this amendment. It delivers where we started from on this whole Bill.

My Lords, I will speak to Amendment 61, which calls for a review into the causes and consequences of the huge spike of diagnoses of mental disorders. It should also investigate the impact of this on the availability of services that we envisage treating people with a mental disorder that this Bill seeks to help.

If, in our best efforts to provide alternatives to detention for the severely ill, we hope to ensure that adequate care in community settings exists, we must look at the phenomenon that threatens to squeeze out those who most need access to such services. Implicit to this endeavour is to ask if, inadvertently, some aspects of policy set in train a self-fulfilling prophecy. Rebranding any deviation from the norm, troublesome behaviour, anxiety or even, according to the Government’s curriculum review, GCSE exam stress, under the therapeutic language of mental health has consequences. As Tony Blair has noted recently:

“you’ve got to be careful of encouraging people to think they’ve got some sort of condition other than simply confronting the challenges of life”.

Yet the young especially are prone to internalising the narrative of medicalised explanation and adopt an identity of mental fragility and illness. This can create a cohort of citizens demanding official diagnoses, NHS intervention and treatment.

This week, the media has featured the new book by Dr Alastair Santhouse, a neuropsychiatrist from Maudsley Hospital. In the book No More Normal: Mental Health in an Age of Over-Diagnosis, Dr Santhouse argues that it has become crucial to reassess what constitutes mental illness:

“so that we can decide who needs to be treated with the limited resources available, and who can be helped in other ways”.

He worries the NHS has

“buckled under the tsunami of referrals”.

Other state services are straining to the point of dysfunction as well. Despite the fact that the number of children with education, health and care plans has more than doubled in less than 10 years, parents are still desperately complaining about waiting for years for autism and other assessments. In other words, the demand is just galloping.

All of this is leading to at least 18 councils being at risk of insolvency, according to the Guardian on Monday. The present row over PIPs and the welfare system collapsing under the costs of ever greater numbers claiming disability payments for mental disorders is now a major political issue. I have been partly inspired to table this amendment by the Health Secretary Wes Streeting’s concern about overdiagnosis of working-age adults leading them to be “written off”, as he said. It is especially tragic that this is happening overwhelmingly among young people.

My concern, and the point of this amendment, is that this can skew NHS provision. A Savanta poll of 1,001 GPs for the Centre for Social Justice’s report Change the Prescription reported that four in five, 84%, of GPs believe that the ups and downs of normal life are now wrongly being redefined by society as mental disorders. Of those GPs, 83% now believe that anti-depressants are too easily prescribed to patients. But the GPs are under so much pressure from patients demanding treatment that they prescribe them. Similarly, in 2013 and 2014 just 1,800 adults were prescribed drugs for ADHD, but last year 150,000 adults were prescribed with ADHD medication. Waiting lists keep growing and lots of anger continues.

When I last spoke on this topic in the Mental Health Bill debate, the media picked up on it and I was inundated with emails, largely from people furious with me for challenging overdiagnosis; I had a tsunami of hate mail. There was even a formal complaint sent to the standards committee of the House. People said, and I understood it, “How can you say there is an issue with overdiagnosis when I can’t get a referral for myself” or “for my child” and so on. It is true that a GP cannot formally diagnose ADHD as it requires specialist assessments. The average waiting list for an ADHD referral on the NHS is now three years. This lack of formal diagnosis is not necessarily stopping service provision becoming overwhelmed and distorted, and I think this mood will have a very damaging impact on what we want this Bill to do.

I will finish with an apocryphal tale from the University of Oxford’s disability report from 2022-23. It reveals that the university has, under pressure from students, agreed to

“accept a wider range of disability evidence” as a key to giving 25% more time in exams and the use of computers in exams. The university’s explanation is telling. It talks of

“a wider context of extensive and ever-growing waiting times for ADHD and autism diagnostic assessments”,

so it aims to reduce “administrative burdens and barriers” for disabled students.

The parallel for us in relation to the Bill is that the hard-fought-for arrangements for the disabled at university are now potentially being corrupted by an overdemand and by demands for diagnosis. Diagnosis itself is now being conflated with supporting documentation, so it is enough for those students to be on a GP’s waiting list for formal assessment to be treated as though they are disabled. I hope noble Lords can see the dangers of such trends off-campus for the Bill here.

My personal worries are about the culture of draining society of resilience and of a dependent citizenry, but for this Mental Health Bill it would seem sensible for the Government to review the confusion about who services are for and what is driving this extraordinary increase in those demanding NHS, mental health and autism services—because it seems to me that it is social rather than medical. Whatever is happening, it could mean that those most in need will be neglected in the scramble for official labels and treatments.

Some reassurance from the Minister at the Dispatch Box that this will be looked at, rather than overlooked, would make me feel that this major social phenomenon is not going to be swept under the carpet—because I think it will negatively impact on the implementation of the Bill.

Before the noble Baroness sits down, she mentioned autism several times, but the whole purpose of the Bill is to remove autism and learning disability from mental health, where it previously was. In fact, I served on the Bill Committee, as did others in the Chamber, in 2005-06, when I was really opposed to autism being added to the 1983 Act. But it was added, and now it is being taken out, I am very pleased to say.

I hope that the noble Baroness will accept that there is a piece of legislation about this on the statute book: the Autism Act 2009, which is being reviewed by the House at the moment. Autism is not some fad, something that people just make up, or something temporary; it is a lifelong neurological condition. I raise the failure to provide the right services for people with autism who are in that part of the spectrum where they need support. Not everybody does: it is a spectrum, and I quite agree that there are people on the spectrum who cope quite well with life, knowing that they have autism and not needing that sort of support. We have discussed that support a lot in the course of this particular Bill, and if you do not provide it where it is needed—this is the weakness that we are looking at in the current Autism Act—that leads to quite serious mental health conditions, including suicide. Of all the conditions that the noble Baroness mentioned, among the autistic community the suicide rate is the highest.

I genuinely appreciate that intervention. That is what I think too. It is precisely the inappropriate use of terms such as autism in relation to this overdiagnosis that concerns me, because it is too glibly used. That is part of what I am talking about. I absolutely want those people who need the intervention to get it, but my concern is if it becomes widely used socially, in the way that I did not want to go into in great detail, on university campuses or in society in general. I note the TikTok phenomenon of people getting diagnoses and that being used, and so on. My concern is that the label, the labelling process and the demand for diagnosis and treatment squeeze out the very people that the noble Baroness is talking about.

I too have spent many years trying to distinguish between autism and mental illness. It drives me mad that people do not know the difference. My problem is that, in the debate about this issue, they are very often all lumped together in a way that is medically not clarifying, but the demand for a medical label can mean that people are not even that choosy about which one they get. That is where I have tried to raise an issue.

I am very grateful for that response. The noble Baroness said that autism is different; it certainly is different, which is why it has its own Act of Parliament.

My Lords, as I said on the previous group, I will start by speaking to the amendment in my name and that of my noble friend Lord Howe. It would require the Secretary of State to conduct a review into the ability of the CQC to effectively fulfil its role

“in carrying out its duties under the Mental Health Act 1983, and … in regulating the provision of mental health services”.

We have also included proposed new subsection (3), which would ensure that the review of the CQC’s functions will also include an assessment of whether it will be able to “effectively carry out” its new duties under the Bill.

As the Minister will know, in May 2024, Dr Penny Dash was commissioned to conduct the independent review of the operational effectiveness of the CQC. The full report, published in October, found

“significant failings in the internal workings of CQC which have led to a substantial loss of credibility within the health and social care sectors, a deterioration in the ability of CQC to identify poor performance and support a drive to improved quality—and a direct impact on the capacity and capability of both the social care and the healthcare sectors to deliver much needed improvements in care”.

In addition, my noble friend Lord Howe raised the issues arising from his meetings with the charity Blooming Change on a number of occasions. It has raised serious concerns about the CQC’s monitoring activity. We also know that the Secretary of State himself has claimed that the CQC is not fit for purpose, and that there are some fundamental issues with how the CQC oversees the mental health care system.

As we have heard from other noble Lords, one solution would be to have an independent mental health commissioner. Our solution is to call for a review of the CQC that specifically focuses on its mental health functions, to make sure that it does its job properly. The review conducted by Dr Dash comprehensively assessed the CQC’s ability to regulate primary, secondary and community care, but it did not focus on the sufficiency of mental health care regulation. I thank the Minister for the brief meeting with my noble friend and me earlier this week, in which she indicated that she would be able to give greater assurances on this particular issue. I look forward to what the Minister has to say on it, because this is part of our justification for not supporting the mental health commissioner: we want to see a strengthened CQC. We do not want duplication, but, in avoiding duplication, we want to make sure that the CQC does the job it is supposed to do. I hope I can get that assurance from the Minister when she speaks.

I have some sympathy with Amendment 61, in the name of the noble Baroness, Lady Fox, in line with the comments of the former Prime Minister, Tony Blair, but I also have some sympathy with what the Secretary of State said. We thought about whether we could find an appropriate amendment to table on this. We have to be very careful and sensitive about this issue: we in Parliament or officials in Whitehall cannot hope to pronounce on the issues individuals face in their homes or communities. It is about getting the balance right.

The noble Lord, Lord Alderdice, also spoke about the concerns about overdiagnosis, but we cannot just make a generalisation. We have to make sure that the mental health professionals are doing their job, with the right guidance, to ensure that we understand the needs of each individual. For that reason, I thought it was far too difficult—and it would have been insensitive —for me to lay an amendment on this topic. I did not want to go there for that reason. This is an issue that has to be discussed, but we have to do it in the most appropriate way—in a sensitive way that understands those who suffer seriously from mental health conditions.

Let me turn to the amendments tabled by the noble Baroness, Lady Tyler. She and I have both raised the issue of racial disparities. In Committee, I went in very strongly on it—this is the issue that matters to me personally very much, and I shared some of my own experience of racial discrimination. I am as frustrated as everyone else that we still have not resolved the problem to this day; we still do not understand why, disproportionately, black men in particular are subject to detentions and community treatment orders. I asked questions at the time. What do we know? What do we not know? What are we doing to fill that knowledge gap? Once we have filled that knowledge gap, what are we going to do about it? Once again, I thank the Minister and her officials for the detailed meetings that they had with us when they laid out some of the things that they are doing. Could I tempt her to share with noble Lords some of that discussion and her letter, to assure us all that the Government really are on top of that issue, know what they are doing and are going to address these problems?

I was unsure about how effective the provision in Amendment 49 would be. I know that it is not very fashionable for politicians to say, “I don’t know”; we are supposed to make a firm decision one way or the other and agree or strongly disagree. But I wanted to reflect on whether that amendment would represent an additional burden on the healthcare professional, additional cost or additional bureaucracy. Given that we cannot, at this stage, say for sure how this will turn out, I support the suggestion of the noble Baroness, Lady Tyler, to pilot a scheme of a senior responsible person to address racial disparities. If we could pilot it in some places, it would give us the data to understand whether a responsible person would be effective in addressing those disparities. We all know that more needs to be done. We have had successive Governments of all political colours, and we still have not solved this problem. Let us be determined, as a House, whichever party we are, to tackle this problem of racial disparities, and let us make sure that we do it in the most effective way.

I am grateful for what the Minister said on Monday, but I hope that she will give some consideration to what the noble Baroness, Lady Tyler, said about piloting a responsible person to see whether that works. Maybe it will not work, but at least we would have the data and evidence. I would appreciate the Minister giving a more detailed explanation of some of the research that is being conducted to fill that gap, so we can understand why there are still racial disparities and what Governments of any political colour would have to do to address them.

My Lords, I thank all noble Lords for their contributions on this important and somewhat wide-ranging group of amendments.

I turn first to Amendment 48, tabled by the noble Baroness, Lady Tyler. We very much recognise that there are inequalities in the use of the Act between different demographic groups, and particularly that there are significant racial disparities. The noble Lord, Lord Kamall, has rightly expressed some frustration with the fact that we all find ourselves where we are today.

To those points, I would say that these inequalities are explored in the impact assessment published alongside the Bill. I reiterate how grateful I am to Peers who recently attended our round table to examine research findings and ongoing work to address racial disparities under the Act. I am glad to hear that the noble Baroness, Lady Tyler, found it helpful—as indeed I did.

I offer the assurance that NHS England already publishes the Mental Health Act Statistics annual reports, broken down by ethnicity and other demographic information, including gender, age and index of multiple deprivation decile. We are improving the data through the patient and carer race equality framework, and we will monitor these inequalities as part of the overall monitoring and evaluation of the reforms.

Furthermore, as I announced on day one of Report, I commit to update Parliament annually on our progress with implementation, including racial disparities. I also committed to undertake further investigation into racial inequalities under the Act. As far as possible, we want to better understand where disparities are most significant across the patient journey, what drives those disparities and, most importantly, where we can most effectively intervene to reduce those inequalities. I very much look forward to keeping Peers updated on those findings, as the noble Lord, Lord Kamall, has rightly requested.

Amendment 49, also in the name of the noble Baroness, Lady Tyler, seeks to create a new role of a responsible person. We agree that there is a need to improve organisational leadership, improve data collection and change culture across the mental health system. This is exactly what the patient and carer race equality framework is designed to achieve; it requires a nominated executive lead at board level, who is accountable for the delivery and oversight of the framework and implementing culturally appropriate care. This is now part of the NHS standard contract and, I am glad to say, applies both to the NHS and independent providers of NHS-commissioned care. It builds on the duties that apply already under the Equality Act 2010.

These existing duties and contractual requirements cover all the key responsibilities of the proposed responsible person role. The added benefit of having many of these requirements set out in the patient and carer race equality framework is that it can be updated more regularly than primary legislation. This allows us to take a more agile and iterative approach throughout the implementation of the Bill, to ensure that we do what noble Lords want the legislation to do: that is, capturing, reporting and acting on the right data and information from front-line services.

I appreciate the suggestion of the noble Baroness, Lady Tyler, for pilots. We believe that the points that I have just raised go further than the suggested pilots and, as the noble Baroness will be aware, that the addition of a responsible person in the legislation is duplicative and unnecessary.

I turn to Amendment 60, tabled by the noble Earl, Lord Howe, and the noble Lord, Lord Kamall. Two major independent reviews into the CQC have reported under this Government in the last few months. One was by Dr Penny Dash, on the CQC’s operational effectiveness as a regulator of all health and social care providers, including mental health, and the other was by Professor Sir Mike Richards, on the CQC’s single assessment framework. These reviews were prompted by very significant concerns that the CQC was no longer fit to spot poor performance, resulting in quality and safety concerns falling under the radar, which is not acceptable. We are most grateful to Dr Dash and Professor Sir Mike Richards for their recommendations, which the CQC has accepted in full.

As I have already mentioned, we particularly welcome the appointment of Dr Chopra, the CQC’s first Chief Inspector of Mental Health. As I have said, this is a very significant milestone, and one which will improve the voice of mental health patients and help to see that their rights are better upheld. To offer further assurance to the noble Lord, Lord Kamall, the Chief Inspector of Mental Health will carefully explore how to strengthen the focus on Mental Health Act compliance in regulatory assessment of providers and how to ensure that the CQC has the capabilities and systems to ensure effective monitoring of providers’ compliance with all aspects of the Mental Health Act, including the reforms. On top of that, the CQC is working to strengthen the expertise in its workforce and improve how it carries out assessment of services. Under the leadership of a new chief executive, Sir Julian Hartley, it is working to build the foundations for good regulation, including looking at the organisation’s purpose and value.

I reiterate the point that I have made to the noble Lord, Lord Kamall, in previous meetings that the department’s director-general of secondary care and integration has been meeting the CQC’s chief executive and his team every two weeks to monitor progress, with regular reports made to the Secretary of State so that he can keep abreast of developments. These changes will see that the CQC is better placed to regulate mental health services.

On the CQC’s specific role in relation to the Mental Health Act, I have listened carefully to the concerns raised by noble Lords and I am pleased to announce that we plan to report on the CQC’s monitoring functions under the Act in the first of the Government’s annual reports on implementation of the Bill. We will also invite the new chief inspector of mental health to provide their reflections on the CQC’s statutory functions and their role as a partner in the delivery of these reforms, which will feature in our report. This will draw on the chief inspector’s valuable professional background in the field, both in the delivery of front-line clinical psychiatric care and as medical director of the Mental Welfare Commission for Scotland. The report will be laid before both Houses of Parliament.

Finally, I turn to Amendment 61. I was interested to hear that the noble Baroness, Lady Fox, was inspired by the Secretary of State’s comments to bring forward this amendment. As she rightly said, the Secretary of State has set out previously that he believes that there is an issue with overdiagnosis of some mental health problems. I thank the noble Baroness, Lady Browning, for her helpful intervention to shine more light on the discussion that was had. There is no doubt that too many people in this country are being written off and not getting the support that they need, which is why the Government’s shift from sickness to prevention is so important. We know that, if support can be provided to people much earlier, the onset of mental illness and deterioration of mental health can be prevented. That is why, as one of a number of measures, we are rolling out mental health support teams to schools in England.

I say to the noble Baroness, Lady Fox, that this is an important area, and we are keen to take a closer look and, as ever, follow the evidence. We are looking into the best way of getting into these questions and addressing these issues. I hope that my words and promised actions have given reassurance—

I am sorry to interrupt. Just to go back to my amendment on the CQC, one of the arguments for those who believed in creating an independent mental health commissioner was that they would be a voice for the patients. With that strengthened role for the CQC, where is that voice for the patients? That was one of the justifications for those arguing for creating a mental health commissioner. We decided not to support that because we thought that function should be part of what the CQC does. Could the Minister reassure us on that point?

For me, it is about not just somebody speaking for others but getting those voices heard. I hope that the noble Lord and all noble Lords have heard my acknowledgement of the importance of that. Those with lived experience need to be properly heard and their voice amplified. I have given a number of reassurances on that point.

With that, I hope that the noble Baroness can withdraw her amendment.

My Lords, I thank all noble Lords who have contributed to this group and the Minister for her responses. I also thank the noble Lord, Lord Kamall, for supporting my suggestion about a pilot for the responsible person. I have noted that the Minister has said that a pilot is not really necessary because what the Government are doing goes further than that. That is one way of looking at it, but I have to be honest and say that it is not quite how I see it. I completely take the point that we need to see what happens when the PCREF has bedded down. Let us see what it achieves, but if it does not achieve what we all want to see then we will need to think at that point about whether a responsible person would make the sort of difference that was being talked about at that very helpful round table.

I look forward to hearing more about the various actions that the Minister mentioned in relation to the CQC. I of course look forward to meeting the new chief inspector and will be interested to hear how they see their role, particularly the extent to which they think they are an advocate, providing a voice for people with mental health difficulties. This gets to the very heart of this Bill and the very reason why we have it in the first place. It is an incredibly important issue. We could talk about it for a long time, but we cannot. The hour is late and it is incredibly unfortunate that we have had such a truncated second day of debate. I know that these things happen but, given the importance of the topic, it is extremely unfortunate. Having said that, I beg leave to withdraw my amendment.

Amendment 48 withdrawn.

Amendment 49 not moved.