By Tim Spencer-Lane
The Mental Health Bill 2024-25 has now finished its committee stage in the House of Commons, where it was scrutinised by a group of MPs.This followed its passage through the House of Lords, where the bill was amended, including in ways that were opposed by the government.
However, the government has a significant majority in the Commons, which was reflected in the composition of the committee, enabling it to reverse the Lords amendments. The following provides a summary of the key debates and votes.
Extending police powers to health and social care professionals
The government successfully removed amendments passed by the House of Lords on police powers to extend police powers to detain people, under the Mental Health Act (MHA), to certain health and social care professionals (including approved Mental Health Professionals, nurses and paramedics)The Lords amendments extended detention powers currently held by the police under sections 135 and 136 to health and social care professionals. Second, and perhaps counterintuitively, they gave the police and health and social care professionals new express powers to detain people under sections 2, 3 and 5 of the MHA.
Defending the Lords amendments, Luke Evans (Conservative) argued “the idea behind this is to try to crowbar the police out of [the position of first responder] unless absolutely necessary” and allow a new framework that “would be good for safety and good for the police, because they would be freed up to do other stuff” and “would get the care as quickly as possible to the people who need it the most”.
Nine professional organisations, including the Association of Directors of Adult Social Services (ADASS), AMHP Leads Network and British Association of Social Workers (BASW), made a joint statement of concern about extending police powers to health and care professionals in this way.
In the committee debate, the care minister, Stephen Kinnock, said the government did not support the amendments and warned they could have “dangerous consequences”. He added that the police did not support them either, certainly in respect of those concerning sections 2, 3 and 5 of the MHA.
The committee agreed to the removal of the amendments regarding sections 2,3 and 5 by 11 votes to 4. The removal of the amendments relating to sections 135 and 136 were agreed by 10 votes to 3.
Duration of community treatment orders (CTOs)
In the House of Lords, amendments were passed that would have imposed a 12-month maximum duration on CTOs and provided they could only be extended if a second registered psychiatrist gave their written agreement and they subject to reviews every six months.Luke Evans argued that the amendments would secure a “multi-layered review process”, which was “vital to ensure that any extension is based on clear therapeutic benefit and necessity rather than routine or bureaucratic inertia”. He added that they “would further strengthen oversight and accountability”.
However, Stephen Kinnock argued the changes were “unnecessary” because the bill already requires CTOs to be reviewed before renewal after the initial six months, again after the next six months and then yearly. The responsible clinician can renew the CTO only if there is a risk of serious harm without it and a reasonable prospect of it having therapeutic benefit for the patient.
The committee agreed to the removal of the Lords amendments by 10 votes to 6.
Nominated person and children
One of the longest debates during committee was on the reform to replace the current nearest relative role by that of nominated person.Amendments passed by the Lords had established a hierarchy for the appointment of a nominated person by an AMHP for those aged under 16 who lack competence to choose their own. This would consist of (1) a local authority – if the child is subject to a care order, (2) a special guardian, (3) anyone named in a child arrangements order or (4) anyone with parental responsibility.
For the government, Stephen Kinnock argued that a prescriptive list may prevent a more suitable adult from being chosen as the nominated person. He disagreed that “a person with residual parental responsibility should always be blocked from being a nominated person, as the child arrangement order or special guardianship may be in place for reasons other than the parent being a risk to the child”.
In support of the Lords amendments, Luke Evans, for the Conservatives, argued that they placed “proper weight on the legal significance of parental responsibility” and avoided “an overly discretionary or arbitrary approach to who gets appointed to this critical role”.
The removal of these amendments was agreed by the committee without a formal vote. The bill therefore now says the local authority must be the nominated person if the young person is subject to a care order but otherwise the AMHP must appoint someone with parental responsibility who is willing to take on this role.
The committee also voted on an amendment, tabled by Luke Evans, that aimed to require all nominated persons for people under 16 to have parental responsibility for the child, whether chosen by the child or appointed for them. Stephen Kinnock, for the government, opposed this amendment, arguing that where a child has competence to decide, “it is right that they can choose the person to represent their interests”. The amendment was defeated by 11 to 4 votes.
Post-discharge interview with advocate
The House of Lords passed an amendment to the bill which would require an independent mental health advocate (IMHA) to hold a debriefing meeting with former mental health patients within 30 days of them leaving hospital, to review their experience of hospital treatment.In support of the amendment, Gregory Stafford (Conservative) said it “reflects a broader shift in mental health law towards transparency, accountability and the patient voice” and “recognises the importance of empowering individuals after detention, supporting their recovery, and learning from their lived experience to improve future services”.
However, the Stephen Kinnock described the amendment as “overkill” because “it simply puts too much burden on to a system that is already carrying out the tasks that the clause seeks to impose on the system, particularly through the CQC”.
Given that IMHAs currently have no role in relation to patients discharged from the powers of the MHA, he was also concerned that the amendment would be “a new burden”; he quoted one hospital manager reporting that “within their small trust alone, the clause would result in contacting and interviewing more than 1,000 individuals discharged from the act each year”.
The committee voted by 9 to 5 votes to remove the Lords amendment.
Extending the remit of the Human Rights Act
In the months leading up to the publication of the bill, the High Court handed down its judgment in Sammut v Next Steps Mental Healthcare Ltd [2024] EWHC 2265 (KB). This decision confirmed that private care providers being commissioned by local authorities and NHS to deliver services under section 117 of the Mental Health Act are not public authorities for the purposes of the Human Rights Act 1998.Members of the House of Lords, particularly Baroness Keeley (Labour), raised concerns about the ongoing gap in protection for those receiving care from the private sector.
In response, the government tabled an amendment to the bill at committee stage in the Commons adopting a similar approach as section 73 of the Care 2014. It establishes that registered private care providers are to be regarded as public authorities for the purposes of the Human Rights Act when providing care and treatment to informal NHS mental health hospital inpatients and under section 117 of the Mental Health Act (and its equivalent in Scotland). The amendment was agreed by the committee without a vote.
Strengthening advance choice documents
The bill places duties on health bodies to make information and help available in relation to advance choice documents (ACDs). These are written records of a person’s care and treatment preferences, made when they are well. Clinicians are then required to have regard to ACDs when providing medical treatment under the Mental Health Act.Due to concerns that the duties were too “weak”, the government introduced amendments during committee, to “strengthen and clarify” the ACD duties. As a result of the amendments, health commissioners will be required to:
- make arrangements to bring the availability of information and help on ACDs to the attention of the appropriate people;
- make arrangements to provide information and help on ACDs through discussion with a suitably qualified person; and
- have regard to the benefits of the person making an ACD within 12 months of their discharge.
Next steps and implementation
The bill will now return to the floor of the House of Commons for its report stage, where the amended bill will be debated and further amendments proposed. This will be followed (possibly immediately) by debate on the bill’s third reading. It is not yet clear when report stage and third reading will take place, but it is possible that they may not take place until after the summer recess in September/October.The bill will then be subject to a process known as ‘ping pong’, where the two Houses of Parliament try to resolve their disagreements about the final text after which it becomes law.
The government has set out an indicative plan for implementing the Bill. The first priority would be the code of practice (which would take a year) and the secondary legislation, which would provide further detail on aspects of the legislation.
There would be training of the existing workforce in 2026-27 and commencement of the “first major phase of reforms in 2027”. The government estimates it will take up to 10 years to fully implement the bill.
Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health and legal editor of Community Care Inform
