Mental Health Bill [HL]
1.This Bill, which was introduced in the House of Lords on 6 November and had its second reading on 25 November, modernises and reforms the law on mental health assessment and treatment, and the rights of, and duties associated with, people with a mental health disorder. It amends the Mental Health Act 1983, which provides the legal framework to authorise the detention and compulsory treatment of people who have a mental health disorder and are considered at risk of harming themselves or others.
2.The Department of Health and Social Care and the Ministry of Justice are together responsible for the Bill and have jointly published a delegated powers memorandum (“the Memorandum”).1
3.We draw the attention of the House to three matters.
Clause 4 (duty to publish guidance in relation to people with autism or learning difficulties)
4.Clause 4 inserts a new Part 8A into the 1983 Act, comprising new sections 125A–125G, and making provision that applies in England in relation to people with autism or learning difficulties. The Explanatory Notes to the Bill state that people with a learning disability and autistic people can be subject to unnecessarily lengthy detentions, which may not meet their needs and provide little or no therapeutic benefit. The provision in the new Part 8A is intended to address this.
5.The new statutory provision follows these outlines:
- For people with autism or learning difficulties who are subject to detention, there is to be a statutory system of care and treatment review meetings, which identify the needs of the patient and make recommendations in a subsequent report about the patient’s needs, safety, discharge and reduction of risk of further detention. The system is given legal force by requiring relevant decision makers to have regard to the recommendations.
- For people with autism or learning difficulties who are not subject to detention but are at risk of detention, there is to be a statutory system of recording information about them on a register. The system is given legal force by requiring the relevant decision makers to have regard to the information in the register and seek to ensure that people’s needs can be met without detention.
- Guidance will be published to aid decision makers in exercising their new statutory functions.
6.The decision makers who will exercise functions under the new Part are:
- “responsible clinicians” (the mental health professionals with overall responsibility for patients’ cases under the 1983 Act),
- “responsible commissioners” (the NHS commissioning bodies that make arrangements for admission to hospital or registered establishment under the 1983 Act),
- “integrated care boards” (NHS organisations responsible for planning healthcare for their local area), and
- local authorities.
7.The new section 125F(1) would require the Secretary of State to publish guidance for those decision makers about the exercise of their new functions. The new section 125F(2) would provide that those persons must have regard to that guidance. The guidance is not subject to any parliamentary procedure before or after its publication.
8.In its justification for the lack of parliamentary procedure, the Memorandum:
- suggests that the approach has been guided by paragraphs 91–100 of our 12th Report of Session 2021–22, Democracy Denied?,2
- explains the nature of the guidance, stating that “it will assist in an already prescriptive landscape and help those subject to the duties determine how best to discharge them in varying circumstances, by reference to examples, case studies, and scenarios and how the duties work in practice”, and
- states that the guidance will deal with “more administrative aspects” of the guidance (in part by contrasting the power with another power in the Bill to make regulations in respect of the content of a register).
9.In our view, the Memorandum’s justification does not show sufficient awareness of the legal consequences of the type of guidance it describes.
10.Paragraph 95 of Democracy Denied? addresses requirements to “have regard to” guidance and their legal effect as follows:
“Where the power includes a requirement “to have regard to” the guidance, it has been the Committee’s practice to recommend that the guidance should be subject to some form of parliamentary scrutiny. This is because, although there is an element of choice, a requirement “to have regard to” guidance carries with it an expectation that the guidance will be followed unless there are cogent reasons for not doing so.”
11.The Explanatory Notes to the Bill describe the decision makers under Part 8A of the Bill as “[playing] a vital role in the individual’s care and treatment”. It is evident to us that they make complex professional judgments which have potentially significant impacts on individuals. It is also clear to us, and acknowledged in the Memorandum, that the guidance cannot cover every eventuality and that bodies may have cause to depart from it in individual cases.
12.Those judgments, whether departing from the guidance or not, will be open to legal challenge in judicial review and in private law, depending on the context. To the extent that the guidance is relevant to those judgments, any examination by a court will be informed by it and departure from it will be subjected to particular scrutiny. The guidance will therefore have a legal and not purely administrative effect.
13.We note that this seems to be understood more generally in the context of the Bill and the 1983 Act. A foundation of the 1983 Act is the Code of Practice under section 118. Those who are subject to the guidance in the Code must have regard to it. The Code and any variation to it must be laid before parliament and is subject to a procedure equivalent to the negative procedure (either House may pass a resolution within 40 days of laying requiring the code or variation to be withdrawn).
14.In view of the failure to adequately justify the lack of parliamentary procedure we recommend that guidance by the Secretary of State about the exercise of functions in respect of people with autism or learning difficulties, and any future variation of it, is:
- laid before Parliament, and
- subject to, at the minimum, a procedure equivalent to the negative procedure.
Clause 18 (urgent electro-convulsive therapy etc.)
15.Clause 18 inserts new sections 67ZA and 67ZB into the 1983 Act. They introduce new safeguards for patients where the approved clinician in charge of their treatment wishes to overrule their refusal of urgent electro-convulsive therapy (and potentially the refusal of other treatments in the future if an existing power in section 58A of the 1983 Act is exercised).
16.The new provision applies to electro-convulsive therapy where:
- the treatment is immediately necessary to save the patient’s life, or
- the treatment is not irreversible and is immediately necessary to prevent a serious deterioration of the patient’s condition.
17.If the patient does not consent to the treatment, or the patient does not have capacity to consent and the decision to give the treatment conflicts with an advance decision or a decision of a donee or deputy of the Court of Protection, the provision inserted by the Bill requires that an affirming second opinion is obtained before the treatment can be given.
18.The new section 62ZB(1) is a Henry VIII power3, subject to the affirmative procedure. It would allow the appropriate national authority4 to make regulations providing for circumstances in which the functions of the doctor appointed to give the second opinion can instead be carried out by the clinician in charge. The effect would be to dispense with the second opinion. The power is expressed in broad language and in particular there are no conditions on the circumstances in which it can be exercised.
19.The Memorandum explains the power as follows:
“[The power] is intended to deal with cases which are of such urgency that the delay caused in obtaining the second opinion appointed doctor would place the patient at very serious risk. The precise criteria is something the Government wishes to test in practice and keep under review as it should only ever be needed in a very small number of cases. It might be that certain cohorts of patients can be identified or that a set of circumstances would be more appropriate.”
20.The Memorandum also explains that the power could only be applied in very limited circumstances because of the narrow scope of the treatments to which it applies.
21.In our view it is clear that there are good reasons to provide a mechanism for the second opinion to be dispensed with in exceptional circumstances. However, even though it is clearly envisaged that the power will apply only to exceptional circumstances, the lack of any such limitation on its scope on the face of the Bill is concerning. As drafted the power could be used to significantly undermine the effect of the new second opinion safeguards introduced by clause 18. It is not material to this concern that the power may apply only to a small number of cases.
22.We therefore recommend that exercise of the power introduced by clause 18 to make regulations about the circumstances in which the second opinion in relation to emergency electro-convulsive therapy can be dispensed with is limited on the face of the Bill to the extent possible.
Clause 51 (power to make consequential provision)
23.The power in clause 51 is a Henry VIII power which would confer power on the Secretary of State to make provision by regulations that is consequential on the Act. Exercise of the power is subject to the negative procedure.
24.A power in this form appears regularly in primary legislation and is almost invariably subject to the affirmative procedure where it is to be used to amend or repeal primary legislation.
25.We have previously expressed the view, both in Democracy Denied? and in our guidance for departments, that there is a presumption that Henry VIII powers will be subject to the affirmative procedure and accordingly that, where a lower level of scrutiny applies, a full explanation should be given in the Memorandum. We have also previously expressed the view that this presumption applies with even greater force where the usual practice is for the affirmative procedure to apply.5
26.The Memorandum acknowledges that the power is a Henry VIII power and justifies the choice of procedure on the grounds that the power is “limited to amendments which preserve the effect of the existing provision” and “will not be able to be exercised to make substantive amendment”.
27.In our view, neither of these justifications are convincing. Consequential provision does not just preserve the effect of existing provision; it may also substantively change existing provision so that it fits with new provision. In addition, and separately, parliamentary scrutiny serves in part to test whether the exercise of a power is indeed within its scope.
28.We consider that the Memorandum has failed to provide an adequate explanation as to why the power in clause 51 is subject only to the negative procedure given that it is capable of being used to amend primary legislation.
29.We therefore recommend that exercise of the power should be subject to the affirmative procedure when it is exercised to amend or repeal primary legislation.
1 Memorandum on the Mental Health Bill [HL] from the Department of Health and Social Care and the Ministry of Justice to the Delegated Powers and regulatory Reform Committee (28 October 2024): https://bills.parliament.uk/publications/56804/documents/5322
2 DPRRC, Democracy Denied? The urgent need to rebalance power between Parliament and the Executive (12th Report, Session 2021–22, HL Paper 106)
3 A Henry VIII power is a power that allows amendment, repeal or other alteration of the effect of primary legislation.
4 The Secretary of State, for treatment that would be given in England or the Welsh Ministers, for treatment that would be given in Wales.
5 See for example the Committee’s discussion of the National Insurance Contributions (Reduction in Rates) Bill (DPRRC, 3rd Report, Session 2023–24, HL Paper 26)