First, I thank and congratulate the hon. Member for Croydon North (Mr Reed) on his tireless work getting this important Bill to Report, and I hope it makes further progress. It is an important reform that will significantly enhance the rights of patients in mental health settings and will be a force for justice. We have had numerous references to its inspiration, and I pay tribute to the dignified and determined way in which Olaseni Lewis’s family have pursued an important reform that will materially improve the treatment of patients.
The Government welcome the measures on monitoring and reducing the use of force in mental health settings. The Bill will provide clarity in several areas, including on recording and reporting, and is very much in the spirit that sunlight is the best disinfectant—that transparency is the most effective tool for ensuring
good treatment and performance. It will facilitate better and more consistent data collection, which in turn will give us better evidence by which to measure the success of the Bill and these reforms in minimising the use of force in mental health units. I take up enthusiastically the challenge from the right hon. Member for North Norfolk (Norman Lamb). We who believe strongly in these issues owe it to the public to campaign for the adoption of best practice and the minimisation of restraint. I will say more about his amendments later.
The Government have tabled amendments to clause 4 to remove an unintended consequence of amendments made in Committee, where we unwittingly inserted a loophole that might have enabled providers not to inform patients of their rights. We have made amendments to close that loophole, while still enabling an element of discretion in the system where advising patients might cause them further distress. I notice that my hon. Friends the Members for Shipley (Philip Davies) and for Christchurch (Sir Christopher Chope) tabled similar amendments. I hope they will support at least the action I have taken in response to those concerns.
The Government agree that it is important that patients have access to advocacy services, which are very much a part of the right to information on rights and something that the hon. Member for Croydon North and his stakeholders have repeatedly raised with me, but we do not want to put this provision in the Bill. That said, to reassure them about how we are treating the issue of advocacy, which we recognise is important, I remind the House that the independent review of the Mental Health Act 1983, which was set up to look at how its provisions were being used and how practice could be improved, will examine this issue. The interim report was published in May and the final recommendations will appear in the autumn. Following that, we will develop guidance through consultation. The report and recommendations will give us another opportunity to discuss this and ensure we are happy with the standards of advocacy in place. I hope the hon. Gentleman will understand why I cannot accept his representation.
I turn now to the hon. Gentleman’s amendments on the independent investigation of deaths and legal aid. I am grateful for the opportunity to address these points, which go to the heart of what he is trying to achieve in the Bill. The appalling, dehumanising experience suffered by Seni’s family during the investigation, which went on for an unacceptably long time, is really the test by which we should measure the effectiveness of the Bill.
Let me now explain why we would resist the amendment, describe the steps that we have taken to improve investigations of deaths in custody, and, hopefully, give the House some reassurance that the experience we are discussing today will not be repeated under the current regime. That is at the heart of the Bill: we want to ensure that what was experienced by Seni’s family is never repeated.
Clause 10 in its current form requires that when a patient dies or suffers a serious injury in a mental health unit, the responsible person must have regard to the relevant guidance relating to investigations of deaths or serious injuries, published by a list of organisations that are responsible for regulation: for example, NHS Improvement and the Care Quality Commission. That means that in the current NHS Improvement guidance, the NHS serious incident framework, which was last
revised in 2015, will be put on a statutory footing. The framework outlines the process for conducting investigations of deaths and other serious incidents in the NHS for the purpose of learning to prevent recurrence. It requires the treating clinician to report an unexpected death when natural causes are not suspected. All deaths of detained patients must be reported to the coroner, the CQC and the provider’s commissioner as serious incidents. That will ensure that all deaths in custody are automatically reported.
If the death occurred in a mental health in-patient or hospital setting, NHS providers are responsible for ensuring that there is an appropriate investigation into the death of a patient detained under the Mental Health Act, or where the Mental Capacity Act 2005 applies. The death of a voluntary in-patient will also be investigated by the coroner, and under the NHS serious incident framework, if it was violent or unnatural. These are not inquiries into how a person died, as that is a matter for coroners, and they are not conducted to hold any individual or organisation to account. Other processes exist for that purpose, including criminal or civil proceedings, disciplinary procedures, employment law, and systems of service and professional regulation. That is an important point, because overlapping interests will need to be managed. I hope that I can give the hon. Gentleman some comfort, and reassure him that we are tackling the real problem that the Bill is intended to tackle.
Independent investigations within the framework are commissioned and undertaken independently of those directly responsible. I know that throughout our discussions on the Bill, the issue of independence was extremely important to everyone with an interest. It will be normal for the provider to conduct its own internal investigation, but that investigation will be reviewed by the relevant commissioner, and it will be for the relevant commissioner to commission an independent investigation. Commissioners must satisfy themselves that the investigation is clearly independent, and that there is no potential for conflicts of interests and no previous relationships. It will be their responsibility to establish that.
We expect commissioners to ensure that the family is properly informed throughout an investigation, and that all agencies involved in an investigation are held to account for their roles. We expect them to take the lead in commissioning an inquiry, and to take a number of steps including listing all the agencies that have had a stake in the care of those involved with the incident, and ensuring that they are aware of the process and their responsibilities in relation to the inquiry. It is up to them to identify all legal issues that may be relevant to the independent investigation or court proceedings and obtain appropriate legal advice. It is for them to co-ordinate meetings and discussions between the investigation team, the trust representatives, the police representatives and other agencies with an interest that have agreed to participate, so that all are agreed as to what their responsibilities are. They are responsible for early discussion with the local coroner. Crucially, they are responsible for informing the patients, carers and families about how the process will work and how they can be involved.
It is extremely important that as part of the investigation process the families’ needs and wishes are properly respected and they feel some ownership and accountability and can hold the process to account if dissatisfied with how things are progressing—that is extremely important.
It will be for the commissioner as well to ensure they have access to the investigation team if they so wish. I also expect the commissioner to agree the timescale for the investigation together with timings and setting a date for the report. As much as I would like to be able to say that we will never have such a situation ever again, we can never say never, and if there were to be any delay the reasons must be clearly explained to the patients and families involved as part of keeping them fully informed and making sure they are fully supported.
The serious incident framework sets out clear guidance on who should be involved in the independent investigation team and that the healthcare commissioner is to identify a lead investigator who appoints the investigation team. The framework says the following, and I will quote directly again to underline the real independence of these investigations:
“In order to ensure independence and avoid any conflict of interest, no member of the independent investigation team can be in the employment of the provider or commissioner organisations under investigation, nor should they have had any clinical involvement with the individual(s) to whom the investigation relates.
Investigators must declare any connectivity that might, or might appear to, compromise the integrity of the investigation.”
I hope that is explicit and gives the hon. Member for Croydon North some comfort about what we are doing to establish that independence.
I should also mention that we have just completed a consultation on the serious incident framework, and independence of investigations was a key theme, so we will be continuing to review this to make sure we can guarantee that independence. We will be bringing forward our response to the consultation by the end of the year, so we have another opportunity to ensure that we are satisfied that what we have is fit for purpose.
Another complication in the case of Seni Lewis was the interaction with the police investigation. That is where there is still the possibility of delay, and again we need to do everything we can to ensure that families are supported in that context.