Mental Health Bill [ Lords ] (Sixth sitting)
I rise to speak to clause 41 and schedule 3, which introduce the independent mental health advocate system under the Mental Health Act 1983. I recognise the positive intentions behind the reforms. The proposals respond to long-standing concerns about access to advocacy for people receiving mental health treatment, especially for those who are not detained, but are nevertheless vulnerable, and may struggle to understand the challenges within their care. Currently, IMHA services are guaranteed only to a relatively narrow group—namely, patients detained under the Act, those under community treatment orders or guardianship, and certain patients undergoing serious medical treatments under sections 57 or 58A. As the explanatory notes make clear in paragraph 313, that excludes a substantial number of informal or voluntary patients, many of whom may be experiencing significant distress or coercion, even if they are technically not detained. The clause expands eligibility to a new category of English qualifying informal patients, bringing England more in line with a system already used in places such as Wales. This welcome and overdue development reflects the principle that the right to advocacy should be grounded not in a legal status alone, but in need and vulnerability. The introduction of the opt-out referral system for detained patients is also a step forward. Concerns have been raised that eligible patients never access IMHA, often because they are unaware, overwhelmed or too unwell for self-referral. Making the referral automatic is likely to increase the uptake and strengthen patient voices in critical decisions about care, treatment and discharge. Although the direction of travel is right, I want to raise several probing questions in areas of concern, particularly relating to implementation, scope and safe- guarding. On resource and workforce readiness, the Government are significantly expanding both the pool of eligible patients and the responsibility of advocacy providers. That is welcome, but it inevitably raises the question of capacity. Can the Minister confirm whether additional funding will be made available to local authorities, or is it up to the NHS and IMHA providers to ensure the expansion is deliverable? Are the new roles of the IMHAs explicitly addressed in the new workforce plan that he is introducing? What assessment has been done of the number of new IMHAs that will be required to meet the duties, particularly now we are using an opt-out model? Without the workforce and training in place, there is a risk that the rights introduced in the legislation will not be fully realised in practice. My second point is about capacity, consent and best-interest decisions. I would like to clarify a couple of points on schedule 3. It would appear, as drafted, that IMHA providers will be required to assess whether a patient has the capacity to decide whether to receive advocacy, and if not, whether it is in their best interests to do so. That gives providers a significant and quasi-clinical responsibility. Proposed new section 130B(2C) states: “Arrangements under section 130A must require a provider of advocacy services, on becoming aware of an English qualifying compulsory patient for whom they are responsible, to arrange for an independent mental health advocate to visit and interview the patient (if possible) with a view to determining”, first, “whether the patient has the capacity or is competent to take a decision about whether to receive help from an independent mental health advocate”; secondly, “if the patient does have that capacity or competence, whether the patient wishes to receive such help”; and thirdly, “if the patient does not have that capacity or competence, whether it is nonetheless in the patient’s best interests to receive such help (which, if so, is to be provided under the arrangements).” On the first point about whether the patient has the capacity or is competent to take a decision about receiving help from an IMHA, my understanding is as follows. The role of independent mental health advocates is to support people detained under the Mental Health Act, to understand their rights and to be involved in decisions about their care and treatment. IMHAs do not, I believe, have the legal authority to assess mental capacity. The assessment of mental capacity is typically carried out by a qualified healthcare professional such as a doctor, psychiatrist or specially trained nurse, following guidance under the Mental Capacity Act 2005. IMHAs are there to help patients understand the information about their treatment and their rights, and can support them in expressing their views, but they do not perform capacity assessments. So is this a change in professional scope? Is it an oversight? Is it an update? Or is it simply what is happening in practice, which now has legal backing?